A Way Out: Abolishing Death by Incarceration in Pennsylvania, Abolitionist Law Center, 2018
Download original document:
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
ABOLISHING DEATH BY INCARCERATION IN PENNSYLVANIA 1 A Report on Life-Without-Parole Sentences ABOLITIONIST LAW CENTER A Way Out ABOLISHING DEATH BY INCARCERATION IN PENNSYLVANIA A Report On Life-Without-Parole Sentences 3 Abolitionist Law Center REPORT AUTHORS Quinn Cozzens, ALC Staff Attorney Bret Grote, ALC Legal Director 4 ACKNOWLEDGMENTS T his project has benefited from the feedback and The movement organizations that we are a part of and support of many. A special note of gratitude to the accountable to – the Coalition to Abolish Death By staff of the Abolitionist Law Center: Lauren Johnson, Robert Incarceration, Lets Get Free-Women and Trans Prisoner Saleem Holbrook, Dustin McDaniel, and Jamelia Morgan. Defense Committee, Human Rights Coalition, Fight for Lifers, Your assistance, insight, dedication, and friendship help Decarcerate PA, Right to Redemption – we offer this report ensure that this work is as rewarding as it is challenging – as a modest contribution toward a new paradigm of justice, and we all know how challenging it is. toward parole eligibility for all lifers, and in service of those family members and friends of the incarcerated who will To the Amistad Law Project – our movement-lawyering fight with every last breath to bring their loved ones home. family – you hold us down and push us forward, giving us inexhaustible reasons to come to Philadelphia. Kris Vital Projects Fund provided generous support for this work, Henderson, Nikki Grant, Kempis Ghani Songster, and Sean believes in a future where life-without-parole is a relic of the Damon, your comradeship and selfless commitment to past, and has shown a commitment to justice that is deep, justice and liberation are stronger than any obstacle in our informed, and strategic. We thank you for that. path. 5 6 DEDICATION T o the more than 5,300 people serving life-without- To those who have suffered the immeasurable grief and parole sentences in Pennsylvania, condemned to pain of losing a loved one to violence: we seek a change “death-by-incarceration”, who survive a daily assault upon that will address the root causes of such devastation. We your humanity: you are not forgotten. Whether you have gently offer this work as an alternative to those who pursue committed yourself to building the movement for justice and a perpetual condemnation that all too often stands in the liberation or are still finding your way there, accept this report way of healing. Community, justice, and healing require us to as a humble offering – building off the work of lifers and their give all of ourselves and aspire to be more – individually and families – to help in a collective endeavor to do nothing less collectively – than we have yet become. We are committed than totally transform ourselves and our society. to walking this path with you. To those who have experienced both sides of this painful dynamic, those who have harmed and been harmed, who have persevered and won a hard-earned wisdom, and who believe in second-chances and redemption more than ever: may your example light the way ahead. 7 8 TABLE OF CONTENTS EXECUTIVE SUMMARY 11 I. THE RISE OF CAPTIVITY UNTIL DEATH 27 II. ILLEGITIMATE DBI’s Bankrupt Policy Justifications 41 III. IN THEIR OWN WORDS 53 IV. ABOLITIONIST HORIZONS Strategies and Recommendations for Abolishing Death By Incarceration 73 APPENDIX 87 9 10 NOTE ON TERMINOLOGY T hroughout this report we use the term Death By invokes the social death experienced by the incarcerated, Incarceration (DBI) when referring to life-without- as they are subject to degraded legal status, diminished parole (LWOP) sentences. We do this for several reasons. rights, excluded from social and political life, tracked with an First, it is the preferential term selected by incarcerated “inmate number” like a piece of inventory, and warehoused people that we work with who are serving these sentences, for decades in this subjugated status. Finally, although DBI and we are a movement-lawyering organization that is in this report is used to refer to LWOP sentences, the DBI accountable to the movements we work with. Second, label indicates that our concern is not merely with LWOP it focuses on the ultimate fact of the sentence, which is sentences, but inclusive of other term-of-years sentences that the only way it ends, barring extraordinary relief from that condemn a person to die in prison. a court or the Board of Pardons, is with death. Third, DBI 11 12 READING TIMES, OCTOBER 13, 1924 13 14 EXECUTIVE SUMMARY Decarceration Through Redemption: Ending Permanent Punishment in Pennsylvania Death-by-incarceration sentences are perhaps the most distinctive and emblematic feature of the United States’ system of mass incarceration, with Pennsylvania staking a claim as a national leader in the practice of condemning people to die in prison and exhibiting its most pernicious features. Philadelphia is the DBI capital of the world. Pennsylvania itself is an international and national leader in DBI sentencing. The racial disparities in DBI sentencing in the state are stark evidence of systemic discrimination. DBI sentences are overwhelmingly imposed on teenagers and young adults, but increasingly are being served by aging and elderly prisoners still being punished for acts committed decades ago. The legal framework is unforgiving, allowing for no mitigation, no lesser sentence, and no hope of release short of commutation, which has become increasingly rare just as it has become increasingly necessary to address the extraordinary number of rehabilitated people serving a DBI sentence. The inadequate policy justifications for this state of affairs renders this a punishment lacking in legitimacy, one that we need to bring to an end. 15 Pennsylvania in Context O ver the last 25 years, the number of people serving Despite a 21% decline in violent crime between 2003 and life-without-parole, or death-by-incarceration (DBI), 2015, Pennsylvania’s population of people sentenced to DBI sentences in the United States has exploded from 12,453 has risen by 40% between 2003 and 2016.6 Pennsylvania people in 19921 to over 53,000 people today2—10% of whom ranks near the top of every measure of DBI sentences across are incarcerated in Pennsylvania. With over 5,300 people the country. 3 sentenced to DBI and one of the highest per capita DBI- in the world.5 More than 1 in 10 people serving DBI sentences in the United States are in Pennsylvania, and Pennsylvania has two-and-a-half times the rate of people serving DBI than the aggregate national rate In 1974, fewer than 500 people were serving DBI sentences (42 DBI sentences per 100,000 people in Pennsylvania in Pennsylvania. As of September 2017, 5,346 people are vs. 17 per 100,000 nationally).7 Only Florida—with twice serving death-by-incarceration sentences in Pennsylvania. the population and twice as many people incarcerated as sentencing rates in the country, Pennsylvania stakes a strong claim as the U.S. and world leader in this distinctively harsh form of punishment and permanent exclusion of its citizens. Philadelphia, with nearly 2,700 people serving DBI sentences, is the world’s leading jurisdiction in sentencing people to die in prison—more than any county or parish in the United States4 and far more than any individual country 16 Pennsylvania—has more people serving DBI sentences. Philadelphia Death-By-Incarceration Capital of the World P Total DBI Sentenced Population hiladelphia County alone has 2,694 people sentenced to death-by-incarceration, which comprises just over 50% of those sentenced to DBI in Pennsylvania and 8,919 is the highest total of any county or parish in the country. More people serving DBI sentences were convicted in 5,090 Philadelphia than 45 states in the U.S. 4,875 3,804 2,694 1,609 Florida California Louisiana Michigan Philadelphia Illinois A Question of Racial Justice In Philadelphia, one of every 294 Black residents is serving Racial Disparity: DBI Sentences Per 100,000 People people). Black 253 White 14 Latinx 66 Other L a sentence of death-by-incarceration (340 per 100,000 7 Philadelphia sentences Black people to death-by-incarceration at a rate higher than the overall incarceration rates of 90% countries and territories in the world.8 ike most measures of the criminal legal system, death- In Allegheny County, 13% of the county’s residents are Black, by-incarceration sentences disproportionately impact but 76% of those serving DBI sentences are Black (253 communities of color. per 100,000). White residents make up 80% of Allegheny Black Pennsylvanians are serving death-by-incarceration sentences at a rate more than 18-times higher than that of White Pennsylvanians. County’s population, but 24%) of people sentenced to DBI Latinx Pennsylvanians are serving DBI sentences at a rate 5-times higher than White Pennsylvanians. Racial disparities in DBI sentences are even more pronounced than among the overall Pennsylvania prison population, in which 47% of those incarcerated are Black, compared to 11% of the state’s population. Of those serving DBI sentences, however, 65% are Black while 25% are White. from the county (13 per 100,000). 17 Racial disparities persist in counties with relatively homogenous racial compositions. In Fayette County, for example, only 5% of the population is Black, but 38% of people serving DBI sentences are Black (253 per 100,000), while 93% of the population is White and 62% of people sentenced to DBI are White (21 per 100,000). Similarly, in Mercer County, 6% of the population is Black, but 47% of people sentenced to DBI are Black (134 per 100,000), while 91% of the population is White and 53% of people serving DBI are White (10 per 100,000). Women Sentenced to Die in Prison P ennsylvania has 201 women incarcerated under sentences, they are still pronounced. Out of 201 women death-by-incarceration sentences, representing almost sentenced to DBI, 43% are Black, 49% are White, 5% are 4% of those serving DBI sentences in the state. Although racial disparities are less stark among women serving DBI Latina, and 2.5% are of other races. Sentencing the Young and Incarcerating the Aging C onsistent with data on most criminal offenses,9 most The average current age of people serving DBI sentences people serving DBI sentences in the Pennsylvania is 48 years old. Today, the average person serving DBI in Department of Corrections (DOC) were convicted and Pennsylvania is 15 years older than the average person sentenced when they were 25 years-old or younger. 25% of serving DBI in 1980. Over 70% of those currently serving those serving DBI entered the DOC between the ages of 18 DBI sentences are at least 40 years old and 45% are at least and 21. The age of entry into the DOC among people serving 50 years old. 21% of people serving DBI are 60 or older. In DBI steadily decreases after the age of 25. Roughly 20% Pennsylvania, only 2.5% of people who were released after were between the ages of 26 and 30, while only 18% were their life sentences were commuted between 1933-2005 between the ages of 31 and 40. were ever reincarcerated for a new criminal conviction.11 For 10 those whose sentences were commuted when they were at least 50 years old, only one out of 99 was reincarcerated for any reason.12 Costs of DBI Sentences 18 I ncarceration is costly. In Pennsylvania, the cost of DOC inflation and adjusting for age-related cost increases, the operations increased from $94 million in 1980 to $1.7 total cost of incarcerating a person who began serving a DBI billion in 2010.13 With people serving DBI sentences growing sentence in 2015 at age 25 (the median age of commitment increasingly older and spending decades in prison, the to the DOC) until their death will be over $3.6 million.15 economic costs of DBI sentences will only continue to rise. Between 2010 and 2016, an average of 128 people per year Due primarily to increased healthcare costs associated began serving sentences in the DOC. If an average of 128 with age, it costs between two- and three-times more to people sentenced to DBI are committed to the DOC per incarcerate an elderly person than the average person in year, every year Pennsylvania commits to spend roughly prison. Using an estimate of $47,680 for the annual cost to $460 million to ensure that those sentenced to DBI die in incarcerate a person in Pennsylvania, assuming 2% annual prison. No Way Out The False Hope of Commutation 14 A side from having a conviction overturned or death Since Tom Ridge took office as governor in 1995, only 8 itself, commutation is currently the only avenue by DBI sentences have been commuted. Ridge granted zero. which a person serving death-by-incarceration may be During Governor Corbett’s term in office from 2011-2014, the released from prison in Pennsylvania. While commutation Board of Pardons did not even recommend that a single was used somewhat regularly through the 1970s and DBI sentence be commuted. Even among ostensibly liberal steadily declined in the 1980s, its use has been virtually non- regimes, commutation has been rare, especially considering existent since the 1990s. During the entire 1970s, 203 people the ever-increasing population of people serving DBI. During had their life sentences commuted and were released—an Ed Rendell’s 8 years in office, only 5 DBI sentences were average of over 20 per year. commuted. Since entering office in 2015, Governor Wolf has only granted two commutations. The Rising Death Toll M eanwhile, the number of people who have died while serving a DBI sentence is growing rapidly. In the 1980s, an average of 6.8 people per year died serving a DBI sentence. During the 1990s, that number had risen to 16.4 deaths per year, and in the 2000s an average of 28.9 people died per year. Between 2010-2016, an average of 38 people per year have died serving a DBI sentence. In all, 787 people died serving a DBI sentence between 1980-2016. Decade Deaths Per Year 1980s 68 6.8 1990s 164 16.4 2000s 289 28.9 2010-2016 266 38 Total 787 21.3 Deaths of People Serving DBI in PA 800 700 600 500 400 300 200 100 0 1980 1985 1990 1995 2000 2005 2010 2015 19 The Case for Parole Eligibility C losing off parole eligibility for the entirety of a person’s elderly prisoners who present virtually no public safety risk natural life is a failed policy predicated upon the languish in prisons at tremendous social and fiscal expense. fallacy that the trajectory of a person’s life – including their capacity for rehabilitation, transformation, and redemption The case for parole eligibility for people serving DBI – can be accurately predicted at the time of sentencing. In sentences is supported by unassailable policy justifications. Pennsylvania, the prediction that a person convicted of first DBI is a failed policy on its own terms, and the alternative – or second degree murder should never be released from parole eligibility – possesses well-established merits. DBI prison is not even made at sentencing. Instead, it is set in sentences are unnecessary and harmful, particularly in the stone by statute and imposed mandatorily based on the following ways: conviction without regard to any mitigating circumstances, the individual’s role in the offense, or their prospects for change. • DBI is not necessary to ensure or increase public safety. Research has consistently shown that the strongest predictor for whether a person will commit As demonstrated in Section III of this report, narratives future criminal offenses is age. As people age and mature of maturity and transformation are common among the they are less likely to re-offend and they are especially more than 5,300 serving DBI sentences in Pennsylvania. By unlikely to commit a further homicide offense. Aging disregarding this basic reality, the mandatory sentencing and elderly incarcerated people – an increasingly large scheme for imposition of DBI sentences in Pennsylvania has cohort in Pennsylvania – pose little risk to public safety if led to a situation where increasing numbers of aging and released. • DBI is a waste of resources. The costs of • DBI harms the incarcerated, their families, and incarcerating a permanent, ever-growing number of their communities. By permanently removing people people sentenced to DBI is a waste of resources, putting from their communities, DBI sentences deprive them and strain on the state budget by needlessly wasting money their families of hope and fail to provide incentives for to confine people who are no longer a risk to the public. rehabilitation and transformation. Family members pay This money could instead be spent on public education, a high emotional and economic cost in supporting their medical and mental health services, housing, and other loved ones behind bars. The communities most targeted social services that are necessary for creating safe and by violence lose out on the experience and guidance of healthy communities. rehabilitated elders who are prevented from returning to their communities where many would be incredible assets • DBI does not serve victims. The permanent retribution of DBI sentences, while an understandable with invaluable life experiences and a commitment to making amends for harms they have caused. response to the devastating loss wrought by homicide, 20 does not help victims heal. Further, victim attitudes are • Parole eligibility is the smart policy. Ending DBI not as punitive as they are often portrayed to be. Many allows the parole board to do what it was created to support policy responses that emphasize preventing do: assess whether an incarcerated person is ready for re-offending and addressing the causes of crime and release. The determination that a person will never be violence over increased punishment. And a growing capable of release cannot be realistically made at the time number of people who have lost loved ones to violence of sentencing; allowing for parole eligibility remedies this are raising their voices in support of second chances and deficiency by creating the potential for eventual release restorative justice. subject to the safeguards of the parole system. The Way Forward W Redemption and Restoration to the Community hile politicians and prosecutors frequently trumpet From the perspective of those like Lorraine Haw, who is a the narrative that harsh sentences like DBI are both member of the Coalition to Abolish Death by Incarceration desired by victims’ families and best serve victims, victims and has lost family members to both homicide and death- themselves generally desire to see more rehabilitative and by-incarceration, the retributive logic of DBI sentences is not preventative services for those who commit harm rather simply wrong because it is applied unfairly or too broadly; than harsh punishments, and a criminal legal system that instead, it is wrong because retribution and punishment focuses primarily on retribution and punishing the offender are morally inferior and less desirable than redemption and does not address what survivors and families need to heal healing. In her own words: 16 from the trauma they experience. 17 If the courts had honored my wishes initially, the person who DBI sentences, by permanently banishing the person who murdered my brother would be dead. But I’m glad he isn’t. committed the homicide from social life and restoration to Today, I’d like to have a dialogue with the person who took the community, foreclose the possibility of the meaningful my brother’s life. I want justice that recognizes the possibility atonement and redemption that embodies recognition of the of transformation and healing; not just for those who have harm caused. Many victims’ family members want precisely committed harm, but for those of us who have been harmed, this: that the person who took their loved one’s life recognize who have survived violence, or lost our loved ones to the immensity of the loss and change their own life to serve violence.18 others and be a force for positive change in the world. The system of mass incarceration, with DBI sentences as to social death. Rehabilitation, redemption, restoration to the its exemplar and anchor, both fails on its own terms and is community, identifying and addressing the root causes of totally refuted by the lived experience of redemption and violence and harm – these are the ways forward. transformation by those subjected to permanent exclusion, Speaking for Themselves T o end DBI sentences we need to recognize that Many others expressed their desire to make their wrongs the fundamental fallacy of such punishment is the “more right” and attempt to atone for harms that they negation of the humanity of the person who has committed caused. Oscar Cintora wrote: “There are many people harm. The perpetual criminalization, the permanent stigma, serving this sentence (DBI) that are truly sorry and have the fear and degradation that are attached to those serving changed their lives, that only ask for one more chance to DBI sentences are not rooted in the complex lives and demonstrate our changes, and that we could be assets to our personalities of those who have committed serious harm, communities, could make amends, or try to make amends, in including murder. better ways from the outside.” Changa Asa Ramu expressed similar thoughts: “We understand that we have a debt to The transformation proposed in this report is rooted in pay to society and are willing to take that responsibility. the lived experiences of those who have walked the walk Our communities and families need [our presence].” Kristin and transformed their lives in spite of a DBI sentence that Edmundson wrote: “I cannot change what happen although “forswear[s] altogether the rehabilitative ideal.”19 Transitioning I really wish I could, but I can try to make up for my mistakes to a criminal legal system that centers redemption and and the hurt I’ve caused. I would like people to know that I will restoration to the community requires involving the continue to strive and make myself a better person.” incarcerated as full participants in asserting their humanity, developing their capabilities and talents, and being Sheena King expressed similar thoughts: permitted to serve their families and communities. DBI does not fix what’s broken in people or communities... You For that reason, the heart of this report – the longest and lock people up until they die and how does that bring back a most important section – is Section III, constructed from the loved one, or cause a person to see the error of their ways and words of those serving DBI sentences. It demands to be read change? How does it help a victim’s family to heal? People – and re-read – in full. The hard-earned insight and vision serving DBI have hurt entire communities – we need to be expressed in this section animates this report and the goals held accountable to help to fix it. We can’t in a cell. of the movement to end DBI. Felix Rosado also wrote about others serving DBI sentences, Some excerpts: writing that they are among the kindest, most caring, selfless, resilient human beings I’ve ever known. They’ve been making a Malakki Bolden described how those who are currently positive difference in the lives of countless people for decades serving DBI sentences are well-suited to carry out the work to little fanfare, not for credit, not to impress a parole board— of building communities and serving as positive influences: but just because it’s the right thing to do. It’s about character “Some of the best help and/or support for those right now and purpose, and a higher sense of self that transcends walls, struggling...is us. We have lived lives similar to them – we are bars, labels and the dehumanization inherent in prisons— them – and our examples of how to manage life’s ups and despite prison. downs can reach them like nothing else.” 21 Many people focused on the particular ability of those desperately needed in this state. Healing and repair is serving DBI sentences to inspire and produce positive needed, not excessive punishment. change for their communities on the outside if given the opportunity. Phillip Ocampo wrote: “A lot of us serving these Saadiq Palmer summarized many of the sentiments sentences could do more good on the outside than in here and expressed by other people serving DBI sentences: should be given the chance to show that we could make a difference in life on a positive level.” David Lee, who maintains Life without parole is not a deterrent and it’s inhuman to his innocence of the crime for which he was convicted, keep somebody locked away for decades that has been wrote: “I have spent over half of my life in prison for a crime I rehabilitated. It’s cost effective to grant us parole. And most did not commit, and all I want to do is positive work within and of all we are the least likely to reoffend out of all offenses… beyond my community.” He continued: less than 1% of men and women serving DBI...reoffend after release... Myself and the many men that I work with will be 22 I also talk to many DBI prisoners who have committed agents for change. Changing the lives and direction of our the acts they’re incarcerated for, and they just want youth is paramount for all of us. We’ve lost children, family an opportunity to redeem themselves. This is why the and friends in our time inside. We care, we’re sorry for the “Restorative Justice” concept is so vital, and something harms we’ve caused. Abolishing Death By Incarceration in Pennsylvania D eath-By-Incarceration is more than a failed policy or Identical legislation introduced by State Representative a well-meaning yet excessive response to violence. Jason Dawkins (HB 135) and State Senator Sharif Street Instead, (SB 942) would end life-without-parole in Pennsylvania by establishing parole eligibility for all those serving DBI after DBI is central to the system of mass incarceration in Pennsylvania; a material, institutional, and ideological pillar of a regime of state violence that systematically targets the poor and communities of color. DBI sentencing exemplifies the logic of fear, vengeance, and social death that underlie and sustain the institutions of policing and prisons in this country. 15 years of incarceration. While this legislation is the optimal approach to ending DBI sentences in Pennsylvania, its passage will take years of patient, methodical, and strategic organizing. The situation of permanent imprisonment for more than 5,300 people in Pennsylvania is untenable. It does not have to be this way. In the vast majority of the world, it is not. Even within the U.S., Pennsylvania is an outlier, both in terms of the absolute numbers of incarcerated people serving DBI sentences and the proportion of people in state custody serving DBI sentences. The consequences of DBI sentencing extend far beyond the prison walls. The total absence of redemptive opportunity The final section of this report, Section IV, discusses a hardens punitive attitudes in society by legitimating the multi-strategy, movement-building approach to ending most destructive and divisive impulses within people: fear, DBI sentences and establishing parole eligibility for vengeance, racism, and cruelty. Ultimately, the fight to all in Pennsylvania that includes legislation, litigation, abolish DBI sentences is a fight over what type of society we commutation reform, and organizing. want to live in, whether we will organize around values of restoration and redemption and healing or continue down the path of fear and stigma and vengeance. 23 1 Ashley Nellis, The Sentencing Project, Life Goes On: The Historic Rise in Life Sentences in America 13 fig. 3 (2013). 2 Ashley Nellis, The Sentencing Project, Still Life: America’s Increasing Use of Life and Long-Term Sentences 10 (2017). 3 Unless otherwise indicated, all data pertaining to DBI sentences in Pennsylvania was obtained from the Pennsylvania Department of Corrections. 4 Inquiries directed to or data obtained from the Department of Corrections of each state that holds more people serving DBI than Philadelphia confirmed that no individual county or parish was responsible for more people serving DBI sentences than Philadelphia. Orleans Parish, Louisiana has a higher per capita rate at 274 DBI sentences per 100,000 people. 5 William W. Berry, Life-With-Hope Sentencing: The Argument for Replacing Life-Without-Parole Sentences with Presumptive Life Sentences, 76 Ohio St. L.J. 1051 (2015). The three countries outside of the U.S. with the most DBI sentences have fewer than 150 people serving DBI sentences combined. 6 Nellis, Still Life, supra n. 2 at 21 Table 8. 7 Unless otherwise indicated, all data pertaining to DBI in jurisdictions other than Pennsylvania was obtained from Nellis, Still Life, supra n. 2. 8 World Prison Brief, Institute for Criminal Policy Research http://www.prisonstudies.org/highest-to-lowest/prison_population_ rate?field_region_taxonomy_tid=All 9 See Jeffrey T. Ulmer and Darrell Steffensmeier, The Age and Crime Relationship: Social Variation, Social Explanations, in The Nurture versus Biosocial Debate in Criminology 377 (K. Beaver, B. Boutwell, and J.C. Barnes eds. 2014). 24 10 Data from the Department of Corrections reflects the age at which an individual entered DOC, rather than their age at the time of the offense for which they were convicted. Given the time between when a person is arrested until they are ultimately convicted, most people were likely at least one year younger at the time of their offense than when they were committed to DOC custody. 