CHAPTER EIGHT

Split Verdict
The Non, Non, Nons and the "Worst of the Worst"

A people confident in its laws and institutions should not be

ashamed of mercy.
-JUSTICE ANTHONY KEr-JbJEOY

L
egislators and policy makers at all levels of government have been ex-
ploring ways to reduce their prison and jail populations by revising their
criminal codes, establishing new parole and probation policies, and pursu-
ing alternatives to incarceration. They have concentrated their efforts on how to
shorten the prison stays of nonviolent, nonserious, and nonsexual offenders (the
so-called non, non, nons) and how to keep them out of prison altogether. 1
This political strategy of drawing a firm distinction between the non, non, nons
on the one hand, and violent offenders, sex offenders, and criminal aliens on the
other has yielded some worthwhile penal reforms, especially in the area of drug
policy. But if the ultimate aim is to slash the prison and jail population, render the
criminal justice system more just, and dismantle the carceral state without jeopar-
. dizing public safety, this political strategy may be ultimately self-defeating.
Often the "good" and "bad" criminal offender-like the "good" and "bad" im-
migrant-hail from the same community, sometimes even from the same family.
,·-".> In some cases, the "good" and ''bad" offender may be the same person, once all the
·_:_:.( complexities of his or her run-ins with the law or with ~he immigration authori-
. ties are fully considered. Furthermore, as time elapses, people age out of crime.
Ramping up the penalties leveled against the "really bad guys" can end up exacling
severe and lasting punishments on entire communities without greatly enhancing
public safety. The same holds true in the case of deporting "criminal aliens" for
>,minor infractions or for more serious offenses committed long ago for which they
_~ad_ already been punished (as discussed in chapter 10).
\-: ·-I)rawing a firm line behveen the non, non, nons and other offenders has con-
'.~f~~_uted to the further demonization of people convicted of sex offenses or violent
fn~es in the public imagination and in policy debates. It has impeded the en-
j\~l_,nent of more comprehensive changes in sentencing policies and parole prac-
·:pcts, It reinforces the misleading view that offenders should be defined forever
,'·' ·"~
 Split Verdict I 167
166 ! Chapter Eigh1

f l ffense lhal initially sent them away. "Only a few de- The reality is that tougher sentences across the board for both serious crimes and
by the seriousness o tie o I , 1 t re of the criminal as separable from petty offenses initially fueled the prison buildup. But the contribution of violent
A ·ca,is saw t 1e essentrn na u f
cades ago, men < • ' • " he crime is the essence o offenders to the prison population now significantly dwarfs the contribution of
. . I ac L", explains
the cnmma · Anne-Mane Cusac. Nowt
drug offenders, as elaborated in chapter 6. Ending the war on drugs-one of the
the criminal."" . d I tt ched to condemning huge numbers of top priorities for many penal reformers-will not necessarily end mass incarcera-
1he United States remams eep y a ~ to deporting large numbers of nonciti- tion in the United States because drug offenders have not been the primary driver
offenders lo extremely long senlenc~s an ·ct ce that such measures have at best a of recent growth in the prison population.
. ·ns 50 despite mountmg ev1 en
zcns. 11us rema1 , . 1 . te and are socially and economically very Some opponents of the war on drugs have supported easing up on drug offend-
. . 1· acl an reducmg t 1e cnme ra )'£
numma imp 11 artive of life sentences, de facto I e sen- ers and other nonviolent offenders in order to get tough with the "really bad guys."
costly. TI1edc~:
tences, an
1
::s;;;eJi:;~o~~r~~~n~ls:~?nctions,
d
as discussed i~ this chapter. R:-
mutation rocesses so that even people w110 comm1 -
This obscures the reality that the United States, relatively spealdng, is already quite
punitive toward violent offenders, sex offenders, and property offenders and has
vitalizing the parole an com l p. ng sometimes lifelong-sentences been for a long time now. 6 Legislators and other public officials have been pursuing
d · us crimes and w 10 are serving 1o - .h h
te very seno 1 b')'t t d l1as not been a priority. Ne1t er as penal reform packages that reduce the penalties for drug offenses and some other
I t prove they are rem 11 a e . ll
get a c 1ance o _ 'bT f ole (LWOP) and making a nonviolent crimes while ratcheting up or leaving largely untouched the punish-
abolishing life in prison with~ut the.~oss~. 11cy~e1::ndful of successes in curtail- ments for other crimes. For example, Arizona's Proposition 200, which mandated
life sentences el~gible for par~ e co;s;t e;e~:·rs has mostly involved drug-related treatment or other alternatives to incarceration for certain drug offenders, has
ing the use of life sentences or a u o . t ndcd to expand long been hailed as a pioneering piece of penal reform legislation since voters ap-
offenses.3 Alt~ou~h several stat.es h:ve e1::~:eto;:~:i;a;~~~a::1; ill inmates, few proved it by wide margins nearly two decades ago. But in that same election, voters
the use of genatnc or compass1ona e re . . 4
. 11 b ·ng released under these new prov1s10ns. also endorsed Proposition 102, which required more juvenile offenders to be tried
peo~le arett~~ a~d etegal obstacles to seriously reconsidering the extensive u~e in adult courl and sentenced to adult prison if convicted.7
1c po I IC . 1 I n sentences in the United States rernam There are numerous other examples of these split policy verdicts. In 2010, South
of life sentences and other e~cess1ve y o f~he major obstacles as well as emerging Carolina legislators enacted several laudable sentencing reforms with broad bipar-
formidable. TI1is chapter ana ~zes some o fi examines how the war against tisan support. These included equalizing the penalties for possession of crack and
strategies to challe~ge ex~ess1v:;:tc~l~;s. ~or:s~roadly. As will be shown, this powder cocaine, authorizing greater use of alternatives to incarceration for people
the war on dri;:~~::;~[t~~~ :olitic~l op;ortunities lo challenge exces_sively lon.g convicted of nontrafficlcing drug offenses, and reducing the maximum penalty for
new war may . d f on dru crimes and more serious offenses. This burglary. However, South Carolina lawmakers also redefined twenty-two crimes
s~ntence~ for ~~~r):ect:~~;l:n :s;aul; on ~fe sentences waged primarily t~rough as violent ones that qualify for enhanced penalties, expanded the list of crimes
c~apter /e~
l e cour s IS
not likely to reduce the lifer population significantly. Next tt con~
. of the life-sentenced population, as measure
that are eligible for LWOP sentences, and further toughened up its habitual of-
fender statutes. 11 Legislators in Florida have balked at endorsing proposals lo deal
siders how .the v~st hct.erogenet~evelo in effective political and legal strategies
by offense, JR an 1mped1m~nt to. . f
th! "other death penalty," or what Jessica
to challenge the freq~ent i_mpos1t1on o "5 Th h ter concludes with a discus- .
more leniently with some drug offenders unless those measures are offset with
new laws that impose tougher sanctions for crimes against the elderly and chil-
dren.~ The 2012 report of a blue-ribbon commission on public safety in Oregon
Henr terms "death-m-pnson sentences. e c ap . ver coal
sion ~f the Jong shadow that capital punishment ~ontmues to ;asl o to \~hich recommended, among other things, rolling back some of the mandatory mini-

policy in general and l~f~ s~ntcnces in par~icular~:~i~~~s;e~ t~~~e ;;~~;eration of

mums for more serious crimes like robbery, assault, and sexual assault that voters
had originally approved in 1994. But legislators removed most of those proposed
the death penalty aboht1omst movement as co ts of life sen-
mandatory minimum reforms for more serious crimes from the sentencing bill
life sentences. It also identifies some) imp~rt~~t l~ss~~stl~;a:bo:iit~::i:t movement. enacted in July 2013, partly because of intense opposition from the state's district
tences should draw from the setbac cs an v1c ones
.ittorneys. rn
t. ·:i.c In August 2012, Governor Deval Patrick of Massachusetts signed what he
The War against the War on Drugs . i?.A.~cribed as "balanced" penal reform legislation. It included a harsh new three-
. fd policy as the ~lfikes law together with some modest reductions in drug-related penalties at
1he most notable penal reforms oflate have been mAltlheharea ontraut~ention on t:hf. ·.
d · d ground t e rece , .,·. · _,>~ffi11:1e when prisons in his state were operating at nearly 150 percent of capac-
war against the war on rugs 11as game 'b d .. tl . perception that the~: )~')'.-, Members of the state's Black and Latino Legislative Caucus opposed the bill.
missteps of the war on drugs has contn ute ~o ie m1~. ·n the United Stat_. '
on drugs has been the primary engine of mass mcarcerat1on I :-·
j:1t11s earlier, a state agency had released a master plan calling for $1.3 billion
168 C'hapter Eigt,t Split Verdict I 169

to $2.3 billion in new prison construction lo meet a major projected shortfall in len~~r~eys suggest that four out of five state inmates serving time for a "nonvio
prison beds.12 Manyop ens~ meet _at le~st one of the four criteria that define a "serious" offender i~1
Maverick district attorneys launched into office in major urban areas with the cop e servmg time for a nonviole t ·
convicted of a violent offense in ti
n d
n cnme I c.e rug possession have been
·
backing of broad penal reform coalitions have served as important beachheads to and a fifth of state . t fi 1e ~ast. Only about a quarter of federal inmates
engineer wider sta.lewide shifts in penal policy in recent yea.rs. These prosecutors ' mma es are 1rst-t1me offenders J9 F tl I
and law enforcement officials co t d l . d . ur 1ermore, some sc 10lars
have focused mostly on the shortcomings of the war on drugs. The plighl of people gates for mo,~e seriou . n en ~ mt rug charges are often levied as surro-
serving lengthy sentences for serious or violent crimes has not been pa.rt of their police and prosecute;; ~~:~nvtl~~t, :m:es. _This is due to ~he difficulties that the
reform agenda. oor inner-city ne·1ghbo h d ryh gl directly prosecute v10lent felonies in many
After many years of political agitation by the "Drop the Rock" campaign, the P r oo st an cs to "no ·t J • , ,,
of eyewitnesses, and other factors w I sm c ~m norms, the vulnerability
New York State legislature finally enacted a reform package in 2009 that eviscer- identifiable Jean Valjeans.ll · · n short, U.S. pnsons are not filled with easily
ated what remained of the draconian Rockefeller drug laws. At the same time,
lawmakers rejected an extremely modest recommendation from the New York Releasing low-level drug offenders or divert'
not dramatically reduce the state and fi d 1 i~g more of them from prison will
State Commission on Sentencing Reform to extend so-called merit time to a very 1 0
limited pool of people convicted of violent offenses. If enacted, it would have made Jo~athan Caulldns calculate that "una;b~;: 0 ~: 1~ ~~~l~~~;t~:~· : ~ S~vig~y and
these ipcarcerated individuals eligible to have a few months shaved off their sen- ~~:::sle~~han 6 p~rcent of state _inmates and less than 2 perc~nt :~ f:~:r:i°:~
tences. These were people who had served decades in the system, had stellar be-
havior records, and had other markers of rehabilitation, such as college degrees
earned while serving time. 13
;r~::~;~~~i~~!r~:;~: :;~;:r;:~fi:;:;~id~~~:~; ~~edi~:ai~o~:t: ~~~:;:;:i
d u 1· · h ·· oug most rug offenders are not
Federal officials have also sought a split policy verdict in penal reform. In 2011, r g ungpms, most ave had some involvement in drug distribution "[T]h .
Attorney General Eric Holder testified that he supported applying the 2010 Fair
Sentencing Act (which reduced but did not eliminate sentencing disparities be-
::~;:~~: :i~~~; ~~;;!';;;~t;~~~. ~:;o~l~: g;~a~::\ n:rnbers co~e fro;r;l~;
0

