Lawyers have long used the well-told story to persuade jurors. There’s nothing like a heart-wrenching story to delude and manipulate the feelings of the unwary, and it’s our job to take advantage of every manipulative tool available to serve our client’s cause.
But that’s fine for individual cases, where the worst that can happen is one guilty man goes free. When it comes to making public policy, there’s a sad story to serve every purpose, but our policy choices should be based on detached facts, empiricism if available and legitimate, rather than the last tear-jerker story told. And that’s what made the New York Times article about 77-year-old Albert Flick so wrong.
Had Mr. Flick been imprisoned longer or remained on probation, the authorities might have been able to keep a closer eye on him. But Mr. Flick had served his sentence and had the right to live freely.
Flick was a bad dude. He was a bad dude when he was young, when he killed his wife 40 years ago. He was a bad dude when he stabbed his girlfriend with a fork in 2007. He didn’t get better with age.
Last July, he killed Ms. Dobbie in a nearly identical stabbing attack to the one on his wife. Prosecutors said that Mr. Flick was obsessed with Ms. Dobbie, 48, who was homeless and living in a shelter.
As Judge Kopf points out, this bad dude should have “aged out” of crime. After all, the First Step Act and many proposed reforms seek to recognize that crime is a young man’s game, and keeping old men in prison as they turn geriatric and fail is a pointless and expensive waste of money and life. But Flick didn’t age out. Flick got out and killed again. Flick is, as Judge Kopf calls him, the personification of evil.
Just as some tell stories of growth and rehabilitation, militating against the need for sentences of life plus cancer (Shon Hopwood comes readily to mind), to make the point that our ever-longer carceral approach is a huge waste, there is the story of a bad dude like Flick. It’s important to remember that there are bad dudes out there, and that impassioned pleas for the aged can’t ignore the fact that not all prisoners will grow, be rehabilitated and turn into angels of grace and mercy. There will be some Flicks in there, evil people who will leave prison and kill. Again.
But what makes Flick’s story newsworthy is the combination of his evil ways and his age. It’s because he was 77 that he stood out from other bad dudes. At 77, he’s not supposed to commit crimes, yet he did. He’s the exception. He’s the exception that proves the rule, that people empirically age out of crime.
And criminal careers do not last very long. Research by the criminologist Alfred Blumstein of Carnegie Mellon and colleagues has found that for the eight serious crimes closely tracked by the F.B.I. — murder, rape, robbery, aggravated assault, burglary, larceny-theft, arson and car theft — five to 10 years is the typical duration that adults commit these crimes, as measured by arrests.
Not everyone. Not always. But most people most of the time. Do we decide policy based on the outlier, the Albert Flicks of the world, or by the norm that most criminals age beyond their criminal career years and return to society never to commit crime again?
Reading Rachel Barkow’s Prisoners of Politics, she writes of “lumpy laws,” where we group together broad swathes of people within the same crime, but punish it based on the worst possible criminal committing that crime. We forget that not everyone who committed the crime is the bad dude, the “evil” that make the papers and whose offense outrages us such that we believe the evil must be stopped, no matter what.
It’s important that we remember, as Judge Kopf reminds us, that there are Albert Flicks in this world who aren’t going to ride unicorns on rainbows when released, even at age 77. It’s also important to remember that he’s the outlier, the worst dude, and not the norm. We don’t squander the lives of thousands because there will always be one Flick in the bunch, whose story will make us cry. Blackstone understood this. So should we. There will always be some truly evil old man, but he’s the exception, not the rule.