11 Advisory Committee on Geriatric and Seriously Ill Inmates, Joint State Government Committee of the General Assembly of the Commonwealth of Pennsylvania, A Report of the Advisory Committee on Geriatric and Seriously Ill Inmates (2005). 12 Advisory Committee on Geriatric and Seriously Ill Inmates, Joint State Government Committee of the General Assembly of the Commonwealth of Pennsylvania, A Report of the Advisory Committee on Geriatric and Seriously Ill Inmates (2005). 13 Pennsylvania Department of Corrections, Costs & Population 2 (2011). Available at: http://www.cor.pa.gov/About%20Us/Statistics/Documents/ Budget%20Documents/2011%20Cost%20and%20Population.pdf 14 The American Friends Service Committee, Aging in Prison, 4 (2017). 15 M. Kay Harris, The Price of Life Sentences. 16 Alliance for Safety and Justice, Crime Survivors Speak 16 (2016). 17 Danielle Sered, Vera Institute of Justice, Accounting for Violence: How to Increase Safety and Break Our Failed Reliance on Mass Incarceration 11-14 (2017). 18 Lorraine Haw, My Brother’s Killer was sentenced to death, but I hope he is allowed to live, Philadelphia Inquirer (April 4, 2018). 19 Graham v. Florida, 560 U.S. 48, 74 (2010). 25 26 I. THE RISE OF CAPTIVITY UNTIL DEATH Overview of Death-By-Incarceration Sentences in Pennsylvania a shrinking number of countries to continue the use of Sample of Life Sentences in Europe1: Maximum Sentence Before Consideration for Release capital punishment,7 “what distinguishes the American criminal justice system and brands it as distinctively harsh… is the frequency with which it banishes its own citizens Time Served to cages for the duration of their lives.”8 With over 5,300 Country people sentenced to DBI and one of the highest per No Life Sentences Norway, Spain, Portugal capita DBI-sentencing rates in the country, Pennsylvania 10 years Belgium stakes a strong claim as the U.S. leader in this “distinctively Austria, Germany, harsh” form of punishment and permanent exclusion of its * 15 years Luxembourg, Switzerland citizens. Philadelphia, with nearly 2,700 people serving DBI 20 years Czech Republic, Romania sentences, is the world’s leading jurisdiction in sentencing 25 years Poland, Russia, Slovakia people to die in prison—more than any county or parish in 26 years Lithuania the United States and far more than any individual country 30 years Estonia in the world.9 Since 1980, roughly 800 people have died DBI Possible England and Wales, the Netherlands serving death-by-incarceration sentences in Pennsylvania Includes sentences of life prisons. That is roughly 800 more deaths than the number of executions in Pennsylvania – 3 – over the same time period.10 I * with the possibility of parole n 1992, 12,453 people were sentenced to death-by- A global consensus against the imposition of DBI sentences incarceration in the United States. Today, over 53,000 has emerged. 155 out of 193 United Nations member states 2 people are sentenced to death-by-incarceration—almost prohibit DBI sentences.11 Aside from the U.S., which has 4% of the total incarcerated population serving sentences more than 53,000 people serving DBI sentences and more in state or federal custody. Given the rapid growth and than 5,300 in Pennsylvania alone, the three countries with prevalence of death-by-incarceration sentences in the the most people serving DBI sentences have less than 150 United States and a growing global consensus that DBI people sentenced to DBI combined.12 The Rome Statute sentences are inhumane, DBI sentences may be “the of the International Criminal Court (ICC), whose jurisdiction distinctive American punishment.” Though the U.S. typically includes genocide, war crimes, and crimes holds 20% of the world’s incarcerated population but against humanity, bans DBI sentences and mandates that only 4% of the world’s overall population and is one of all life sentences are reviewed after 25 years.13 In Europe, 3 4 5 6 27 courts in Germany, France, and Italy found DBI sentences also prohibits any form of life sentence.17 DBI sentences are unconstitutional.14 Austria, Germany, Luxemburg, and permitted, but extremely rare, in the Netherlands and the Switzerland require individuals with life sentences to be United Kingdom (England and Wales).18 In the rest of the considered for release after serving 15 years, while Belgium Americas, DBI sentences and life-with-parole sentences are requires consideration for release after 10 years. Portugal widely regarded as incompatible with human rights ideals.19 banned all life sentences (including those with the possibility Brazil, Costa Rica, Colombia, El Salvador, Peru, and Mexico of parole) in 1976 and Spain followed suit in 1978. Norway have banned all forms of life sentences.20 Pennsylvania A National Leader in Death-By-Incarceration P since before the 1970s.21 Today, every state except Alaska serving DBI than the aggregate national rate of 17 per 100,000.26 Only Florida—with twice has a DBI sentence on the books.22 In 1941, Pennsylvania’s the population and twice as many people incarcerated as legislature created a state-wide parole board with the Pennsylvania—has more people serving DBI sentences. exclusive power to grant parole to individuals sentenced While 3.6% of the overall U.S. prison population is serving to terms of imprisonment. However, the legislature DBI, 10.5% of people incarcerated in Pennsylvania are serving excluded those sentenced to life imprisonment from being DBI sentences. Only Louisiana, Massachusetts, and Delaware considered for parole, ensuring that all life sentences are have a greater portion of their prison population serving DBI, DBI sentences.23 Thus, aside from those sentenced to a and Pennsylvania has sentenced the fifth-highest proportion maximum term of life imprisonment for offenses committed of people serving DBI sentences relative to the overall state while they were juveniles,24 all people serving life terms are population. Illinois and Ohio—states similar to Pennsylvania serving death-by-incarceration sentences. in terms of both number of people in prison and overall 15 16 28 ennsylvania is among only seven states in the U.S. that have sentenced people to death-by-incarceration state residents—have 1,609 and 560 people serving DBI In 1974, fewer than 500 people were serving DBI sentences sentences, respectively. Put another way, Pennsylvania in Pennsylvania. By 1990, the number of people serving DBI has both a greater total and a greater portion of its prison sentences increased to more than 2,139. As of September population serving DBI sentences than states with higher 2017, 5,346 people are serving death-by-incarceration incarceration rates, including Texas, Arizona, Alabama, sentences in Pennsylvania. Despite a 21% decline in violent Mississippi, Georgia, Oklahoma, Virginia, and Ohio.27 crime between 2003 and 2015, Pennsylvania’s population of people sentenced to DBI has risen by 40% between 2003 and 2016.25 People sentenced to DBI account for approximately 11% of Pennsylvania’s total prison population. Relative to the overall population of Pennsylvania, 42 people per 100,000 are condemned to die in prison under a DBI sentence. Pennsylvania ranks near the top of every measure of DBI Increase in DBI Sentences in PA Number of People Serving DBI at year end 6000 5000 4000 sentences across the country. More than 1 in 10 people serving DBI sentences in the United States are in Pennsylvania, and Pennsylvania has two-and-a-half times the rate of people 3000 2000 1000 0 1974 1979 1984 1989 1994 1999 2004 2009 2014 World’s Leading Jurisdiction in Imposing Death-ByIncarceration Sentences Philadelphia Philadelphia’s per capita rate of 177 DBI sentences per Total DBI Sentenced Population 100,000 is also higher than the overall incarceration rates of 140 countries, including Mexico (169 per 100,000), the United 8,919 Kingdom (England and Wales) (146), Spain (130), China (135), Kenya (114), and Germany (77).32 5,090 4,875 3,804 Philadelphia County is the engine that drives Pennsylvania’s 2,694 death-by-incarceration machine, but several other counties 1,609 contribute substantially. Out of 67 Pennsylvania counties, 34 counties have higher rates of people serving DBI sentences Florida P California Louisiana Michigan Philadelphia Illinois than the national rate of 17 per 100,000. Allegheny County, with 541 DBI sentences—the second-highest among hiladelphia County alone has 2,694 people sentenced Pennsylvania counties and 10% of the state total—has more to death-by-incarceration, which comprises just people serving DBI sentences than 28 states in the U.S. over 50% of those sentenced to DBI in Pennsylvania and Fifteen Pennsylvania counties account for almost 90% of the is the highest total of any county or parish in the country. people serving DBI sentences in the state, correlating closely More people serving DBI sentences were convicted in with the state’s largest communities of color. The counties Philadelphia than 45 states in the U.S., and Philadelphia has comprising the Philadelphia Metro Area33—Philadelphia, more people sentenced to DBI than the 24 states with the Delaware, Montgomery, Bucks, and Chester —have 3,216 smallest populations of people serving DBI combined (2,694 people sentenced to DBI, or 60% of the total DBI-sentenced people from Philadelphia compared to 2,435 combined from population in Pennsylvania. Dauphin County, which contains the lowest 24 states). More people are serving DBI sentences the state capital of Harrisburg, accounts for the fourth-most from Philadelphia than the entire prison populations of 83 people serving DBI with 178 (3.33% of the total) and the different countries and territories.28 Finland, with a population second-highest per capita rate at 66 per 100,000 residents. more than four-times that of Philadelphia, has only 500 more people incarcerated under any sentence than Philadelphia has serving death-by-incarceration.29 DBI Sentences % Of Total Per 100K 2,694 50.39% 176.54 Allegheny 541 10.12% 44.22 193 3.61% 34.53 66.39 Rank County 1 Philadelphia 2 Philadelphia has 177 people serving DBI sentences per 3 Delaware 100,000 residents—a number significantly higher than 4 Dauphin 178 3.33% Louisiana’s U.S.-leading rate of 108 people per 100,000. 5 Montgomery 136 2.54% 17.00 In 1977, Philadelphia had approximately 400 fewer 6 Berks 119 2.23% 28.92 7 Lancaster 119 2.23% 22.91 8 Bucks 113 2.11% 18.07 9 108 2.02% 24.83 overall incarceration rate in 1977 was also significantly York 10 Lehigh 94 1.76% 26.90 lower than the rate of people serving DBI today (115 per 11 Erie 81 1.52% 28.87 100,000 in 1977 vs. 177 per 100,000 in 2017). Philadelphia 12 Chester 80 1.50% 16.04 currently has roughly the same proportion of its population 13 Luzerne 71 1.33% 22.1 14 Northampton 69 1.29% 23.17 15 Westmoreland 56 1.05% 15.34 4,652 87.02% 54.86 694 12.98% 16.44 people incarcerated under any sentence than it has incarcerated under a DBI sentence today. Philadelphia’s 30 incarcerated under a death-by-incarceration sentence as Venezuela has incarcerated under any sentence (177 DBI sentences per 100,000 people in Philadelphia compared to 173 incarcerated people per 100,000 in Venezuela).31 Total (Top 15) Others (<1% each) 29 The Legal Framework of Permanent Captivity I n Pennsylvania, death-by-incarceration is a mandatory For those convicted of first-degree murder, the legislature sentence for first and second-degree murder. It is also permits judges to impose any sentence above the minimum, mandatory in cases of third-degree murder if the individual including death-by-incarceration. The Pennsylvania has previously been convicted of murder or voluntary Supreme Court, in line with the U.S. Supreme Court’s manslaughter. DBI is a potential or mandatory sentence for guidance that DBI sentences for young defendants may only several other crimes, though in practice those sentences are be imposed in the rarest of circumstances, later clarified rarely doled out—less than half a percent of people serving that DBI sentences for young people may only be imposed DBI sentences were convicted of a non-homicide offense. if the prosecution proves beyond a reasonable doubt that the person is “incorrigible” or “beyond rehabilitation.”45 After Pennsylvania has three types of criminal homicide34 2012, for those who were between 15 and 17 years old, the offenses: murder, voluntary manslaughter, and involuntary minimum sentence that a judge can impose is 35 years to manslaughter. Murder is further broken down into three life imprisonment. For those younger than 15, the minimum degrees of guilt. First-degree murder is an “intentional sentence is 25 years to life imprisonment. Adolescents killing” that is “willful, deliberate, and premeditated.”36 For between 15 and 17 years old at the time of the offense who individuals who were 18 or older at the time of the offense, are convicted of second-degree murder must be sentenced the sentence for a first-degree murder conviction is either to a minimum term of 30 years to life, while those who were death-by-execution or death-by-incarceration. Second- younger than 15 must be sentenced to at least 20 years to degree murder, also known as felony-murder, occurs life imprisonment. 35 37 30 when a homicide is committed “in the perpetration of a felony.”38 A person can be convicted of felony-murder if a In 2016, the U.S. Supreme Court issued a decision in homicide occurs while she is committing, attempting to Montgomery v. Louisiana, ruling that Miller v. Alabama commit, fleeing after committing or attempting to commit, applies retroactively to young people sentenced to or acting as an accomplice in robbery, rape, deviate sexual mandatory death-by-incarceration before 201246—an intercourse by force, arson, burglary, or kidnapping.39 For outcome that was ardently resisted by Pennsylvania district people 18 or older at the time of the offense, death-by- attorneys, courts, and legislators. In Pennsylvania, over 500 incarceration is the mandatory sentence for second-degree people were serving death-by-incarceration for offenses murder. Third-degree murder is simply defined as “all other committed when they were younger than 18, all of whom kinds of murder.” Third-degree murder convictions typically were immediately entitled to a new sentencing proceeding. carry a maximum sentence of 40 years. If, however, a As of April 17, 2018, fewer than half—231 people—have been person has previously been convicted of murder or voluntary re-sentenced. 111 people who were previously serving DBI manslaughter, death-by-incarceration is the mandatory sentences were re-sentenced and released on parole. sentence. During the delay between the decision in Montgomery v. 40 41 42 43 Louisiana and their re-sentencing proceeding, 3 people After the U.S. Supreme Court banned mandatory DBI died still serving an unconstitutional death-by-incarceration sentences for homicide offenses committed by juveniles in sentence.47 2012,44 the Pennsylvania legislature amended the sentencing statute for individuals who were younger than 18 at the time Most people serving DBI in Pennsylvania were convicted of of the offense and convicted after June 24, 2012 to provide first-degree murder (68%). Less than 1%—40 people total—of mandatory minimum terms of imprisonment. If a juvenile people sentenced to DBI were convicted of third-degree receives a sentence that permits release on parole, those murder. Nine-percent of people sentenced to death-by- who are eventually released must serve the remainder of incarceration were convicted of an unspecified criminal their lives under parole supervision. homicide or murder. Of those convicted of non-homicide ended in another person’s death. Regardless of the extent of DBI Sentences by Offense Offense Lifers % of Lifers First-degree Murder 3,628 67.86% Second-degree Murder 1,169 21.87% Third-degree Murder 40 0.75% Criminal Homicide48 480 8.98% Sexual Offense 12 0.22% Other Offenses 17 0.32% Total 5,346 100% their participation in the underlying felony or the homicide, a person convicted of felony-murder is automatically sentenced to die in prison. Thus, contrary to any stereotype that only incorrigible murderers and career criminals end up serving death-by-incarceration sentences, Pennsylvania prisons are filled with lifers who never committed any offense with an intent to take a life, do not have extensive criminal records, and who have spent decades in prison because of the unintended consequences of a decision they made or because of the actions of a co-defendant that they offenses, 12 (0.22%) were convicted of sexual offenses and had no control over. 17 (0.32%) were convicted of other offenses, such as robbery, arson, or aggravated assault. There is no other penalty for non-capital first-degree murder or second-degree murder – the minimum is the maximum, A figure that will surprise those unfamiliar with the subject is the floor is the ceiling.49 This feature of the non-capital that almost a quarter of people—1,169 total—serving death- first-degree murder and second-degree murder sentencing by-incarceration sentences in Pennsylvania were convicted makes these penalties outliers in the state’s criminal code, of second-degree murder, or felony-murder, meaning they as they and the handful of other offenses that mandate did not possess any intention to take a life. To be convicted imposition of a life sentence are the only criminal offenses on of felony-murder, a person does not need to cause a death, the books in Pennsylvania where there is no individualized intend to kill, or know that their accomplice intends to kill, consideration and opportunity for a lesser sentence given to so long as they participated in the underlying felony that the defendant when a sentence is being imposed. The Demographics of Permanent Captivity Racial Disparity: DBI Sentences Per 100,000 People Black 253 White 14 Latinx 66 Other 7 Black Pennsylvanians, who are serving death-by-incarceration sentences at a rate more than 18-times higher than that of White Pennsylvanians. Latinx Pennsylvanians are serving DBI sentences at a rate 5-times that of White Pennsylvanians. While only 11% of Pennsylvania’s residents are Black, 65% of people sentenced to DBI are Black for a rate of 253 people per 100,000 Like most measures of the criminal legal system, Black Pennsylvania residents. Latinx people comprise death-by-incarceration sentences disproportionately impact communities of color, particularly approximately 6% of Pennsylvania’s overall population, but 9% of its DBI population and a rate of 66 per 100,000. Conversely, over 76% of Pennsylvania’s residents are White, but only 25% of people sentenced to DBI are White, with 31 CASE PROFILE The reality of a life sentence is ugly; it’s brutal, barbaric, and unending torture of the psyche for sure. Add to that the fact that you’re not the killer and it’s just pure HELL.” 50 32 Avis Lee lives her life with a relentless and undefeatable spirit of optimism despite being in the 38th year of her DBI sentence for a second-degree “felony-murder” conviction. On March 9, 2018, Avis received news from the Pennsylvania Superior Court that further fueled her optimism: the Court granted her en banc petition to hear her argument that Miller v. Alabama applies in her case since she was 18 years old at the time of the offense and possessed the characteristics of youth that the U.S. Supreme Court recognized create a risk of disproportionate punishment in the context of mandatory life without parole sentences. An en banc review means a panel of at least 9 judges will consider whether the Superior Court should overrule its earlier precedent on Miller claims brought by individuals who were 18 at the time of the offense. Avis’ childhood was marked by poverty, housing insecurity, violence in her home and among her peer group, alcoholism and drug abuse, and sexual violence. To this day Avis has vivid memories from the ages of 4-6 of seeing her mother’s blood on the floor, furniture, and walls of their home from the daily beatings of the man she lived with. Alcohol was a constant in the house, as were drugs such as heroin. When she was 5 or 6 Avis Lee Avis has been totally misconduct free for more than a quartercentury. years old Avis was sexually molested on multiple occasions by an older cousin. When she was 8 years old, Avis began using alcohol. Drinking and drug use increased as she entered her second decade in life. Until age 14, Avis’ family moved from house to house, living in homes infested with roaches, mice, and rats, unable to pay heating bills and forced to huddle around the oven in the winter for warmth. When she was 16, Avis was attacked by a man who put a knife to her throat, dragged her into a storm cellar, and raped her. To block out the trauma, Avis’ use of drugs and alcohol increased, with this pattern intensifying after her mother died when she was 17 until the night of the events that led to her incarceration. On November 2, 1979, when Avis was 18 years old, she accompanied her brother and a friend to the Oakland neighborhood in Pittsburgh. Her brother was going to commit a robbery with a handgun. He told his sister to be the lookout and tell him if anybody was coming. When the intended victim attempted to strike her brother, however, he pulled the trigger, shooting and killing Robert Walker. Avis’ brother and friend ran from the scene. Avis flagged down a bus and told the driver a man had been injured and needed help. An ambulance was called. Avis went home. Six months later a co-defendant identified her to the police and she confessed to her role in the plan to commit the robbery. She was sentenced to DBI. Avis works with the LifeLines Project, Let’s Get Free-Women and Trans Prisoner Defense Committee, the Coalition to Abolish Death By Incarceration. During her time in prison Avis has never had one write-up for violence, and has been totally misconduct free for more than a quarter-century. She has completed numerous rehabilitation programs, and engaged in a number of service and volunteer projects, including being a braille transcriber since 1999. A play co-written about her life and her case, “Chin to the Sky,” won an Honorable Mention in the Drama Category for PEN America’s Prison Writing Awards in 2015-16.51 When asked about the impact she hopes “Chin to the Sky” will have Avis replied, “I hope that youths hear my story and don’t make the same or similar mistakes like I have and find themselves in this situation. I hope that those in the legislature can hear it and change a law.”52 a rate of 14 per 100,000. Slightly more than 1% of people DBI in Philadelphia sentenced to DBI are of other races. Racial disparities in Likelihood of serving a DBI sentence in Philly if you are… DBI sentences are more pronounced than among the overall prison population. Pennsylvania had 49,301 people incarcerated in the state prison system as of December 31, 2016.53 Of those incarcerated, 47% were Black, 42% were White, 10% were Latinx, and 1% were of other races.54 Black 1 in 294 Latinx 1 in 722 White 1 in 2,867 Philadelphia Sentences Black People to Death-By-Incarceration at a Rate that Exceeds Most Nations’ General Incarceration Rate O ut of Philadelphia’s 2,694 people sentenced to Black, but 39% of people serving DBI sentences (14 people) DBI, 84% (2,250 people) are Black, while 43% of are Black (258 per 100,000), while 87% of the population is Philadelphia’s residents are Black. 42% of people serving White and 50% of those serving DBI (18 people) are White DBI in Pennsylvania are Black Philadelphians. One of every (9.6 per 100,000). Similarly, in Mercer County, 6% of the 294 Black Philadelphia residents is serving a sentence population is Black, but 47% of people sentenced to DBI are of death-by-incarceration (340 per 100,000). Only 153 Black (134 per 100,000), while 91% of the population is White (6%) people sentenced to DBI in Philadelphia are White, and 53% of people serving DBI are White (10 per 100,000). compared to 29% of Philadelphia’s overall population, for a rate of 35 per 100,000. Latinx people are serving DBI at a Pennsylvania has 201 women incarcerated under death-by- rate of 139 per 100,000, with 260 (10% of Philadelphia’s total) incarceration sentences, representing almost 4% of those serving DBI compared to 12% of Philadelphia’s population. serving DBI sentences in the state. Although racial disparities Philadelphia sentences Black people to deathby-incarceration at a rate higher than the overall incarceration rates of all but 23 world countries and territories, including Brazil (318 per 100,000), South are less stark among women serving DBI sentences, they Africa (291 per 100,000), Israel (265 per 100,000), Saudi population, most women—74%—were convicted of first- Arabia (161 per 100,000). In Allegheny County, 13% of the degree murder, while 20% of women serving DBI sentences county’s residents are Black, but 76% (409 people) serving were convicted of felony-murder. A higher proportion of DBI sentences are Black for a rate of 253 per 100,000. White Black women were convicted of felony-murder, with 25% of residents make up 80% of Allegheny County’s population, Black women serving DBI sentences under a second-degree but 24% (128 people) of people sentenced to DBI from the murder conviction. 55 are still pronounced. Out of 201 women sentenced to DBI, 87 (43%) are Black, 99 (49%) are White, 10 (5%) are Latina, and 5 (2.5%) are of other races. Like the overall DBI-sentenced county (13 per 100,000). Consistent with data on most criminal offenses,56 most Racial disparities persist in counties with relatively people serving DBI sentences in Pennsylvania were homogenous racial compositions. In Fayette County, for convicted and sentenced when they were 25 years-old or example, only 5% of the population is Black, but 38% of younger. Data from the Department of Corrections reflects people serving DBI sentences (16 people) are Black (253 the age at which an individual entered DOC, rather than their per 100,000), while 93% of the population is White and 62% age at the time of the offense for which they were convicted. of people sentenced to DBI (26 people) are White (21 per Given the time between when a person is arrested until they 100,000). In Lackawanna County, 2.5% of the population is are ultimately convicted, most people were likely at least 33 one year younger at the time of their offense than when they Racial disparities, particularly between Black and White were committed to DOC custody. Approximately 51% (2,723 persons, are higher among those who began serving death- people) of those serving DBI sentences entered Department by-incarceration sentences in the DOC when they were of Corrections custody between the ages of 18 and 25. young. While 15% of those serving DBI who entered the 25% of those serving DBI (1,329 people) entered the DOC DOC between the ages of 18 and 21 are White—compared between the ages of 18 and 21. An additional two-percent to 25% of the overall DBI-sentenced population—73% are (118 people) were 17 or younger, with the youngest entering Black—compared to 65% of the DBI-sentenced population. the DOC at the age of 15. The age of entry into the DOC For those aged 22 to 25 when they entered the DOC, 72% among people serving DBI steadily decreases after the age are Black and 19% are White. Nearly 40% (2,046 people) of of 25. Roughly 20% (1,065 people) were between the ages all people incarcerated under a DBI sentence are Black and of 26 and 30, while only 18% (969 people) were between the were 25 or younger when they entered the DOC. As the age ages of 31 and 40. Six-percent (337 people) of those serving at time of entry to the DOC increases, racial disparities begin DBI sentences were between 41 and 50, and two-percent to decrease. Among people serving DBI who were between (102 people) were between 51 and 60. Approximately half- the ages of 26 and 30, 64% (679 people) are Black and 25% a-percent (32 people) of those serving DBI sentences were (270 people) are White. For those who were aged 31 to 40, 61 or older upon entry to the DOC, with the oldest being 74 57% (551 people) are Black and 33% (323 people) are White. years-old. The median age of people serving DBI sentences For people sentenced to DBI who were between ages 41 upon entering the DOC is 25. and 50, 45% (150 people) are Black and 46% (155 people) are White. 34 An Aging and Elderly Population of Lifers DBI sentences in Pennsylvania is growing increasingly older. Average Age of People Serving DBI Sentences The average current age of people serving DBI sentences 46.8 is 48.4 years old. Today the average person serving DBI in Pennsylvania is about 15 years older than the average person serving DBI in 1980. Over 70% (3,770 people) of those 44.6 currently serving DBI sentences are at least 40 years old and 45% (2,377 people) are at least 50 years old. Over 21% (1,148 42.4 people) of those serving DBI are 60 or older and five percent (281 people) are 70 or older. Recidivism rates are measured in a variety of ways,57 but across all measures, recidivism for 39.9 people released from prison at an older age—including those 38.5 sentenced to life imprisonment—are low.58 In Pennsylvania, of 37.4 people who were 50 or older when they were released from 35.7 prison in 2003, only 1.4% were convicted of any new crime within 22 months of their release.59 33.6 1980 1986 W 1990 1995 2000 2005 2010 2015 The average length of time people sentenced to DBI have served in the DOC is 20.5 years. Like most other measures hile research shows that the likelihood of a person of death-by-incarceration sentences, this number has engaging in criminal conduct or harmful behavior increased steadily and dramatically in recent decades. In drops precipitously with age and maturity (discussed in detail 1980, the average time served in the DOC by people serving in the subsequent section), the population of people serving DBI was 7.3 years. Average Time Served of DBI-Sentenced Population by Year six percent (303 people) have served more than 40 years. 