1
tween penalties for crack and powder cocaine) retroactively, but only for certain ana:~sis also suggests that drug decrirninalizatio~ for pos;e!si:~:~:~:;:~~ ~;:
nonviolent offenders. He urged the U.S. Sentencing Commission to exclude vio- ~ol ul ~ctua 11yd ,Increase the prison population. Public demand for drugs would
lent offenders (even though criminal histories and any gun possession had already cey11se,an
public demand.t1enumberofsupp[·
21 Iers wou ldrlIce Iy expand to meet thal growing
,
been factored into their original sentences under a separate part of the rederal
sentencing guidelines). 14 Holder's speech to the American Bar Association in Au- Just as all drug convictions may not necessaril ' be ,J h
closer inspeclion all "violent" ffi d · } "lat t ey first appear, on
gust 2013 was widely heralded as a major shift in federal sentencing policy. But Many of the peop, le sent to prisoone1~ er~ a.Ire not necessarily what they first seem.
his main policy pronouncement at the time was that a restricted subset of "low- ior VIO ent offenses are not ·1 · I
offenders years later. Nevertheless th . . . necessan y v10 en!
Jevel, non-violent" drug offenders would no longer be subject to federal manda- violent despite stellar . d e common percept1011 JS that they still arc
lory minimum sentences.15 through education voft~:l~n :on ucdt reclords, ample evidence of rehabilitation
< ' ermg, an ot 1er programs and l ·
firndings that people t d t f . ·, cone us1ve research
Not Jean Valjean . en o age out o · cnme.
a 2:~t:ess the uproar afte.r ~he North Carolina Supreme Court declined to review
Drawing a firm line between nonviolent drug offenders and serious, violent, or sex
offenders in policy debates reinforces the misleading view that there ai-e dear-cut, ~nder th~~~~~:.: ;t:~~~e~~~;~;;l~~a;;/~:, ~:~:~~::0;~ b~ ;nsidered eighty years
tmns announced its int . _ . mas epartment of Correc-
largely immutable, and readily identifiable categories of offenders who are best de-
fined by the offense that sent them to prison. But such fixed categories of offenders
are often an illusion. It is well established in the criminology literature that "the.·
1
Democratic governo Joo t;e
release thanks lo lhe "ent1~n. to ~~lease doz~n~ of lifers who were eligible for early
and ment trme credits they had accumulated.
.OlJf reports in the rd. ev~r y erd~.e st~pped in to stop the release amid numer-
current offense that one commits is a very poor predictor of the next offense." ~ ·Jhis brouhaha s media t at many rapists and murderers" were about to go free
Many offenders are highly versatile, which should make penal reformers cautious.; ,_·,th:.,.
:;. Sir families a purre d th a spate of news stones · t lmt Leatured
c
outraged victims and·
about staldng their proposals on "a typology of offenders presumed to reflect.di(·, ..
tinct behavior profiles;' explains Robert J. Sampson. Toe charge or offense lh~Y/
results in a specific decision to send someone to jail or prison "is often arbitrar~?
· --i
\f_a,Oes earlier In A
'd·. ·.
iple.11
·
n at
North
recounted
ugust -?QJO ' the
i .:.-'.:·_-_ ruled that these .
the g d .1 f
ruesome etai s o crimes committed de-
Caro rma Suprerne Court reversed course
mmates sentenced to life in the 1970s were not eligible for
and depends on issues of evidence:' 17 · • ,,,,.;,
170 1 Chapler Eight Split Verdict I l 71

hasUntil the early

the countr , 1970s
. ' e:en m · a h~rd-rme state such as Louisiana, which today
Run-On Sentences
years d . - y s h~ghest mcarceratlon rate, a life sentence typically meant ten
Opposition Lo the war on drugs has dominated discussions of penal reform, over- after s:;1rv,·nsixg mdont ds (the 1~/6 law). Lifers were routinely released in Louisiana
shadowing the plight of the "really bad guys" left behind in North Carolina and support The years a ecath eorso1ftheyh
t. a d goo d con duct records and the warden's
elsewhere."'1 The U.S. commitment to life sentences and other excessively long sen- · a mmates spent · L · · , · fa
were often brutal and dehum ·-. ~n ~msianas lil mous Angola state prison
tences rE!mains deep despite a consensus among many experts on sentencing and
crime that such sanctions do not enhance public safety considerably. Life sentences
most overnight thal situatio::1~::~edut t
number of years b r .
tY neaty always h~d an end date. Al-
, as awma cers first raised the minimum
have become so commonplace that approximately one out of every nine people mandated that all 1·r
e1ore a pnsoner could be ·a d c
canst ere 1 or c1emency and then
imprisoned in the United Stales is serving what some critics call "the other death 11e sentences meant LWOPJ4 I11 1970 I
serving LVVOP sentences ,·n L . . B · . • on Y 143 people were
penalty:' Nearly one-third of these life-senlenced offenders have been sentenced to about 4 600 1 omsiana · y JOP th
- -, a num er had mushroomed
t b
lo LWOP. 1l1e total life-sentenced population in the United States is approximately tween 199~ an;;~O~eathy 12 pebrcent of ~he state's entire prison population.JS Be-
25
160,000, or roughly tv,rice the size of the entire incarcerated population in Japan. , e num er of pnsoners serving LWOP
wide increased by 300 D . sentences nation-
Indeed, the United States locks up people for life at a rate of approximately 50 per system in sixteen state:=~~e~!~ fe~::o the elirninat~on of the discretionary parole
100,000, which is comparable to the incarceratioh rate for all prisoners, including jurisdictions are ineligible for release.~~ system, all life-sentenced inmates in these
pretrial detainees, in Sweden and other Scandinavian countries.2'; About 10,000 of
these lifers have been convicted of nonviolent offenses, mostly property and drug
crimes. 27 These figures on life sentences do not fully capture the large number of
people who will probably remain in prison until the end of their days. ~foey do not
~,::~::~:;:~e~i:~~;;;;::fi:i:;:;i~nea;~'.,~~i!/et~t:tn::i:::v:t~;;~;:;;~:p~'.'.;
which would be considered a ve~y~ tpnate.· dFor mst.ance, a sentence of ten years,
of ti
include the so-called virtual or de facto lifers-people who received sentences thal . . evere an exceptrnnal sanction in man Euro
exceed a natural life span and who are likely lo die in prison long before reaching pean countnes,
Us I IS considered a relatively modest run
. , - - 1e-m1·11 sanction
. y.m the-
their parole-eligibility or release dates.J~ .' ·. pen~ system, wluch is chock-full of lifers and de facto lifers who w1·JJ J1·1, I
As reentry has skyrocketed to the top of the penal reform agenda, as discussed d1e m pnson. ey
in chapter 4, lifers are facing the prospecl of a further deterioration in their condi- The extensrve use of LWOP and life sentences in the U .
tions of confinement. For all the recent talk about the need to invest more in reen· sharp contra~~ w1~h pr~clices in other developed democracie~'.\end !~a:~so~t;nds in
try, the amounl of money available for treatment, programs, and other services for :~r~~~go:;'~i;J~e m pZnlnSc1ple regarded as worthy of consideration for releas~~?;;~
all offenders is shocldngly limited and continuing to shrink, as discussed in earlier \. van Y m1t and Alessandro C d I d d "
dignity" requires this as a right Jn Most E or a. n .ee recognition of the1r
chapters. In an age of tightening budgets and a fixation on reentry, more lifers are and those that do use it . . 39 uropean countnes do not permit LWOP,
being denied access to programs and activities that might make their days without t . sparmgly. In many European countnes if a "lifer" d
end more bearable. In a 2012 national survey of juvenile lifers, 62 percent of them :~erc~::nue to pose a major threat to public safety, he or she is ~icall relea~:~
reported that they were not enrolled currently in any prison pr.ograms. Prison
29
to pre 11~g approximately twelve years. This is similar to the practice ~hat used
va1 m
restrictions and the absence of programs, not disinterest on their part, appear to have been i many . states
. , . m Lately Germany an d some other European countries
explain these low levels of participation. Denied educational and other programs, velopments7i;;~:fl~f~ ~entences m:e frequen~ly, but several recent judicial de~
Hrers are less able to demonstrate evidence of reform and rehabilitation to satisfy
the conditions for parole consideration that the Supreme Court laid down in the pean Court ofH
t1
a matter of mternatio:al ~~ope m~~ e t~~ brmk of outlawing life sentences as
man ng.1ts aw. In a much watched case, the Euro-
Gralrnm v. Florida and .Miller v. Alabama decisions discussed below. As one lifer in sentences handedumdan R1tghths ruled In a 16-to-1 decision in July 2013 that the life
California lamented, "TI1e thinldng goes that since we will never get out of prison degrading and i h own at reemenco nvic · ted Of murder .m Bntain
. constituted
30
there is no point in expending scarce resources on dead men walking:' ruled that this v701~:1~~ tre;tment because they had no hope of release. The Court
The explosion in the number oflifers in the United States since the 1970s repre-. Tua I t h ' le uropean Convention on Human Rights ii
sen ts 'a major shift in U.S. penal policy. For much of the past century, life in prison·
"never really meant life in prison" thanks to critical penal reforms enacted during/';:,
sentences pnson
n cs O t e escalationb in tl,le num ber O f peop Ie servmg life and ·other lengthy
~ 1999 and '7007 ti s are becommg maxi mum-secunty · nursmg. homes. Behveen
the Progressive era a century ago.JI These reforms were rooted in growing enthusi- <' b
ans increa~ed 1ebnum er of people aged 55 or older m state and federal pris-
asm for early release as halfway houses, work-release programs, and use of parole_-.:. increased by m y atlout three-quarters, and the number of those aged 45 to 54
proliferated. In 1913, a "life" sentence in the federal system was officially defined as_·;_· ore tha
there will be more 1an 4two-third s: HA 2011- AC LU report estimates that by 2030,
33
fifteen years.n Many states had comparable limits on "life" sentences. - n 00,000 pnsoners who are 55 or older, compared to about
 Split Verdict 173
172 I Chapter Eight
automatic appeals process available to .·. .
9,000 in 1981.+1 Prisons spend two to three times as much to incarcerate an elderly post-conviction offices and org . t' p~1soners on death row. Moreover, most
inmate compared wilh a younger one-or on average approximately $60,000 to ll1e Supreme Court has con:7sr;~an~~ns. ocus al~ost exclusively on capital cases.
45 impose whatever p . h I y given legislators an.cl judges wide berth to
$70,000 a year-due lo their greater medical needs. ' ums men ts t 1ey see fit- h t Of d I . . .
This practice is costly in many other respects. Elderly prisoners who need ad- judicial oversight A 1·c I s or eat 1-w1thout significant
· tie sentence ms becom a11 bl .
vanced medical care complain that Lhey are being transferred to special skilled for murder but also c r a w·d . f e accepta e pumshment not only
1'0 1 e vanety o other er' f h
nursing unils that are akin lo solitary confinement. Tn these units, they are denied as evidenced by the popula r·ty f I . . rmes, some o t em quite trivial,
r O c racoman vers10ns of th· t ·1 I .I .
visits from fellow inmates, many of whom are like surrogate family members after Lockyer v. Andrade ( ) th US S . ice-s n ces eg1s al10n. Jn
2003
sentences for a Cal'fi . , c .. up1cme Court affirmed two 25-years-to-lifc
the many years they have spent together in prison. They also are prohibited from
leaving the unil to attend programs and religious services and lo use the library. videotapes int~nde~ :;~~r~;n wh~se thir~ st~ike was the theft of$ J53 worth of
Some elderly and infirm inmates are refusing treatment or are not seeldng medical it sanctioned a 75-year.s-to 1·1.'emsas gt1fts for Im meces. In Ewingv. California (2003 ),
- • - 11 en ence unde C I'D 1 ·, I
attention so as to avoid facing the end of their days isolated and alone in one of theft of three golf clubs d . r . a ornrns t uee-strikes law for the
· In ren enng t11ese decisi ti S
that proportionality is a va\1'd co t't t' . I ons, le upreme C. ourt affirmed
these special units.
46 ' ns I u 10na principl b t ti ·
portionality limits.s1 e u 1en reJectcd strong pro-

