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The Habeas Citebook: Prosecutorial Misconduct

Changing Perception, Changing The Law

What Mass. lawmakers can learn from the battle to end death by incarceration across the country

by Jean Trounstine, DigBoston, March 3, 2020

With 2.3 million people behind bars, the United States is the world’s largest jailer. Yet after decades of holding this dubious honor, many Americans have begun to question what Fordham law professor John Plaff calls “this massive experiment in punitive social control.” Decarceration is being discussed in states across the country.

In the debate over decarceration, advocates have realized that it is not enough to merely push for “low-level nonviolent drug offenders” to be let out. Decarceration defies such “easy fixes,” Plaff said. Rather, in order to reduce our prison population, we must change how we respond to violent crimes. As a recent article in Slate argued, “replacing the death penalty with death in prison is not true progress.”

A growing movement is calling for an end to harsh sentencing, and in particular, an end to “death by incarceration.”  Sometimes called a push to “Drop LWOP” or determination to “bring them home,” in recent years, education campaigns have taken hold to end what many call “perpetual punishment.” From Vermont to California, activists are finding pathways to upend the “the other death sentence” — a fractured practice known as life without parole.

Debunking LWOP

Life without parole, explains Ashley Nellis of the Washington, DC, nonprofit the Sentencing Project, is often touted as a “humane” replacement for the death penalty. Indeed, all 21 states that have abolished the death penalty have LWOP as their “preferred alternative” (states with capital punishment also have LWOP). Alaska is the only state that does not permit LWOP, yet it allows a functionally equivalent sentence of 99 years.

Life in prison assumes that someone will “grow old and die naturally,” said California Crime Victims for Alternatives to the Death Penalty spokesperson Judy Kerr, whose brother was murdered. As James Ridgeway and Jean Casella, co-founders of Solitary Watch, argue, such sentences are hardly humane. When Connecticut abolished its death penalty statute in 2012, it voted to replace it with life in solitary confinement, enacting what Ridgeway and Casella call “state-sanctioned torture.” Last year, a federal judge ruled the prisoners serving this sentence could sue the state. Meanwhile, the top European human rights court has declared life without parole “inhuman and degrading” and a violation of the European Convention of Human Rights.

Political scientist Marie Gottschalk wrote in Prison Legal News that LWOP prisoners, the majority of whom are black, suffer “death in slow motion,” plagued by substandard care and high rates of suicide. According to Columbia University’s Center for Justice, “ailments that accompany aging are compounded by the effects of incarceration, resulting in a prison population that has higher rates of chronic and communicable diseases, greater risk of mental illness, dementia, and other cognitive impairments.”

Critics argue that LWOP is not only inhumane, but also unnecessary. It does not deter crime or make us safer. Lifers are highly unlikely to return to crime once released. A 2011 study by the Stanford Criminal Justice Center found that out of 860 men, less than 1% committed another felony, and none committed another murder. A landmark court case, Unger v. Maryland, showed that states can safely release those who have been convicted of violent crimes and served more than 30 years.

Even victims of crime question the punishment of death by incarceration. Findings by the Alliance of Justice reveal that six out of 10 people harmed by crime prefer shorter prison sentences for those who have harmed others, and prefer treatment services to incarceration by a two-to-one margin.

Yet, despite these findings and historic crime lows, the number of people serving life without the possibility of parole in the United States continues to rise, quadrupling since 1992. As of 2016, there were 53,290 people serving such sentences—one in every 28 prisoners—and the majority of LWOP prisoners in most states and in the federal system are people of color.

Today, these prisoners are speaking out. People who have served extreme sentences, their loved ones, and the families of those harmed by violence are taking the lead to end perpetual punishment. Joined by former prosecutors, progressive district attorneys, and others in the criminal legal system, they are challenging what Plaff calls our need for “brutal punitiveness.”

Below, the Boston Institute for Nonprofit Journalism examines some of the strategies and organizations that are moving the needle to eliminate life without parole in states across the country.

Empire State

New York has the fifth-highest number of people serving a life sentence in the country—roughly 8,900. More than 10,000 people who live inside New York’s prisons (nearly 20% of the state prison population) are 50 or older. Release Aging People in Prison (RAPP) was founded in 2013 to address the state’s aging prison population through research and advocacy. I talked on the phone to RAPP Director José Saldana about the organization’s fight to end life without parole.

Part of RAPP’s strategy comes from being led by those who are formerly incarcerated and have lived through harsh sentencing. “When US elected leaders talk about who should suffer and die in prison, they’re talking about men I personally know,” Saldana wrote in a recent op-ed. Saldana was released from prison on parole in January 2018, after 38 years, four previous parole board denials, and having mentored hundreds of men inside.