20.1 Nine people have served more than half a century under a death-by-incarceration sentence. 169 people have been 18.1 15.9 incarcerated under a DBI sentence since the Fall of Saigon in 1975 and the end of the U.S. military’s campaign in Vietnam. Time Served by People Sentenced to DBI Years DBI Sentences % of Lifers 50+ 9 0.17% 45+ 79 1.48% 40+ 303 5.67% 35+ 635 11.88% 30+ 1196 22.37% 25+ 1950 36.48% 20+ 2742 51.29% 15+ 3436 64.27% Currently, two-thirds of people sentenced to DBI have 10+ 4121 77.09% served 15 years or more in the DOC (3,436 people). Almost a 5+ 4807 89.92% quarter (1,196 people) have served more than 30 years, and 0+ 5346 100.00% 13.0 12.0 9.9 8.5 7.3 1980 1985 1990 1995 2000 2005 2010 2015 35 Cost of DBI Sentences I ncarceration is costly. In Pennsylvania, the cost of DOC average total cost of incarcerating a person who began operations increased from $94 million in 1980 to $1.7 serving a DBI sentence in 2015 at age 25 until their death to billion in 2010. The prevalence of death-by-incarceration be over $3.6 million.63 Between 2010 and 2016, an average of sentences is an integral component of the rise in costs 128 people per year began serving sentences in the DOC. If associated with incarceration. With people serving DBI an average of 128 people sentenced to DBI are committed sentences growing increasingly older and spending to the DOC per year and the state spends approximately decades in prison, the economic costs of DBI sentences $3.6 million to incarcerate each person sentenced to DBI will only continue to rise. Because the typical range of over their lifetime, every year Pennsylvania commits to physical ailments associated with aging are compounded or spend roughly $460 million to ensure that those sentenced accelerated by incarceration, age 55 is usually regarded as to DBI die in prison. In Philadelphia alone, with an average 60 delineating the elderly population in prisons. Due primarily of 56 people sentenced to DBI committed to the DOC per to increased healthcare costs associated with age, it costs year between 2010 and 2016, Pennsylvania will ultimately between two- and three-times more to incarcerate an spend over $200 million for each annual cohort of people elderly person than the average person in prison. M. Kay sentenced to DBI from Philadelphia. Furthermore, 1,811 Harris, an Associate Professor Emerita at Temple University’s people serving DBI sentences in Pennsylvania are 55 or Department of Criminal Justice, estimated that the actual older (34% of people serving DBI sentences). Using Professor annual cost of incarcerating a person in the Pennsylvania Harris’s calculations, Pennsylvania currently spends $86 Department of Corrections for the 2015-16 fiscal year was million per year to incarcerate elderly people serving DBI $47,680. Assuming 2% annual inflation and adjusting for sentences. 61 62 age-related cost increases, Professor Harris estimated the CASE PROFILE Arthur “Cetewayo” Johnson Two months after Arthur “Cetewayo” Johnson turned 18 in 1970, he was arrested by Philadelphia police and questioned about a homicide. Although Cetewayo could not read and had scored in the intellectual disability range on IQ tests administered at ages 8 and 14, the Philadelphia police department alleged that he knowingly signed a written “confession” to the homicide. Cetewayo was questioned 36 or left in isolation while handcuffed to a piece of furniture for approximately 6 This tainted confession was the only evidence used to convict Cetewayo and sentence him to DBI. in 2016. Despite not being accused of committing any serious rule violations in approximately 30 years, prison officials refused to allow Cetewayo, then in his 60s, a chance to reintegrate with the general prison population. Ordering prison officials to release Cetewayo from decades-long perpetual solitary confinement, Chief Judge for the Middle District of Pennsylvania, Christopher Conner, wrote that “it is difficult to conjure up a hours. After telling the police repeatedly more compelling case for reintegration that he was at home with his family to the general prison population. After the evening of the homicide, he was thirty-six years of isolation, Mr. Johnson told that the statement he was signing declared that he had no involvement in the killing and was at home – instead, it was a falsified confession. This tainted confession was the only evidence used to convict Cetewayo and sentence him to DBI. During his time in prison, the nightmare deserves the opportunity to shake became profoundly worse. Accused of hands with someone other than his escape attempts by prison officials, he attorneys.”64 was placed in solitary confinement in December 1979 – and there he remained until a federal court ordered his release to the general population 37 years later In late December 2016, Cetewayo reentered the general prison population. Since that time he has worked with advocates inside and outside the prison to advance parole opportunities for lifers and end DBI sentencing, cofounding The Unity Group [T.U.G.] at SCI Greene for this purpose. He currently has an appeal pending based on the argument that the right established in Miller v. Alabama preventing juveniles from the disproportionate imposition of a mandatory life-without-parole sentence applies to 18-year-olds such as himself factually, scientifically, and legally. No Way Out A The Politics of Commutation side from having a conviction overturned or death gubernatorial election.67 Subsequently, a 1997 amendment itself, commutation is currently the only avenue by to the Pennsylvania Constitution made obtaining a which a person serving death-by-incarceration may be commutation for a DBI sentence significantly more difficult. released from prison in Pennsylvania. While commutation was used somewhat regularly through the 1970s, its use McFadden’s commutation and the resulting 1997 declined in the 1980s and essentially ceased altogether in amendments virtually ended any possibility of a functioning the 1990s. In 1971, 38 people who had their DBI sentences and robust system of commutation in Pennsylvania. The 1997 commuted were released from Pennsylvania prisons. That amendments required a unanimous Board of Pardons vote figure represented nearly 8% of the total population of to recommend commutation to the governor, rather than people serving DBI sentences at the time in Pennsylvania.65 the vote of a simple majority. Additionally, the amendments Over the course of the 1970s, an average of 769 people mandated that several positions on the Board of Pardons were serving DBI sentences in Pennsylvania, and 203 people be occupied by people in positions that increased the who had their life sentences commuted were released. In chances they would be opposed to granting commutation the 1980s, as the number of people serving increased to applications.68 During Ridge’s time as governor, the Board of an average of 1,786 for the decade, only 36 people were Pardons only recommended 4 commutations. Ridge granted released after having their DBI sentences commuted. Under 0. Since Ridge left office in 2001, only 8 DBI sentences Governor Dick Thornburgh, only seven DBI sentences were have been commuted. During Governor Corbett’s term in commuted between 1979-1986. office from 2011-2014, the Board of Pardons did not even recommend that a single DBI sentence be commuted. Governor Robert Casey’s second term of office marked the effective end of commutation in Pennsylvania. Between Even among ostensibly liberal regimes, commutation 1987-1994, Governor Casey commuted the DBI sentences has been rare, especially considering the ever-increasing of 27 people, including Reginald McFadden, who was population of people serving DBI. During Ed Rendell’s 8 released in 1994. One member of the Board of Pardons years in office, only 5 DBI sentences were commuted. Since voted against commuting McFadden’s DBI sentence, while entering office in 2015, Governor Wolf has only granted two four members recommended commutation, including commutations. Attorney General Josh Shapiro, who ran for Lieutenant Governor Mark Singel. McFadden had received office on a reform platform, has been one of the primary favorable recommendations for commutation after serving roadblocks in granting commutation to people serving DBI as an informant following an uprising at SCI Camp Hill in in the current administration. In December of 2016, Shapiro 1989.66 In July of 1994, shortly after his release, McFadden was the only Board of Pardons member to vote against raped and killed several people in New York. News of his recommending commutation for William “Smitty” Smith. arrest and suspicions of McFadden’s involvement in these Smitty, now approaching his late 70s, is serving DBI for his crimes had a substantial impact in the ongoing gubernatorial role as an accomplice in the 1968 death of Charles Ticktin. election campaigns in Pennsylvania. One of the candidates Smitty was unanimously recommended for commutation was Lieutenant Governor Singel, who had voted to in 1992, but his application was not granted by Governor recommend McFadden for commutation. His opponent Casey before Reginald McFadden’s arrest became public.69 was Tom Ridge, who immediately ran a series of attack ads Following critical coverage in the press and pressure from on Singel highlighting this commutation. Ridge turned an advocates, the decision to deny commutation to Smitty was 8-percent polling deficit into a 7-percent lead within days reversed in June 2018. His favorable recommendation now after McFadden’s arrest, and went on to defeat Singel in the awaits a decision by Governor Wolf.70 37 The decline in use of commutation in death-by-incarceration discrimination. DBI sentences are overwhelmingly imposed sentences is consistent with national trends. Between on teenagers and young adults, but increasingly are being 1995-2003, most states commuted fewer than 100 non- served by aging and elderly prisoners still being punished capital sentences, while 34 states, including Pennsylvania, for acts committed decades ago. The legal framework commuted 20 or fewer sentences. is unforgiving, allowing for no mitigation, no lesser 71 sentence, and no hope of release short of commutation, Meanwhile, the number of people who have died while which has become increasingly rare just as it has become serving a DBI sentence is growing rapidly. In the 1980s, an increasingly necessary to address the extraordinary number average of 6.8 people per year died serving a DBI sentence. of rehabilitated people serving a DBI sentence. As will be During the 1990s, that number had risen to 16.4 deaths per further explored in the following section, the inadequate year, and in the 2000s an average of 28.9 people died per policy justifications for this state of affairs renders this a year. Between 2010-2016, an average of 38 people per year punishment lacking in legitimacy. have died serving a DBI sentence. In all, 787 people have died serving a DBI sentence since 1980. Deaths of People Serving DBI in PA 800 38 Decade Deaths Per Year 1980s 68 6.8 1990s 164 16.4 2000s 289 28.9 2010-2016 266 38 Total 787 21.3 700 600 500 400 300 The data on DBI sentencing in Pennsylvania lead to inescapable conclusions. Philadelphia is the DBI capital of the world. Pennsylvania itself is an international and 200 100 national leader in DBI sentencing. The racial disparities in 0 DBI sentencing in the state are stark evidence of systemic 1980 1985 1990 1995 2000 2005 2010 2015 39 40 II. ILLEGITIMATE DBI’S BANKRUPT POLICY JUSTIFICATIONS The Case for Parole Eligibility C losing off parole eligibility for the entirety of a person’s future criminal offenses is age. As people age and mature natural life is a failed policy predicated upon the they are less likely to re-offend and they are especially fallacy that the trajectory of a person’s life – including their unlikely to commit a further homicide offense. Aging capacity for rehabilitation, transformation, and redemption and elderly incarcerated people – an increasingly large – can be accurately predicted at the time of sentencing. In cohort in Pennsylvania – pose little risk to public safety if Pennsylvania, the prediction that a person convicted of first released. or second degree murder should never be released from prison is not even made at sentencing. Instead, it is set in • DBI is a waste of resources. The costs of stone by statute and imposed mandatorily based on the incarcerating a permanent, ever-growing number of conviction without regard to any mitigating circumstances, people sentenced to DBI is a waste of resources, putting the individual’s role in the offense, or their prospects for strain on the state budget by needlessly wasting money change. to confine people who are no longer a risk to the public. This money could instead be spent on public education, As demonstrated in the following section, narratives of medical and mental health services, housing, and other maturity and transformation are common among the more social services that are necessary for creating safe and than 5,300 serving DBI sentences in Pennsylvania. By healthy communities. disregarding this basic reality, the mandatory sentencing scheme for imposition of DBI sentences in Pennsylvania has • DBI does not serve victims. The retributive impetus led to a situation where increasing numbers of aging and inherent in DBI sentences, while an understandable elderly prisoners who present virtually no public safety risk response to the devastating loss wrought by homicide, languish in prisons at tremendous social and fiscal expense. does not help victims heal. Further, victim attitudes are not as punitive as they are often portrayed to be. Many The case for parole eligibility for people serving DBI support policy responses that emphasize preventing sentences is supported by unassailable policy justifications. re-offending and addressing the causes of crime and DBI is a failed policy on its own terms, and the alternative violence over increased punishment. And a growing – parole eligibility – possesses well-established merits. As number of people who have lost loved ones to violence elaborated on in this section, DBI sentences are unnecessary are raising their voices in support of second chances and and harmful, particularly in the following ways: restorative justice. • DBI is not necessary to ensure or increase • DBI harms the incarcerated, their families, and public safety. Research has consistently shown that their communities. By permanently removing people the strongest predictor for whether a person will commit from their communities, DBI sentences deprive them and 41 their families of hope and fail to provide incentives for release. The determination that a person will never be rehabilitation and transformation. Family members pay capable of release cannot be realistically made at the time a high emotional and economic cost in supporting their of sentencing; allowing for parole eligibility remedies this loved ones behind bars. The communities most targeted deficiency by creating the potential for eventual release by violence lose out on the experience and guidance of subject to the safeguards of the parole system. rehabilitated elders who are prevented from returning to their communities where many would be incredible assets But DBI does not persist because it supports rational or with invaluable life experiences and a commitment to humane or justifiable policy aims. It persists because of making amends for harms they have caused. politics; more specifically, the punitive politics that rests upon an implicit and false premise that sending more • Parole eligibility is the smart policy. Ending DBI allows the parole board to do what it was created to die – will result in increased public safety. This is not true; the do: assess whether an incarcerated person is ready for justifications for DBI sentences cannot withstand scrutiny. Failing On its Own Terms 42 people to prison for longer periods of time – even until they D Deterrence, Retribution, and Incapacitation eath-by-incarceration advocates justify this sentence Terror, vengeance, and social death. These are the of permanent punishment because it allegedly ideological and political underpinnings of death-by- furthers one or more of three goals: deterrence, retribution, incarceration sentences as well as the system of mass and incapacitation. incarceration more generally. Deployment of these punitive, stigmatizing, and harmful measures, institutionalizing Deterrence is nothing more than the instrumentalization them via the system of criminal prosecution and mass of fear, based on the idea that punishment will sufficiently imprisonment, however, cannot be justified by assessing terrorize the punished or others so that they will be too afraid whether they achieve their stated goals. This is because, as to commit the same offense. discussed in this section, DBI sentences fail to achieve any of the purported goals used to justify them. Retribution is the idea that those who cause harm should have harm done unto them; it is the ethic of vengeance. The system of mass incarceration, with DBI sentences as its exemplar and anchor, both fails on its own terms and is Incapacitation is a term denoting how prison removes the totally refuted by the lived experience of redemption and convicted from society and thus prevents further criminal transformation by those subjected to permanent exclusion, conduct outside of prison walls during the period of to social death. Rehabilitation, redemption, restoration incarceration. to the community, identifying and addressing the root causes of violence and harm – these are the ways forward, Essentially, the incarcerated are subject to social death, not emotive calls for punitive responses to violence that excluded and banished from their community, and consistently fail to deliver on their promises. considered less than fully human from the vantage points of the law and the broader society. Deterrence D Safety Through Terror eterrence has long been a primary goal in imposing the act for which they were convicted77—both of which punishments. Crafting punishments like DBI are required for a punishment to have a deterrent effect. sentences to deter potential future offenses is premised One recent study found that only 22% of people convicted on three assumptions: 1) potential offenders must have of felonies knew what the potential punishment for their actual knowledge that their conduct is a crime and the conduct would be, while 55% of those convicted of homicide punishment for that crime; 2) this knowledge must play a offenses did not even consider the potential punishment role in a person’s choice to either commit the crime or refrain before acting.78 Most people who commit crimes are from committing the crime; and 3) the perceived costs of present-oriented, thus the length of punishment does not committing the crime must outweigh the perceived benefits have an effect on their actions.79 such that potential offenders will comply with the law.72 The idea that punishments deter is based on a “rational actor” DBI sentences are particularly unlikely to deter many of paradigm of antisocial behavior, the idea that the would- those sentenced to DBI in Pennsylvania. Almost a quarter be murderer makes a cold calculation about the costs of those sentenced to DBI in Pennsylvania were convicted and benefits of killing before deciding on the fate of their of felony-murder. It is especially doubtful that people would-be victim(s). In other words, in Pennsylvania, those sentenced to DBI for participating in a robbery (or other who may commit murders must weigh the costs of being similar felony) that ended in death realize that they can be apprehended, convicted, and serving a sentence of death- sentenced to die in prison for their actions when they do not by-incarceration against the benefit of committing a murder. intend or anticipate that someone will be killed.80 Superficially, the cost of serving a DBI sentence seems to outweigh the benefit of committing a murder. Furthermore, half of the people sentenced to DBI were 25 or younger when they entered the DOC in Pennsylvania. As a general matter, however, criminal law’s deterrent effect Recent social- and neuroscientific developments show that on people is dubious, at best. In the case of particularly most people do not fully develop the ability to appreciate long or harsh sentences, however, there is nothing doubtful risks and consequences and conform their actions to those about the consensus among experts that harsh sentences risks and consequences until they are in their early to mid- do not deter. Studies generally show that lengthy twenties.81 Not only do most people lack the knowledge of sentences do not have a deterrent effect on crime.75 The the potential punishments for criminal conduct and therefore “rational actor” paradigm and the assumptions upon which do not consider those punishments when acting, but many deterrence theory is premised are divorced from the actual of those sentenced to DBI are socially and neurologically causes of violence and the thought processes of those who less capable of even engaging in and acting on the rational commit crimes punishable by DBI in Pennsylvania. Most calculus required for DBI sentences to have a deterrent violence is not driven by individual pathology or the cold effect. 73 74 rational calculus assumed by deterrence theory, but by poverty, inequity, lack of opportunity, shame and isolation, None of the foregoing is intended to disavow that the and violence itself. possibility of incarceration for committing a homicide has 76 some effect, however difficult to measure, on individual Most people do not have actual knowledge of criminal behavior and across society. That the consequences for punishments and many people who are convicted of crimes committing murder are severe is not a secret, and this do not even consider the punishment before committing undoubtedly seeps into peoples’ consciousness and 43 disincentivizes such violence. What the above discussion As a justification for DBI, deterrence fails. Instead, the suggests, however, is that the specific gradation of severity continued growth of DBI sentences is best understood in – be it 15 or 20 or 25 or 50 years in prison or life without the light of the emotional salience of homicide offenses and the possibility of parole – has no identifiable deterrent impact. reflexive response by politicians to unleash ever-increasing As has long been recognized, the swiftness and certainty punitive measures on communities where poverty and of a punishment, and not its severity, are the most relevant violence have been structurally imposed. Deterrence fails as factors in effective deterrence. a legitimate justification for DBI sentences, instead serving as a convenient means for avoiding examination and treatment of the social and political origins of violence. Retribution U The Ethic of Vengeance nlike other traditional goals of punishment, retribution the sentence is either death-by-execution or mandatory is not intended to achieve a desired result. Deterrence, death-by-incarceration—prosecutors can also pressure for example, seeks to reduce future criminal offenses. defendants to accept a mandatory DBI sentence in Retribution, on the other hand, holds up punishment as a exchange for the prosecution declining to pursue a death- valuable goal in itself. The purpose of punishment is to by-execution sentence. For some defendants, the chance communicate that a particular action is wrong, while the of receiving a death-by-execution sentence is perceived severity of punishment is an expression of the severity of the as too great a risk to leave in the hands of a jury.86 Kenneth wrong.83 Central to retributive theory is that a punishment is Hartmann, who is serving a DBI sentence in California and imposed that is proportionate to the level of wrongdoing. is a founder of The Other Death Penalty Project,87 echoes Murder is typically regarded as the worst harm a person the sentiment that those sentenced to DBI are typically not can visit on another, so under a retributive theory of justice, the “worst of the worst” or “the irredeemables” that popular the harshest punishments ought to be imposed on those opinion makes them out to be: “being sentenced to [DBI] is convicted of murder. much less a consequence of the severity of the crime than 82 44 84 one’s ability to procure adequate representation, his or her Far from a principled imposition of the harshest punishment socioeconomic status, and the color of his or her skin.”88 on those who commit the most heinous crimes, however, over 99% of DBI sentences in Pennsylvania are imposed While politicians and prosecutors frequently trumpet the mandatorily—that is, without any consideration of the narrative that harsh sentences like DBI are desired by individual circumstances of each case. Mandatory DBI victims’ families and best serve victims, victims themselves sentences risk ensuring that many DBI sentences are are far from monolithic in their desire to see the person imposed on defendants who decline to testify against convicted for killing their loved one imprisoned until death, others or exercise their constitutional rights to a trial and a criminal legal system that focuses primarily on rather than accepting a plea deal for a lesser charge and retribution and punishing the offender does not address therefore lesser sentence. This risk is especially great for what survivors and families need to heal from the trauma defendants who are innocent, those who were less involved they experience.89 What constitutes popularly accepted in the offense and therefore have little information to offer punishment for harmful behavior is a social construct that prosecutors in exchange for a plea deal, and those who varies widely across time and place and is largely based simply opt to exercise their constitutional right to a jury trial.85 upon mechanisms or options that are already in place.90 For defendants charged with first-degree murder—where A few centuries ago, execution alone was an insufficient punishment for many crimes and public torture or mutilation wrong when the people who owned the house came home. was common.91 A 2016 survey from the Alliance for Safety My son is incarcerated under the felony murder rule. He and Justice found that 61% of crime victims prefer shorter didn’t kill anyone, but he is sentenced to life in prison prison sentences that focus on rehabilitation and increased without the possibility of parole for committing a crime spending on preventing crime rather than sentences that alongside someone who took another’s life. keep people incarcerated longer.92 Many survivors or victims of crimes feel re-traumatized by a criminal legal system Though I had already begun to question my stance on the that seeks retributive sentences—which they often feel are death penalty before my son was convicted, now that I have focused primarily on the defendant—while services like a loved one in prison, I fully realize that people can and do mental health treatment and counseling for victims and change – and that we need to leave room for that possibility their families are virtually non-existent. Many victims who at the time of sentencing. 