No Judic'iol Promised Land Theand

fining Supreme t' p:~s1sle~t
C our::i
im osin · re\~ct~nc.e~or hostility-to meaningfully de-
1l1e U.S. public has been largely indifferent to the proliferation of life sentences contrast to it~ beh;vior fn !horetr10nahty lf1ml its m ~oncapital cases stands in sharp
areas o aw With respect t fi i fi ,
and of disproportionate and arbitrary punishments in the United States. Likewise, and punitive damages, it has proven itself willing and. bl o l~ne~, or e1tures,
the political process has failed to engage in a serious debate about these issues. excessiveness.s4 This observation u t ·h I a e to set 1m1ts and define
As a consequence, the courts appear to some observers to be the most promis- not the capability-to take up th: fg~s s/ at.t l~ Supreme ~ourt lacks the will-
devise a meaningful defi 'f f as co rev1ew111g noncaprtal sentences and to
ing arena to check excessive punishments such as life sentences. In the Gmhm11 Ca ·t 1 . _m mn o proportionality that limits excessive sentences
v. .Florida (2010) decision, the U.S. Supreme Court outlawed UVOP sentences for
juveniles convicted of crimes other than homicide. Two years later, in .Miller v. Ala- has s!g; t~~~;~:e;tr~~:~teo:er:i;~~riminal la1~ in ,~hich the Supreme Cou~t
1
bama (2012), a divided Court ruled that juveniles may never receive a mandatory The Court requires states to have clear p:~~:~;n:n cur e~cessr:~ punishments~
LWOP sentence. These nvo decisions bolstered faith that the courts would reduce sentence so that the death penalty is ~ . ~ for tl:e. 1mpos1t10n of a capital
tbe lifCr population. However, this faith in the judiciary's greater potential to lead has banned mandatory death se t no i;pose capnc10usly and arbitrarily. It
the way in curtailing extreme sentences in the United States may be unwarranted.
An excessive focus on judicial strategies may be coming al the cost of develop- ~\!
~tt~:'1:~::~~iJr1::,r:~:~~t l~nf/:1:i~~~t\f ~~:i~~~:~ ~:~;::ls~~;:~~~:;sp~:::
ing successful complementary political and legislative strategies to shrink the lifer thereby forbidding the executio: oef :eop~ms ~ent fit the crime in capital cases,
ing the use of the death penalty. r pl p e codnv1cted of rape and greatly restrict-
population. B . m ie any mur er cases.
The Supreme Court has a "highly unsalisfoctory and disappointing" record y contrast, hfe sentences are currently . d .
when it comes to defining and limiting disproportionate sentences.47 Generally, the death sentences were meted t . t impose m a manner similar to how
Supreme Court has been extremely supportive of life sentences. ln Sc/Jic/c v. Reed Supreme Court nationalized ~u ~~ 1 he p~~-Funnan and pre-Gregg eras before the
1
4 its new death-is-different d ta~1 a Thpu.111s.1~en~ and began to regulate it through
(1974}, it dismissed any notion that LWOP was unconstitutional. n In Harmelil11 •
oc nne. 1s s1mdanty has t d
1Wicllignn ( 1991 ), it ruled that LWOP sentences do not require the same "super due to argue that pushin the promp e some observers
19 may be the most fr ~tf I c urts to extend the death-is-different doctrine to lifers
O
process" procedures mandated in capital punishment cases." hmn decisio I . till u way to curtail use of this extreme sentence.% The Gm-
As a consequence of these decisions, LWOP has become a much cheaper and , n, w lJC l was a rare instance wh ti c . .
5
easier alternative penalty to seek compared with a death sentence. ° For example, a noncapiLal sentence and b df en ie ourt stepped Ill to regulate
has reinforced t\11· . fl orrow~ rom the death-is-different canon to do so
as the number of death sentences meted out in Texas has plummeted recently, s view - oweve. it. d bf 1 h I ,
the state's LWOP population has exploded to nearly 500 people since 2005,51when death penalty jurisprud. ·nl, . IS. ou I u t at egal strategies derived from
the United States. ence w1 s1grnficanlly stem the Ociw of life sentences in
Texas became the last of the death penalty states to enact LWOP statutes. Few
LWOP prisoners in Texas or elsewhere "have any reasonable chance of getting . The Supreme
nsprudence fromCourt
bl d'has bee
. n scrupu Ious about keeping. its death penalty ju-
their sentences overturned or reduced:'si Offenders sentenced to life have fewer ee mg mto other areas of criminal justice by repeating the
legal resources to challenge their sentences because they are not entitled to the
 Split Verdie! 175
174 \ Chopler Eight
tive to the death penalty r,7 Altl .
truism that death is different.57 Furthermore, both supporters and opponents of cidedly against LWOP a~d th 10~~11 mter;ational practice and opinion are de-
the death penalty agree that the Supreme Court's regulation of capital punish- international sentiment has bee wit :sprea use of other kinds of life sentences,
ment has not been a success. As Supreme Court Justice Harry Blaclunun declared in gauging evolving standards:; ~ecee;~ second-tier consideration for the Court
in 1994, eighteen years after he voted in favor of reinstating the death 58
penalty In Graham, the Supreme Court identified the "denial of l o " th
in the Gregg decision, "[T]he death penalty experiment has failed:' Today, the son to declare that these spec·fi JLWOP 1 pe as ano er rea-
death penalty is "overlaid by a web of rules and procedures that is more complex
than that of any other area of criminal law." 59 Yet opponents of the death penalty
complain that capital defendants still are regularly denied due process. They also
Court indicated that LWOP 1 c
acceptable because it "mean:e;te~cts :~r
sentences were unconstitutional. 1l1e
cert~in juvenile offenders may be un-
character improvement are im ema , o _1ope; tt means that good behavior and
complain that the death penalty continues to be imposed in a capricious, arbi- hold in store for the mind and m~t~;ra;; 1~ means. that whatever the future might
trary, and discriminatory fashion. 6u Meanwhile, supporters of capital punishment
lament the lengthy, often unending, legal appeals process in death penalty cases
that in their view denies victims' families the closure that a timely execution pur-
I the rest of his days"(in Howev sdpm. ol f[tl e convict], he will remain in prison for
. er, ema o 1ope does not app
to challenge life sentences m ore broa di Y L11ers
and coping strategies much as one w
·c
id
ear
t b f .
1 o ea fb
exhibit a w·d
. .
rurtful way
e range o ehaviors
portec!ly brings. - cally disabled at vari~us stages of th/ua· find amondg the terminally ill or chroni~
Ir iagnoses an illnesses r,9 A 1 l
Compared with the "virtually nonexistent" oversight of noncapital cases, the
61
death penalty review process may appear robust. However, the rules, principles,
I spent some time with lifers-especially lifers who hav b . . nyone w 10 ms
decade or more-cannot fail to be . d , e een mcarcerated for a
and precedents that have developed over more than four decades to govern capital appear to be. Many lifers dogged! l:~;tsse with ~ow hopeful a number of them
62
punishment are notoriously confusing and contradictory. Moreover, since the appear to many outsiders to be ble~k liv;:;;~~~~t;:n~h!rdl~~:s 1:;~pite what may
early 1980s, the Supreme Court and Congress have been weakening or disman- Research on the impact of prison on the eo l . a e prospects.
tling some of the legal protections erected for capital defendants in a push toward scant, partly due to the high barrier to ace p hp e s.ervmg le~~thy sentences is
"deregulating deatl1:' 03 stitutional Review Boards have co t t ~s ~ at p~1so~ adm1mstrators and In-
a dearth in ethno ra hi ns :uc e . ese arners have contributed to
Tt would be a mistake to view the Graham and _Miller decisions as major de-
partures from these general trends or to interpret them as signals that the judi-
ciary is the Promised Land in which to roll back life sentences in the United States.
1980s, most studi;, a~p;a;;~r:~ ~~:;~:~~~:s c~~i';;;'~{:~ .
mev1tably leads to a systematic p hysrca . 1' emotrnnal
.
:~:e-~::
g m
and mental
ag~·"' Until the
mcarceratron
deterioration "7t
ln Gralznm, as in lhe Atkins v. Virginia (2002) and Roper v. Sim111011s (2005) deci- rfi .
lv! ore recent research suggests ti t
sions (which banned the execution of mentally retarded and juvenile offenders, ficult circumstances of their con~~emany bl ersl ~op~ with t~e _extraordinarily dif-
personal efficacy b com Hin , ment y cu tivatmg opt1m1sm about their own
respectively), the Court emphasized that it was dealing with an extremely rare sen*
tencing practice.r,.i The Court singled out the rare use of this sentence as evidence
that these particular LWOP sentences were at odds with "evolving standards of
f
adhering to dail; rlutinetdefi~~;~~ccab~~ i~ciplinary rec?rds, and by strictly
other activities. These findings he! } at Ir wm~ of educat10nal, volunteer, and
decency," a key pillar ofils death penalty jurisprudence, and therefore were cruel, ing a more stable and livable t p elxp a~n w~y hfers tend to be leaders in creal-
. . a mosp 1ere m pnsons. 72
unusual, and unconstitutional. To gauge these evolving standards of decency, the 1llts discussion is not intended to de . . .
Court weighed not just haw many states had this sentence on the books but also cal distress that often comes with a l"fi ny or mm1,~111ze the se_ve_re psychologi-
how few actually imposed it. The Court also noted that international opinion and 'prison pain'" is emerging wit! ti I e ~~ten.ce, A new and d1slmctive kind of
practice were arrayed against LWOP sentences for juvenile offenders, as were sentences at the same time th:t 1; pt ' er~t'.on of very long-often lifelong-
some key professional associations. much more austere and ti h p ~a c~~d1tions for long-timers have become
Even though the Court borrowed from tl1e capital punishment canon to in* United States and other co!nt:~ re~tn~_t;d, 11; conditions of confinement in the
rest of the prison o ulatio nes or I er~ ten to be "far worse than those for the
validate LWOP for these particular juvenile offenders, the evolving standards of
decency approach does not appear to be a promising way lo mount a broader "7fJ
standards r; and mo.re hkely to fall below international human
i'.f~enltit, crisis"1s ·L·t any l ers ex~enence a wrenching "ldnd of existential and
legal challenge to LWOP or other life sentences. It is hard to make the case th.it
• I e sentences are hke a death in 1 . c:
the American public has become disenchanted with LWOP or life sentences more great mental and som t' h s ow motion 1or many prisoners,
generally for most adult offenders. Prior to the 1970s, LWOP was virtually nah, ·.. ·.···w,,,l.," of New Yo l' s· -s· e unes great p ysical distress.1i; As Lewis E Lawes
into,· . "fires mg mg prison in the 1920s and 1930s once said. "De ti,
existent. Today forty-nine states have some farm ofLWOP on the books, up frarri ns1gm cance whe d . • , a 1
sixteen in the mid-1990s. 55 During the past three decades, the U.S. incarceration/;.
60
in jail day after d n compare with life imprisonment. To spend each
rate has quadrupled, and the LWOP population has increased a hundredfold, _\; is ind;ed expiatio~~Jear after year, gazing at the bars and longing for free-
Public opinion polls indicate strong and growing support for LWOP as an