The parole board is a major focal point of RAPP. “New York’s parole release rate has doubled in the last two and a half years since we started challenging the composition of our parole board,” Saldana said. He insists that for death by incarceration to end, New York needs “a board with diversified backgrounds — not just those from law enforcement.” RAPP advocates for parole board commissioners who believe human beings can transform their lives.

In 2019, RAPP and other advocacy groups were able to end the nomination of a candidate they believed would subvert the paroling process. RAPP credits its success to a strong alliance with legislators and community activists — an army of volunteers, many of whom are part of New York’s Parole Preparation Project that supports currently and formerly incarcerated people serving life sentences with parole. Last March, RAPP; the Parole Preparation Project; and the New York State Black, Puerto Rican, Hispanic and Asian Caucus — made up of more than 60 New York state lawmakers — teamed up in a pressure campaign against Gov. Andrew Cuomo, calling on him to fully staff the parole board with qualified commissioners.

While they did not get all the changes they wanted, RAPP members were able to educate lawmakers and the public about the importance of parole. Activists said, “We feel proud that as a result of our advocacy efforts, the decision over who may serve as a parole commissioner is now a public process.”

“We measure success by the number of people we are getting engaged in this movement,” Saldana added. The number quadrupled in the last year or so, and at least 150 organizations now support their legislative bills and other efforts. In January, more than 500 activists and lawmakers rallied in Albany to end lifetime prison sentences.

“Turnout matters,” Nicole Porter, director of advocacy at the Sentencing Project, said in a phone interview. “Volume of participation is one way to gauge how something is working.” Much of the work of ending perpetual punishment, Porter added, is “laying the foundation.”

Ending LWOP would ultimately give more than 1,000 New Yorkers serving life without parole or virtual LWOP (a minimum sentence of 50 years) the opportunity, not the guarantee, of parole. For those whose sentences allow them parole hearings, earning parole often takes many trips to the board. Failure, meanwhile, can often take a toll on prisoners; in one example, 70-year-old John MacKenzie hung himself at New York’s Fishkill Correctional Facility in 2016 after being refused parole for the 10th time.

Advocates say the door should be open for redemption. But “Bring Them All Home,” RAPP’s call-out, is a hard sell in a country built on vengeance and retributive justice. As such, RAPP faces stiff opposition. Its proposed legislation, S2144 — a bill that would end LWOP and virtual life sentences by providing consideration of parole release for anyone 55 years or older with 15 or more years served — never made it to the floor last year. Still, Saldana is hopeful for 2020.

“We haven’t dismantled the law yet,” he said, “but we are coming close with our elder parole bill.”

Brotherly Love

Pennsylvania is one of the most punitive states on the matter of life without parole, with more than 5,300 people serving that sentence. Under Pennsylvania law, all adults who are convicted of first- and second-degree murder get a mandatory life sentence without the possibility of parole. That means no adult serving a life sentence is ever eligible for parole.

Add to that the particular problem that Pennsylvania has faced since 2012 regarding juveniles convicted of life without parole (JLWOP). That year, the US Supreme Court held in Miller v. Alabama that it was unconstitutional to sentence a juvenile to mandatory life without parole. The ruling meant that juveniles sentenced after 2012 could never serve life without parole, but the court did not specify what to do with those already sentenced to JLWOP.

Initially, the question of retroactivity was left to individual states. It was not until 2016 that the Supreme Court ruled (in Montgomery v. Louisiana) that Miller should be applied retroactively. In some states, like Massachusetts, those serving JLWOP were automatically eligible for parole after a range of years, but Pennsylvania went a decidedly more difficult route for its juveniles. They all had to go through a resentencing process. After being resentenced, they could possibly earn parole. As of Dec 31, 2019, 456 out of 521 Pennsylvania JLWOP prisoners had been resentenced, but only 224 had been released.

Robert Saleem Holbrook, director of community organizing for the Abolitionist Law Center, is one of the juvenile lifers Pennsylvania has released on parole. He was released in 2018 after spending more than two decades behind bars. His activism has deep roots in his experience.

Holbrook is a member of the Coalition to End the Death Penalty (CADBI), a group composed of family members of prisoners who are longtime advocates, community activists, and prisoners on the inside. Like New York, formerly incarcerated people are leaders in CADBI, which now has seven chapters across the state and is one of the main organizations fighting to end LWOP.