93 initially seek retribution through punishment are ultimately disappointed in the criminal legal system’s inability to make them feel safer or provide the anticipated healing they require. Today, I fight for a second chance not only for my son but also for the people who killed my brother.95 94 Ms. Haw is not unique in having lost a loved one to violence A recent op-ed in the Philadelphia Inquirer poignantly and and having a family member sentenced to DBI. The powerfully expresses the transformation of one woman, same communities that are often most impacted by DBI Coalition Against Death by Incarceration (CADBI) member sentences are also often the most impacted by violence. The Lorraine Haw, from supporting the death penalty for the man experience is common among many members of CADBI, a who killed her brother to becoming an advocate against statewide organization founded in Philadelphia to end DBI. both the death penalty and life without the possibility of Similarly, those who have been incarcerated or those who parole: interact with incarcerated people will readily attest to the frequency with which they meet people who have been both Many years ago, my brother was senselessly ripped from this world. I was furious at the man who took his life, and I victims and perpetrators of harm, including losing loved ones to homicide and committing homicide. wanted him to suffer the same fate my brother had. I wanted him to be put to death and was relieved when he received In a powerful Amicus Curiae brief submitted to the U.S. the death penalty at trial. Supreme Court on behalf of “Certain Family Members of Victims Killed by Youths in Support of Petitioner” in support But over time, my perspective has changed. I now believe of parole eligibility for juveniles sentenced to DBI, the that the death penalty is morally wrong and that we must inadequacy of a DBI sentence to do justice to the memory of support sentencing that allows those who perpetrate harm the victims and their families is expressed cogently: to learn and change. Life without the possibility of parole is permanent The media often talk about those who are sentenced to retribution – an “eye-for-an-eye” punishment that belies die in prison and the families of victims as though they are everything Amici’s loved ones stood for: mercy, fairness, and distinct and opposing groups. But the reality is that many redemption. Failing to apply Miller retroactively forecloses families have lost loved ones both to gun violence and to the possibility that these children can grow into mature death by incarceration. adults who recognize the value of the lives they took, express true remorse for their actions, and prove themselves capable A few years after my brother was killed, my son was arrested. His co-defendant killed someone during a burglary of a drug house – a burglary that went terribly of returning to society and doing the good the murder victims can no longer do.96 45 CASE PROFILE Phillip “Photo” Ocampo When Phillip Ocampo, known as Photo, was 18 years-old he participated in a robbery gone horribly wrong in Philadelphia. Photo shot and wounded one person, and his co-defendant shot and killed another. Convicted of second-degree homicide and 46 Photo is a transformed person today. Though I had already begun to question my stance on the death penalty before my son was convicted, now that I have a loved one in prison, I fully realize that people can and do change – and that we need to leave room for that possibility at the time of sentencing. Today, I fight for a second sentenced to DBI 22 years ago, Photo chance not only for my son but also for the is a transformed person today. He was people who killed my brother.97 recently selected to be a mentor to a group of adolescents and has worked as an aide in the prison’s Special Needs Unit, assisting men with mental health conditions. Photo also volunteers at the hospice at SCI Smithfield, assisting incarcerated people with terminal illnesses, and trains puppies for people with disabilities. Haw, affectionately known as Mrs. Photo and Mrs. DeeDee are an example of how families do the time together – and build the movement for justice together. DeeDee in the Philadelphia social Hundreds of families with members justice community, has become a inside and outside the prisons have tireless advocate and leader for a labored mightily in building CADBI: complete overhaul of the criminal holding meetings, preparing meals for legal system. She began organizing conferences, organizing marches and with the Coalition to Abolish Death By rallies, carpooling to faraway prisons, Incarceration (CADBI) in 2016. In 2017 sharing information and hope over she also became a leading voice in 15-minute phone calls, putting down the Coalition for a Just DA, a powerful commissary money, meeting with formation of grassroots organizations legislators, protesting Seth Williams, that pushed the candidates for and so much more. Family and Philadelphia District Attorney to adopt a community, in all their forms, are at the decarceration platform. heart of this movement and exemplified Photo is not the only one in his family who has been profoundly transformed by this experience. His mother, Lorraine by the likes of Photo and Mrs. DeeDee. Although inspired and motivated in part by her longing to see Photo walk out of prison, Mrs. DeeDee’s commitment to ending DBI is radically inclusive of all who are serving DBI – even the man who killed her own brother. The remainder of the brief features stories that “begin with The death penalty is morally wrong. heartbreak and conclude with reconciliation, redemption, and rejuvenation.”98 While such stories of transformation Just as we should not torture people, we should not kill and redemption cannot be prescribed to anybody who has them, and we should not lock them away forever. We should suffered the loss of a loved one, they certainly should not give people the tools and the opportunity to change for be foreclosed. DBI sentences, by permanently banishing the the better, and have them try to make up for the harm they person who committed the homicide from social life and caused. We call it the Department of Corrections rather than restoration to the community, forecloses the possibility of the Department of Revenge for a reason.99 the meaningful atonement and redemption that embodies recognition of the harm caused. Many victims’ family Distinct from the alleged utilitarian objective of deterrence members want precisely this: that the person who took their theory, the retributive case for DBI persists independent loved one’s life recognizes the immensity of the loss and of its impact on the punished individual or the broader changes their own life to serve others and be a force for community, including victims. Other responses to positive change in the world. homicide, including policies that direct material resources, programmatic responses, and medical and mental health From the perspective of those like Ms. Haw, the retributive services to impacted individuals and communities, are logic of DBI sentences is not simply wrong because it is eschewed in favor of an ethic of vengeance that ultimately applied unfairly or too broadly; instead, it is wrong because increases the power of prosecutors and institutions retribution and punishment are morally inferior and in every of policing and punishment at the expense of those way less desirable than redemption and healing. In her own communities already impoverished, disenfranchised, words: marginalized, and disproportionately impacted by homicide. That the ethic of vengeance may be an understandable If the courts had honored my wishes initially, the person who human response to a murder, especially when somebody murdered my brother would be dead. But I’m glad he isn’t. loses their own loved one, does not suffice to elevate this Today, I’d like to have a dialogue with the person who took emotion to a position of enlightened public policy. Instead, my brother’s life. I want justice that recognizes the possibility the instrumentalization of the ethic of vengeance by of transformation and healing; not just for those who have politicians and prosecutors should be recognized as the evil committed harm, but for those of us who have been harmed, that it is, empowering the powerful and afflicting the afflicted, who have survived violence, or lost our loved ones to claiming a moral superiority it does not possess, arrogating violence. to itself an exclusive primacy in responding to an epidemic of violence that retribution is incapable of curing. I believe that society should set a limit on the kind of punishment it can dish out. Once upon a time, we tortured people to punish them, but then we decided that was wrong. Today, if someone said at trial, “I’d like you to torture the person who killed my brother,” we would say: “We are sorry for your loss, and you are right to be furious, but we cannot do that.” . . . 47 Prison as a Place of Quarantine and Social Death Incapacitation A long with the retribution rationale, DBI sentences homicides, the age of involvement peaks between ages 20 are perhaps most often justified by proponents as and 24, sharply and steadily declining thereafter, such that a means of protecting public safety by incapacitating a only approximately 5% of people involved in homicides are dangerous person. The rationale for this justification is that between ages 45 and 49.103 One recent study found that those who are sentenced to DBI are likely to kill or harm among people who were previously convicted of a crime, people if they are ever released, so by placing them in those who are older than 55 are ten times less likely to prison, where they are only likely to harm other incarcerated commit another crime than 23 year olds.104 people, the general public is better protected. In this 48 analysis, individuals who commit violence are perceived as Recidivism rates are also low for people convicted of an infectious agent within the larger social body who are homicide offenses and those released from prison who put in prison as a form of quarantine designed to prevent were sentenced to some form of life sentence. Across the further spread of the contagion. DBI imposes a form of country, people released from a life sentence in 1994 were social death that permanently renders those serving this less than one-third as likely to be rearrested within three sentence to a degraded legal, social, and political status, years of their release compared to the overall rearrest never able to regain and exercise the full panoply of human rate within that time span.105 In Pennsylvania, only 2.5% of rights. Incapacitation theory assumes, without proof or often people who were released after their life sentences were any inquiry into the subject, that people sentenced to DBI commuted between 1933-2005 were ever reincarcerated are irredeemable or incapable of refraining from harming for a new criminal conviction.106 For those whose sentences others for the rest of their lives, so it is better to remove the were commuted when they were at least 50 years old, only possibility of release for everyone given a life sentence. one out of 99 was reincarcerated for any reason.107 More 100 In postulating a justification for incarceration as a place of recently in Pennsylvania, out of 111 people released from quarantine and social death these proponents negate the prison who were initially sentenced to DBI for homicide profoundly social determinants of crime and violence, again offenses committed when they were juveniles, only one has deflecting attention from analyses, policies, and reforms that been rearrested or reincarcerated as of April 27, 2018.108 A implicate the existing distribution of social, economic, and study of 368 people convicted of murder in New York found political power. that none were incarcerated for a new violent offense within three years of their release from prison.109 In California, out Like the deterrence rationale, incapacitation arguments of 860 people who were paroled between 1995-2011 after assume that a primary cause of violence is the individual being convicted of murder, less than one percent were pathology of those who engage in harmful acts, rather reincarcerated for a new felony conviction, and none were than treating violence as a collective problem with convicted of crimes eligible for a life sentence.110 After the roots embedded in social and economic issues. In truth, Supreme Court temporarily issued a moratorium on death releasing or providing a meaningful prospect of release to sentences in 1974,111 many people who were sentenced to those sentenced to DBI poses little risk to public safety. death-by-execution had these sentences commuted. Only Engaging in violent and harmful antisocial behavior is 5% of those whose death sentences were vacated and were strongly correlated with youth. Studies conclusively show subsequently released on parole committed another violent that the risk of people harming others diminishes greatly offense, while only one person out of 239 was convicted of as people age,101 and begins dropping dramatically in late murder after being paroled.112 adolescence and early adulthood. 102 For people involved in Theory vs. Reality I The Practical Functions of DBI n a system that focuses almost exclusively on inflicting from these communities as “distinctly irredeemable.”120 The maximum harm on those convicted of criminal offenses costs of incarceration on these communities are often of and functions primarily as a tool to exclude those deemed the type that are difficult to measure—disrupted familial and undesirable or unworthy from participation in mainstream social relationships, lost wages and employment, medical society, death-by-incarceration is the ideal form of and mental health problems incidental to incarceration, punishment. Although the exclusionary effects of any duration excessive costs imposed by courts and prison phone and of incarceration extend beyond prison walls, condemning a commissary vendors, discrimination in labor markets and person to die in prison is “the most obvious and expeditious educational opportunities post-release—but are real and way to effect permanent exclusion.” 113 DBI sentences express harmful. DBI sentences in particular exacerbate these costs the message that those suffering this sentence are beyond by virtue of the permanent nature of the exclusion from redemption, unfit to live in society, and that society itself is these communities and the outsized proportion of people indifferent to their fate—we do not care whether someone serving DBI sentences who are Black, even in relation to the sentenced to death-by-incarceration pursues education already disproportionate overall incarceration rates. or vocational training, undergoes tremendous personal growth, or constantly engages in pro-social community work because no matter what, their life is forfeit. In these ways, DBI sentences are akin to the ancient punishment of banishment. Rather than banishing people to spend the rest of their lives outside of our borders, we banish them to prisons, where they by and large become “faceless and numbered and forgotten” to most of society.114 The U.S. Supreme Court forbade a more modern form banishment—stripping a U.S. citizen of citizenship—in 1958 because it constituted cruel and unusual punishment.115 Such a punishment, the Court wrote, is an affront to a person’s dignity because it represents “the total destruction of the individual’s status in organized society” and is “more primitive than torture.”116 Yet, another modern form of banishment—death-by-incarceration—is being imposed with astounding frequency, particularly upon people of color and poor communities.117 The effects of this permanent exclusion function of DBI are not only experienced by the people serving these sentences. People sentenced to DBI are frequently depicted as subhuman and incapable of experiencing remorse, sympathy or other basic human emotions, and hopelessly incapable of personal change or redemption.118 Given the groups of people most likely to be serving DBI sentences—those who are incarcerated under any sentence are disproportionately people with mental health conditions, indigent, dependent on drugs and/or people of color119—the prevalence of DBI sentences brand offenders Banishing such a large number of people to prisons for the rest of their lives also deprives these communities of the influence and guidance of those who, contrary to the societal brand imposed upon them, have proven themselves to be redeemable and adept at facilitating the redemption of others. Even without any meaningful prospect of release from their living tombs, many people serving DBI “doggedly seek purpose in their lives,”121 focusing on volunteer and mentor work, religion, and remaining free of disciplinary issues in prison.122 People serving life sentences are often among the least likely to commit rules infractions in prisons— particularly those involving violence,123 despite an often oppressive and violent environment.124 The conditions of prisons also contradict the idea that incarceration under a DBI sentence is intended to meaningfully contribute to justice, the well-being of either the incarcerated person or those they have harmed, or even respect for basic human dignity. Prisons are characterized 49 by a lack of substantial educational or vocational options, of accountability or mechanisms for facilitating justice for inadequate medical and mental health treatment, both survivors and offenders are consistent with the notion close authoritarian control of every aspect of daily life, that death-by-incarceration sentences function primarily to overcrowding and absence of personal space, pervasive use exclude, disenfranchise, and inflict maximal harm.131 of solitary confinement, a constant possibility of violence from fellow incarcerated people and guards, and an expectation of hypermasculinity in male prisons. 125 A lifetime of incarceration, especially under these conditions, can be like “a death in slow motion.” 126 Prison also fails to promote accountability for those who have harmed others or facilitate necessary healing processes. 127 People incarcerated for consistent with the notion that DBI sentences deny basic human dignity to those sentenced to DBI—they are not regarded as “fellow citizens and fellow human beings.”132 The concept of dignity—recognizing the intrinsic value of a person—is largely absent from U.S. legal standards regarding the rest of their lives are unable to fully acknowledge punishment. In many other jurisdictions around the world, responsibility for the harm, acknowledge the impact of their however, dignity functions as a fundamental constraint actions on others, express genuine remorse, take measures on punishment and as a basic component of human to repair the harm as much as possible, or demonstrate a rights.133 Death-by-incarceration sentences are widely commitment to refraining from causing similar harm.128 By regarded as denials of human dignity and are therefore simply removing someone to prison—especially for the rest prohibited in much of the rest of the world.134 Even without of their life—we deprive them of the opportunity to deal prison conditions that belie any professed commitment to face-to-face with the impact of their actions and to begin reintegration into society, DBI sentences impose a judgment the difficult work of atoning for them. 50 Subjecting people to such conditions until death is also 129 Prison conditions that a person’s life no longer has any value. Like death-by- that provide for little more than “bare biological life” for execution sentences, DBI sentences deny any possibility of those sentenced to death-by-incarceration130 and a lack redemption and any meaningful hope of release from prison. Toward Redemption and Restorative Justice A bsent from the traditional justifications for imposing To end DBI sentences we need to recognize that the criminal punishments in the DBI context is fundamental fallacy of all the justifications discussed rehabilitation. The 1970s marked a noticeable shift in political above is the negation of the humanity of the person who rhetoric and points of emphasis around the criminal legal has committed harm. The perpetual criminalization, the system. Discussion of prisons as places of rehabilitation permanent stigma, the fear and degradation that are was replaced with commitments to punish as harshly as attached to those serving DBI sentences are not rooted possible and as frequently as possible. Although prisons in the complex lives and personalities of those who have never actually functioned as rehabilitative facilities, there committed serious harm, including murder. was nonetheless a rhetorical commitment to the notion that The transformation proposed at the end of this report society’s interests were best served if incarcerated people is rooted in the lived experiences of those who have were given the tools and treatment necessary to be able walked the walk and transformed their lives in spite of a to avoid future conduct that violated the law. Furthermore, DBI sentence that forswears altogether the rehabilitative “commitment to the rehabilitative ideal at least signaled a ideal. Transitioning to a criminal legal system that centers recognition…that penal subjects were fellow human beings… redemption and restoration to the community requires Death-by- involving incarcerated people as full participants in asserting incarceration sentences, however, “forswear altogether the their humanity, developing their capabilities and talents, and thought to be capable of change and growth.” rehabilitative ideal” 136 135 and reflect the judgment that a person is never fit to rejoin their communities and their families outside of prison. being permitted to serve their families and communities. CASE PROFILE Felix “Phill” Rosado Originally from Reading, PA, I have been fighting a death by incarceration sentence at Graterford State Prison since 1995 and age 18. At one time a straight-A student and deemed gifted, in my teen years I got sucked into the streets and was never able to pull myself out. Once in prison, I learned that a “life” sentence means death and then spent the first few years trying everything I could to avoid thinking about the possibility of growing old and dying behind bars. I got into some trouble here and there—and then in my mid-20s “woke up.” I rediscovered the Catholic Faith of my upbringing and shifted my focus from myself to helping others. I I came to realize that my individual struggle for freedom is inextricably tied to the collective liberation of all people wrote and self published a short autobio to warn the youth in my community of the real consequences of street life, began At some point throughout my talking with boys from a nearby juvenile transformation I came to realize that hall who were brought into the prison, my individual struggle for freedom is and enrolled in both a bachelor’s degree program through Villanova University and the Inside Out Prison Exchange Program through Temple University. I also cofounded Let’s Circle Up, a restorative justice project, and began facilitating and co-coordinating the Alternatives to Violence Project. In 2016 I earned my Bachelor of Interdisciplinary Studies degree, summa cum laude. inextricably tied to the collective liberation of all people and became a founding member of Right 2 Redemption, a committee that seeks to end the practice of caging humans without the possibility of ever being worthy of life outside prison walls. My vision is of a world where the dignity of all is recognized and valued— without exception.” Phill is a leader in the restorative justice movement, a practitioner in a location where the obstacles to accountability and healing are daunting, yet the results of every breakthrough are potentially revolutionary. As a co-founder of the restorative justice project Let’s Circle Up, Phill has facilitated more than 1,000 men through restorative justice education workshops since its inception. He has done this without pay, without anybody asking him to, without the incentive of parole eligibility. Motivated by the recognition that personal and social transformation are inextricably linked and a commitment to making his wrongs “more right”, he has dedicated himself to service, education, and advocacy for justice. 51 52 III. IN THEIR OWN WORDS In constructing this report, we sent questionnaires to approximately 100 people serving death by incarceration sentences in Pennsylvania. The questionnaire included 22 open-ended questions covering the respondents’ lives before they were incarcerated, their experiences serving DBI sentences, their feelings about the sentence, and what they felt was most important to them. Many of the responses of those serving DBI sentences in Pennsylvania echo the research and statistics detailed above. Unless otherwise indicated, the quotations below are taken verbatim from the responses provided. More than 40 people responded to the survey. 53 Childhood/Early Life M ost of those who responded to the questionnaire were 25 years old or younger when the offense The police, and white folks in general, had a way of making us feel powerless, degraded, less human, and there was a for which they were convicted occurred. Many described constant feeling of rebellion dancing in my soul because childhood environments characterized by poverty, the desire for self-empowerment was powerful. The pain normalized violence, or negative peer or familial influences. associated with a reality full of powerlessness goes beyond Changa Asa Ramu wrote that he feels “it’s truly cruel and verbal expression, and for me the anguish of my youth was harsh to be condemned for being fearful for my own life. very deep. Whether it was realistic fear or imagined, at 19 years old you’re 54 controlled by your understanding and environment. When all Some of those who responded to the questionnaire you see are friends getting shot and killed, those threats will described a slow descent into antisocial behavior, often supersede your rationale.” Zechariah Thompson described beginning during their early teenage years. Kevin Kelly his childhood as “very dysfunctional.” He continued, “I lost wrote that he and his siblings were separated and placed my father at age 14. I grew up in a drug atmosphere, mother in different institutions due to his stepfather’s abuse of his an addict, father died from a heart failure from cocaine. I took mother. After his family was separated, Kevin wrote, “I have care of my infant sister, my mom would be gone for weeks at a spent most of my life in and out of juvenile and adult prisons time… I never had a permanent home, I was in 7 foster homes.” where I have pleaded guilty to crimes that I have committed... accepting responsibility and doing my time. I have also taken Nicole Newell wrote: “Growing up in the projects was filled and accepted responsibility for crimes I didn’t do because I with drugs and drive bys. My mother did the best she could was unable to pay for proper representation and wanted to get through her addiction. She made sure we had a roof over our out and try and acclimate myself back in society only to wind heads, clothes on our backs, and food on the table. When she up committing crime again just to survive.” Changa Asa Ramu couldn’t get what drug she wanted she became very abusive wrote, “I was a impoverish youth who learnt how to make ends towards me. It started off being once a week then as I got older meet by hustling in the street. These hustles were innocent in it was very often. I [was] a very lost child that was raising a the beginning, then grew into petty criminal activity which led daughter.” to juvenile detention and became a cycle all the way into my adult years… The street life and criminal culture molded my David Lee described the feelings and effects associated with values and principles.” growing up in these conditions: Haddrick Byrd wrote that his family was forced to move I grew up in a North Philly community, and although I had to a different neighborhood when he was 16 years old both parents at home throughout my childhood we were because his mother could no longer afford the home where very poor, and I had dreams of obtaining wealth and power they were living. After moving, he wrote that “my life took a in order to change our condition... Police brutality was a drastic change. Because I was going to a school in another consistent theme in my youth because they had a view-point neighborhood I was confronted with violence by an opposing that criminalized Black youth... gang. So that lead me to start hanging out with the gang I joined, and eventually I stopped going to school and started Gang wars were also a regular theme in my youth, I was not getting into trouble.” Zechariah Thompson wrote, “I used to old enough to participate in those actions, but they were a think I could do what I wanted because I was left alone, so I part of my thinking because my older brother was connected got into trouble, getting high, stealing, fighting. I always used to the local gang. Fear of early death, of being hungry, or my hardships as an excuse to do things that were wrong. I just not being seen as a human being touched my thoughts had my first child at 16, I was also an addict at this time, all in a profound manner. I wanted to do is feel numb.” One person serving DBI who wished to remain anonymous wrote, “before my incarceration Many women who responded to the questionnaire were I had succumb to some of the same negative things I once subjected to pervasive abuse and trauma during their witness as a child. I’ve sold drugs off and on since the age of childhoods and early lives. Char Pfender wrote: twelve, and indulged in some of the same acts of drug abuse and violence until I got involved in this case that brought me to prison.” I grew up idolizing my father, until he lost his job from a back injury…Because his life went in the wrong direction, the only thing he could control was his family. When he needed to Phillip Ocampo wrote that he began caring much more feel control he beat my mother, sister, and myself...When about the opinions of his peers as he got into his teenage I got older I started to resist, take beatings for my sister, years, and began emulating what he saw from others: interfere in my mother’s beatings and learned to turn off pain so that he couldn’t even make me cry no matter how much I started to break rules that my grandmother set for me… I would not come home until the next day, hanging out with he beat me. That threatened his control, so he began to molest me. the thugs and hustlers on the block. I wanted what they had, so I began to get involved in the drug game. First as Henrietta Harris described the effect that abusive a lookout for the cops, then as a hustler selling the drugs. relationships had on her well-being: “My life before my I was out of control, so eventually I started to stay out in incarceration was a troubled one. I was in and out of abusive the streets, not wanting to cause my grandmom stress, relationships, I used alcohol and other drugs to forget my not knowing at the time, that’s exactly what I was doing… I problems and to help fill a void I’d felt most of my life. I felt was around 15 years old at the time. I eventually started to worthless, unlovable, confused, broken.” carry a gun, not wanting to get rob by stick up kids… I ended up falling in love with a girl who would eventually become Kristin Edmundson wrote that she was emotionally and the mother of my first child… [My daughter’s birth] was the physically abused by a family member during her childhood, happiest day of my life at 17 years old. But not even her birth with whom she has since reconciled. She continued: could pull me away from the street life. I got to only be in her life for 1 year before I got a life sentence.” Growing up in a small town and being openly Gay did not help much with my emotional well being nor my mental Felix Rosado described losing interest in school during well being... I was not only ‘picked on’ by my fellow peers his early teenage years after his family moved to a but teachers as well… A few months after [high school] neighborhood that they believed was safer, but was near a graduation I embarked on my new life, which basically led busy drug trafficking area: me into an abusive relationship. Those were the two years where my life went into a downward spiral which led me to Much more captivating [than school] was who I saw on the make horrendous decisions and choices. way to and from school—the cars, clothes, girls, women. At some point I started shoplifting, then breaking into cars, Sheena King also wrote about the effects of abuse and then stealing cars, then making my first cocaine sale... It all trauma inflicted from a young age: happened fairly quickly, from my first drug sale at age 14-15 to murder at 18. I disappointed a lot of people who had high I am/was the oldest of 3 siblings... I was the protector and hopes for me—family, teachers, neighbors, even probation when I was molested repeatedly by the stepfather from officers. I didn’t know at the time that Reading was among ages 9-12, my protection of my sisters became much more the most impoverished cities in the US, that I was part of a intense/extreme. Because of the abuse in my home and my larger social narrative that was playing out in inner cities mother working 2-3 jobs, I withdrew into myself. I had no self- across the country. I got sucked into a merciless lifestyle esteem or self-worth. I was basically consumed with anger, that then tossed me into a merciless system, where over 2 shame, and guilt. I didn’t have a life before incarceration, I decades later I’m still stuck.” was just existing.” 