176 I Chapter Eight
Although Graham and Miller certainly provide important legal openings, they
are likely to be limited openings, partly because the ~ourt "seems}~ have le~ a no-
7
toriously opaque area of the law even less clear than 1t was before. In th~ w~ke of
the Graham and Miller decisions, juvenile lifers have not found much relief m the
courts or from state legislators. Many of the juveniles who have returned to court
for resentencing received staggering new sentences of fifty, sLxty-five, and even
79
ninety years, which amount to de facto life sentences. Ivla~y juve~iles have been
denied resentcncing hearings altogether as courts and legislators m some states
have resisted applying the 2012 Miller decision to previously sentenced juveniles.uo
The governor oflowa commuted all the mandatory life sentences of his state's ju-
venile .offenders but declared that they would be eligible for parole only after serv-
ing sLx:ty years. To the dismay of many penal reformers and juvenile advocates in
Pennsylvania, the state responded to the Miller decision by hastily enacting a new
law that preserves life without parole as a sentencing option for juveniles. Judges
in Pennsylvania now have the option of sentencing a juvenile offender to LWOP
or to a discretionary life sentence that requires the defendant to serve twenty to
thirty~five years before being considered for parole.Ht
In the two years following the J\ililler case, three states abolished JLWOP, joining
six others that had already eliminated this sanction.fl 2 In 2013, California enacted
lcgislalion to permit some offenders serving JLWOP to petition the courts for re-
sentencing after they have served fifteen years. All of these sentencing changes fall
short of the nonpartisan American Law Institute's recommendation that juvenile
1 are much less likely to return to prison due to the commission of a new serious
lifers should be eligible for parole consideration after they have served ten years."
In short, opponents ofLWOP and other extraordinarily long sentences should
be wary of malting some of the same missteps that death penalty abolitionists
made in the 1960s and 1970s. At the time, death penalty abolitionists focused in-
tently on judicial strategies and largely ignored the legislative and political arenas.
A preoccupation with judicial solutions forces an issue to be framed within the
constraints of prior legal texts, rules, and decisions. As a consequence, arguments
and evidence that may be compelling in the political arena fall to the wayside be~
cause the courts have been unreceptive to them. For example, given the Supreme
Court's persistent indifference or hostility to claims about racial discriminati~n
in the administration of criminal justice, it is not surprising thal legal strategies
4
to challenge life sentences do not stress the racial aspects of this punishment.B
However, the gross racial disparities in the administration of both capital punish-
5
ment and LWOP sentences a.re potentially compelling political issues.» Nearly half
6
of the lifers are African American, and one in six is Latino.n Lifers also are more
likely to be poor and to lack access to adequate legal representation.
Lengthy Sentences and Public Safety
Recent state-of-the-art research in criminology has largely substantiated Ita~iii~~;:(
hilosopher Cesare Beccaria's claim from the eighteenth century that the certam\;y:,.:,.-:
P · f · hment"' ~-
of p~mishment is a far greater deterrent to crime than the seventy o punis \:,
L
Split Verdict I 177
The most persuasive studies suggest that increases in the severity of punishment
have at best only a modest deterrent effect.u 7 Evidence is mounting that doing time
likely increases the recidivism rates of certain offenders, and that for some people,
the more time served, the greater the risk ofreoffending.~u Furthermore, all things
being equal, placement in a severe high-security penal facility is associated with
higher rates of reaffending compared with placement in a penal facility at a lower
level of security. 89 The evidence is compelling that longer sentences are not asso-
ciated with greater reductions in future offending. Furthermore, the evidence is
highly suggestive that prisons, "especially gratuitously painful ones;· may be crimi-
nogenic. Defendants sent to prison-especially low-level offenders-may be more
likely to reoffend than those who receive noncustodial sanctions. 90
The deterrent and incapacitative effects of lengthy sentences are modest for
several reasons. Since offenders tend to be present oriented, lengthening the sen-
tence for a certain offense from, say, fifteen years to a life sentence, is unlikely to
have a major effect on whether someone commits that crime or not. Furthermore,
the evidence that people age out of crime is compelling. Researchers have persis-
tently found that age is one of the most important predictors of criminality. Crimi-
nal activity tends to peak in late adolescence or early adulthood and then declines
as a person ages, a process that some have termed "criminal menopause." 91 Finally,
many lifers are first-time offenders convicted of homicide. The phrase "one, then
done" is commonly used to sum up their criminal proclivities.
Older offenders and Hrers released from prison after serving lengthy sentences
crime than are younger offenders who have served shorter sentences. Lifers re-
leased from prison were less than one-third as likely to be re-arrested compared
with other released prisoners, according to an analysis by The Sentencing Proj-
ect.n Of the 368 people convicted of murder who were granted parole in New
York between 1999 and 2003, only six, or less than 2 percent, were returned to
prison within three years for a new felony conviction, and none were reimpris-
oned for a violent offense, according to a 2011 study by the New York State Parole
Board. 93 Another recent study found that the t\vo-year return rate for men who
had served eight years or' more in New York State prisons was 20 percent. Nearly
three-quarters of them were sent back because of a technical parole violation, nol
the commission of a new crime. The recidivism rates for women who had served
~engthy sentences were even lower.9 ~ These findings are consistent with prior stud-
ies documenting the relatively low recidivism rates of people convicted of murder,
_ r_eople on death row, and people who have served lengthy sentences.95
-,_ :_·i The public perception is that the life-sentenced population is composed
'.: 151.rgely of people who are the "worst of the worst" and who would pose major
·,J?-r~ats to public safety if released. But the life-sentenced population in the
f}Jmted _States is extremely heterogeneous. It includes not only drug offenders but
).~-~:0 middle-aged serial !tillers, getaway drivers in convenience store robberies
'::;~?~e·awry, aging political radicals from the 1960s and 1970s, women who killed
,1-tPe1r · d-stn
.-i,t{ _- ._abusive par t ners, tIur .. 1cers servmg
. twenty-five years to hfe
. for tnvial
.

178 Chop1er Eight
infractions such as stealing two pieces of pizza, and men who, as teenagers de-
cades ago, killed their girlfriends in a fit of jealous rage. Ma~y of the ~eople serv-
ing life sentences today were the main perpetrators of a vrnlent cnme such as
homicide. However, a great many of them were sent away for life for far less seri-
ous infractions.
A central queslion facing any penal reform movement concerned ab?~t the
lifer issue is whether to concentrate on challenging the fundamental leg1ttmacy
of all life sentences that are not subject to a meaningful parole review process or
whether lo concentrate on a subset of lifers who appear less culpable and more
likely to garner public sympathy. In the 1980s and 1990s, the penal reform move- 95
ment al Louisiana's Angola prison splintered and floundered over this very issue.
Long-timers sentenced during the more permissive 10/6 regime were at odds with
97
more recent lifers sentenced under the tougher new statutes. Angola's Lifers As-
sociation excluded "practical lifers," even though "there is little difference beMeen
911
a man with a life sentence and one doing 299 years without parole:' Lifers who
were first-lime offenders tired of the all-or-nothing push for parole eligibilily for
99
all lifers and attempted to form their own organization.
The enormous heterogeneity of the life-sentenced population presents an enor-
mous political challenge. It renders extremely attractive political and legal argu-
ments based on going after "low-hanging fruit" by emphasizing degrees of cul-
pability and relative fairness. Such strategies could b~ costly over the long te:m.
They could sow divisions among lifers and among their advocates on the outside.
Moreover, they threaten to undermine more universalistic arguments about re-
demption, rehabilitation, mercy, and aging out of crime that would encompass a
broader swath of the life-sentenced population and of people serving other lengthy
sentences. More narrowly tailored arguments may win the release of individual lif-
ers or certain categories oflifers but may worsen the odds of the other lifers left
behind. Four categories of lifers sharply illustrate this point: offenders convicted
of felony murder, juveniles sentenced to LWOP, people sent away for life for ~rivial
offenses under California's three-strikes law (which is among the toughest m the
country), and finally, the "worst of the worst," who have been convicted of particu-
larly brutal, offensive, or noteworthy crimes.
Felony Murder
1lie United States is exceptional not only for its extensive use of life sentences but
also for the persistence of the felony murder rule, which other common-l~w coun-
tries have largely abolished. The felony murder doctrine generally permits chargw
ing someone with first-degree homicide, instead of the lesser charge of inv~l~ntary
manslaughter, ifhe or she caused an unintended death during the comm1s~10n of
a felony. Accomplices also may be charged with first-degree murder even if they
are not directly responsible for the homicide. Nearly all states have retained some
kind of felony murder rule, even though the American Law Instilute's Model Penal
Spilt Verdict 179
Code recommended abolishing it. 10°Felony murder statutes vary enormously be-
tween ~t~tes. They differ over key factors such as how broadly to define culpability,
cornphc1ty, and qualifying felonies. w1 In the most expansively drawn felony mur-
der statutes, an accomplice may be considered as culpable as the triggerman for
any n_i~rder committed during the commission of any other felony. Moreover, the
d~fimtrnn of accomplice can be quite capacious. In some states, lending a car to a
fnend who ends up using it to commit a murder could be cause to send a person
away for life. 102
. Political and legal strategies highlighting the lesser culpability of people con-
victed of felony murder and the gross disproportionality of their sentences some-
times .result in pitting one group of lifers and their advocates against another.
One h~er appears ':1ore deserving of release by highlighting how Jess deserving
other lifers are. Tl1JS approach may win the eventual release of an offender who
had only minimal involvement in a particular crime. But this victory may come
at th,~ cost of bolstering the view that the main perpetrators-or the "really bad
guys -got ·what they deserved and should be forever defined by the crime they
committed.
Juvenile Lifers
The plight of juveniles sentenced to LWOP is another good case in point. At the
time of the Miller ruling, approximately 2,500 people were serving LWOP sen-
tences for offenses committed when they were juveniles. This sentencing practice
violates the 1989 United Nations Convention on the Rights of the Child and other
international human rights agreements and norms.Hu Many youths sentenced to
LWOP are incarcerated in adult facilities while they are still juveniles. Despite
effor~s.to segr~gate juveniles from the adult population, often in supermax-type
cond1t10ns until they turn eighteen, many of them are still subject to physical and
other abuses, including rape, by staff members and older inmates. 1o.i
As discussed previously, the Roper, Graham, and fv[iller decisions have been
major catalysts for the reconsideration of JLWOP sentences. Even before the Gra-
ham and Miller decisions, some states were beginning to rethink their JLWOP
statutes. ms In 2006, Colorado banned JLWOP, and Texas followed suit three years
later. 106
Graham and Jvliller rested partly on new research in brain science and psychol-
ogy about adolescent brain development. The evidence is compelling that the pre-
fro~tal cortex of the brain, which regulates impulse control, is not fully developed
until pe~ple are in their twenties. As a consequence, teenagers have greater trouble
controllmg their impulses and resisting peer pressure, as nearly any parent of a
t.e~n knows. Opponents of executing juveniles and of condemning them to life in
prison argue that children and teenagers should not be considered fully culpable
for the crimes they commit, however heinous or violent, because their brains are
. not fully developed.
180 I Chapter Eight
Polilical and legal strategies rooted in arguments about the underdevelop-
ment of teenage brains have proven to be an extremely promising avenue to abol-
ish or at least limit the use ofJLWOP sentences. 1l1ese strategies could be costly
over the Jong term for those offenders who were sent away for life for crimes they
committed as adults, and thus when they presumably had fully developed brains.
Stressing that teenagers are not fully culpable reinforces in a backhanded way the
idea that adults ·who commit serious crimes should have known better and there-
fore are fully culpable. 'n1e brain-scan approach to criminal justice also. sup~orts
narrow, biologically deterministic arguments about why people commit en mes.
Such arguments are enjoying a renaissance in criminology and in public debates
about crime and punishment to a degree not seen since the heyday of the eugen-
ics movement a century ago. Crass use of brain science research reinforces the
popular view that people who commit serious crimes are biologically incapable of
fundamentally changing.
The relative culpability of juveniles convicted of felony murder was a central
issue in debates about JLWOP in Pennsylvania in the aftermath of the Gral,mn and
.Miller decisions. Pennsylvania has approximately 500 juvenile lifers, or one-fifth
of the country's total and more than any other jurisdiction in the world. rnr Until
the state modified its homicide statutes in response to the fdiller decision, manda-
tory life was the only sentence available lo youths con~icted .of fir~t- or second-
degree murder. There is no minimum age for prosecutmg a JUvemle as an adult
in Pennsylvania. For many years now, Pennsylvania's governors have been per-
sistently unwilling to commute the sentences of juvenile lifers who have served
decades behind bars. This has been so even in cases in which members of the
10
homicide victim's family have called for mercy and release. "
JLWOP opponents in Pennsylvania have focused extensively on the adolescent
brain development argument. 10~ At one legislative hearing on JLWOP reform,
Anita Col6n (,vhose brother is serving a life sentence in Pennsylvania for a felony
murdei' conviction when he was sixteen) underscored that almost 60 percent of
Pennsylvania's juvenile lifers were first-time offenders who had never been con-
victed of a previous crime. She also noted that approximately one-t!1ird of them
had been convicted of felony murder, which is slightly above the natrnnal average
of approximately 25 percent. 110 In their testimony, Col6n and oth~r oppone~ts of
JLWOP stressed that rehabilitation and treatment have a greater impact on JUVe-
nilcs than they do on adults, and therefore that juveniles are not beyond r~dem~-
t.ion. Legislators at the hearing focused much of their attention on the relative ~a1r-
ness of felony murder for juvenile lifers rather than on additional arguments raise.cl
by Colt'ln and others about redemption, aging out of crime, and the huge economic
cost of incarcerating so many youths until the end of their days.
In defending JLWOP, the Pennsylvania District Attorneys Association (PO~A)
commended the legislature's recent efforts to reduce the state's prison populatmn
by focusing on diversionary and other programs directed at people convicted of
nonviolent offenses. "That is the cohort group our collective attention should be
focused on-not on letting murderers out early," t·I1e association
. . cl ec,Jared ·111 The
SplltVerdlct 1 181
~DAA framed proposals to abolish this sanction as violations of the rights of vic-
ll·m.~ an,d of Pennsylvania's commitment to truth in sentencing. Representatives of
v1ctuns organizations and other defenders of JLWOP echoed this view and de-
voted much of their testimony to recounting gruesome details of crimes commit-
ted by juvenile lifers. m
The debates over JL\NOP in Pennsylvania and elsewhere illustrate one of the
ma~? ways that. the death penalty continues to cast a long shadow over the broader
poht1c s o.f punishment an~ p:nal reform. As Roper v. Simmons wound its way
1
through th~ courts, orgamzatmns representing the victims of juvenile offenders
gene~ally ~1d not mobilize in support of executing juvenile offenders. Assurances
~hat JUvende~ who were spared the death penalty would spend all their remain-
1~g days ~el~m~ bars were an important reason for their quiescence. Representa-
tives. of .v,ct1~s ~rgani~a~ions have portrayed ending JLWOP retroactively and
rnalang JUVe.rn~e liters e!1g1ble for parole consideration as a betrayal. They contend
that many v1ct1rns families had agreed not to push for the death penalty because
of assura~ces fro.n.1 prosecutors that the perpetrator would be Jocked up for life,
thus sparmg fam1hes the seemingly endless appeals process of capital punishment
cases. rn
Striking Out in the Golden State
Calif~rnia operates the country's second largest state prison system and has
the highest number of life-sentenced prisoners-approximately 40,000, or one-
quarter of the nation's total. This number is almost four times as many as in 1992,
~hortly bef?re the ~late e~acte.d its infamous three-strikes law. Approximately one
m three pr~soners. m Cahforma, or about three times the national average, is cur-
r:ntly servmg a h~e senten~e. rn California's life-sentenced population is excep-
t10nnl not ~nly for its sheer size but also for its extreme heterogeneity as measured
by sentencmg .offen.s~. The st~te's three-strikes law, which has become a towering
symbol of Cahformas commitment to crime victims and of its uncompromising
sta~ce ~award offenders, has posed a huge hurdle to devising effective political and
leg1slat1ve strategies to dismantle the "other death penalty" in the Golden State.
In 1994, California enacted what became the nation's most severe three-strikes
l~w.. For defendants with two or more prior serious or violent strikes, a third con-
. viction for any felony entailed a minimum sentence of twentywfive years to life if
a prosecutor chose to invoke the three-strikes statute. Unlike three-strikes laws in
many at.her states and lhe federal system, the third strike need not be for a seri-
ous 0 ~ v.iolent offense in California. Moreover, the Golden State has an extremely
permissive definition o f wha t constitutes
· , I
Iceway to upgrad a 1e ony, and prosecutors have enormous
. . · d r .
e mis emeanors to 1elomes. As a consequence, the state's prison
1
°
Pop~ at 1 11 rncludes n_rnny people convicted under the three-strikes law who are
5ervrng 1engthy s t r . . . .
~. en ences 1or tnv1al 111fract1ons such as petty theft, minor drug
possession or mino d I I
.W-IJ' ' . r rug sa es. none of Lhe most infamous cases, Jerry Dewayne
1
Janis received a 15 1·c
' - -years-to- 11e senlencc for snatching a slice of pizza from a
l B2 I Chapter Eight Spli! Verdict 183