CADBI began in 2015 when four advocacy groups — Decarcerate PA, Right to Redemption, Fight for Lifers, and Human Rights Coalition — decided to join forces. “It took us a year,” Holbrook said, to make sure “people had shared values” and to find the language and vision for their campaign. Holbrook noted that language and vision are essential to building a coalition. They felt that the term “life without parole” was “too sterile,” and decided they needed to find language that communicated their position much more urgently. Holbrook, who co-founded the Human Rights Coalition when he was in prison, began conversing with activists both inside and outside about how to advocate around “radical and transformative reform.” People on the outside, he said, met up in apartments and at community centers, while visits and correspondence continued with those on the inside. They all agreed, Holbrook said, that the term that most fervently defined the struggle is “death by incarceration.”

Pennsylvania has had challenges and successes in its battle to end death by incarceration. One win is the commutation strategy (commutation leaves the conviction intact, but reduces the punishment). A commutation, though, can only be recommended in Pennsylvania by a unanimous vote from the Board of Pardons. So far, since Tom Wolf became governor in 2015, 56 petitions for commutation have been heard by the Board of Pardons, with 23 recommended and 19 granted by the governor. Many progressive groups, such as Decarcerate PA, campaigned to educate the incoming governor on mass incarceration. They also campaigned before the election to push for a new commutation strategy in the state.

Philadephia DA Larry Krasner, a former civil rights and criminal defense attorney, is a key actor in the struggle against harsh sentencing in Pennsylvania. One of the country’s most progressive district attorneys, Krasner has been an outspoken critic of Philadelphia’s culture of prosecuting people for life. “We give out 75 years like we’re giving away candy,” he told the New York Times in 2018.

On Jan 21, 2020, Theophalis “Bilaal” Wilson became the 12th person exonerated by Krasner’s Conviction Integrity Unit (CIU), which, according to the Philadelphia Enquirer, investigates potential wrongful convictions and has “offered a damning assessment of prosecutorial practices stretching back decades.”

While Holbrook considers the uptick in commutations a success, he said it is essential to view them as more of a short-term fix than a long-term solution.

“Although we recognize the progress being made with commutation in Pennsylvania where we are seeing lifers finally being released, we are aware that commutation was opened up by the opposition to halt the momentum of the campaign for parole for lifers,” Holbrook said. “The only way to decarcerate Pennsylvania’s lifer population … is through parole that individually assesses each case.”

There are several obstacles. Krasner said that the opposition in Pennsylvania, led by people such as Jennifer Storm, has consistently claimed that victims oppose such legislation. Storm, the state’s victim advocate, remains firmly against ending life without parole. The ACLU in Pennsylvania refuted Storm’s assessment, arguing that her office failed to gather a representative view of opinions held by crime victims.

At a national convening in California focused on strategizing to help Californians end LWOP, advocates from Pennsylvania described the obstacles they faced when dealing with passing legislation to end LWOP. Activists wanted to prohibit LWOP and allow parole eligibility after 15 years, but legislators insisted eligibility be set at 25-35 years. This kind of “carve-out” is a common challenge for anti-LWOP activists, forcing them to decide where to draw the line and on which issues they are willing to negotiate. In this case, activists decided their best strategy was to negotiate.

Out West

California has the most people serving life sentences, with 40,691, or 31.3% of its prison population, as of 2016. Of those, 5,100 are serving life without parole.

California is also one of only three states where the governor has the final word on whether convicted murderers can be released on parole (the other two are Oklahoma and Maryland). All lifers in California who are eligible for parole must first see the Board of Parole Hearings and be recommended for release. Only then does the governor weigh in.

Like New York and Pennsylvania, formerly incarcerated people are leading the way in California to deal with what some call a “heinous process.” One such activist is Kelly Savage. After her sentence was commuted in December 2017, Savage sought parole and was finally released in November 2018 after more than two decades in prison. She is now the Drop LWOP coordinator for California Coalition for Women Prisoners (CCWP)—a grassroots organization that has members inside and outside prison—where she works on commutations with people behind the walls.

Savage won her commutation through former Gov. Jerry Brown, so feels she is well-suited to help others. Between 2011 and 2019, Brown pardoned 1,100 prisoners, clearing the records of those who had served out their sentences, and issued 147 commutations to those with LWOP sentences. Gavin Newsome, California’s current governor, issued 21 commutations in 2019, including seven to those serving life without parole.

Savage talked to BINJ about how she joined CCWP as a volunteer, 15 years before she was released, and was able to get a full-time job with them in 2019 after she got out of prison. She is happy to be doing this work, but is barely scraping by: “I spent 23 years, 98 days in prison, and then one year in sober living, and now I share an apartment in the city that costs $3,000 a month.”

