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When is Enough Punishment Enough?

For about ten years I have been involved in the case of Michael DiVicino, a California prisoner currently serving his time at the Nevada State Prison at Indian Springs as part of an Interstate Compact agreement. This transfer was granted after it was learned that both of his parents had cancer (which is still being treated). During this time I have come to know him well, after repeated personal contacts with him either in person or by letter. Also, I have been in repeated contact with his parents. His parents have asked that I write a letter in support of him. I am happy to do this.

I have been a professor in the Criminal Justice Department at UNLV for 37 years, and I have spent a considerable amount of time researching, writing, and teaching about the many issues revolving around crime and criminal justice. In my view the question in this case seems a rather simple one, namely: when is enough punishment enough? The discrepancies in criminal justice sentencing are legendary and do not need to be discussed here. However, some general comments are in order, if for no other reason than to place this case in a larger political and historical context.

It is well known that there is a crisis within the California prison system with its extremely high recidivism rate and increasing costs. The word “rehabilitation,” once at least the stated philosophy of the American prison system (with California leading the way), seems to have been displaced by “warehousing.” If any prisoner improves while in prison, he or she does so mostly on his or her own with little help from the prison system itself. There are, of course, some dedicated professionals working within the prison system, but they often have their hands tied by the demands of both high caseloads and the need for security concerns. The success of Michael DiVicino illustrates my point.

Here we have a man who has already served more than 20 years and has been successful in changing his life while in prison. He began a program called “Lifers for Change” while in Lancaster prison and has been involved in a program called “Structured Living” at the High Desert Prison in Indian Springs, Nevada.

He is no longer a threat to society. There are at least three reasons I can find that lend credence to my contention. The first one stems from mere demographics: People released from prison after the age of 40 have the lowest recidivism rate among all other age groups (criminologists call this “aging out of crime”). Secondly, he has a son and a supportive family. Studies dating back more than 50 years show conclusively that success on parole is increased tremendously if there is a supportive family, which is quite obvious in Michael’s case. The third reason is hardest to measure precisely, and this is the fact that Michael is not the same person who committed those crimes so many years ago (it must seem like in another life from his perspective). Let me briefly speak of these crimes.

The crimes that sent him to prison for an excessive amount of time include robbery, burglary and kidnapping. The “kidnapping” was not the typical one that most citizens would describe when asked to define this term (e.g., “kidnapping for ransom”). It stemmed from an attempted burglary that got out of hand. The victim was not seriously injured in the case. Michael refused to accept a deal for a lesser sentence because he did not want to turn state’s evidence against people he knew. He had become affiliated with what was considered a kind of “mob” or “gang” while in his early 20s. To become a “snitch” was not only in violation of an old informal “code” among the criminal world, but something that would have put his life in danger.

His sentence was excessive by any standard: 22 years, 8 months, plus a life without the possibility of parole and no less than three 7 to life terms (one “7 to life” sentence and the “life without parole” sentences were vacated recently through the efforts of his attorneys), all to run consecutively. (The norm in prison sentences is to run them concurrently.) If these sentences are not reduced he will probably die in prison. He has already served a longer period of time in prison than the average murderer (the Bureau of Justice Statistics reports that the average time served for murder was about 8 years ).

I should emphasize that I am not apologizing for Michael’s behavior at that time, or against the need for some kind of prison sentence.

His parents have exhausted several thousand dollars on attorney fees over the years to either change the original sentence, get California to transfer jurisdiction permanently to Nevada or get a commutation from the Governor’s office. Concerning the latter, his parents told me that former Governor Schwarzenegger had promised to issue a commutation for Michael on his last day in office. He did not and instead commuted the sentence of Esteban Nunez (who was convicted of manslaughter), among others. Michael and his family were severely disappointed.

In my view, Michael has been punished enough. To those who are reading this please sign a petition that has been circulating on his behalf, which can be seen here: http://www.petitionbuzz.com/petitions/free-Michael-divicino.

Keywords: parole, Randall Shelden

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