group of chil<lren. 115 In another infamous case, a defendant was sentenced to life controversy? Following the defeat of Pro ,.
11 dents centered at St·1ncord L S I I pos1trnn 66, several lawyers and law stu-
for stealing a dollar in change from the coin box of a parked car. " , 11 aw c 100 turn d t O I
some lhird·stril·crs The" . c l lc courts to win the release of
An important but less widely known part of California's three-strikes law is its ' . Ir pnmary weapon was 1998 1· b ·h .
second-strike provision. This measure doubles the minimum sentence for any- Supreme Court. Tt permits trial ·ud . a. . ru mg y t e California
mitigating factors such as a d , J d get~ I~bthlree-stnkes cases lo weigh whether
one convicted of a second felony who has one prior serious or violent felony. The , e1en an s ac cground h t d "
place him or her outs·ide the"spm . ·t" f h c arac
overwhelming majority of people serving time under California's three-strikes law o t ree stril· 126 •Th 5 er , an prospects,
Project has litigated other aspects of tl h ~es. : tan1ord Three Strikes
were actually charged under the second-strike provision. More than 32,000 in-
courts. i21 It has concenlrnted its le al :~;rtee-stnl.cc~ law m both state and federal
mates-or approximately 20 percent of the state's prison population-are second-
third-strikers "who haven't done tegrrible th: on gammg th~ release of sympathetic
strikers, and approximately 9,000 are third-strikers. m according to defense attorney Mid I R ngs, who haven tactually hurt anyone;'
The proportion of California prisoners who were sentenced under the state's dinic.1w iae omano, who helped found the Stanford
three-strikes law has increased substantially. Between 1994 and 2001, it rose from
approximately 2.5 percent to about 25 percent, where it has stabilized. irn The readi- In 2011-12, the Stanford Tiuee Strikes p .
other high-profile political effort to amend ro/~ct e.~erged as t!1e nucleus of an-
ness of California's district attorneys to invoke their three-strikes prerogative has
varied enormously around the state and even between seemingly similar cases tion 36, which California voters ap roved ~a~ :;mas thrc:-s.tnkes law. Proposi-
was much more narrowly drawn th;n p Y. . tde rnargm m November 2012,
in a single counly. 11 g African American men, who constitute around 3 percent
tract the support or buy the sile f 1 ropos1t10n 66. Its advocates sought to at-
of the i;;tate's population, represent approximately 33 percent of second-strikers
who had opposed the earlier in~tcet·o ,tey ~embers of the political establishment
and 44· percent of third-strikers among California's prison inmatesP0 Offenders . rn 1ve o re1orm the three strike ] ,,, Th .
sentenced under the state's three-strikes law receive sentences that are, on aver- tnct attorneys of the stateS three lar t T . 1 . - . s aw. - e d1s-
ofLos Angeles, came out in favor of~~s ~I l~es, me udmg Republican Steve Cooley
age, nine years longer than they would have received otherwise. 121 A 2009 report
iffs' Association publicly opposed p e a. ~t measure. The California State Sher-
by the slate's auditor estimated that the 43,500 inmates then serving time under roposit10n 36 as did th c r£i . . .
California's three-strikes law will cost lhe state approximately $19 billion in ad- Attorneys Association and almost all of the state's, th d" : . al orma D1stnct
cratic governor Jerry Brown and the co t' I o er , 1str.1ct attorneys. Demo·
ditional costs. 121 More than half of the people imprisoned under the three-strikes rrec 10na officers uni fi
law were convicted of a felony that is not considered violent or serious, at an ad- of Proposition 66 in 2004 remained I I .1 on, erce opponents
']· 't d , arge y st ent on Proposition 36
ditional cost of $7 .5 billion. in A significant number of them are not necessarily LI \e 1 s pre ecessor, Proposif 36 ll . . ·
a third strike to offenses that to~ I ca ed f~r restr'.cting felonies that trigger
habitual offenders. 12-1 Rather, prosecutors chose to invoke the three-strikes Jaw in are v10 ent or senous cnm s U J°k .
instances of multiple offenses committed on a single day in a single incident. For sor, however, Proposition 36 als O . I d d . e · n I e its predeces-
me u e some relatively m· ffi
example, an armed robbery committed by a first-time offender could, through cre- bl. Y. b urglarics of unoccupied ho . h
mes, m t at category In ndd·t·
mar o enses, nota-
d
ative proscculorial accounting, be considered three strikes that warrant a sentence s1t10n 36, someone who had . I b · • I ton, un er Propo-
prevmus y een convicted f . .
as rape, murder: or cl11'ld m I t t' d o a senous cnme such
of twenty-five years to life. ' o cs a ion an then s b I
any listed felony includ1'ng t .. I . f . u sequent y was convicted of
In 2004, Proposition 66, a major attempt to reform the state's three-strikes law, ' a nvia m ract1on such as sh {'f:.· Id
was resoundingly defeated afler the political establishment in California, includ- a 25-yeari;;-to-life sentence F th· d ·1 , op 11tmg, cou receive
o!Tenses, Proposition 36 w~u~; J~ .-str~ cers previously convicted of less serious
ing Governor Arnold Schwarzenegger and former governor Jerry Brown, rallied penalty to a third offense tl1at res n.ct t e U5e of the 25-years-to-life third-strike
against the measure in the final days before the election. They joined a well-funded . \Vas senous or violent d · I
tlmd-strikcrs would now fac . an not s1mp Ya felony. These
campaign against Proposition 66 spearheaded by conservntive victims' groups al-
Notably, Proposition 36 did ~oat ~?tublmg of_P~nallies, rather than a life sentence.
lied with the California Correctional Peace Officers Association (CCPOA), argu- doubles the sentence I th ii , er the ex1stmg second-strike provision, \Vhich
ably the most powerful union in the state and unquestionably the country's sawi- offense is no~ ser1·ous oen~ I or i!any second-strike offenders, even if the second
csl correclional officers' union. The well-funded eleventh-hour blitz of television In . rv10 ent. ·
and radio commercials exploited negative racial stereotypes and fearsome images. promotmg Proposition 36 su t fi d
';. not done "terrible" ti . Th , ppor ers ocuse on the third-strikers who had
of reviled criminals to defeat the measure. 115 ,
·(language that oppon:~~gs.f P ey al~~ employed some of the negative, demonizing
1l1e defeat of Proposition 66 raised broader questions about how best to chaE>;:
IUt~ly sure that these (h:r~-c~o~os1:10~ 66 had used in 2004. "We're malting abso-
lenge mass imprisonment in the United States. Should penal reformers concentrate_ ·'fi?t;lJl, no matter what th' d t rle clnmmals get no benefit whatsoever from the re-
on high-profile campaigns that may be defeated but may help to build a successful .. ;'·., tr sncet1eyco ·1,"· I d
}Jl.?Jl for the Propos1't1' 36 . mm1 imp ore Dan Newman, a spokes-
political movement to challenge the carceral state over the long run? Or sho.uld{ . -- .h..,. on campmgn m F d" .
'!0-:-8 have committed th . . . ee mg mto popular beliefs that people
they concentrate on below-the-radar efforts that attract less public attention a~f· {\i'. e most senous cnmes are irredeemable, they stressed how
184 I Chapter Eight
"[n]o rapists, murders [sic], or child molesters will b:~efit fro~ Prop. 36:'m Ad-
vocates of Proposition 36 also made the strategic dec1srnn to distance themselv~s
from a more controversial criminal justice measure that also was on the ballot m
November 2012-Proposition 34, which would have abolished the death penalty
in California and which was ultimately rejected by voters. m
The Proposition 36 victory was symbolically important. It ~v~~ o~ly the second
time in a century that California voters had backed a baBot m1tiat1ve that ratch-
eted sentences down, compared with the nearly forty times they had endorsed
tougher measures at the polls. 13 ·1• For all the talk ~bout_ Proposition 3.6 herald-
ing a new direction in penal policy, the measure 1s unlikely to result m the re-
lease of many lifers and other long-timers because it was so narrowly drawn.
Califorpia's Legislative Analyst's Office projected that approximately 2,000 ?eople
would probably be released thanks to Proposition 36. Other experts estimated
that the number might be as few as several hundred-not even l percent of the
state prison population. This would leave the vast majority of third-strikers and
second-strikers serving long-and in many cases lifelong-sentences.rn As Los
Angeles District Attorney Cooley commented, Proposition .36 is "a very m.odest
reform of a very good tool" that will protect the three-stnkes law from future
6
court challenges and more comprehensive reforms such as Proposition 66.'3
The "Worst of the Worst"
What to do about "the worst of the worst" lurks in the background of any dis-
cussion of life sentences. For many years, arguments about the "worst of the
·worst" dominated all discussions of capital punishment. Likewise, simply reciting
the names Charles Manson, Jeffrey Dahmer, Ted Bundy, and Hannibal Lecter is
enough to abort any serious discussion about developing political and legislative
strategies to challenge the fundamental legitimacy of all LWOP sentences and of
all life sentences that are not subject to meaningful parole reviews.
Arguments about the worst of the worst arise in many discussions of penal
rerorm, even though the Teel Bundys, Charles Mansons, and Jeffrey Dahm:rs are
exceptional cases. Most people sentenced to life or the death penalty are not ~on-
strous others" who pose infinite threats to public safety that only can be contamed
by executing them or warehousing them until the en~ of their. days. m Ho~icide
is a very serious crime "typically performed by relatively ordmary people who
are caught up in "deviant and criminal group dynamics" or in "hostile and ~tress-
ful, even threatening," relationships. 138 As Catherine A. Appleton concludes m he: ,
study of lifers in Britain, "even those who have committed some ~f the graves
crimes are capable of, and do, change." 139 A significant minority ofhfers have no~
even been convicted of murder, as elaborated earlier. . .• .·..
In discussions of the worst of the worst, the three key issues are retnb.uttonll :\
risk and political reality. Some people mistakenly interpret calls to ~bohsh a. ·. /
LWOP' sentences and to entitle all pnsoners
. to a paraIe e1·1g1·b·J·ty
It
hear·mg after a·'
·_::_,:·
'd f
certain number of years as an assault on thewh oIe 1 ea o re n u 10 n• For decades
t 'b f · · \.:
,-\,
Split Verdict 185
retribution has been a guiding principle, if not the preeminent philosophy, of the
criminal justice system in the United States.
The retribution issue is familiar from debates over capital punishment. As
demonstrated most starkly with the death penalty, what constitutes an accept-
able punishment is culturally, politically, and socially constructed and thus varies
enormously over time. Centuries ago, mCre execution was not enough to express
society's reprobation. The condemned often were publicly tortured and mutilated.
Then their bodies were dissected for good measure and left on public display.
By contrast, the maximum sentence available today to the International Crimi-
nal Court, which tries the gravest of crimes, including war crimes, genocide, and
crimes against humanity, is a life sentence reviewable every twenty~five years.t4o
Under California law, Charles Manson has been receiving a parole eligibility hear-
ing every two years for decades, as has Sirhan Sirhan, who assassinated Senator
Robert F. Kennedy of New York when he was running for president in 1968: TI1eir
parole hearings are hardly a sign that California, whose prison population has
increased by more than 800 percent since Manson and Sirhan were sent away, has
somehow forsaken retribution. As Dan Markel argues, retributive justice, properly
understood, "hinges on modesty and dignity in modes of punishment" and is at
odds with "the apparently ineluctable slide towards ever~harsher punishments in
the name of justice." 141
Unlike in the United States, several European countries make explicit the rel-
ative weights of retribution and risk in meting out life sentences. England and
Wales, for example, have adopted a two-part process in which the court sets a
minimum term for the purposes of deterrence and retribution. "However, once
that period has been served, the release of the offender must be considered by a
judicial body that meets the requirements of due process similar to those of a full
trial but considers only the danger that the offender may still present to the public,"
as Catherine Appleton and Bent Gr0ver explain. H:i
In Germany, all life-sentenced prisoners are constitutionally entitled to be con-
sidered for release after fifteen years. If someone does not still pose a major threat
to public safety and was not convicted of crimes involving "exceptional gravity
of guilt," he or she is usually set free after serving fifteen years. Crimes involving
"exceptional gravity of guilt" include multiple homicides and instances of particu-
larly cruel, brutal, reckless, or antisocial acts. "In practice, most prisoners whose
guilt is so exceptionally grave will serve 18 or 20 years," according to Frieder Di.in-
kel and Ineke Pruin. 143 As of 2007, approximately 2,000 people in Germany were
serving life sentences-around the same number as in the state of Mississippi,
total population is barely 4 percent of Germany's population. 144
A movement to abolish life imprisonment has been active for some time in
: _ It has focused on the need for limits on the legitimate power of the state
, t~ ,- . One of its central contentions is that life sentences violate a key provi-
-_.5_1on of the German Constitution, which declares, "Human dignity is inviolable. To
~espect and protect it is the duty of all state authority."H 5
and public opinion research indicate tl1at when people are asked about
l 86 I Chapter Eight SplltVerdict ! 187