Savage helps run CCWP’s letter strategy, designed to urge Newsome to commute the sentences of all those on LWOP. She writes to more than 70 people (mostly women, some transgender), assisting them with filing their commutation packets, a difficult process without legal aid. Savage also helps prepare prisoners to go to the board, fields their disappointment if they get refused, encourages them to try again, and gathers information on laws and new regulations for their cases.

Savage said, “There are lots of volunteers and staff who go inside for visits, but I am mainly the one they want to connect with because I’ve been released.” When a formerly incarcerated person can point to her success as an example, it gives hope to those inside.

Another strategy in California is the use of petitions, in which prisoners collect signatures from the public to support their commutations. Savage doesn’t work with the prisoners on petitions but believes that they can be an incredibly useful tool. She started a petition for her own commutation on change.org and got more than 10,000 signatures in just a few months; she thinks it might have pushed the governor to approve her release.

Another formerly incarcerated advocate is Nick Woodall, who is tackling LWOP through the language of the law. He is currently trying to resurrect an old regulation (repealed in 1993) that allowed those with LWOP to have regular reviews of their sentences and ideally to be considered for commutation. Woodall said by phone, “I’d like to create a mechanism in which LWOP can be reviewed to determine if a person is suitable for commutation.”

While it’s positive that recent California governors are issuing commutations, Woodhall cautions that “so far, it is happening only through an act of grace and mercy.” Woodall’s sentence was commuted on Christmas Day in 2018, and he was released last November after more than 32 years.

“Ultimately, I became a paralegal in prison, because I had witnessed so many abuses of power,” Woodall said. “What I discovered was that despite being pretty good at writing administrative appeals, I had no skill set to go legally to court.”

Woodall earned his paralegal degree through a correspondence program, worked as a prison clerk, and acquired the skills necessary to sue a California corrections officer who violated his rights. Now that he is out, he has a full-time job as a paralegal.

Woodall has also created a newsletter, Posse Legal Update, which he sends to prisoners, including all lifers, to educate them about current law. The first issue included an extensive article on the 25 criminal justice bills that Gov. Gavin Newsome has signed.

One of the bills passed this year is SB1437, which Woodall featured in his newsletter. The bipartisan bill redefines the law for felony murder liability by, Woodall writes, “excluding a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” “SB1437 also,” Woodhall notes, “permits individuals convicted of felony murder or murder to petition for resentencing.”

Striking a blow against felony murder laws, which hold equally accountable alleged co-conspirators, is a major victory for grassroots organizers in California. The American Bar Association reported that a survey from the Felony-Murder Elimination Project “found that black and Hispanic people disproportionately make up those imprisoned for felony murder, while 72% of women serving life sentences for murder in California were not the killer.”

Joanne Scheer, who founded the Felony-Murder Elimination Project, said in a telephone interview that, unfortunately, the new rules won’t apply if the victim was a police officer. But Scheer still considers the bill a success, and she was instrumental in getting the amendment passed after her son Tony was charged with felony murder and sentenced to life without parole.

Scheer recounted how the fight to end felony murder became a crusade. Tony, a Marine, had been out partying with his buddies. One, who’d sustained a severe brain injury in a tank explosion, got into a skirmish with another over a laptop, pulled out a gun, and killed him.

“When I heard the sentence read aloud,” she said, tearfully, “I remember sitting in the courtroom and thinking, would it make you feel better to hang him from the ceiling and peel him alive?” It took her a long time to gather herself and ask, “How do we undo this?”

Re:Store Justice, an organization that creates and advocates for policy change, has been another essential actor in the fight against felony murder. The organization was founded by men in San Quentin prison in 2017 to “re-imagine and reform” the justice system. In a moving New York Times video, co-founder Adnan Khan, formerly sentenced to felony murder and now released, described why getting rid of felony murder is crucial to ending the practice of sending so many people to live (and die) in prison. “That was me,” he said, as a picture of Khan in prison blues came on the screen. “I spent the last 16 years of my life in prison for murder. The only thing is — I didn’t kill anyone.”

Alex Mallick, the other co-founder of Re:Store Justice, said at the national convening in California that they built support for SB1487, in part, with an education campaign to provide information to public officials, many of whom had little knowledge about the felony murder rule.

Up North

Susan Lawrence, advocate, attorney, and CEO of the Center for Life Without Parole Studies, is hopeful that Vermont will be the first state to pass legislation to end life without parole. S26, introduced by Democrats Sen. Dick Sears Jr., Sen. Philip Baruth, and Sen. Jeannette K. White, was voted out of the Judiciary Committee last month. The bill is expected to make it to the Senate floor, Lawrence said in a telephone interview, and then the legislature has until June 2020 to complete the process.