55 Beginning of Sentence A fter being sentenced to death-by-incarceration, I destroyed, I couldn’t even begin to comprehend it all…After most of those who responded to the questionnaire a while I had given up on myself pretty much completely.” described a difficult adjustment period to serving their Sheena King described similar feelings: “I felt fear that I tried sentence in the Department of Corrections. Because so to hide behind a tough girl exterior but more than anything, I many began serving the sentences at young ages, they felt so much shame and guilt from what I had done. I really described the struggles associated with being forced to didn’t have a desire to live.” Felix Rosado described the grow up in prison. Many expressed feelings of denial, shame difficulty in confronting the consequences of his actions and or guilt, and depression, and often acted out or became his sentence: “After discovering that my sentence was indeed withdrawn. a death sentence, I regretted pleading guilty and resented my trial attorney for convincing me that I’d be eligible for release Phillip Ocampo wrote: “I was still in a denial phase and not after some years. This made me bitter and as a result I wasn’t believing that I was going to spend the rest of my life in prison. I able to focus on the harm I’d caused and what I needed to do tried to just ignore the reality of my sentence… I had to learn the to improve myself and grow as a human being.” do’s and dont’s of prison life, which was another world in itself… 56 It was definitely frightening for a teenager.” Haddrick Byrd Many of the people who responded to the questionnaire expressed similar sentiments: “When I first started serving my also expressed feelings of depression at the beginning of sentence, I was in a state of disbelief that I had been given a their sentences. Zechariah Thompson wrote: “I felt like my [DBI sentence]. Because I was only 21 years of age, and so my life was over, I became severely depressed, scared, and lost life hadn’t really started to begin due to my immaturity and interest in most things very quickly. I wished I could just sleep lack of social skills.” Nicole Newell wrote: “When I first started forever and wish I’d wake up and it would be a dream.” Oscar serving my sentence I was very angry, bitter, had this I don’t Cintora recalled similar feelings: “I felt like my whole life was care attitude… I made the beginning of my time hard. I was 20 over...sometimes I even thought that it was better to switch when I came to Muncy, being a follower, doing dumb things places with our victim, it would have saved a lot of grief to to get myself in trouble.” Char Pfender experienced a similar many people, his family and my family, yes my family would adjustment period: “When I first started doing this time, I was have suffered my death, but after a while they would continue angry, confused, resentful... I acted out and got in trouble a their lives.” Henrietta Harris felt “numb, angry, sad” at the lot for about a year.” Changa Asa Ramu wrote: “I became beginning of her sentence. She continued: “When I arrived at rebellious and miserable, breaking prison rules and ending up SCI Muncy to begin this sentence, I was 7 ½ months pregnant in disciplinary confinement and cell restriction a lot.” with my third son. I cried a lot, was depressed... I started to feel hopeless.” Paula Johnson went through similar experiences: Kristin Edmundson wrote that she felt a lack of hope and “I was extremely depressed at first and for a while. I was in the that life had no point at the beginning of her sentence. Mental Health Unit off and on... While I was at the M.H.U. I was She continued, “I was just trying to adjust to everything. put on depression medicine.” The realization of what I had done, how many peoples lives CASE PROFILE Sheena King With my passion for and knowledge and experience of surviving sexual abuse and domestic violence, I am certain that I would be an asset in helping others to overcome the traumas of childhood incest and abuse.” Many of those serving DBI sentences have transformed their lives and become exemplary leaders, teachers, educators. Sheena King, president of the Inmate Organization at SCI Muncy, is one of them. If given the opportunity to be released, Sheena will continue her amazing, necessary, lifesaving work with survivors. Sexual molestation, rape and violence An accomplished writer, Sheena has been published in six poetry anthologies and published two books. In 2014, Sheena completed her memoir, Submerged. In the introduction she writes: “The number of children that have been sexually abused is staggering. The long-term effects of child molestation and abuse on children is devastatingly depressing. We cannot pretend that it doesn’t happen or close our eyes to the truth. You may have suffered at the hands of an adult in the past or you may be living through that nightmare right now. You’re not alone. Perhaps you love someone who at the hands of her step-father began Sheena has gone through intensive is now trying to cope with the debilitating when Sheena was 9 years old. The therapy during her incarceration, effects of trauma. You don’t know how to devastating trauma visited upon her grappling with the trauma she help. Your mind can’t conceive of what she countless times set her on a course experienced as a child, and becoming or he has been through. You’re not alone. . . where she was vulnerable to emotional a leader and mentor to countless other . If it happened to you, this story is for you. If manipulation and threats of violence, women who survived childhood sexual it happened to someone you love, this story particularly from abusive men. When abuse. As a peer counselor in the House is for you. If you want to help yourself or she was 18 years old, Sheena was of Hope program for survivors of sexual someone else, this story is for you.” ordered to commit a murder by the man violence she has conducted client she was seeing under threat of harm to interviews; designed and produced Never minimizing or losing sight of the her mother and child. Sheena sincerely exposure therapy exercises; counseled crime that she committed, Sheena believed the choice was between her individuals and provided group has accepted responsibility, dealt with family or this unknown victim. The services; conducted record reviews and her traumatic past, shown exponential man who ordered Sheena to commit participated in client evaluation with personal growth and become a woman the homicide was never prosecuted, other professionals; assisted clients in that anyone (incarcerated or not) could even though Sheena was successfully identifying and solving problems and look up to as a role model. If given the prosecuted for conspiring with him to achieving personal, family, and marital opportunity to be released, Sheena will commit murder by the Philadelphia development; trained and managed 16 continue her amazing, necessary, life- District Attorney’s Office. graduates in their becoming program saving work with survivors. counselors; assisted individuals in Upon arrest Sheena confessed and understanding and overcoming social, has felt profound remorse ever since, sexual, and emotional problems; and seeking to atone through a life of much more. service. 57 Maturity A fter the initial adjustment period, most respondents thinker not so fast to react.” Another expressed similar growth: described a period of maturity, transformation, and “I’ve matured a lot over the years. I am more poised. I no longer tremendous personal growth. Paula Johnson wrote that she think in the same ways I use to. I’ve learned to put my priorities received a number of misconducts during her first 8 or 9 in order.” months in prison. Since then, she wrote that she has been 58 “misconduct free now 17 ½ years.” Zechariah Thompson wrote: Saadiq Palmer wrote: “I’ve become more aware and conscious “Today, I think as a man instead of an immature person. I of other people’s feeling. I’ve developed a level of selflessness thought I knew everything, had everything figured out. Today, I that I don’t think I would have ever been able to reach. I’ve listen instead of ‘hear’. I take heed of any criticism, I don’t even changed in so many ways because I was forced to see life have the same way of thinking. If I were to be released today, I through a different set of lenses. Maturing on the inside is a know I would never return to prison.” Haddrick Byrd described whole lot different from maturing on the outside.” Similarly, his transformation: “I had to look closely at the way I was Phillip Ocampo wrote: “I went from an immature teenager living, and come to grips with the fact that I was functioning that only worried about himself, not caring about what others only to satisfy my desires, and to look good in the eyes of other thought or their opinions. I didn’t care about other peoples people in order to maintain a false image. Therefore, it became feelings only my own. I realized that my actions not only hurt clear to me that I had to make a change in my life, and by the myself, but also others as well, especially those that love me… Grace and Mercy of Allah (God), I no longer portray the person I had to change my thought process and realize that I had to or act the way that I once did.” treat others the way that I would like to be treated. I had to learn that in order to get respect, you must give it.” Kevin Kelly wrote that he now values life and living, but when he was younger “I was reckless and uncaring in my actions Sheena King wrote that she initially felt like she deserved and way of seeing things in life. I’m more patient and I evaluate to die in prison. She continued: “When I matured and began things better before acting.” Similarly, Malakki Bolden wrote: to live with purpose after doing intensive work on myself, “My respect for the sanctity of life has blossomed in me to I felt like I had so much to offer and I wanted a chance to harvest a non-violent way of being. I share this energy with make my life count.” Felix Rosado wrote, “at age 27, I woke others and I insist to them that taking a life and hurting others up—to put it mildly.” He partially attributes his transformation does more to hurt yourself and your loved ones than you can to an encounter with a childhood friend while Felix was fathom.” serving time in solitary confinement. Felix’s friend, who was incarcerated in permanent solitary confinement on death Many respondents wrote that, as they’ve matured, they take row, said that “he’d do anything to just hug and kiss his 5 more time to think about their actions and their outlook. sons and father, come out of his cell every morning, uncuffed, Many also describe being more selfless and thinking about and in his own word, ‘breathe’—which he’d be able to do if he themselves as part of a larger community. were in my situation.” Felix wrote that this encounter “shifted my perspective and pushed me to take advantage of the Nicole Newell said: “I don’t think destructively or in a harmful opportunities I had... And at some point, I concluded that my manner any more. It’s not ‘if a person do something to me get individual fight is inextricably tied to a much larger struggle.” them back’, it’s now, if a person do something to me I’ll give it a few days then talk to that person to get a understanding Respondents attributed their personal growth and maturity and do something different (positive). It’s not worth holding to a number of different factors, often in combination. Some on to bitterness, hatred, or anger... I’m just at peace with my recognized their growth as a natural product of growing demons. I learned how to forgive and move on.” One person older. Many of those serving DBI, particularly women, who wished to remain anonymous wrote: “I am more of a stressed that their ability to confront and heal from past trauma and the development of identity and self-worth were and I use all of those lessons as I move forward in the pursuit critical to their growth and ability to deal with problems in of justice, collective empowerment, and liberation in American healthy ways. Nicole Newell cited programs that addressed society.” Zechariah Thompson wrote: “I learned how to deal dealing with anger, violence prevention, and abuse as with pain without drugs; and I’m kind of religious about facilitating healing and growth: “I didn’t know how to control walking the way a man should.” my anger, or deal with the pain of my child/teen years. I now use the tools to help others cope that’s dealing with the same Some respondents also attributed their growth to strong or similar issues I was dealing with years ago.” relationships with mentors in prison, development of religious or spiritual beliefs, education, or various programs. Char Pfender described a “metamorphosis” in dealing with the effects of childhood abuse: “It really shaped me growing Char Pfender described the effect of having a mentor. up. As I went through abuse programs and learned it wasn’t Char wrote that she regularly got into trouble during the my fault and reasons abuse happens, I was able to start to first year of her incarceration, “until I got into school and an love myself and not feel shame all the time. I began having apprenticeship and learned I was smart and had skills with trusting relationships, growing closer to my family. I am able to my hands. I started creating furniture and was experiencing forgive and give love freely to others. Finding salvation was the pride in myself. My boss...would talk me through my feelings of icing on the cake and beginning and ending my day in the right anger, hopelessness, fear, not knowing how to be an adult in frame of mind helps me cope with whatever the day brings. an adult facility... He changed how I approached all of life.” That has helped me tremendously in facing my problems head Kristin Edmundson wrote that through some of the programs on.” she has participated in, “I have learned to be able to love myself, to work on my insecurities and deal with problems in a Henrietta Harris described a substantial change in how she productive and healthy manner.” Henrietta Harris also found processes and deals with life issues: “I can relate to others in substantial value in some of the programs she completed: a different way now that I’ve addressed issues that caused my “My most important programs were Violence Prevention, The pain and hurt... I understand now [that] back then I was coping Abuse Program, and [Alcohol and Other Drugs]. Those three the best I knew how. I’ve learned new ways of coping and programs are helpful to me daily. I think before I speak, I no these new ways are positive and I feel better when I’m being longer expect people to hurt me... I participated in the Anger positive. I’ve learned forgiveness is for me and not the other Management Program because I no longer wanted to be person. I know I changed because it was change or die slowly angry, I’d been that for most of my life.” Stacey Newkirk wrote daily. I’ve learned to appreciate life.” Sheena King described that one program “helped me to see the abusive relationships overcoming the “self-loathing” she felt when she was I was in and why I choose to get into those relationships. I also younger: “I found my voice, my purpose for living and I have learned that ‘hurt people hurt people’. So if someone is doing no fears where I was shy, afraid of everything especially trying, something hurtful to me it is because they are hurting. I took a and didn’t think I had anything to offer except sex. I know that self-esteem group. I was really hard on myself. I had to find out I changed because I didn’t like what I saw when I really looked why and change the way that I felt.” at myself and I needed to be somebody better for my children. I needed them to be proud of me not disappointed.” Felix Rosado described the impact of becoming involved in a program in which incarcerated people spoke to youth from David Lee wrote: “It took many years of healing and soul a juvenile detention center: “The first time I did was when I searching to create a healthy mental outlook on life, and most discovered that, despite being behind a wall fighting a DBI of those years were spent in isolation inside of a state operated sentence, I can have a positive impact on people’s lives. That cage... As a young person, I truly did not love myself because evening I discovered my purpose in life—to use my story and I had absolutely no clue about who I really was; I had no gifts to help prevent some of the same hurt and loss I caused purpose in life, and no direction.” Now, however, David says, and experienced.” Felix also obtained a Bachelor’s Degree “I’ve learned a great deal from past mistakes and successes, in Interdisciplinary Studies from Villanova University while 59 incarcerated. On his experience at Villanova, Felix wrote hard encouraging them to be the best they could be, stay in that it “helped me develop a social imagination, increased school, and not let my coming to prison be a reason for them my empathy for other cultures and people, and gave me a not to live up to their full potential. I needed them to know they historical context in which to place my individual experience, are loved.” among other things.” Oscar Cintora wrote: “After more than 23 years behind bars, One person who wished to remain anonymous wrote: all my friends on the outside are gone, they continued with “I’m not nearly as self-absorbed as I used to be. I’m not as their lives and forgotten about me, which I don’t blame them, materialistic. I live my life by a set of spiritual principles – I had I probably would have done the same. Only my family is still no spiritual belief system before I came to prison. I’m much there for me. I call them and write to them often, it is hard to more disciplined, kind, honest, and responsible than I used to see them because of the distance, but I still get one or two be.” Changa Asa Ramu said: “[The most important things to visits from some of my family members per year.” The late me are] my ideas of spirituality, political and social reality. I Khalifa Diggs, who died in December 2017 while in DOC don’t see myself as one individual who received a raw deal. I custody, where he had been incarcerated for more than see myself as one of a collective who seek political, social and 40 years, wrote: “You write, call, send cards, look for familiar economical justice. Internally, I grew into a beautiful person faces on the news station, ask how so and so is doing. Then with ideas of world peace, spiritual enlightenment, and self- after years of outside death stories, you start pinching yourself, mastery.” in many cases kissin ass to get a letter. Life moves on exceptyou’re not amongst the livin. Now the struggle begins.” Many respondents cited relationships with family and friends 60 as both a major catalyst in their growth and as providing One person who wished to remain anonymous wrote: “Visits necessary support to do so. Family and outside support were are few and far between. My parents are old and the strain of frequently among the most important things to those who the long car ride is too much for them. I work hard to maintain responded to the questionnaire, but many noted that it is relationships with people on the outside because knowing that difficult to maintain these relationships due to distance, cost, people out there love me has a tremendous positive impact on and the passage of time, among other factors. my mental well-being.” Saadiq Palmer, for example, wrote: “It can be taxing at times, Many of those who responded said that lifers had a strong but I feel it’s important to maintain outside relationships in (but not universal) commitment to atone for harm they have order to not become institutionalized and lost in the system.” caused, and feel deep remorse. George Greenlee wrote: “Sometimes you go through feeling like I need and want to do right to show everyone who’s in your Char Pfender wrote: “I feel deep pain and remorse for ending life that you have changed. You become a better man, father, a life…No one should ever get killed…I look around at other friend, and all around person when you have time to sit and lifers and see the pain in them too. A lot of people think we only think about your actions and realize it’s time to make a change think of ourselves and how to get out. That is just a stereotype… for the better.” Zechariah Thompson wrote: “All I do now is We search for ways to right that wrong in all we do, behind correspond with my daughters, I try to be the best father I can these walls.” Malakki Bolden wrote: “We are not a monolith. be, and I reunited with my mother and made amends. She Some, like me, daily grieve [for victims] and others don’t care. apologized and told me the ways in which she loves me... I feel We are not all the same. But the media perpetuates the myth like [my daughters] are my reason to strive and stay alive and that having remorse is weak, while it is the true strength of a alert.” person and it can open the door to a higher purpose.” Henrietta Harris wrote: “[M]y children were my reason for Bruce Murray maintains his innocence in the crime for which getting out of bed, holding on to what life I did have, I needed he was convicted, but wrote: “I’ve lived with these men who them to know they were very, very important to me. I worked have killed, and have first hand knowledge th[ey’re] remorseful; this is why a lot of them head in-house organizations wanting I believe that those of us serving DBI sentences has to help any and all people, who have been a victim… [E]ven experienced losing someone we care about to violence, so though I did not do the crime I still would like to show my we know the hurt… I personally had an uncle killed violently… sympathy not only for the victim in my case but all victims.” I felt the hurt of losing him, as well as my entire family. So I Saadiq Palmer also spoke of his experiences with other can sympathize with my homicide victim and his loved ones… people serving death by incarceration: “Everybody shows It hurts even more that I personally knew the victim and his their feelings differently. If you really want to know how loved ones… When I found out that he was the victim in my somebody feels, talk to them and you’ll be surprised by their case, God as my witness, I cried… I hurt every day about his response. 95% of individuals I know have a great deal of death because he always treated me good… I pray every day remorse for the life the[y’re] responsible for taking.” that his family could find it in their heart to forgive me for me being involved in his death. George Greenlee wrote: “All I know is that I’m sorry for what I done. If I could do it all over again I know I would be taking Felix Rosado attributed part of the perceived lack of remorse a right instead of a left that’s for sure. Prisoners can change. I or sympathy toward victims that many believe exists among know I have. I would never want to see this place again.” Oscar those serving DBI sentences to the adversarial nature and Cintora expressed a similar sentiment: “If I could change harsh punishments of the criminal legal system: anything to avoid this situation or if I could switch places with the victim I would do it in a heart beat.” Sheena King wrote: I believe the system is designed to promote a certain degree “If there are people who feel no remorse for homicide…they of, at least, indifference on the part of people who’ve offended don’t represent the mass majority of us. Because my victim is a toward the people they’ve harmed. It’s hard to feel remorse mother, I think about her and her children as much as I think of or sympathy when we’re fighting for our freedom and in some my own and that is the one time that I hate myself.” cases, lives. But whatever seems to be true based on one’s exterior shouldn’t be confused with what’s deep in someone’s Phillip Ocampo, who was sentenced to DBI as a result of heart… In the restorative justice workshops I facilitate, I’ve his felony-murder conviction for his role in a robbery during witnessed hundreds of men break down in tears when we which someone was killed, emphasized that many who are watch a Victim-Offender Dialogue between a man and the serving DBI sentences have also experienced the pain of daughter of the girlfriend he murdered. In the workshop, we losing a loved one to violence: create a safe enough space where such vulnerability can be expressed. Unfortunately such spaces don’t exist in police stations, courtrooms, prisons, or any other stops along the criminal legal system process. 61 Accomplishments M any of those who responded to the questionnaire Phillip Ocampo listed numerous completed programs, completed numerous programs and attained academic achievements, and vocational experiences. In educational and vocational achievements during their time addition, “I’ve volunteered at the hospice here helping the in prison, despite difficulty in accessing these programs terminally ill… I also worked as a S.N.U. (Special Needs Unit) due to their sentence. Many also have served as leaders of Aide... I was also certified by the Board of Health to be a H.I.V. various programs and described the role of those serving Peer Educator… I also was a volunteer puppy trainer for the DBI sentences in positively influencing other incarcerated puppy program here... The puppies are trained for people with people. disabilities. I trained 8 puppies successfully. I would have to say that the puppy program was one of the most important Oscar Cintora wrote: “When you are a ‘lifer’ you are limited to programs to me because it allowed me to help someone in many programs or activities, but I’ve done violence prevention, need...” stress and anger, Day of Responsibility, Inside Out, sociology college class, tutor training, and worked as a teacher’s aide Malakki Bolden also described a number of academic and for over 15 years, helped many students obtain their GED, vocational certifications that he’s attained over the course of and also learned English, which was one of my biggest his incarceration: personal achievements.” Paula Johnson wrote: “I have done 62 a lot of schooling here, a lot of different groups, etc. I got 69 I have also taken enough college classes to have a degree certificates over the years…I participated in a lot because I (if inmates could get accredited) and participated in Inside- wanted to learn as much as possible.” Out classes as well and help establish a think tank (ElsinoreBennu) that did the first Inside-Out Police Training course. My David Lee described the most meaningful programs to him self study in math has covered Algebra, Trig, and Calculus and the role of those serving DBI in helping others who are as well as Binary and Hexadecimal math. In creative incarcerated: writing I am a published poet, completed a few novels and I have won awards through the PEN American Writing The most germane programs for me are the ones created by Center (pen.org/prisonwriting). Everything I have studied or prisoners because they are the most realistic, and they are accomplished was to better myself so this became who I am culturally attuned with various backgrounds of prisoners. now. And this better person is who I will bring to the outside We started one program called Dare-2-Care, which is a world once I am released. youth development program that not only mentors our youth, but provides meaning for older prisoners. I use the Malakki also wrote that he served as a peer facilitator for skills that I’ve developed in here to mentor youth on the some programs, a tutor, and a Certified Peer Specialist, who outside now, and they often express the value of being able provides assistance to other incarcerated people dealing to engage in honest and open conversations with someone with mental health issues. who has spent decades in prison, but used the time to grow and continuously develop… We also started an educational Haddrick Byrd wrote: “Upon beginning my sentence in program called “One Hood United” geared toward prison, I knew that I had to work towards bettering myself. providing our youth with cultural, political, and economic Therefore, I enrolled in school and got my GED, and went on enlightenment. to accumulate 49 ½ credits towards my associate degree in business management, while working at the same time.” Char Pfender obtained a GED and enrolled in college courses. She wrote: Growing up I was always led to believe I was not smart we go last. I have still yet to be selected from the list. But I enough…I didn’t expect to pass a GED... Somehow I managed really want to do the school program, because as a child, I to score the second highest score ever at Muncy. Then was taken out of every school program. I just really want to without studying, passed an SAT above average... I wish I have the opportunity to get a diploma.” Kevin Kelly echoed would have believed this of myself so much sooner in life. these thoughts: “I’ve done different programs which were I went on to take many college courses that changed my educational just to self improve myself, plus the institutions values, morals, viewpoints, and connected me to the world. which I’ve spent time in doesn’t permit us to get in programs I always felt disconnected because of my past. Education because they are placing people with short time in them.” changed that. Henrietta Harris wrote: “We’re placed at the bottom of Many people also expressed that it was difficult for those program lists because of this sentence. It’s the same as being serving DBI to access programs and activities due to their told, ‘You’re never going any place to use these skills’. This sentence, but that they had a strong desire to do so. alone is disheartening… How can we prove to society that we are changed, worth a second chance when we’re not ever Changa Asa Ramu wrote: “I attained my GED here and there given the opportunity to work and put it into action? Some has not been anything else available for me here. I been on speak of rehabilitation, give me the opportunity to show waiting list for other programs that never seem to become society what that word really mean.” Over the course of her open. It’s frustrating because I witness others get into these incarceration, Henrietta has nevertheless participated in programs before me when I been waiting longer.” Zechariah vocational programs and, among other programs, she wrote: Thompson expressed similar sentiments: “All they have told “I am presently a tutor in our Business/Computer classes. I me is that people with parole minimums are first on the list [for completed an Outpatient [Alcohol and Other Drugs] Group and program enrollment]. Basically, lifers are on the backburner, became a Peer Assistant in the program.” 