~ ::~~~ ~l~-=--=----------
what lhey think are appropriate sentences, they tend to think of the worst cases
146
of murder, which then generate the most punitive responses. But public opin-
ion may not be as daunting an obstacle to curtailing or abolishing the use of life
scnlences as it initially appears. There is a vast difference between informed and
E 2,SOOE
uninformed public opinion. Recent experiment-based research on public opinion ~ 2,000 - - - -----------
found that the more knowledgeable respondents were about the particulars of a
crime and punishment, the less punitive they tended to be. Even a brief communi- ~
~
1,500t-
1,000 --
cation that took just a few seconds to read h.id a "demonstrable effect" in dampen-
ing public enthusiasm for a life scntence. 147 lhis observation suggests that it may
500
0-
be possible to shift public opinion on lifers with messages that are brief enough to
~.._!<,.._;:-R,c'-~.._
be adapted to a mass media environment. 1·rn ,ii. '\"/;J -~~..,o ~f' ':s.O~ 0,:,,-, ,:,,C ,.,.7;,r::- ~~ co~ o<' o"' \0 c\ 7;,<:' §' 0R- :_r::, 'b
#
-<..?:°'
~~()#~d'~~~,~~~J~~~#,
q.:, • er::, 4;-c ...,a ~e; ~· c)" ~· o'O
a
~·
~
~
+ b
Executive Clemency, Risk, and the Waning of Mercy
President
Governors and other public officials remain deeply opposed to releasing serious and
long-time offenders, no matter how many decades they have served behind bars, Figure 8.1 .. In.dividual Acts of Clemency by Presidents, 1901-January 2014
no matler the pile of evidence showing that they have turned their lives around, Source: :rchmmary figures from George Lardner, Jr., and P. S. Ruckman Jr Guilt' No
~lore (New York: Public Affairs, forthcoming). Includes individual pard' ., )
and no matter lhe compelling research findings about deterrence and aging out tions respites · · d ans, commuta-
' 'rem1ss10ns, an reprieves b1:1t not amnesties or general pardons.
of crime. In 2008, Governor Schwarzenegger and prosecutors in California vehe-
mently opposed the compassionate release of Susan Atltins, a former follower of
Charles Manson who was convicted of the infamous 1969 Tate-LaBianca murders.
Atltins, who was paralyzed and dying of brain cancer, had become a model pris-
oner during her forty years behind bars. After he refused to commute Atkins's sen- ~e[ traveled to Parchman Farm to investigate the "forgotten men" of Mississ1·pp1·'
tence when she was gravely ill, Schwarzenegger said, "[T]hose ltinds of crimes are m1amous penal farm . At J11s • " mercy courts,,, Conner freed dozens of black . s
19 ers in the face ofdrnrges that he was granting "amnesty for ancient coons ,,fs:rson-
just so unbelievable that I'm not for compassionate release." 1' For Schwarzenegger
and many other politicians, the retributive endpoint for certain crimes is infinity. R In th elfirst half of the twentieth century, Presidents Woodrow Wilson Fr~nklin D
Over the past forty years or so, a narrow conception of retribution has become o~seve t, ~nd Harry Truman issued hundreds and in some cases ti1ousands of
a central feature of U.S. penal policy, supplanting rehabilitation and even public pa.r .ons ~n commutations. The number began to ebb during the Eisenhower ad-
safely as the chief aims of the criminal justice system. Mercy, forgiveness, and re- mm1strat10n and severely dropped off with President Gear e H .
, successors (see figure 8.l).153 At the d fh' . th g. . W. ~ush and Ins
demption. which have been central considerations in religious, philosophical, and President B awn o ts SLX year m office m late 2013
political debates about punishment for centuries-indeed millennia-have been the d arack r°bama had by far the worst record on executive clemency sine~
: , fi u:os ~r~s~ra ~ pardons an~ co~mutations began more than a century ago (see
side\i~ed. This shift is starldy evident not only in the sharp drop in the use of ex-
ecutive clemency but also in the marked chail.ge in how public officials justify the
few pardons and commutations that they do grant.
t;e p ·:-). :-011
ProPubhca mvestigation of federal pardons granted during
, mock::~,~~~ts:l~~~i::cume~ted ~ow "the. pardon process has devolved into a
Pardons and commutations were vital features of the U.S. criminal justice sys- . ·ProPubl' I j by arb1trarmess, racial disparity, and charges of abuse "1ss
tem throughout the nineteenth century and much of the nventieth century. Execu- . four tim1;: act l~I~er;e~ that wh~tes se~ldn~ .presidential pardons have been ne;rly
tive clemency ·was a key mechanism lo manage the prison population, correct mis- -: ._:_ .. .poorest chance o. o ~~ccee as 1:1monttes. African Americans had by far the
carriages of justice, restore the rights of former offenders, and make far-reaching :,.-_:\\.for the Ob~ma adf r~c:1vm~ ex:cut1ve clemency. i;r, In what may portend a shift
public statements about the criminal justice system. 15" Presidents and governors · .c•c, J11ll11Strat10n In early ?014 ·t d h
.;.'' .'},.suggest inmates 1·n I l Id - , I requeste t at defense attorneys
continued to wield their powers of executive clemency even in the face of public .,.,,,.,
\iJ\(demency.1s, ow- eve rug cas I
10 I
es w S 1ou Id be considered for executive
uproars over particular pardons or commutations. On Christmas Day in 1912,
Governor George Donaghey of Arkansas, a fierce opponent of convict leasing, )\ Executive clemency is 1 l h'
;}:sylvania is one f . arge ya t mg of the past at the state level as well Penn-
"pardoned 360 stale prisoners in one fell swoop" in a gesture that made national :,,. 0 · SIX states in h · J1 J'1D · because all life sentences· meted
.·out to adults ar . w IC e means life
headlines. 151 In the 1930s, at the height of the Jim Crow era, Governor Mike Con- e automat1cally LWOP sentences. Since the early 1970s, the state's
 Chapter Eighl
Split Verdict I 189
188 I

