THR Web Features   /   May 1, 2015

Throwing Away the Key

Lisa Lorish

Rene and Jasmine Lima-Marin on their wedding day in June 2013 with their son Josiah, left, and Jasmine's son Justus. Courtesy the Lima-Marin Family via

When he was eighteen, Rene Lima-Marin and a friend robbed two Colorado video stores of around $11,500 in total, threatening the employees of both establishments with a gun. Both men were charged with two counts of first-degree burglary and three counts of aggravated robbery. Under pressure from years of rising gang violence in Denver, Colorado’s 18th Judicial Court answered the growing public outcry with tough, new sentencing protocols. Lima-Marin found himself labeled a chronic offender, likely to commit further crimes if he remained free. Offered seventy-five years if he pled guilty, he decided to risk going to trial, hoping that a lenient judge would find some or all of the evidence inadmissible. That didn’t happen, and Lima-Marin ended up paying what the National Association for Criminal Defense Lawyers call a “trial penalty”: a far greater sentence resulting from the efforts of prosecutors to make good on their threats to add extra charges if an individual goes to trial. Convicted, Lima-Marin was sentenced to ninety-eight years.

Rene and Jasmine Lima-Marin on their wedding day in June 2013 with their son Josiah, left, and Jasmine's son Justus. Courtesy the Lima-Marin Family via

What makes the case remarkable is what happened next. In what his attorney legitimately believed was the result of an appeal (but was in fact the product of clerical error), Lima-Marin came up for parole after serving only a decade of what was essentially a life sentence. Released, he immediately moved in with his former girlfriend and became stepfather to her son. He found and held jobs. The couple married, became regular church-goers, bought a home, and had a son together. Lima-Marin mentored at-risk youth and coached his stepson’s soccer team. He committed no new crimes and successfully completed his five years on parole.

Then, five years and eight months after he was released, Lima-Marin received a call notifying him that his release had been a mistake and that a judge had signed the order for his arrest. He was picked up the very same day and, after a quick hearing, was taken back to prison where he faced at least seventy-five more years before possible parole.

All students of criminal law learn that there are five different justifications for the punishment of those who commit crimes: retribution, deterrence, rehabilitation, restoration, and incapacitation. In federal criminal practice, these rationales are explicitly spelled out by statute. And yet with all of these considerations supposedly in play, the vast majority of criminal sentences in the United States are handled with two tools, sometimes combined: financial fines and incarceration (often followed by a period of supervised release or probation). Our bluntest tool—incarceration—takes account of retribution (punishing a societal wrong), incapacitation (keeping someone dangerous off the streets), and deterrence (providing a disincentive for committing this kind of criminal behavior). Financial penalties reflect the need for restoration (making a wrong right), at least in cases of fraud and theft, although for the vast majority of offenses that result in fines (driving offenses or other crimes against “society”), the imposition of a monetary payment appears to be more about retribution and deterrence than anything else. Moreover, when fines with quickly accruing interest go unpaid, incarceration often results.

But while fines and incarceration satisfy most justifications for punishment, it would be hard to argue they do anything for rehabilitation. Indeed, with many jails and prisons now offering prisoners little or no any access to educational opportunities (sometimes even basic GED classes), vocational training, or mental-health or addiction treatment, few would say that incarceration is serving any rehabilitative purpose.

Although not alone, philosopher Jonathan Jacobs makes a persuasive case that incarceration, far from rehabilitating, usually has a corrosive effect on the character of prisoners. He points to several contributing factors: a lack of autonomy, the (at least seeming) arbitrariness of disciplinary regulations and sanctions, the constant threat of violence, the lack of meaningful social interactions, and inadequate mental-health care. Additional post-incarceration hurdles faced by a convicted felon (lack of access to government benefits and loans; severely limited employment possibilities) only increase the likelihood that he or she will be driven back to crime.

The most recent Bureau of Justice statistics on recidivism provide rates for state prisoners released from incarceration in 2005, but the results are staggering nonetheless. Two-thirds of the state prisoners tracked in this study were re-arrested (not necessarily re-convicted) within three years of their release. That number jumped to three-quarters within five years of release.

The case of Lima-Marin should make us stop and ask why we punish, and what happens to those we punish. The system of parole (abolished federally and in many states) used to provide for indeterminate sentences with the possibility of earlier release depending on a defendant’s behavior and demonstrated rehabilitation. The movement to abolish parole in the 1990s coincided with the push to legislate mandatory minimum sentences, the aim of both being the elimination of discretion, and therefore discrepancies, among criminal sentences.

But uniform sentencing is both a blessing (arguably counteracting racial and other biases) and a curse (removing the ability of a judge or parole board to individually assess an offender). Perhaps more important, eliminating parole removes the political risk of a recently paroled offender’s committing a new and grisly crime and the public outcry in response. Ultimately, though, the demise of parole sends a deeply demoralizing message to the incarcerated: We don’t care what you do to try to rebuild your life while you are in prison. In a much publicized contrast to the American system, Norway caps criminal sentences at twenty-one years, extending them in five-year increments only if it is determined that an offender is not rehabilitated by the end of his or her initial term.

Lima-Marin beat the odds on rebuilding his life without committing another crime within five years after his release, and he did so after serving only about a one-tenth of his sentence. In addition to causing us to think about the sheer length of the sentence he received at age 18, might not his story suggest that rehabilitation needs a more prominent place in our thinking about the means and ends of punishment?