63 CASE PROFILE Dawud On September 1, 1987, when he was 22 years-old, David Lee, now known as Dawud, accompanied an acquaintance to another person’s home and waited in the street while he knocked on the door. Without warning to Dawud, his acquaintance – who became his codefendant – pulled out a handgun and killed the man who opened the door. Months later, after Dawud refused 64 I used to spend 8 or more hours a day just studying and trying to make up for lost time. that still burns to this day. They ended up having my counselor interview me to determine if I was mentally capable of passing the test. She was impressed with the hour-long conversation we had and stated that I was mentally capable.”137 Dawud is a beloved member of multiple advocacy organizations and educational projects such as the Coalition to Abolish to take a plea deal to third-degree Death by Incarceration, Decarcerate homicide, which at that time carried PA, Lifelines. Dawud co-founded a maximum sentence of 20 years, or more hours a day just studying and the prosecution procured false testimony implicating him in the shooting, and Dawud was sentenced trying to make up for lost time. History, degrees of success. I wanted to know a youth development program called Dare-2-Care through which he and other incarcerated people mentor youth. Dawud also co-founded One Hood United, a youth education program. He Dawud has been incarcerated for all the things which were never taught has been instrumental in shaping the over 30 years. Early on he realized the to me in school. I learned about the true curriculum and mission of Address importance of taking control of his own meaning of capitalism, socialism, and This!, an education and empowerment education: other concepts which play a major role in project that provides innovative our lives. For the first time in my life, I felt correspondence courses to individuals “The first and most difficult thing was to empowered, so I wanted to test myself incarcerated in Pennsylvania, with a look inside of myself and understand and went to take the G.E.D. test. I was able special focus on the participation of what type of things needed to change in to pass the test the first time around. The prisoners in solitary confinement or my own life. That initial look in the mirror prison administration at Dallas thought maximum security conditions. was horrifying for me because there was that I cheated on the test because I so much that needed to change. My level never went to any of their classes. Also With legal representation and vast of underdevelopment was unspeakable. just one year earlier I was told during community and family support, There were many flaws. For one, I had my pre-sentence diagnostic test that I had the mentality of a fourth grader and that I was incapable of learning. That lit a fire inside of me Dawud is hopeful for the opportunity to DBI. to stop smoking and getting high. I was functionally illiterate so I had to begin to educate myself. I used to spend 8 politics, social science, culture, legal issues, and just life in general were all issues I studied. Of course with different to continue his commitment to social justice and transformation outside the prison walls. Outlook M any of those who responded to the questionnaire of prison, “but without a strong sense of hope we [have] acknowledged that DBI is a “slow death sentence,” absolutely no chance making it back to our families and but stressed the importance of maintaining a sense of communities.” hope as a source of motivation. For some, the sentence itself as well as the conditions in prison made it difficult to One person who wished to remain anonymous wrote: remain hopeful, while others expressed a strong belief that they would one day be able to return to their families and Getting sentenced to DBI was a wake up call to me that communities. Most people expressed some combination of forced me to look at how I was living my life and the person these feelings. that I’d become. It made me realize that my life is valuable and I have to make the most of it, even in prison. I’ve never Sheena King wrote that legal developments such as the felt hopeless because I do believe that one day I will get out U.S. Supreme Court’s decision in Miller v. Alabama provide a of prison. I believe every day I’m preparing myself for that glimmer of hope that those serving DBI may have a chance eventual release. I want to be ready so I can do my part to of freedom. But, she continued, “serving DBI is like having a help alleviate suffering in the world and reduce the number life-threatening debilitating disease. You know you’re going to of people, particularly women, coming to prison. I try not to die a slow painful process and a large part of you wishes your think of the enormity of the sentence because that can feel body would just succumb to this disease so the pain will end.” like all the air is being sucked out of your lungs – I try to live Saadiq Palmer also expressed that recent social and political one day at a time. That does not mean that I don’t have an movements have given those serving DBI hope that their occasional emotional breakdown. I allow myself that, then I prospects are changing: “You see so much loss on both sides get back to work. of the wall and it’s easy for that to affect your sense of hope. But with all that’s going on now some of that hope is coming Char Pfender described how her experience serving a DBI back for many of us that have or were starting to give up!” sentence changed over time: Khalifa Diggs wrote: “I am every wakeful moment remorseful, The first five years of prison was brutal, but I found a mentor I still can’t wrap my mind around life [without parole], death is in a teacher. He kept me from acting out and led me to death, slow or sudden, pull a trigger, use a knife, or a ball point apply myself... I always had something to finish or look pen...We don’t have a Death Date, so we fantasize about some forward to. Before you knew it 10-15-20 years went by… reverse miracle, locked in the past – because there really is no After 20 years it started getting harder. I still had unfulfilled future. What’s difficult is holding on to hope to live.” Not long dreams…that were not going to happen. I became less after penning these words, Khalifa passed away at age 67. involved with the inside and more involved with the outside, such as charities, prison society programs, restorative Paula Johnson wrote: “It is not difficult for me to maintain a justice... I kept hope alive in my heart. I never just give up. sense of hope. I will never lose hope as long as I live… Serving I believe things will change. Now that I am saved, I pray DBI is a slow death sentence. It’s not fun, but when you don’t for God to do his will in me and if that even means staying have a choice, you just have to make the best of it, and that’s longer to fulfill his purpose for me, then that is what I will exactly what I do.” Nicole Newell also wrote: “As long as I have deal with…I truly believe that hope is your belief in seeing a breath in my lungs and believe that I will get a second chance, wonderful end no matter how bad the middle looks, and I will always have hope.” Similarly, Phillip Ocampo wrote: “So growing from horrible beginnings. You cannot rise like a as long as there is breath in me, I’ll always have hope until phoenix from the ashes without walking through the fire first. I get out or go home to heaven.” David Lee expressed that I want to rise, not be consumed. it is difficult to maintain hope in the negative environment 65 Kristin Edmundson also wrote that her perception of her that you are just wasting space and oxygen, that it’s better off sentence changed over time: “It’s not only the physical getting the death penalty. But your family, friends, and God lockup, but your mental and emotional punishment you give give me strength and encouragement to keep going and keep to yourself. The emotional and mental punishment you put fighting, but it’s not easy.” yourself through is an agonizing pain… Now that I’m older and have more knowledge it’s harder because realizing the severity Kevin Kelly expressed similar feelings: “My attitude is up and of it all is actually more challenging but it makes me work down at times because I am forced to live in this environment… harder for freedom.” where I am just trying to maintain and keep my sanity in my environment where I wake everyday knowing that I will never Some people wrote that the commutation process seems get out... It is very much difficult to maintain a sense of hope intended to give people a sense of false hope, when but I do it because I have to try and live for them—my family.” in reality it offers no meaningful prospect of release. Malakki Bolden also wrote: “At [the beginning of my sentence], Oscar Cintora wrote: “Sometimes I even believe that [the hope was less than zero. But through the love of family and commutation process] exists just to say to people, yes, friends and a recommitment of religion, I am now the living there is a way to release people from those types of unjust personification of HOPE.” sentences, but everyone is being turned down.” Changa Asa Ramu described the difficulty of receiving commutation for Phillip Ocampo frequently cited his mother as a great those who had a difficult transition into their lives in prison: source of strength and inspiration, including in relation to his “Historically commutation has only been given to exceptional feelings about his DBI sentence: prisoners who maintained a trouble free prison record, 66 who became accepted and approved by guards, staff and It’s because of my family, especially my mother, that I know administrators as a honor inmate. For many of us who had a that I’m not alone in this fight for my freedom and I’m not bad adjustment to doing a life sentence...commutation does alone in any sense of the word… I would be lost in this place not appear realistically an option.” without my mother. I watch so many guys in here that has no family support and they are so lost and have no hope. For some, family, friends, and other supporters are a primary I’m blessed to have the mother that I have. She inspires me source of strength and motivation to continue striving for to this very day… Her strength, her fight, her never surrender freedom. Oscar Cintora wrote: “[Serving a DBI sentence] is very attitude, I get all of that from her. hard, some days you feel like giving up. Like you don’t matter, Goals, Hopes, Dreams M ost of the people who responded to the “Some of the best help and/or support for those right now questionnaire expressed strong desires to help struggling (with addiction, mental health, those living in crime- others, particularly youth, upon their release from prison. ridden areas, etc.) is us. We have lived lives similar to them – Many described numerous ways in which they have already we are them – and our examples of how to manage life’s ups been doing this work while incarcerated. As Khalifa Diggs and downs can reach them like nothing else. Rehabilitated wrote, most “wish to be a good spoke in the wheel of changing prisoners are the help society is looking for.” lives.” Bruce Murray described his goals upon reentering society: Malakki Bolden described how those who are currently serving DBI sentences are well-suited to carry out the work of building communities and serving as positive influences: I want to go back to vocational school to upgrade my carpentry skills[.] [T]his way, all those old homes in the hood; I can…teach the youth on the street how to do the trade caused it. It made sense. It gave me hope that I can actually and then once a group learn it we can do low income work do something to put my wrongs “more right.” My interest right in the hood to help keep the home liveable, while still in restorative justice quickly became a passion and soon training another group and branching out to other trade after I met my mentor and friend Charles. We developed skills and areas. I also want to continue Peer Training restorative justice education workshops and to date have and spend as much time with grandchildren, nieces and served almost 1,000 men here at Graterford… In 2008 I also nephews, etc. participated in the Alternatives to Violence Project. I took all 3 levels of the workshops and then became a facilitator, Kevin Kelly wrote: “I hope to get out and try and work with facilitation trainer, and co-coordinator, which I still am today. young people to educate them on what can happen if they Since I committed an act of violence that can never be decided to live the street life involving theirselves in any illegal undone, it’s especially crucial to me to now live a nonviolent activities.” Sheena King wrote that she completed a program life and help as many others as possible do the same. called House of Hope In-Patient Therapeutic Community for Survivors of Abuse while she was incarcerated. She Many others expressed their desire to make their wrongs continued: “when I worked at the House of Hope as a Peer “more right” and attempt to atone for harms that they Counselor years after completing [the program], I learned caused. Oscar Cintora wrote: “There are many people much more about myself. I found my passion in helping others serving this sentence (DBI) that are truly sorry and have heal from abuse and I would absolutely take those lessons changed their lives, that only ask for one more chance to outside of prison.” Nicole Newell also expressed her desire demonstrate our changes, and that we could be assets to our to help young people: “My goals are...to find a way to mentor communities, could make amends, or try to make amends, in teens, to see if I can have resources to open up a home for better ways from the outside.” Changa Asa Ramu expressed troubled pregnant teens. Now I know there’s places out there similar thoughts: “We understand that we have a debt to but be ran by someone that’s been there (in their shoes).” pay to society and are willing to take that responsibility. Saadiq Palmer wrote of similar goals: “[I want to] work and Our communities and families need [our presence].” Kristin advocate for the less fortunate. Spend as much time as I can Edmundson wrote: “I cannot change what happen although with my family and work with the kids to try to deter them from I really wish I could, but I can try to make up for my mistakes falling into the same trappings that I got caught up in.” and the hurt I’ve caused. I would like people to know that I will continue to strive and make myself a better person.” Felix Rosado described numerous programs and organizations that he has led and participated in—work In addition to helping others, many people strive to be that he wants to continue outside of prison. He discussed positive role models, build family relationships, and the importance of the concept of restorative justice in experience things they were never able to before their addressing harm: incarceration. In 2008 I [started] a restorative justice project later One person who wished to remain anonymous wrote: “[I want named Let’s Circle Up that I continue to coordinate today. to] reconnect with my family. Take care of my aging parents, My introduction to restorative justice came through a and build a better relationship with my children, and use some photoessay book of people who’ve been victimized... I had of the knowledge I’ve learned through reading to start my own 12 years in at the time and for the first time I was face-to- business, find a church to attend, and find time to help with face with the fact that I had caused the same pain I was some youth groups.” Henrietta Harris wrote that she wants reading about to a family with a story and faces of their “to be united with my remaining family members, find a job, own... I’d been conditioned to confine my concept of justice get my own place, get involved with my community, hopefully to cops, courts, and prison cells. Here I was reading about become a motivational speaker, be an active member in my a way of doing justice that attempts to heal by involving the church, get involved with volunteer organizations, be involved people directly affected by the crime(s)—including those who with Prison Society.” 67 Phillip Ocampo wrote: a person can change for the better and be a productive member of society. The most important thing to me first is getting home to my family and being able to be involved in my children Nicole Newell also expressed that family was her primary and grandchildren lives. Other important things that are focus: “There’s no other place I rather be then surrounded important to me is doing some mentoring to our youth with my siblings, daughter, and grand kids.” Stacey Newkirk and trying to steer them away from prison… My goal is to expressed similar desires: “I would love to get a job to support go home and be a better father to my children, a better myself. I would like to become a home owner again. I would grandfather, a better grandson, a better son, and a better like to spend time with my children and grandchildren. I would man than when I came in. A man that made a mistake as like to take care of my mother and sister. I would like to offer a teenager and not only show, but prove to society that housing and support for women getting out of prison who have no one.” Ending DBI M 68 any of those who responded to the questionnaire Speaking against the attitude and intention behind DBI offered their reasons for supporting an end to DBI sentences, Khalifa Diggs wrote: “Laws are controlling sentences. They wrote about how they and others they sentences uttered from the mouths of class status seekers know would be assets to their communities if released, the without concern of the Husband, Brother, Mother, Daughter, importance of affording second chances and opportunities Son—they kill with their support of a broken system. Dining on for redemption, upholding human dignity, and the costs of words like ‘he’s a predator, not redeemable, throw away the sentencing people to die in prison. key’.” Changa Asa Ramu also wrote of redemption: “Prisoners should be given the opportunity to redeem ourselves. Human Char Pfender synthesized many of these sentiments in her nature is to error and as a society we’re supposed to correct responses: errant behavior, not condemn it for life.” Punishment should not be confused with vengeance. As One person who wished to remain anonymous wrote: “Most a believer in God, we must forgive in order to be healed. of us are changed and have learned from our mistakes and Once I forgave my father [for his abuse], I knew I was ready would desperately love a second chance... Tax dollars could to ask for forgiveness. We should not be characterized by go toward not just housing people waiting to die, and use it to the worst mistake of our life for the rest of our life. People rehabilitate and introduce the rehabilitated back into society, change, people work to restore the harm they’ve done. Some so they can become tax paying productive members of their were children when they made the mistake, and were too communities.” Bruce Murray also wrote: “We ask for another immature to be held completely responsible. We deserve a chance to help after a time of growth and reflection, our second chance at some point. community needs us, our family needs us, our victims need us for we owe a debt to them.” Oscar Cintora also expressed similar sentiments: “I believe that everyone should deserve a second chance, an opportunity Nicole Newell wrote: “Most of us have change for the better, to rehabilitate themselves to make amends and show that we have grown and realize that we hurt others and we want people can change.” Oscar also added that releasing some a second chance to prove that we are better women... We people who are serving DBI sentences “could save the state help young ones that come through these gates, we tell them lots of money that can be used for other more important needs our story so they won’t come back. So far three of them that I and we can contribute to our communities in many ways.” shared my story with haven’t come back.” Kristin Edmundson wrote about the maturity of those serving DBI sentences and a crime and get a life sentence it doesn’t matter what you the unlikelihood that they will return to prison: “[A] majority do after that because you will never be set free. Yet people of people [serving DBI] would become productive members of [serving DBI] still do the right thing. Why? Because they are society if they were released. We have learned to survive and good people who made a bad choice that cost them the rest overcome many obstacles and with those tools of knowledge of their life. Still they changed, for no one, but themselves. we can make better choices with our lives. We also know what it’s like to lose everything.” Felix Rosado also wrote about others serving DBI sentences, writing that they are among the kindest, most caring, selfless, Malakki Bolden wrote about the causes of violence and resilient human beings I’ve ever known. They’ve been making a how DBI sentences do not solve the problems that need to positive difference in the lives of countless people for decades be addressed or respect the dignity of those serving these to little fanfare, not for credit, not to impress a parole board— sentences: but just because it’s the right thing to do. It’s about character and purpose, and a higher sense of self that transcends walls, It is hurt people who turn around and begin to hurt other bars, labels and the dehumanization inherent in prisons— people. Some of us have issues and challenges we did not despite prison... We weren’t created to be trapped in a moment know how to solve and this led us to anti-social behavior. of time, to be prevented from reaching something higher. But we are still human. To shut us down from receiving basic care and concern and isolating us from society makes it Felix also wrote that his experience in restorative justice easier for the worst within someone to fester and evolve work has taught him that victims and survivors also do them into a shadow – a walking corpse. And for those who not want to be reduced to a single act or moment in time. found a ray of hope in this oblivion and have even managed But, “DBI doesn’t allow families to move forward. Everyone to better themselves, would not a second chance give them involved…is forced to forever stay stuck in one devastating a reward for their astounding feat, as well as give some moment in time.” incentive to the desolate that hope hasn’t died? If not so then maybe it isn’t just some of the incarcerated who have lost Many people focused on the particular ability of those touch with what it means to be human. serving DBI sentences to inspire and produce positive change for their communities on the outside if given the Sheena King expressed similar thoughts: opportunity. Phillip Ocampo wrote: “A lot of us serving these sentences could do more good on the outside than in here and We are not what we’ve done... DBI does not fix what’s should be given the chance to show that we could make a broken in people or communities... DBI sentences serve no difference in life on a positive level.” David Lee, who maintains real purpose. You lock people up until they die and how his innocence of the crime for which he was convicted, does that bring back a loved one, or cause a person to wrote: “I have spent over half of my life in prison for a crime I see the error of their ways and change? How does it help a did not commit, and all I want to do is positive work within and victim’s family to heal? People serving DBI have hurt entire beyond my community.” He continued: communities – we need to be held accountable to help to fix it. We can’t in a cell. I also talk to many DBI prisoners wo have committed the acts they’re incarcerated for, and they just want Many people wrote that those serving DBI sentences seek an opportunity to redeem themselves. This is why the to be kind, community-oriented, and positive influences, “Restorative Justice” concept is so vital, and something despite the seeming impossibility of being released. Stacey desperately needed in this state. Healing and repair is Newkirk wrote: needed, not excessive punishment. Keeping someone locked up forever is not accomplishing anything. If it did crime would have stopped... If you commit Saadiq Palmer summarized many of the sentiments expressed by other people serving DBI sentences: 69 Life without parole is not a deterrent and it’s inhuman to change. Myself and the many men that I work with will be keep somebody locked away for decades that has been agents for change. Changing the lives and direction of our rehabilitated. It’s cost effective to grant us parole. And most youth is paramount for all of us. We’ve lost children, family of all we are the least likely to reoffend out of all offenses… and friends in our time inside. We care, we’re sorry for the less than 1% of men and women serving DBI released on harms we’ve caused. Let us lead by example, let us show the parole, pardon or commutation reoffend after release. Allow world that change and transformation is possible!” us to use our experience serving DBI as a prescription for 70 71 72 IV. ABOLITIONIST HORIZONS STRATEGIES AND RECOMMENDATIONS FOR ABOLISHING DEATH BY INCARCERATION I. Building the Movement to Abolish DBI A s this report has demonstrated, Death-By-Incarceration individuals who will pose a public safety threat for the rest is more than a failed policy or a well-meaning yet of their lives, as they are imposed pursuant to a mandatory excessive response to violence. scheme that never allows for a less severe punishment. The practice of sending people to serve decades in prison Instead, DBI is central to the system of mass incarceration in Pennsylvania; a material, institutional, and ideological pillar of a regime of state violence that systematically targets the poor and communities of color. DBI sentencing exemplifies the logic of fear, vengeance, and social death that underlie and sustain the institutions of policing and prisons in this country. without any prospect of release until they die has been conducted for decades without so much as a review by any legislative or executive official as to its efficacy, purpose, effect, or inhumanity. The consequences are too pervasive and pernicious to ignore. The voices of those on the inside insisting on recognition of their full humanity and the rights that should accompany that recognition are growing louder by the day. As an increasingly elderly population, aging lifers in Pennsylvania prisons who have already served substantial time not only pose an extremely low risk of reoffending for any offense, but scores of them have invaluable life experiences, wisdom, skills, insight, and leadership to share with their communities and the society at large, earned The staggering racial disparities are indicative of the through hard decades of maturation, reflection, dedication, ongoing reality of white supremacy and anti-Blackness that and transformation. relentlessly deprives people of color of their rights and their liberty. To speak plainly, in its application and function DBI In summary, DBI is an abomination—a human rights crisis is racist, targeting communities of color that are subject to demanding urgent attention and prompt abolition. As conditions of imposed poverty and deprivation with policies illustrated in the heart of this report—the words of lifers of state violence rather than social support, services, and themselves—those serving these sentences do not need us uplift, demonizing and traumatizing them with policies to speak for them. They are more than capable of doing that of permanent punishment under the insidious pretext for themselves. of providing protection and safety, neither of which ever materialize. Instead, they need people to fight with them for their freedom, for a new paradigm of justice rooted in community DBI is not an effective deterrent to crime. In Pennsylvania, restoration and accountability, transformation rather than DBI sentences do not even offer the pretext of identifying retribution, one where a preferential option for rehabilitation 73 is always taken and the right to redemption becomes a litigation, legislative reform, and pursuing relief in reality. individual appeals or through the commutation process. In furtherance of that fight, we conclude with a synopsis of Each individual initiative supports the larger movement to strategies for the rollback and ultimate abolition of DBI. Our abolish DBI, and any individual defeat is merely a setback approach is founded on the following principles: to learn from and an obstacle to overcome. • Movement-based approach: A movement-based • Unity and Support for All People Sentenced to approach rooted in organizing specific and diverse DBI: Although some strategies may be limited in rolling constituencies in support of the common goal of ending back DBI, applying only to individual cases or sub- DBI, providing second chances for those sentenced to DBI, categories of those sentenced to DBI, such as juveniles, and supporting a new paradigm of justice. This requires those aged 18-21, or those convicted of 2nd degree more than just shaping or changing public opinion – it homicide, we understand these as components of a means inspiring and planning political action in support of long-term effort to undermine the legitimacy of DBI in our common goal. all instances. When advocating for individuals or specific categories of lifers, therefore, we always emphasize the • Leadership of Most Impacted: Centering the 74 need to end DBI for everybody, to support all lifers, and leadership of those most impacted –those serving not to adopt rhetoric or strategies that pit lifers against DBI, their families, and communities most impacted by each other or suggest – implicitly or explicitly – that a DBI violence – in our movement-building work. sentence is justified for some individuals. • Multi-Strategy: We support a multi-strategy, What follows is a brief summary of initiatives already movement-building approach that includes public underway or recommendations for reforms that contribute to education, community organizing and mobilization, the abolition of DBI. II. Legislation T he most direct and comprehensive route to ending LWOP in Europe. Additionally, many countries in Latin DBI is through the legislature. After years of inattention America and Asia do not have LWOP as part of their penal by state lawmakers, a newly-elected state representative, code. Even among those countries that do impose LWOP, Jason Dawkins, introduced a bill in 2016 that would provide the United States does so far more often than any other. parole eligibility for everybody serving a life sentence after Pennsylvania had the second highest LWOP population in 15 years. The legislation includes a retroactive application the nation as of 2008. provision, meaning that it would apply to all those currently serving a sentence of DBI. Representative Dawkins reintroduced the legislation in the 2017 legislative session.138 Currently, HB135 has 23 sponsors. 