Altl~m1gh the re_cidivism rate for older inmates who have served lengthy sen-
President Rate tence~ IS comparatively lower, it is not-and never will be-zero. Despite all the
I in 3 attention focused on developing better risk-assessment tools, we will never be able
Richard Nixon
1 in 4
to predict with complete certainty who will commit a serious crime if released
Gerald ford and who will not. Lifers are not likely to !till or assault in prison or after release.
Jimmy Carter 1 in 5
l in 8
!f
However, a few will. 163 public officials are going to revitalize executive clemency
Ronald Reagan and parole, they must improve their rehabilitation programs and risk-assessment
George H. W. Bush 1 in 19 tools. They also must do more to educate the public that inmates who are released
Bill Clinton l in 16 after serving lengthy terms are unlikely to commit violent offenses but they are
l in 55 not risk-free. '
George 1N. Bush
1 in 175 Governors who are willing to assume that risk remain the exception. Since re-
Barack Obama
t~rning to the go:ernor's mansion in 2011, Jerry Brown (D-CA) has been paroling
Figure 8.2. Grants of Presidential Executive Clemency, per Application for Pardon or lifers at a much lugher rate than his predecessors did. 164 Governor Janet Granholm
(D-MI) an~ Governor Mike Huckabee (R~AR) granted many more clemencies
Commutation, since 1968
Source: "Updated Clemency Statistics;' Pardon Power blog, http://W\-'l\V.pardonpower. than their predecessors. 165 More typical is Governor Deval Patrick (D-MA), who
.com/2614/03/updated-clemency statislics.hlml (retrieved March 12, 201,1). Data ava1\able after seven years in office had yet to grant a single pardon or commutation for any
through March 5, 2014.
offender, let alone a lifer. 166 At the end of his first three years in office, Governor
Andrew Cuomo (D-NY) finally used his clemency powers to grant his first three
lifer population has increased elevenfold. 15H Betwe~n 1967 and 1994, Pennsyl':a- pardons-all ~o people who were_ no longer serving time. 107 Governor Rick Perry
nia's governors and pardon board commuted the hfe sentences of nearly 400 m- (R-TX) has re1ected about two-thuds of the clemency recommendations from the
mates.15g Since then, only six commutations have been granted. Democrat Ed Te~as Board ?f Pardons and Parole. That board is composed of his political ap-
16
Rendell commuted only five life sentences during his two terms as governor. u porntees and ts not known for being soft on crime and punishment.1na
Rendell and his predecessors vigorously battled a lawsuit filed on behalf of inmates Some public officials have expressed interest in early release of infirm or el-
sentenced prior to 1997, before the commutation rules changed considerably. That derly inmates who do not pose a threat to society. By late 2009, fifteen states and
lawsuit dragged on for more than twelve years-or about as long as a typical Penn- the District of Columbia had established provisions for geriatric release. However
1 1
sylvania lifer spent in prison in the 1970s before being released. r, • • •
~hcse jurisd!~tions have rarely released elderly inmates due to many factors. Thes~
ln 2004, the American Bar Association's Justice Kennedy Commission wisely '.nclude po!1t1cal considerations, public opinion, the narrow criteria for eligibil-
recommended that states and the federal government revitalize the clemency 1ty, Byzantine procedures, and the complicated and lengthy referral and review
process. It urged them "to establish standards and provid: an acce~sible ~rocess process :hat often drags on right up until an inmate dies in prison. 1r. 9 A major
by \vhich prisoners may request a reduction of sentence m excepl10nal cJrcun:- obstacle 1s that older prisoners are more likely to have been incarcerated for a seri-
stanccs." 111 ese included but were not limited to "old age, disability, changes m ous violent offense. A 2006 report on North Carolina prisoners found that almost
the law, exigent famUy circumstances, heroic acts, or extraordi~ary sufferiI'.g." 60. percent of inmates aged fifty and older were serving time for violent or sex
Tiie commission also called for instituting procedures to help pnsoners seekmg cnmes. More than half of them were serving a sentence oflife or ten years to life. i 7u
Released l~ng-time prisoners do not pose a major public threat, but they do
c\emency. 1r, 2 •
Standardizing clemency procedures and providing prisoners with more .assis- pose a potential risk to political careers. Huckabee's commutation and pardon re-
tance to navigate the process are noble goals. On their own, however, th~y will not cord came under national scrutiny and spurred a spate of political obituaries after
revitalize the use of clemency or considerably reduce the lifer and long-timer pop- a ma~ he had granted clemency to in 2000 !tilled four police officers in Tacoma
ulation. Public officials need to be willing to assume the politica'. risks tha~
1
~co7 Washmgton
. , in -7009 . After a re Iease d paraJee shat· and killed
· a Massachusetts'
with granting executive clemency. Years ago, governors and presidents we1 e W ~
1 :o_lice o~cer in December 2010, Governor Patrick replaced much of the parole
ing to weather charges of being antidemocratic or corrupt when they invoke~ th~ir ;:ard Wtt.h law enforcement appointees and introduced legislation that would fur-
clemency powers. Now that crime has become such a persistent political tnpwire er restnct parole eligibility for lifers in the Bay State. Patrick appointed a former
;_prosecutor
··--i- to head tl1e para le board, wI11ch. qu1cl<ly
. adopted tougher new guide-
in the United States, government officials need to steel themselves-and prepare·
·:-· mes
. · I for release · TI1e governor aIso successfully pushed for passage of one of the
the public-for the rare but inevitable instance when a released prisoner goes on
i toug lest three st ·1 · he country, as discussed earlier. m
· ·. - n ces Iaws mt
to commit a front-page crime.
190 I Chapter Eight Split Verdict 191

Changes in the institutional structure of parole and pardon boards could pro- eno~~,~~ra~t ~f e;ecuti~e clemency extends far beyond all the individuals lucky
vide public officials with some important political insulation from potentially con- o - o receive a pardon or commutati E . l
troversial release decisions. States almost always staff these boards with political
::!~~~n::e::i~~::~th wbhiclt1 tohma 1~e da statement a~:~t ~:;~~~:i~:I~~~t~~ei:;s~
appointees, who are extremely vulnerable to the wrath of public opinion. IIi 1968, ' 1Y, a ou w at 1an of society we t A h .
the President's Commission on Law Enforcement and the Administration of Jus- wider political environment in wh· l . f . wan· s sue , rt shapes the
1
tice recommended that the boards be composed of psychologists, social workers, and criminal justice policy is for~:~. ~~::;n:nme and pu~ishment are debated,
corrections officials, and other professionals with specialized training and exper- century ago was intend d . r Donagheys wholesale pardon a
tise to evaluate offenders' suitability for release. That recommendation remains of convict leasing. Woo~ro~: ~~1::~;adenunciation of Alabama's brutal system
largely unrealized. In nearly every state, governors appoint all members of the opposed the Volstead Act which i ~ an ar~e_n_l supporter of temperance but
parole board. 172 Two-thirds of the states have no professional qualifications for pa- hundreds of alcohol*relat~d offen:~;~"~ ;.roh1b~t10n. As pre~ident, he pardoned
role board membership. 173 Another.major issue is that many states now require the the time as an indictment of Prohib't' . I JS par fohns were widely understood at
1 mn. n one o t e most notabl t f
governor to sign off personally on any decision by a parole or commutation board and forgiveness Preside t r· C e ac s o mercy
, n immy arter enraged veterans' group th d ft
to release a lifer. This puts the governor directly in the line of political fire if a his inauguration in 1977 by fulfillin . 1d s e ay a er
paroled or commuted offender goes on to commit a major crime. Grants of discre-
serviced · ti y
f
to the tens of thousands of people ~;h;~:;1~nO e d g~ to Jraftnt a bro~d a~~esty
ge t e ra to av01d military
tionary parole have plummeted-from a high mark of 72 percent of all prisoners r unng le ietnam War. Governors Lee Cruce of Oklahoma (1911-1915
174
released in 1977 to a bottoming out of just 23 percent in 2008. This is thanks to YlmthropRockefellerofArkansas(l%?-Jg?l) d1i ),
wide-ranging statutory changes that eliminated parole for certain offenders and to (1983-1987) iss d . ,an oneyAnayaofNewMexico
ue mass commutat10ns to empty their cleat] 11 . ·'
a "palpable and growing reluctance on the part of parole boards" to release inmates ficd their actions with calls for mercy for the condemned 1a2 ~ rows. 1ey Just1-
before they complete serving their maximum sentence. four dozen executive commutations ranted . y contrast, of the
1976 and ?003 " 1 ~ g to people sentenced to death between
As Senator James Webb (D-VA) once said at a conference' on prisoner reentry, - , on y our were based on what could arguabl b I .
"The real question is about fear. And I think it invades the political process."
175 merciful reasons."rn3 ' ' Y e c rnractenzed as
Politicians and public officia!S can help neutralize that rear by educating the public When Illinois Governor George R d d fi
about the nuances or deterrence, the limited utility of lengthy sentences for fight- commuted the sentences of 167 oth!:~~~rooo3n~1e ;:J:cintemd~~es on deadth row and
sion l ·t· - ' mercy an compas
ing crime, the phenomenon of aging out of crime, and the strengths and limits as eg1 !mate responses to criminals."IJI.! He said 1115 . t· ,,-
of risk-assessment tools. However, they cannot guarantee that releasing offenders because of r bl ,· . ac tons were warranted
1
will be risk-free. As Glenn Martin of the Fortune Society once said, "[W]e need the death ;noaJt;,~:a~nf~~ed::e~~;:~al_punish~:1t 'ts ~dministered, not because
way t ffi h. 1 y immora . t tie time, Ryan went out of his
to increase our appetite ror risk. ... [W]e have to at least accept the fact that some
16 the p:s:~~ilityrr:fp1sar~\;;::~~~rtder chredentials anld to herald life in prison without
people are going to fail an.d some people are going to fail pretty significantly." i e per aps worse t rnn death ms
11,e public's and politicians' low appetite for risk is not the only obstacle to ex- In a 2003 speech to the Amer· B .A . . .
panding the use of executive clemency and rethinlting tl1e practice of condemning Anthony Kennedy lamented "Th rcan d a1 ssociatm_n, Supreme Court Justice
so many people to the "other death penalty:' As several observers have noted, the
A
drained of its moral force"rnr, e par on process, of late, seems to have been
retributive theory of clemency has been ascendant for some time now. There is
177 forgivable and unforgett bi ; a .consequence, many crimes remain eternally un-
despite all the evid a e. e1~ perpetrators are forever defined by the crime,
a widespread belief that clemency should be used only to remedy "miscarriages
)eople who comm;~:~ :ccumul_atmg over the. decades tlrnt they are not the same
of justice," as Supreme Court Justice William Rehnquist saidYu Governors are
··public safety. hose cnmes, and that they do not pose major threats to
largely unwilling to treat mercy as a permissible reason for granting clemency. The
few commutations and pardons that are granted today are frequently justified as
a means to rectify some shortcoming of the judicial process: The offender is inno-
cent or has a credible claim of innocence; he or she did not receive a fair trial; ~c;f: Capitol.· Punish men t and the .. Other Death Penalty"
the sentence is disproportionately severe compared with what other participants./ ,,z,;'.J)le tenacity of ca ·t 1 . .
in the crime received. 179 These "anti-mercy conceptions of clemency" whollyrejec.~ ·
ge to reducing ~~a l~umshmen.t m the United States poses an additional chal-
ve.'ardently suppm~te~ e{J,opulation. Over the_ ~ears, many leading abolitionists
redemption, forgiveness, reconciliation, and mercy as legitimate claims for elem·~
t.ernative to the d l OP. They have uncntJcally accepted LWOP as a viable
ency, greatly narrowing the pool of prisoners who might petition for a pardon o~
;'.defuse of a sente eat,, pelnalty. In doing so, they have helped to legitimize the
commutation. rno But they do more than that. · . nee t mt ms many features in common with capital punishment.