The bill currently asks for parole eligibility after 35 years for those serving LWOP for first-degree murder, which is significantly more than the Sentencing Project’s demand that “20 years is enough.” But these are the kinds of compromises necessary, Lawrence said, and from her point of view, they may be the way to assure success.

From her home state of California, Lawrence has worked for the past year with Vermonters for Criminal Justice Reform (VCJR), including Executive Director Tom Dalton and student activist Skyler Nash. She has travelled to New England for meetings and to appear before the Judiciary Committee.

Lawrence said Vermont, which has only 15 prisoners sentenced to life without parole, “is uniquely positioned to become the first state to affirmatively end LWOP sentences for adults as well as for juveniles.” Her argument rests on Vermont’s creed of restorative justice.

Restorative justice, as spelled out by the Vermont Department of Corrections, is the recognition that “crime causes injury to people and communities. Restorative practices seek to repair those injuries by encouraging and supporting parties with a stake in a particular offense to participate in its resolution.” For the past 20 years, Vermont has, in many cases, aimed for “repair” not “vengeance,” according to the Community Justice Network of Vermont.

“LWOP is the antithesis of restoration,” Lawrence said.

Testimony this February to the Judiciary Committee included information provided by Azim Karmisa, who called in from California. Karmisa’s son Tarik, reported the VTDigger, “was murdered by a 14-year-old gang member; in the aftermath he committed himself to restorative justice.” Karmisa noted the importance of giving every person sentenced a chance at redemption and underscored Vermont’s restorative justice practices.

However, despite Vermont’s small LWOP population, pushback is strong. An outcry from family members whose loved one was murdered was heard by the Judiciary Committee, as some seek to kill the bill. The bill sponsors have already agreed not to make the bill retroactive.

Lawrence is also concerned that the final bill includes a carve-out for “aggravated murder,” which in Vermont includes a first- or second-degree murder charge with a number of special circumstances aimed at those who kill police, or who both rape and kill. These kinds of crimes stir up so much emotion that the message of restorative justice is often lost, and Lawrence worries that the bill’s carve-outs will encourage prosecutors to charge aggravated murder every time they want defendants to spend the rest of their days behind bars.

As it stands now, the Vermont bill was voted out of the judiciary committee, but is it so watered down that it fails to acknowledge the humanity of many of those sentenced to life without parole? Or is the passage of a bill at any cost what’s important? These are questions that Vermont activists will consider in the coming months.

The Way Forward

Advocates are “trying to create something in a context that is challenging,” Nicole Porter said, and there will always be pushback as groups aim to eliminate life without parole as a sentencing option. But the “conversation is evolving” in a positive direction. “Certainly,” she added, “this is courageous work.”

Part of this courage is demonstrated in how activists are working tirelessly to change the public narrative about a false dichotomy between victims and perpetrators in terms of their desire for justice and mercy. Activists I met agree that building coalitions between those harmed by crime and those who have harmed others is crucial to ending life without parole.

Monalisa Smith, founder of the Boston-based Mothers for Justice and Equality, said that a big part of supporting victims’ families is recognizing that the families of perpetrators are also suffering. Her organization saw early on that many of them had loved ones who were on both sides of such scenarios — they had been a victim of crime and had committed a violent act. Smith is working on creating programs that recognize this duality and serve everyone.

RAPP’s Saldana said that during his incarceration, he saw many prisoners whose children had been murdered, and he “developed victim awareness and felt the harm caused by others.” It is in part because of his work and the hard work of many other formerly incarcerated leaders that RAPP has the support of survivors of crime such as the Downstate Victims Coalition Group.

“I know men personally who have committed murder and now are running programs to help at-risk kids — really saving lives, enhancing community safety,” Saldana said. “To see the transformation of those who have caused harm is important for those who have been harmed.”

This article was produced in collaboration with the Boston Institute for Nonprofit Journalism. This series has been supported by the Solutions Journalism Network, a nonprofit organization dedicated to rigorous and compelling reporting about responses to social problems.  

About the author: Jean Trounstine is a writer, activist, and professor whose latest book is Boy With a Knife: A Story of Murder, Remorse, and a Prisoner’s Fight for Justice. She is on the steering committee of the Coalition for Effective Public Safety in Massachusetts.

This article was originally published by DigBoston (digboston.com); reprinted with permission. Copyright, 2020 Dig Media Group, Inc. To follow updates in activism across the country, there is a national organization called the Campaign to End Life Imprisonment which supports the work of states, underscoring “to address mass incarceration, we must address life sentences.”

 

 

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