139 In the legislative All life sentences in Pennsylvania are imposed without the possibility of parole. This means that individuals sentenced to life imprisonment may not be considered for parole, no memoranda accompanying reintroduction of the legislation, matter how much they have reformed themselves and no Representative Dawkins framed the problem of DBI: matter how unlikely they are to reoffend. Those sentenced to LWOP in Pennsylvania also have no chance at release Few other nations authorize life without parole (LWOP). Only when they grow so ill or elderly they pose little to no risk to three European nations have laws permitting life sentences the public. Not only does this represent an injustice to an for which the only mechanism for release is executive individual who is a model inmate despite having no chance clemency. There may be as few as 100 inmates serving at life outside of prison, but it also creates an avoidable expense for the corrections system – and the taxpayers • Maximum-Minimums: As a companion to Dawkins’ who fund it – by incarcerating individuals longer than and Streets’ legislation that sets a minimum sentence of necessary.140 15 years before lifers would become parole eligible, the legislature and sentencing reform advocates should push In October 2017, newly-elected state senator Sharif Street for a law that sets 15 years as the maximum that anybody introduced a companion bill, SB942, which is identical to can consecutively serve before being parole eligible. This Representative Dawkins’ bill.141 This legislation currently has 4 means that individuals serving sentences for multiple sponsors in the Pennsylvania Senate. convictions or for offenses other than first or second- 142 degree homicide should also have their minimums The legislation has been actively supported by the recalibrated accordingly so that the new paradigm for all Coalition to Abolish Death By Incarceration (CADBI), an sentencing in the state is no more than 15 years before the organization formed in 2014 by the grassroots organizations parole board is permitted to consider a person for release. Decarcerate PA, Fight for Lifers, Human Rights Coalition, Such a reform is an essential component of reorienting and Reconstruction, Inc, and Right to Redemption, a lifers the system away from a punitive and retributive function group at SCI Graterford. In October 2016, CADBI organized toward one where rehabilitation, restoration to the a rally and lobbying day in support of Dawkins’ legislation community, and redemption are unambiguously the at the state capitol in Harrisburg. The following year, CADBI objectives of the criminal legal system. was joined by the newly-formed CADBI-West, based in Pittsburgh, for another day of support. Each year saw more • Maximum sentences, elimination of “life-tails”: than 200 people call for an end DBI in the halls of the The presumption of the criminal legal process should be legislature that initiated and continues to perpetuate the that every person subjected to it will be released from injustice of DBI. Most of those who attended were family prison and eventually be released from any form of state members of lifers and many were formerly incarcerated control such as probation or parole. While this initiative themselves. Over the last 3 years CADBI has seen a surge in should be pursued after parole eligibility for lifers has membership, built support for HB135 and SB942, and seen been established, it is a natural corollary of abolishing DBI the creation of CADBI chapters in Pittsburgh and Harrisburg. sentences as it directly challenges the presumption that public safety is furthered by the permanent surveillance While this legislation is the most direct and comprehensive and control of people who have committed harm. Setting approach to ending DBI sentences in Pennsylvania, its affirmative limits on state violence is an essential aspect passage will take years of patient, methodical, and strategic of decarceration, both as a concrete means for allowing organizing. There are 50 senators and 203 representatives greater freedom and as a means of correcting the harmful, in the state of Pennsylvania, the majority of whom have not stigmatizing, counter-productive ideas and practices shown any initiative in reducing mass incarceration. CADBI sustaining the current system of permanent punishment. and its allies will have to continue to develop organizational capacity, build a statewide coalition that shapes the policies • Community Reinvestment: The legislature should of candidates for the legislature, and hold elected legislators fully invest in funding programmatic opportunities accountable to decarcerating Pennsylvania and ending DBI.” inside and outside the prison to prepare lifers for reentry to the community. Decarceration means more Some other recommendations for the legislature or those than emptying prison beds; it requires funding social advocating for legislation around ending DBI include: services, employment opportunities, vocational training, educational programs, and other initiatives that will enable successful re-entry and address inequality through redistributive social and economic programs. 75 CASE PROFILE Marie “Mechie” Scott My name is Marie Scott. My friends call me Mechie. I nicknamed myself after my best friend, Peachie, whose real name is Sharon Wiggins. She is deceased now, but as a teenager I always wanted to grow up to be like her. Because of Peachie, today I am proud to be who I am. I have two children, a son and a 76 Codependence is a disease that brought most women to prison. During her 45 years of incarceration, Mechie has completed paralegal training, taken courses through Bucknell and Bloomsburg University, received an Associate Degree from Penn State University, and completed numerous rehabilitative programs. She is the founder and editor of the daughter. In 2008, I lost my son to a newsletter C.O.P.I.N.G. – Children of motorcycle accident. I thought I could Parent Inmates Needing Guidance, lose my mind because we always Codependence is a disease that a project that assists the children of thought that I would be released one day brought most women to prison. Because incarcerated parents in Philadelphia.144 to share time with both of my children. My codependency is a disease, I had to treat daughter’s name is Gretta. it as such. It is what cause me not to be Mechie has collaborated with the able to say “no” to a guy who saved my author and restorative justice advocate I was born in Harlem, New York. Growing life during a robbery that took place at Howard Zehr, and been featured in his up I was constantly molested and raped the store I was employed at. I felt I owed books Doing Life: Reflections of Men until I was fifteen. Behind it I became my life to this guy after saving mine. and Women Serving Life Sentences severely codependent. The kind who How could I say no to a request to be a and What Will Happen to Me, the could not say “no.” I felt if a man took me lookout in a robbery?” latter dealing with the children of 143 incarcerated parents and featuring to a movie, that he was in love with me, so if he took me to dinner afterwards, he wanted to marry me. Love had been distorted in my childhood. Poverty, homelessness, and drug addiction were added to the horror of sexual violence that Mechie suffered as a child. In 1973, Mechie and her daughter, Hope. Mechie while in the midst of a relapse and at term collaboration with eight people the instigation of her co-defendant, serving DBI sentences in Pennsylvania. Mechie accompanied a 16-year-old boy on a robbery in Philadelphia. She was only 19. Although she was the lookout and did not kill nor intend to kill the victim, she ended up with a mandatory DBI sentence. Her co-defendant has since been re-sentenced and is now parole eligible as a result of recent U.S. Supreme Court decisions. is also a participant in Lifelines: Voices Against the Other Death Penalty, a media cultural project involving long- III. Decarcerate DA A On the Prosecutorial Obligations to Drastically Curtail Incarceration s innocence projects have proliferated around the mass incarceration necessitate directly confronting violent country to address the systemic reality of the criminal offenses and challenging the core assumptions and most legal system’s conviction and incarceration of innocent draconian, permanent punishments of the system of people, some district attorney offices have been pressured mass incarceration. As is being shown in Philadelphia and to adopt conviction review units to review innocence claims. other jurisdictions where prosecutor races have become A corollary to these efforts is an innovation being pushed in increasingly politicized, one strategy for doing this is to Philadelphia – the expansion of conviction review to include mobilize in support of district attorney candidates who cases of excessive sentencing, with a specific focus on will implement policies aimed at reducing incarceration, DBI sentences. If successful, it can and should serve as a eschewing a punitive ethos, and supporting more restorative model to other jurisdictions in Pennsylvania and across the efforts to address violence and interpersonal harm. country. Integrating proposals that will limit or undo DBI sentences 145 with these efforts is another strategy for exposing and Injustice does not only occur when the innocent are challenging such sentences while building organizational punished, but also when those who have committed capacity to fight for larger victories and winning release in criminal offenses are punished in excess of their culpability, individual cases. or punished in excess of what public safety requires. To foreclose the possibility of redemption and restoration to As Larry Krasner emerged as the front-runner to become one’s family and community is an injustice and a denial of the next District Attorney of Philadelphia on a campaign of basic human dignity. Many incarcerated people have spent rolling back mass incarceration, members of the Coalition decades in prison, developing into leaders, transforming to Abolish Death by Incarceration working through the themselves and those around them. They are ready to multi-organizational, city-wide Coalition for a Just DA return home. Our communities can benefit from their began developing a policy proposal for a sentence experience and leadership, and district attorney offices have review component to the existing conviction review. an instrumental role to play in ensuring that these excessive The proposed policy is both a corollary to innocence sentences are corrected and the right to redemption is projects and conviction review and representative of an recognized as central to efforts to end mass incarceration. emerging recognition that if we are to see any potential for significantly reducing incarceration in Pennsylvania Serious efforts to reduce mass incarceration, enact or anywhere else it means addressing violent offenses; it policies and practices of restorative and transformative means we have to fight to free more than the innocent, we justice, and redistribute power and resources to those also have to fight to free those who committed the offense communities most devastated by poverty, violence, and that they are incarcerated for. IV. Commutation Adopting a Policy of Presumptive Commutation T he commutation process, as discussed in this report, Commutation reform, however, is an especially difficult has become virtually inoperable in Pennsylvania. At task in the legislature. The Board of Pardons must give a the same time the need for a meaningful mechanism for unanimous recommendation for a lifer to be considered releasing aging lifers who pose little to no risk of committing for commutation by the Governor as a result of the change any offense – let alone homicide – upon release is greater to the state constitution following the series of rapes and than ever. murders committed by commuted lifer Reginal McFadden 77 in 1994. Further, commutation is by its very nature an act of reform, wondering whether we had lost the momentum executive grace, and improving the efficiency or fairness of toward change and were heading backward.”147 Added the system does not guarantee increased consideration or Kathleen Brown, a University of Pennsylvania professor who release of deserving lifers. has been assisting lifers with commutation applications, “Surprise doesn’t quite hit it[.] Nobody seems to know what One demand that advocates can advance that does not entail the reasons are. Am I making an assumption it’s political? going through the legislature is to target the Board of Pardons Yes.” On May 7, a group of advocacy organizations including itself and demand that it adopt transparent and definite the ACLU of Pennsylvania, Amistad Law Project, Reclaim criteria for considering lifers for commutation and releasing Philadelphia, Decarcerate PA, Abolitionist Law Center and those who satisfy those criteria. Toward this end advocates other organizations and individuals issued a public letter to should push the Board of Pardons to adopt a policy of Attorney General Shapiro: presumptive commutation that will allow the commutation of any DBI sentence when certain criteria are satisfied. As a result, we now call on Mr. Shapiro to realign his approach to commutation with the values of rehabilitation 78 In addition to this representing an effort to facilitate the that the “tough-on-crime” era overlooked and suppressed. release of those serving DBI sentences, as a demand it is At a time when progressive reformers in office throughout supported by strong data on the low risk posed by aging the state are working to minimize the damage these policies and elderly lifers, and it resonates with the legislative and have done to communities, Mr. Shapiro’s opposition to sentence review strategies in that it is centered around the commutation makes him a champion of the old, failed promise of redemption and the presumption that aging and approach and a direct roadblock to more positive and rehabilitated people must be given a fair chance to return to community-minded reforms. Commutation cases offer their families and communities. In the absence of a parole a direct and obvious way for Mr Shapiro to demonstrate option for lifers, the Board of Pardons should be pressured to his commitment to the more constructive criminal justice treat commutation as akin to a parole proceeding and their practices his peers have been deploying, and we ask that he decisions should be politicized such that if a Board member start right away by voting for Mr. Smith’s release as well as makes a decision to veto a commutation recommendation that of other rehabilitated and redeemed lifers.148 that is wholly unexplained and unjustifiable, they will face criticism and public pressure to explain and reverse The pressure worked: Smitty was granted a re-hearing and themselves. For example, in December of 2017, Attorney subsequently obtained a unanimous recommendation from General Josh Shapiro cast the sole votes in opposition to the Board to commute his sentence.149 commutation for two people serving DBI sentences: 76-yearold William H. Smith and 57-year-old Edward Printup.146 These By politicizing individual commutation decisions within the decisions resulted in rare press attention to commutation broader critique of the failures of mass incarceration and DBI decisions, including critical pushback from the chair of the sentencing cases such as William Smith’s can be utilized to Board of Pardons, Lieutenant Governor Mike Stack, who raise the political consequences for adhering to the status said that Shapiro’s votes were “a stunning disappointment quo and push for presumptive commutation for aging and that left me, and many other advocates for criminal justice rehabilitated lifers. V. Litigation Strategies T he recommendations for lawyers, especially the reflect what the law already recognizes in a number of criminal defense bar, can be stated succinctly: instances, which is that human adolescence continues • Professional organizations, whether it is a sole law firm, into the early 20s, and legal protections based on this recognition should reflect that. advocacy organization, or bar association, should adopt position statements against DBI on human rights grounds, • Do not implicitly or explicitly sanction the imposition of an recognizing that such sentencing schemes do not further LWOP or DBI sentence for one class of individuals when their purported aims and exclude prosocial values of advocating for another class. For instance, do not go out of rehabilitation, restoration, and redemption from being the way to tell the courts that DBI sentences are justifiable actualized. The legal profession needs to commit itself to for those older than 21 years of age when arguing that accepting responsibility for its substantial role in allowing those aged 18-21 should be granted parole eligibility. It this injustice to metastasize, and adopt a corresponding is sufficient to recognize that existing jurisprudence will commitment to eliminate the use of DBI sentences. not recognize a prohibition on DBI sentences, but the legal profession should not internalize or replicate this • Litigate cases that seek to expand upon recent U.S. deficiency in our own strategic thinking. Supreme Court jurisprudence striking down mandatory life-without-parole sentences for juveniles to other • Similarly, LWOP/DBI sentences should not be held out as categories of defendants that the Court has previously a humane alternative to the death penalty. These extreme recognized as having diminished culpability, including punishments should be consistently attacked together on those with intellectual disability and those who lacked a shared affinity for reorienting the paradigm of justice and any intent to kill, such as those convicted of 2nd degree fighting the political and legal battles according to what is (“felony murder”) homicide in Pennsylvania. right and not what is expedient. • Litigate cases based on more recent neuroscience showing • Support the incarcerated and formerly incarcerated, their that adolescents between the ages of 18-21 have the same families and communities, by acting in radical solidarity neurological characteristics that the U.S. Supreme Court and empathy, listening intently to the what they need from found relevant when excluding adolescents younger than movement lawyers, and acting with them in the pursuit of 18 from the death penalty and mandatory life-without- liberation. parole sentences. We should expand the age limits to 79 VI. Conclusion I Toward Abolition n articulating this multi-strategy, movement-building Even within the U.S., Pennsylvania is an outlier, both in terms framework for abolishing DBI in Pennsylvania we lay of the absolute numbers of incarcerated people serving DBI no claim to innovation. Rather, what is sketched above is a sentences and the proportion of people in state custody reflection of the organizing already underway, some of it serving DBI sentences. decades in the making, and always with its origins inside the prisons, led by the incarcerated and formerly incarcerated, The consequences of DBI sentencing extend far beyond the their families and communities. Our task is to organize, build prison walls. The total absence of redemptive opportunity power, and attain political victories that position us to end hardens punitive attitudes in society by legitimating the DBI sentences, meaning both life-without-parole sentences most destructive and divisive impulses within people: fear, and term-of-years sentences that extend to or beyond the vengeance, racism, and cruelty. Ultimately, the fight to end of one’s natural life. abolish DBI sentences is a fight over what type of society we want to live in, whether we will organize around values 80 The situation of permanent imprisonment for more than of restoration and redemption and healing or continue 5,300 people in Pennsylvania is untenable. It does not down the path of fear and stigma and vengeance. The fight have to be this way. In the vast majority of the world, it is about how much injustice people will tolerate from the is not. DBI sentences are another peculiarly U.S.-based government. phenomenon. Around much of the world such sentences As it stands now, the situation is intolerable. It doesn’t have are not permitted, and where they are they are not imposed to remain this way, however, and the growing numbers of at anywhere near the levels that they are imposed in this people getting organized to put an end to DBI once and for country. The racial demographics of DBI sentences are a all are shining a bright lamp on the path forward. scandal and a human rights travesty. CASE PROFILE Ralph “Malakki” Bolden To know Ralph “Malakki” Bolden is to love him. Everyone from family members, friends, academics, community activists, prison staff and prisoners sing his praises. And while it is unfair to reduce anyone to the worst act of their lives, it is true that good people Malakki has dedicated his life to serving others. do bad things. A combination of factors “I am a rehabilitated prisoner who received a life sentence, 22 years ago. Eight years ago, I contracted Multiple Sclerosis and I now need a cane to walk. When I was still a young man, the way I approached my rehabilitation was through education. Then I became a tutor. After 15 years of working the prison’s found Malakki in a state of mental Throughout his 24 years of incarceration education department I have helped turmoil when he was 27 years old in Malakki has dedicated his life to serving hundreds of men receive their GEDs. Just 1994. His family suffered emotional others. Malakki has attempted to atone recently, I received the training to become and physical abuse in the home. He experienced the tragic loss of his second stepfather. When he enlisted in the U.S. military he experienced intense racial discrimination. His community back in for the life he took by living his life in a a Certified Peer Specialist and I now work way that honors that sense of remorse. with those who have mental challenges. He is a published poet, has earned . . . By current Pennsylvania law, a life enough college credits to qualify for sentence means that I will stay in prison a degree, and is tireless in mentoring until I die. With no second chances being others. He has also been recognized considered for a Lifer, what is actually Pittsburgh was being ravaged with crack by the prestigious writer’s organization taking place is that even though I have cocaine. And in February 1994, he had PEN in its Prison Writing awards in 2015- been through the process of reforming – just been released from a psychiatric 16, winning the Dawson Prize for fiction and also even assist others who want to hospitalization. and receiving an honorable mention change – the oppression of incarceration for his essay “Living Grave,” about DBI moves forward without the motive that sentences. first secured it, and lacks the requisite Malakki says, “When I turned to the streets, I was dealing with anxiety. The cause of the money being spent to sustain street life was negative but it provided He also suffers from a serious and it (it costs taxpayers roughly $40,000 per me with validation and affirmation. It worsening case of Multiple Sclerosis. inmate according to the Vera Institute made me feel good, even though I In the past year his condition has of Justice). This cost escalates when a knew it was bad.” deteriorated so much that he now prisoner like myself has a chronic illness. requires the use of a wheelchair. At . . . Keep[ing] a rehabilitated, senior, physically handicapped Lifer behind the wall for “public safety” is an untruth that must be challenged.” He made the fateful decision to rob times his symptoms have flared up a gun store. He became nervous, and led to his losing the ability to panicked, shot and killed the owner speak. Cognitive difficulties, diminished and then wounded another man. In mobility, and pain have all grown worse. 1996 he was sentenced to death. He spent 5 years in solitary confinement on In another essay, “Behind Bars,” Malakki death row before his death sentence writes: was reversed and a sentence of DBI imposed. 81 82 1 Craig S. Lerner, Life Without Parole as a Conflicted Punishment, 48 Wake Forest L. Rev. 1101, 1112-14 (2013). 2 Ashley Nellis, The Sentencing Project, Life Goes On: The Historic Rise in Life Sentences in America 13 fig. 3 (2013). 3 Ashley Nellis, The Sentencing Project, Still Life: America’s Increasing Use of Life and Long-Term Sentences 10 (2017). 4 Lerner, supra n. 1 at 1102. 5 http://www.prisonstudies.org/highest-to-lowest/prison-populationtotal?field_region_taxonomy_tid=All 6 https://www.census.gov/popclock/ 7 https://deathpenaltyinfo.org/abolitionist-and-retentionistcountries?scid=30&did=140 8 Lerner, supra n. 1 at 1103. 9 Inquiries directed to or data obtained from the Department of Corrections of each state that holds more people serving DBI than Philadelphia confirmed that no individual county or parish was responsible for more people serving DBI sentences than Philadelphia. Orleans Parish, Louisiana has a higher per capita rate at 274 DBI sentences per 100,000 people. See Marcus M. Kondkar, Incarceration in Louisiana: Sentencing Patterns in America’s Prison Capital. A Report for Vital Projects Fund. (October 14, 2016). 