192 Chapter Eighl
These abolitionists have helped normalize a sanction that, like the death pena~cy,
does not accord with human rights and sentencing norms in other advanced m-
dustrialized countries. In Western Europe, the number of life sentences did in-
crease in the wake of the abolition of capital punishment, most notably in the
United Kingdom, but remained considerably lower than in the United States.rn1
Orie has to be careful about how much blame to apportion to death penalty
abolitionists for the proliferation of life sentences in the United States, however.
Seven states already had LWOP statutes on the books or in practice prior to. the
1972 Furmm 1 decision, which declared that capital punishment as then practiced
in the United States was unconstitutional. Some of these statutes dated back to
the nineteenth century.rnR The increasingly punitive climate in the aftermath of
Furman helps explain why more states enacted LWOP or tougher life statutes. But
the timing and triggering events appear to have varied enormously among the
stales. rn•i
Neither opponents nor supporters of capital punishment could h~ve predicted
the fierce conservative backlash after the Furman decision or how 1t would spur
the push for more punitive penal policies. 190 At that time, the abolitionist move-
ment was not really a movement at all but rather a consortium of elite public-
interest lawyers. 1l1ey could not have done much to stem the punitive stampede
in the immediate wake of F11r111a11 as states rewrote their death penalty statutes
and began to rethink life sentences. Moreover, executive. clemency.s~ill .appeared
to be a viable mechanism to secure the release of many lifers. Abohtmmsts could
endorse LVVOP or a life sentence as an alternative to capital punishment, figuring
that most lifers-even those serving LWOP sentences-would be released after a
decade or P.vo al the most. 191 Indeed, there was an expectation that as states re-
turned to determinate sentencing systems, the importance of executive clemency
1 2
as a release mechanism was likely to grow. ~
Abolitionists helped establish the legitimacy ofLWOP in the 1970s, 1980s, and
1990s but in most cases were probably incidental to the final legislative outcome.
Some abolitionists ardently opposed promoting LWOP as an alternative to the
dealh penalty. As long-time abolitionist Hugo Adam Bedau on~e ~eclared, ":1w
death penalty is not the only outrageous form of punish~~nt ~ctlv~ m ou.r society,
even if it is the worst:' 191 A number of prominent aboht1omsts, mcludmg Gov~
ernor Mario Cuomo (D-NY), Sister Helen Prejean of Dead lvfrm Walking fame,
and Steven Brill the founder of The American Lawyer, enthusiastically promoted
LWOP as an e~ually tough-or even tougher-sanction. 19·1 Leading abolit~onist
organizations generally took an ambiguous or agnostic position on LWOP m the
1980s and 1990s.195 .,<
Capital defense attorneys have been vested in retaining LWOP. Evidence sug~'.\
gests that the possibilily of parole in capital cases, however remote, is ofte~ a k~y ;,::,
factor for 1·urors when deciding whether to impose the death penalty or a hfe se~:"~,:
· fan
1 caph
tence. In those death penalty states where LWOP is an aIternative op , .-",: ,.,
ta\ defense attorneys, in malting their pitch for life over death, often ernphasi~~\
. . S f th rn also stre_ss,'
hmv the defendant will never be released from pnson. ome o e '?
Split Verdlcl 193
that a life. sentence that stretches out for decades is actually more punitive than
condemmng someone lo death. Prosecutors in capital punislunent states have
been s~~1~ of the fiercest opponents of LWOP statutes. ln states where parole is
a poss1b1~1ty-~owever remote-for life-sentenced offenders, prosecutors often
focus :he1r closmg arguments on warnings about the future threat the defendant
poses if released on parole. m This commonplace prosecutorial strategy spurs ju-
rors to choose death over life. 197
LWOP statutes appear to have played only a minor role in the recent drop in
the numbe: of executions in the United States. But they probably have contributed
to a doubling or even tripling of the sentence lengths for offenders who never
would have been sentenced to death in the first place or even been eligible for the
death penalty. 19 ~. Lifers currently serve an average of twenty-nine years in prison,
up from approx~mately twenty~one years in 1991. 199 In revising its Model Penal
Code, the Amencan Law Institute, an organization composed of leading judges,
lawyers, and legal scholars, reluctantly gave its support to LWOP. But it was careful
to say that LWOP was only warranted in those few cases in which the defendant
would otherwise receive the death penalty.w0
. The exploding Ii.fer population and the growing understanding of the similari-
ties between how hfe sentences and death sentences are imposed and on whom
have not prompted a fundamental rethinldng of the connections behveen death
pen~lty aboliti~nism and penal reform more broadly. Attorney Barry Scheck, a
le.admg fig~re m the. i'.rnocence movement, and other foes of capital punishment
did not raise any cnt1cal questions about New Jersey's growing lifer population
when they appeared before the state's Death Penalty Study Commission in 2006."m
In. 2012, abolit!onists cele~rated ~o~necticut's repeal of the death penalty. Less
widely known JS an alarmmg prov1s10n in the repeal legislation that requires Lhc
LWOP sentences that replaced capital punishment to be served under supermax-
type conditions. 20"
The abolHionist movement still operates quite independently of the wider penal
re~~rm. movem~nt ~o roll back the carceral state. Typical of many mainstream ab-
oht10~1st orgamzatrnns, Amnesty International remains notably agnostic on the
~uestmn .of alternatives to the death penalty, except in the case of JLWOP, which
it h.as stndently opposed. In 2002, Amnesty International rejected a recommen-
..datrnn by _Hs own internal review committee to "initiate a thorough discussion
of alternatives to the death penalty." It did so even though its unwillingness lo
~,~~~~mm~nd or oppose substitute punishments might be undermining "the cred-
'\Z/. ihty of ~ts overall argument for abolition.""03 Number ten on the National Coali-
~t;·.tl_.l,Onl.·Agamst the Death Penalty's list of "Ten Reasons Why Capital Punishment
''}-f.,{d's F. h
awed Public pO 1·icy" 1s:
· "L'' . hout parole is a sensible alternative to the
11e. wit
eat
", ·th penalty"20-1
· Th e .ampa1gn to n d the Death Penalty is one of the few anti-
C . E
_ea o/i~~a!ty organizations that clearly opposes replacing the death penalty with
ab J't' · d
' 0 1 1omst an capital defense attorney David R. Dow stridently de-
the campaign on behalf of California's Proposition 34, the 2012 ballot
194 I Chapter Eight Split Verdie! 195

initialive to repeal the death penalty and replace it with LWOP. "The justifica- ~:r ne_arly forty years. Meanwhile, the United States has been nonchalantly con-
tions given by death penalty opponents who have embraced life without parole Jeg~mng teJ·n·s olf thh~usands of people to lhe "other death penalty" with barelJ' a
reveal the extent lo which abolitionists have surrendered the moral basis of their a or po 1t1ca w imper.
position," he argued. 206 Dow noted that many inmates on California's death row
opposed the measure. If enacted, California's 725 death row inmates would have Conclusion
automatically lost their right to state-appointed \aVf}'ers to pursue their habeas
corpus appeals. 207 Maintaining and reinforcing the distinction between th d
The Other Death Penalty Project, founded in 2008 and composed exclusively offender~ perpetuates the idea that there is a "dangerousec~:~:. :;np, :onl s anh other
be contarned at all cos ts. Th e term "dangerous classes" was· coi ed P e w·I o must
of prisoners, has called on death penalty abolitionist groups lo stop promoting
lury and a half ago but h hd ne neat ya cen-
UVOP as a "supposedly humane alternative to lethal injection." The group rejects . t d as muc eeper roots in U.S. history.z14 Being blaclT and
the proposition that LWOP "is a necessary first step toward ultimate abolition of bt emg
th cas
d as f angerous
J has
• a• long an d near ly uninterrupted
. history dating \.back
the death pcnally." 1nn Kenneth E. Hartman, the group's founder, describes a life :rti~ul ayt, ~ s avery. P~nod1~ally certain other groups have been singled out as
sentence as an "execution in the form of a long, deliberate stoning that goes on for p ar} angerous, rndudrng Chinese immigrants Mexican Arne i d
as long as I draw breath." 209 pe?ple fro~. southern and eastern Europe during the ~arious cam air ;::\~n
Tn deciding how best to challenge the proliferation of LWOP sentences and ~pmmt·, tml anJuan~, Zoot suits, and organized crime in the late ninete~ntt anJ~a~tyt
whether to declare all such sentences unacceptable, penal reformers certainly uven 1e 1 centunes. '
need to consider the realities of the broader political environment. But as Hugo Meaningful penal reform u!t~ately has to rest on "abandoning the discourse of
Adam Bedau reminds us, "[I]t is not the task of penal reform-or of the movement the dangerous classes and av01dmg even the temptation to claim ·t £ .
purposes "z1s u fi t I I I or progresslve
against the death penalty-to present to the public whatever it will accept. The . . . n .or u.nate y, t le main thrust of penal reform seems to be movin
task, rather, is to argue for a punitive policy that is humane, feasible, and effec- m the opposite direct10n toward drawing clear and often unwarranted distinction~
tive, whatever the crime and whoever the offender, and regardless of the current between the non, non, nons and other offenders, as discussed in this cha ter With
dimale of public opinion:•m the emerr~ce of new wars against sex offenders and immigrants, addiiion;l cal-
In keeping with that spirit, one of the premier penal reform groups in the egon:s o o. enders are bemg defined as dangerous and in need ofbein confined
United States recently made an important shift in its stance on the abolition of contarned, mternally exiled, or deported, as discussed_ in the next two Jiapters. ,
LWOP. The Sentencing Project has published three path-breaking reports on life
sentences that have been invaluable in drawing public, journalistic, and scholarly
attention to this invisible issue. ln the first report, The Sentencing Project called
211
for hbolishing LWOP sentences "in all but exceptional cases:' In the follow-up
212
reports, iL recommended eliminating all LWOP sentences.
The prospects are bleak that the plight of lifers and the large number of other
people serving extraordinarily long sentences will become a leading issue on the
penal reform agenda any time soon. This political quiescence in the face of ex-
ponential growth in the lifer population is particularly strilcing given the intense
legal and political mobilization against capital punishment over the years. Thanks
in part to the innocence movement, with its intense focus on people wrongly con-
demned to death, the use of the death penalty in this country is declining. The
number of people executed each year has fallen by more than half since the high
point in the late 1990s, and public opinion polls show that support for capital pun-
ishment is waning.m 'There are currently approximately 3,100 inmates on death
row in the United States. Nearly all of them will die in prison of natural causes
or suicide-not lethal injection. Compare that number with the nearly 160,000
people now serving life sentences in the United States. The reinstatement and
transformation of capital punishment have been central legal and political