10 Historical death-by-incarceration statistics were obtained from Pennsylvania Department of Corrections historical Annual Statistical Reports unless otherwise indicated. Historical reports are available at: http://www.cor.pa.gov/ About%20Us/Statistics/Pages/Old-Statistical-Reports.aspx 11 William W. Berry, Life-With-Hope Sentencing: The Argument for Replacing Life-Without-Parole Sentences with Presumptive Life Sentences, 76 Ohio St. L.J. 1051 (2015). 12 Berry, supra n. 11 at 1076. These three countries are Australia, the Netherlands, and the United Kingdom (England and Wales). 13 Rome Statute of the International Criminal Court art. 110(3), adopted July 1, 2002, 2187 U.N.T.S. 3. 14 Jessica S. Henry, Death-in-Prison Sentences: Overutilized and Underscrutinized, in Life-Without-Parole: America’s New Death Penalty? 66, 78 (Charles J. Ogletree, Jr. and Austin Sarat eds. 2012). 15 Henry, supra n. 14 at 78. 16 Lerner, supra n. 1 at 1112-1114. 17 Henry, supra n. 14 at 78. 18 Henry, supra n. 14 at 78. 19 Henry, supra n. 14 at 79. 20 Henry, supra n. 14 at 79. 21 Nellis, Life Goes On, supra n. 2 at 3. The list includes Massachusetts, Michigan, Mississippi, Montana, Pennsylvania, South Dakota, and West Virginia. 22 Nellis, Still Life, supra n. 3 at 9. 23 61 Pa.C.S. § 6137(a)(1). This section grants the Board of Probation and Parole the authority to “release on parole any inmate to whom the power to parole is granted to the board by this chapter, except an inmate condemned to death or serving life imprisonment[.]” 24 In 2012, the U.S. Supreme Court ruled that mandatory DBI sentences were unconstitutional when imposed on people who were juveniles at the time of the offense. The Pennsylvania legislature subsequently amended the homicide sentencing statute for those under the age of 18 at the time of the offense convicted after 2012 to provide for sentences other than life-withoutparole. 25 Nellis, Still Life, supra n. 3 at 21 Table 8. 26 Unless otherwise indicated, all data pertaining to DBI in other jurisdictions was obtained from: Nellis, Still Life, supra n. 3 (2017). 27 E. Ann Carson, Bureau of Justice Statistics, Prisoners in 2016 9 Table 7 (January 2018). 28 World Prison Brief, Institute for Criminal Policy Research http://www.prisonstudies.org/highest-to-lowest/prison-populationtotal?field_region_taxonomy_tid=All 29 World Prison Brief, Institute for Criminal Policy Research http://www.prisonstudies.org/country/finland Pennsylvania Department of Justice, Bureau of Correction, Annual Statistical Report 10 Table D (1977). Available at: http://www.cor.pa.gov/About%20Us/Statistics/Documents/Old%20 Statistical%20Reports/1977%20Annual%20Statistical%20Report.pdf 31 World Prison Brief, Institute for Criminal Policy Research http://www. prisonstudies.org/highest-to-lowest/prison_population_rate?field_region_ taxonomy_tid=All 32 World Prison Brief, Institute for Criminal Policy Research http://www. prisonstudies.org/highest-to-lowest/prison_population_rate?field_region_ taxonomy_tid=All 33 https://www2.census.gov/geo/maps/metroarea/stcbsa_pg/Feb2013/ cbsa2013_PA.pdf 34 18 Pa.C.S. § 2501(a). Criminal homicide occurs where a person “intentionally, knowingly, recklessly or negligently causes the death of another human being.” 35 18 Pa.C.S. § 2501(b). 36 18 Pa.C.S. § 2502(a). 37 18 Pa.C.S. § 1102(a). 38 18 Pa.C.S. § 2502(b). 39 18 Pa.C.S. § 2502(d). 40 18 Pa.C.S. § 1102(b). 41 18 Pa.C.S. § 2502(c). 42 18 Pa.C.S. § 1102(d). 43 42 Pa.C.S. § 9715(a). 44 Miller v. Alabama, 567 U.S. 460 (2012). 45 Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017). 46 Montgomery v. Louisiana, 136 S.Ct. 718 (2016). 47 http://www.cor.pa.gov/About%20Us/Initiatives/Pages/Juvenile-LifersInformation.aspx (last accessed June 4, 2018). 58 Includes offenses categorized as simply “murder” or “criminal homicide” with no designation of degree and one conviction for voluntary manslaughter. 49 First-degree homicide does allow for individualized consideration when the prosecution is seeking the death penalty. In those cases, a DBI sentence is the minimum penalty. See 42 Pa.C.S. § 9711. 50 Quote from Lifelines interview: http://lifelines-project.org/2016/01/24/avislee-interview-1/. 51 See Women Lifers Resume Project page on Avis Lee for more information on her accomplishments: http://docs.wixstatic.com/ ugd/161764_540d396b19ce417d8cb4c755d4fd13bd.pdf. 52 Quoted in Lifelines interview: http://lifelines-project.org/2016/01/24/avislee-interview-3/. 53 Pennsylvania Department of Corrections, Inmate Statistics as of December 31 2016. Available at: http://www.cor.pa.gov/About%20Us/Statistics/ Documents/Budget%20Documents/2016%20Inmate%20Profile.pdf 54 Pennsylvania Department of Corrections, Inmate Statistics as of December 31 2016. Available at: http://www.cor.pa.gov/About%20Us/Statistics/ Documents/Budget%20Documents/2016%20Inmate%20Profile.pdf 55 World Prison Brief, Institute for Criminal Policy Research http://www.prisonstudies.org/highest-to-lowest/prison_population_ rate?field_region_taxonomy_tid=All 56 See Jeffrey T. Ulmer and Darrell Steffensmeier, The Age and Crime Relationship: Social Variation, Social Explanations, in The Nurture versus Biosocial Debate in Criminology 377 (K. Beaver, B. Boutwell, and J.C. Barnes eds. 2014). 57 Typical measures include rearrest rate (proportion of people released who were arrested within the specified time frame, regardless of whether the arrest led to new criminal charges or a conviction), reconviction rate (proportion of people convicted of a new crime within the specified time frame), and reincarceration rate (proportion of people released who were reincarcerated after their release for any reason, typically either a parole violation or a new criminal conviction). 58 Ashley Nellis, Throwing Away The Key, 23(1) Fed. Sent. R. 27, 28 (2010). 59 Advisory Committee on Geriatric and Seriously Ill Inmates, Joint State Government Committee of the General Assembly of the Commonwealth of Pennsylvania, A Report of the Advisory Committee on Geriatric and Seriously Ill Inmates (2005). 30 60 Pennsylvania Department of Corrections, Costs & Population 2 (2011). Available at: http://www.cor.pa.gov/About%20Us/Statistics/Documents/ Budget%20Documents/2011%20Cost%20and%20Population.pdf 61 The American Friends Service Committee, Aging in Prison 4 (2017). 62 The American Friends Service Committee, supra n. 51 at 4. 63 M. Kay Harris, The Price of Life Sentences. 64 Johnson v. Wetzel, 209 F.Supp.3d 766, 782 (M.D.Pa. 2016) 65 Historical commutation statistics were obtained from Pennsylvania Department of Corrections historical Annual Statistical Reports unless otherwise indicated. Historical reports are available at: http://www.cor.pa.gov/ About%20Us/Statistics/Pages/Old-Statistical-Reports.aspx 66 Mark Singel, America The Jesuit Review, I pardoned a convict who killed again. Here’s why I still believe in mercy (July 24, 2017). Available at: https://www.americamagazine.org/pardon 67 Singel, supra n. 66. 68 Pa. Prison Soc’y v. Commonwealth, 776 A.2d 971 (2001). 69 Daniel Denvir, The Appeal, Pennsylvania Democratic Attorney General Shuts Down Bids for Freedom (March 13, 2018). Available at: https://theappeal.org/ pennsylvania-democratic-attorney-general-shuts-down-bids-for-freedom4d75e56447d1/ 70 Samantha Melamed, Sisters begged the Board of Pardons to free their brother’s killer. The board said “no”, Philadelphia Inquirer (June 28, 2018). 71 Marie Gottschalk, No Way Out?, in Life-Without-Parole: America’s New Death Penalty?, in Life-Without-Parole: America’s New Death Penalty? 227, 254 (Charles J. Ogletree, Jr. and Austin Sarat eds. 2012). 72 Paul H. Robinson and John M. Darley, Does Criminal Law Deter? A Behavioural Science Investigation, 24(2) Oxford J. of Legal Studies 173, 175 (2004). 73 Robinson and Darley, supra n. 72 at 173. 74 Gottschalk, supra n. 71 at 235. 75 James Austin and Lauren-Brooke Eisen, Brennan Institute for Justice, How Many Americans are Unnecessarily Incarcerated? 36 (2016). 76 Danielle Sered, Vera Institute of Justice, Accounting for Violence: How to Increase Safety and Break Our Failed Reliance on Mass Incarceration 4-5 (2017). 77 Robinson and Darley, supra n. 72 at 175-76. 78 Austin and Eisen, supra n. 75 at 36-37. 79 Gottschalk, supra n. 71 at 235. 80 Paul H. Robinson, Life Without Parole Under Modern Theories of Punishment, in Life-Without-Parole: America’s New Death Penalty? 138, 140 (Charles J. Ogletree, Jr. and Austin Sarat eds. 2012). 81 See e.g. Cohen, Alexandra O., et al., When is an Adolescent an Adult? Assessing Cognitive Control in Emotional and Nonemotional Contexts, 27 Psychological Science 549, 559 (2016). 82 Dan Markel, State, Be Not Proud: A Retributive Defense of the Commutation of Death Row and the Abolition of the Death Penalty, 40 Harv. C.R.-C.L. L. Rev. 407, 435 (2005). 83 Markel, supra n. 82 at 436. 84 Markel, supra n. 82 at 438. 85 Josh Bowers, Mandatory Life and the Death of Equitable Discretion, in Life Without Parole: American’s New Death Penalty? 25, 38 (Charles J. Ogletree, Jr. and Austin Sarat eds. 2012). 86 This is not without good reason. Jurors who morally or philosophically oppose death-by-execution sentences are typically disqualified from serving in capital cases, so juries are by nature predisposed to imposing death-by-execution sentences. The risk for many people sentenced to DBI in Pennsylvania was even greater, especially in Philadelphia, where prosecutors, such as Lynne Abraham—who was once dubbed America’s Deadliest DA— have zealously pursued death-by-execution sentences, despite Pennsylvania only actually carrying out three executions since the 1970s. 87 https://www.theotherdeathpenalty.org/ 88 Kenneth Hartmann, University of Oxford Faculty of Law, Centre for Criminology Blog, America’s Other Death Penalty Problem (March 30, 2015). Available at: https://www.law.ox.ac.uk/centres-institutes/centre-criminology/ blog/2015/03/america%E2%80%99s-other-death-penalty-problem 89 Sered, supra n. 76 at 11-14. See Gottschalk, supra n. 71 at 251-52. Gottschalk, supra n. 71 at 235. 92 Alliance for Safety and Justice, Crime Survivors Speak 16 (2016). 93 Sered, supra n. 76 at 11. 94 Sered, supra n. 76 at 13. 95 Lorraine Haw, My Brother’s Killer was sentenced to death, but I hope he is allowed to live, Philadelphia Inquirer (April 4, 2018). 96 Brief of Amici Curiae of Certain Family Members of Victims Killed by Youths In Support of Petitioner 2, Montgomery v. Louisiana, Docket No. 14-280, Supreme Court of the United States. Accessed at: http://www.scotusblog.com/wpcontent/uploads/2015/08/Montgomery_ Victims-Family-Members-Amicus. pdf 97 Haw, supra n. 95. 98 Brief of Amici Curiae of Certain Family Members of Victims Killed by Youths In Support of Petitioner 3, Montgomery v. Louisiana, Docket No. 14-280, Supreme Court of the United States. Accessed at: http://www.scotusblog.com/wpcontent/uploads/2015/08/Montgomery_Victims-Family-Members-Amicus. pdf 99 Haw, supra n. 95. 100 Nellis, Throwing Away The Key, supra n. 58 at 28. 101 Sered, supra n. 76 at 20. 102 Gottschalk, supra n. 71 at 235. 103 Ulmer and Steffensmeier, supra n. 56 at 382 fig. 23.1. 104 Austin and Eisen, supra n. 75 at 36. 105 Nellis, Throwing Away The Key, supra n. 58 at 28. 106 Advisory Committee on Geriatric and Seriously Ill Inmates, Joint State Government Committee of the General Assembly of the Commonwealth of Pennsylvania, A Report of the Advisory Committee on Geriatric and Seriously Ill Inmates (2005). 107 Advisory Committee on Geriatric and Seriously Ill Inmates, Joint State Government Committee of the General Assembly of the Commonwealth of Pennsylvania, A Report of the Advisory Committee on Geriatric and Seriously Ill Inmates (2005). 108 Samantha Melamed, 35 Years in prison, then 150 days of freedom: Philly’s first juvenile lifer back in jail, Philadelphia Inquirer (April 27, 2018). 109 Marie Gottschalk, Days Without End: Life Sentences and Penal Reform, Prison Legal News (January 15, 2012). 110 Nazhol Ghandnoosh, The Sentencing Project, Delaying a Second Chance:The Declining Prospects for Parole on Life Sentences 29 (2017). 111 Furman v. Georgia, 408 U.S. 238 (1972). 112 Gottschalk, supra n. 71 at 255. 113 Sharon Dolovich, Creating the Permanent Prisoner, in Life-Without-Parole: America’s New Death Penalty? 96, 99 (Charles J. Ogletree, Jr. and Austin Sarat eds. 2012). 114 I. Bennett Capers, Defending Life, in Life-Without-Parole: America’s New Death Penalty? 167, 179-80 (Charles J. Ogletree, Jr. and Austin Sarat eds. 2012). 115 Trop v. Dulles, 356 U.S. 86 (1958). 116 Trop, 356 U.S. at 101. 117 Capers, supra n. 114 at 179-80. 118 Lerner, supra n. 1 at 1137. 119 Dolovich, supra n. 113 at 98. 120 Charles J. Ogletree, Jr. and Austin Sarat, Introduction: Lives on the Line: From Capital Punishment to Life without Parole, in Life-Without-Parole: America’s New Death Penalty? 1, 8 (Charles J. Ogletree, Jr. and Austin Sarat eds. 2012). 121 Gottschalk, supra n. 71 at 234. 122 Gottschalk, supra n. 71 at 234. 123 Nellis, Throwing Away The Key, supra n. 58 at 29. 124 Dolovich, supra n. 113 at 105-08. 125 Dolovich, supra n. 113 at 105-08; Henry, supra n. 14 at 75. 126 Gottschalk, supra n. 71 at 234. 127 Sered, supra n. 76 at 17. 128 Sered, supra n. 76 at 17. 129 Sered, supra n. 76 at 18. 130 Dolovich, supra n. 113 at 109. 131 Dolovich, supra n. 113 at 108. 90 91 83 Dolovich, supra n. 113 at 109. Jonathan Simon, Dignity and Risk: The Long Road from Graham v. Florida to Abolition of Life Without Parole, in Life-Without-Parole: America’s New Death Penalty? 282, 283-84 (Charles J. Ogletree, Jr. and Austin Sarat eds. 2012). 134 Simon, supra n. 133 at 283-84. 135 Dolovich, supra n. 113 at 102. 136 Graham v. Florida, 560 U.S. 48, 74 (2010). 137 Quoted from Lifelines, http://lifelines-project.org/2016/01/23/dawud-leeinterview-2/ 138 For text of the legislation and other information visit http://www.legis.state.pa.us/cfdocs/billInfo/billInfo. cfm?sYear=2017&sInd=0&body=H&type=B&bn=135 139 http://www.legis.state.pa.us/cfdocs/billInfo/bill_history. cfm?syear=2017&sind=0&body=H&type=B&bn=135 140 For text of the legislation and other information visit: http://www.legis.state.pa.us//cfdocs/Legis/CSM/showMemoPublic. cfm?chamber=H&SPick=20170&cosponId=21420 141 http://www.legis.state.pa.us/cfdocs/billInfo/BillInfo. cfm?syear=2017&sind=0&body=S&type=B&bn=942 132 133 84 http://www.legis.state.pa.us/cfdocs/billInfo/bill_history. cfm?syear=2017&sind=0&body=S&type=B&bn=942. The sponsors in addition to Senator Street are senators Daylin Leach, Bob Mensch, and Art Haywood. 143 Quoted from Lifelines: Voices Against the Other Death Penalty, accessed at http://lifelines-project.org/mechie-scott/ 144 These and other accomplishments found at Women Lifers Resume Project, accessed at http://docs.wixstatic.com/ ugd/161764_65f18d89d1414fe6be8e26f9d936e0b5.pdf 145 See Appendix for Model Sentence Review Policy, outlining the purpose of the policy and a non-exhaustive articulation of factors to consider when reviewing the appropriateness of a sentence. 146 Samantha Melamed and Chris Palmer, Philly lifers’ clemency plea hits a roadblock in Attorney General Josh Shapiro, Philadelphia Inquirer (February 28, 2018). 147 Melamed and Palmer, supra n. 146. 148 https://decarceratepa.info/content/open-letter-attorney-generaljoshshapiro 149 Samantha Melamed, Sisters begged the Board of Pardons to free their brother’s killer. The board said “no”, Philadelphia Inquirer (June 28, 2018). 142 85 86 APPENDIX 87 Statewide APPENDIX A 88 Tables and Figures COUNTY DBI SENTENCES % OF TOTAL COUNTY POPULATION* PER 100K Adams 15 0.28% 101,407 14.79 Allegheny 541 10.12% 1,223,348 44.22 Armstrong 7 0.13% 68,941 10.15 Beaver 33 0.62% 170,539 19.35 Bedford 7 0.13% 49,762 14.07 Berks 119 2.23% 411,442 28.92 Blair 23 0.43% 127,089 18.10 Bradford 11 0.21% 62,622 17.57 Bucks 113 2.11% 625,249 18.07 Butler 19 0.36% 183,862 10.33 Cambria 17 0.32% 143,679 11.83 Cameron 0 0.00% 5,085 0.00 Carbon 11 0.21% 65,249 16.86 Centre 16 0.30% 153,990 10.39 Chester 80 1.50% 498,886 16.04 Clarion 4 0.07% 39,988 10.00 Clearfield 18 0.34% 81,642 22.05 Clinton 5 0.09% 39,238 12.74 Columbia 5 0.09% 67,295 7.43 Crawford 19 0.36% 88,765 21.40 Cumberland 34 0.64% 235,406 14.44 Dauphin 178 3.33% 268,100 66.39 Delaware 193 3.61% 558,979 34.53 Elk 4 0.07% 31,946 12.52 Erie 81 1.52% 280,566 28.87 Fayette 42 0.79% 136,606 30.75 Forest 4 0.07% 7,716 51.84 Franklin 27 0.51% 149,618 18.05 Fulton 0 0.00% 14,845 0.00 Greene 8 0.15% 38,686 20.68 Huntingdon 10 0.19% 45,913 21.78 Indiana 14 0.26% 88,880 15.75 Jefferson 9 0.17% 45,200 19.91 Juniata 5 0.09% 24,636 20.30 Lackawanna 36 0.67% 214,437 16.79 Lancaster 119 2.23% 519,445 22.91 Lawrence 14 0.26% 91,108 15.37 Lebanon 28 0.52% 133,568 20.96 Lehigh 94 1.76% 349,497 26.90 Luzerne 71 1.33% 320,918 22.12 Lycoming 18 0.34% 116,111 15.50 McKean 8 0.15% 43,450 18.41 Mercer 19 0.36% 116,638 16.29 Mifflin 2 0.04% 46,682 4.28 Monroe 40 0.75% 169,842 23.55 Montgomery 136 2.54% 799,874 17.00 Montour 1 0.02% 18,267 5.47 Northampton 69 1.29% 297,735 23.17 Statewide APPENDIX A Tables and Figures Northumberland 15 0.28% 94,528 15.87 Out of State 10 0.19% N/A N/A Perry 5 0.09% 45,969 10.88 Philadelphia 2,694 50.39% 1,526,006 176.54 Pike 9 0.17% 57,369 15.69 Potter 5 0.09% 17,457 28.64 Schuylkill 27 0.51% 148,289 18.21 Snyder 3 0.06% 39,702 7.56 Somerset 6 0.11% 77,742 7.72 Sullivan 1 0.02% 6,428 15.56 Susquehanna 3 0.06% 43,356 6.92 Tioga 7 0.13% 41,981 16.67 Union 2 0.04% 44,947 4.45 Venango 10 0.19% 54,984 18.19 Warren 7 0.13% 41,815 16.74 Washington 37 0.69% 207,820 17.80 Wayne 10 0.19% 52,822 18.93 Westmoreland 56 1.05% 365,169 15.34 Wyoming 4 0.07% 28,276 14.15 York 108 2.02% 434,972 24.83 Total 5,346 100.00% 12,702,379 42.09 *County population based on 2016 census estimates: https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk 89 Statewide APPENDIX A Tables and Figures PEOPLE SENTENCED TO DBI WHO ARE … DBI SENTENCES BY CURRENT AGE RANGE AGE DBI SENTENCES % OF TOTAL AGE DBI SENTENCES % OF TOTAL 80+ 40 0.75% 19-24 83 1.55% 75+ 116 2.17% 25-29 357 6.68% 70+ 281 5.26% 30-34 476 8.90% 65+ 628 11.75% 35-39 660 12.35% 60+ 1148 21.47% 40-44 725 13.56% 55+ 1766 33.03% 45-49 668 12.50% 50+ 2377 44.46% 50-54 611 11.43% 45+ 3045 56.96% 55-59 618 11.56% 40+ 3770 70.52% 60-64 520 9.73% 35+ 4430 82.87% 65-69 347 6.49% 30+ 4906 91.77% 70-74 165 3.09% 25+ 5263 98.45% 75-79 76 1.42% 20+ 5343 99.94% 80+ 40 0.75% 19+ 5346 100.00% TOTAL 5,346 100.00% AGE: RACIAL DISPARITIES IN DBI SENTENCES 90 19-24 80 83 357 25-29 76% 60 DBI SENTENCES: 476 30-34 660 35-39 65% 725 40-44 % of Total 668 45-49 % of State Population 611 50-54 40 618 55-59 520 60-64 25% 20 347 65-69 165 70-74 11% 9% 0 BLACK WHITE 6% LATINX 1% 7% 75-79 80+ OTHERS 76 40 DBI SENTENCES BY RACE RACE DBI SENTENCES % OF TOTAL STATE POPULATION % OF STATE POPULATION PER 100K Black 3,483 65.15% 1,377,689 10.85% 252.81 White 1,323 24.75% 9,686,628 76.26% 13.66 Latinx 477 8.92% 719,660 5.67% 66.28 Asian 34 0.64% 352,741 2.78% 9.64 Indigenous 11 0.21% 26,843 0.21% 40.98 Other 18 0.34% 538,818 4.24% 3.34 Total 5,346 100.00% 12,702,379 100.00% 42.09 Statewide APPENDIX A Tables and Figures PEOPLE SENTENCED TO DBI WHO ARE … DBI SENTENCES - AGE RANGE AT COMMITMENT AGE DBI SENTENCES % OF TOTAL AGE DBI SENTENCES % OF TOTAL >18 118 2.21% >18 118 2.21% 21 or younger 1,447 27.07% 18-21 1,329 24.86% 25 or younger 2,841 53.14% 22-25 1,394 26.08% 30 or younger 3,906 73.06% 26-30 1,065 19.92% 35 or younger 4,510 84.36% 31-35 604 11.30% 40 or younger 4,875 91.19% 36-40 365 6.83% 45 or younger 5,085 95.12% 41-45 210 3.93% 50 or younger 5,212 97.49% 46-50 127 2.38% 55 or younger 5,284 98.84% 51-55 72 1.35% 60 or younger 5,314 99.40% 56-60 30 0.56% 65 or younger 5,332 99.74% 61-65 18 0.34% 70 or younger 5,340 99.89% 66-70 8 0.15% 74 or younger 5,346 100.00% 71-74 6 0.11% Total 5,346 100.00% DBI SENTENCES BY TIME SERVED 91 DBI SENTENCES BY TIME SERVED TIME SERVED DBI SENTENCES % OF TOTAL YEARS IN DOC DBI SENTENCES % OF TOTAL 0-4 539 10.08% 50+ 9 0.17% 5-9 686 12.83% 45+ 79 1.48% 10-14 685 12.81% 40+ 303 5.67% 15-19 694 12.98% 35+ 635 11.88% 20-24 792 14.81% 30+ 1196 22.37% 25-29 754 14.10% 25+ 1950 36.48% 30-34 561 10.49% 20+ 2742 51.29% 35-39 332 6.21% 15+ 3436 64.27% 40-44 224 4.19% 10+ 4121 77.09% 45-49 70 1.31% 5+ 4807 89.92% 50-55 9 0.17% 0+ 5346 100.00% Total 5,346 100.00% DBI SENTENCES BY GENDER RACE DBI SENTENCES % OF TOTAL STATE POPULATION Men 5,145 96.24% 6,261,194 82.17 Women 201 3.76% 6,523,033 3.08 Total 5,346 100.00% 12,784,227 41.82 PER 100K Statewide APPENDIX A Tables and Figures DBI SENTENCES – YEAR OF COMMITMENT TO DOC 50 40 30 20 10 0 92 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014 2016 DBI SENTENCES IN PENNSYLVANIA: DEATHS PER YEAR 200 150 100 50 0 1962 1968 1976 1984 1992 2000 2008 2016 APPENDIX A Statewide PEOPLE SERVING DBI SENTENCES AT YEAR END Tables and Figures DEATHS OF PEOPLE SERVING DBI SENTENCES YEAR DBI SENTENCES YEAR DBI SENTENCES DEATHS CUMULATIVE TOTAL DEATHS 1974 498 1980 878 6 6 1975 572 1981 962 5 11 1976 650 1982 1074 4 15 1977 707 1983 1195 8 23 1978 756 1984 1311 7 30 1979 826 1985 1429 8 38 1980 878 1986 1544 7 45 1981 962 1987 1674 5 50 1982 1074 1988 1858 8 58 1983 1195 1989 1964 10 68 1984 1311 1990 2139 10 78 1985 1429 1991 2291 13 91 1986 1544 1992 2459 11 102 1987 1674 1993 2614 11 113 1988 1858 1994 2806 14 127 1989 1964 1995 2973 19 146 1990 2139 1996 3128 19 165 1991 2291 1997 3283 20 185 1992 2459 1998 3495 24 209 1993 2614 1999 3616 23 232 1994 2806 2000 3627 36 268 1995 2973 2001 3752 13 281 1996 3128 2002 3859 31 312 1997 3283 2003 3984 33 345 1998 3495 2004 4091 35 380 1999 3616 2005 4216 41 421 2000 3627 2006 4340 15 436 2001 3752 2007 4451 29 465 2002 3859 2008 4574 29 494 2003 3984 2009 4706 27 521 2004 4091 2010 4829 32 553 2005 4216 2011 4971 30 583 2006 4340 2012 5121 39 622 2007 4451 2013 5254 28 650 2008 4574 2014 5352 41 691 2009 4706 2015 5431 53 744 2010 4829 2016 5478 43 787 2011 4971 2012 5121 2013 5254 2014 5352 2015 5431 2016 5478 93 Philadelphia APPENDIX B Tables and Figures DBI SENTENCES BY RACE RACE DBI SENTENCES % OF COUNTY TOTAL % OF STATE TOTAL COUNTY POPULATION % OF COUNTY POPULATION PER 100K Black 2,250 83.52% 42.09% 661,839 43.37% 339.96 White 153 5.68% 2.86% 438,610 28.74% 34.88 Latinx 260 9.65% 4.86% 187,611 12.29% 138.58 Other 31 1.15% 0.58% 237,946 15.59% 13.03 Total 2,694 100.00% 50.39% 1,526,006 100.00% 176.54 RACIAL DISPARITIES IN DBI SENTENCES 80 84% % of DBI Sentences % of County Population 60 94 40 43% 29% 20 6% 0 BLACK WHITE 10% 12% LATINX 16% 1% OTHERS DBI SENTENCES BY YEAR 120 100 80 60 40 20 0 1962 1968 1976 1984 1992 2000 2008 2016 Philadelphia APPENDIX B Tables and Figures PEOPLE SENTENCED TO DBI WHO ARE … AGE RANGE AT COMMITMENT AGE DBI SENTENCES % OF TOTAL AGE DBI SENTENCES % OF TOTAL 80+ 16 0.59% >18 50 1.86% 75+ 55 2.04% 18-21 738 27.39% 70+ 119 4.42% 22-25 756 28.06% 65+ 270 10.02% 26-30 564 20.94% 60+ 566 21.01% 31-35 273 10.13% 55+ 876 32.52% 36-40 149 5.53% 50+ 1190 44.17% 41-45 80 2.97% 45+ 1580 58.65% 46-50 44 1.63% 40+ 1923 71.38% 51-55 24 0.89% 35+ 2252 83.59% 56-60 8 0.30% 30+ 2488 92.35% 61-65 5 0.19% 25+ 2660 98.74% 66-70 1 0.04% 20+ 2694 100.00% 71-74 2 0.07% TOTAL 2,694 100.00% PEOPLE SERVING DBI WHO STARTED SENTENCE AT … DBI SENTENCES BY TIME SERVED 95 AGE DBI SENTENCES % OF TOTAL AGE DBI SENTENCES % OF TOTAL >18 50 1.86% 50+ 2 0.07% 21 or younger 788 29.25% 45+ 27 1.00% 25 or younger 1,544 57.31% 40+ 151 5.61% 30 or younger 2,108 78.25% 35+ 310 11.51% 35 or younger 2,381 88.38% 30+ 641 23.79% 40 or younger 2,530 93.91% 25+ 1114 41.35% 45 or younger 2,610 96.88% 20+ 1524 56.57% 50 or younger 2,654 98.52% 15+ 1854 68.82% 55 or younger 2,678 99.41% 10+ 2158 80.10% 60 or younger 2,686 99.70% 5+ 2468 91.61% 65 or younger 2,691 99.89% 0+ 2694 100.00% 70 or younger 2,692 99.93% 74 or younger 2,694 100.00% DBI SENTENCES IN PHILADELPHIA BY OFFENSE OFFENSE DBI SENTENCES % OF COUNTY TOTAL % OF STATE TOTAL 1st Deg. Murder 1,859 69.01% 34.77% 2nd Deg. Murder 612 22.72% 11.45% 3rd Deg. Murder 28 1.04% 0.52% Murder/ Criminal Homicide 189 7.02% 3.54% Sexual Offenses 1 0.04% 0.02% Other Offenses 5 0.19% 0.09% TOTAL 2,694 100.00% 50.39% Allegheny County APPENDIX C Tables and Figures DBI SENTENCES BY RACE 96 RACE DBI SENTENCES % OF TOTAL COUNTY POPULATION % OF COUNTY POPULATION Black 409 75.60% 161,861 13.23% 252.69 White 128 23.66% 978,225 79.96% 13.08 Latinx 1 0.18% 19,070 1.56% 5.24 Other 3 0.55% 64,192 5.25% 4.67 TOTAL 541 100.00% 1,223,348 100.00% 44.22 PER 100K DBI SENTENCES BY CURRENT AGE RANGE PEOPLE SENTENCED TO DBI WHO ARE … AGE DBI SENTENCES % OF TOTAL AGE DBI SENTENCES % OF TOTAL 19-24 7 1.29% 80+ 3 0.55% 25-29 48 8.87% 75+ 5 0.92% 30-34 59 10.91% 70+ 25 4.62% 35-39 57 10.54% 65+ 64 11.83% 40-44 91 16.82% 60+ 109 20.15% 45-49 60 11.09% 55+ 154 28.47% 50-54 65 12.01% 50+ 219 40.48% 55-59 45 8.32% 45+ 279 51.57% 60-64 45 8.32% 40+ 370 68.39% 65-69 39 7.21% 35+ 427 78.93% 70-74 20 3.70% 30+ 486 89.83% 75-79 2 0.37% 25+ 534 98.71% 80+ 3 0.55% 20+ 541 100.00% 19+ 541 100.00% TOTAL 541 100.00% PEOPLE SERVING DBI WHO STARTED SENTENCE AT … AGE DBI SENTENCES % OF TOTAL >18 11 2.03% 21 or younger 155 28.65% 25 or younger 299 55.27% 30 or younger 406 75.05% 35 or younger 459 84.84% 40 or younger 501 92.61% 45 or younger 523 96.67% 50 or younger 535 98.89% 55 or younger 537 99.26% 60 or younger 538 99.45% 65 or younger 539 99.63% 70 or younger 541 100.00% Allegheny County APPENDIX C Tables and Figures DBI SENTENCES BY AGE AT COMMITMENT AGE: DBI SENTENCES: 11 >18 18–21 144 22–25 144 107 26-30 53 31–35 42 36–40 22 41–45 12 46–50 51–55 2 56–60 1 61–65 1 66–70 2 97 DBI SENTENCES BY OFFENSE OFFENSE DBI SENTENCES DBI SENTENCES BY TIME SERVED % OF TOTAL AGE DBI SENTENCES % OF TOTAL 1 0.18% 1st Deg. Murder 352 65.06% 50+ 2nd Deg. Murder 135 24.95% 45+ 15 2.77% 3rd Deg. Murder 5 0.92% 40+ 29 5.36% 8.87% 35+ 63 11.65% 116 21.44% Murder/ Criminal Homicide 48 Sexual Offense 1 0.18% 30+ Other Offense 0 0.00% 25+ 175 32.35% 20+ 258 47.69% 15+ 333 61.55% 10+ 408 75.42% 5+ 495 91.50% 0+ 541 100.00% TOTAL 541 100.00% Delaware County APPENDIX D Tables and Figures DBI SENTENCES BY RACE 98 RACE DBI SENTENCES % OF TOTAL COUNTY POPULATION % OF COUNTY POPULATION PER 100K Black 131 67.88% 110,260 19.73% 118.81 White 44 22.80% 388,696 69.54% 11.32 Latinx 13 6.74% 16,537 2.96% 78.61 Other 5 2.59% 43,486 7.78% 11.50 Total 193 100.00% 558,979 100.00% 34.53 PEOPLE SENTENCED TO DBI WHO ARE … AGE RANGE AT COMMITMENT AGE DBI SENTENCES % OF TOTAL AGE DBI SENTENCES % OF TOTAL 80+ 4 2.07% >18 9 4.66% 75+ 5 2.59% 18-21 46 23.83% 70+ 9 4.66% 22-25 55 28.50% 65+ 30 15.54% 26-30 39 20.21% 60+ 43 22.28% 31-35 15 7.77% 55+ 66 34.20% 36-40 12 6.22% 50+ 83 43.01% 41-45 6 3.11% 45+ 101 52.33% 46-50 6 3.11% 40+ 127 65.80% 51-55 3 1.55% 35+ 152 78.76% 56-60 1 0.52% 30+ 172 89.12% 61-65 0 0.00% 25+ 190 98.45% 66-70 0 0.00% 20+ 193 100.00% 71-74 1 0.52% TOTAL 193 100.00% Delaware County APPENDIX D PEOPLE SERVING DBI WHO STARTED SENTENCE AT … Tables and Figures DBI SENTENCES BY TIME SERVED AGE DBI SENTENCES % OF TOTAL YEARS IN DOC DBI SENTENCES % OF TOTAL >18 9 4.66% 45+ 2 1.04% 21 or younger 55 28.50% 40+ 14 7.25% 25 or younger 110 56.99% 35+ 31 16.06% 30 or younger 149 77.20% 30+ 48 24.87% 35 or younger 164 84.97% 25+ 62 32.12% 40 or younger 176 91.19% 20+ 97 50.26% 45 or younger 182 94.30% 15+ 127 65.80% 50 or younger 188 97.41% 10+ 156 80.83% 55 or younger 191 98.96% 5+ 174 90.16% 60 or younger 192 99.48% 0+ 193 100.00% 65 or younger 192 99.48% 70 or younger 192 99.48% 74 or younger 193 100.00% DBI SENTENCES IN BY OFFENSE 99 OFFENSE DBI SENTENCES % OF TOTAL 1st Deg. Murder 115 59.59% 2nd Deg. Murder 63 32.64% 3rd Deg. Murder 3 1.55% Murder/ Criminal Homicide 11 5.70% Sexual Offense 0 0.00% Other Offense 1 0.52% TOTAL 193 100.00% Montgomery County APPENDIX E Tables and Figures DBI SENTENCES BY RACE 100 RACE DBI SENTENCES % OF TOTAL COUNTY POPULATION % OF COUNTY POPULATION PER 100K Black 92 67.65% 69,351 8.67% 132.66 White 35 25.74% 614,788 76.86% 5.69 Latinx 8 5.88% 34,233 4.28% 23.37 Other 1 0.74% 81,502 10.19% 1.23 Total 136 100.00% 799,874 100.00% 17.00 PEOPLE SENTENCED TO DBI WHO ARE … AGE RANGE AT COMMITMENT AGE DBI SENTENCES % OF TOTAL AGE DBI SENTENCES % OF TOTAL 75+ 2 1.47% >18 1 0.74% 70+ 8 5.88% 18-21 35 25.74% 65+ 15 11.03% 22-25 37 27.21% 60+ 22 16.18% 26-30 26 19.12% 55+ 37 27.21% 31-35 17 12.50% 50+ 52 38.24% 36-40 8 5.88% 45+ 62 45.59% 41-45 6 4.41% 40+ 80 58.82% 46-50 2 1.47% 35+ 100 73.53% 51-55 1 0.74% 30+ 120 88.24% 56-60 1 0.74% 25+ 131 96.32% 61-65 0 0.00% 20+ 136 100.00% 66-70 0 0.00% 71-74 2 1.47% TOTAL 136 100.00% Montgomery County APPENDIX E PEOPLE SERVING DBI WHO STARTED SENTENCE AT … Tables and Figures DBI SENTENCES BY TIME SERVED AGE DBI SENTENCES % OF TOTAL YEARS IN DOC DBI SENTENCES % OF TOTAL >18 1 0.74% 45+ 5 3.68% 21 or younger 36 26.47% 40+ 7 5.15% 25 or younger 73 53.68% 35+ 11 8.09% 30 or younger 99 72.79% 30+ 18 13.24% 35 or younger 116 85.29% 25+ 31 22.79% 40 or younger 124 91.18% 20+ 52 38.24% 45 or younger 130 95.59% 15+ 70 51.47% 50 or younger 132 97.06% 10+ 96 70.59% 55 or younger 133 97.79% 5+ 117 86.03% 60 or younger 134 98.53% 0+ 136 100.00% 65 or younger 134 98.53% 70 or younger 134 98.53% 74 or younger 136 100.00% DBI SENTENCES IN BY OFFENSE 101 OFFENSE DBI SENTENCES % OF TOTAL 1st Deg. Murder 94 69.12% 2nd Deg. Murder 30 22.06% 3rd Deg. Murder 0 0.00% Murder/ Criminal Homicide 10 7.35% Sexual Offense 1 0.74% Other Offense 1 0.74% TOTAL 136 100.00% Bucks County APPENDIX F Tables and Figures DBI SENTENCES BY RACE 102 RACE DBI SENTENCES % OF TOTAL COUNTY POPULATION % OF COUNTY POPULATION PER 100K Black 37 32.74% 22,376 3.58% 165.36 White 70 61.95% 530,865 84.90% 13.19 Latinx 3 2.65% 26,782 4.28% 11.20 Other 3 2.65% 45,226 7.23% 6.63 Total 113 100.00% 625,249 100.00% 18.07 PEOPLE SENTENCED TO DBI WHO ARE … AGE RANGE AT COMMITMENT AGE DBI SENTENCES % OF TOTAL AGE DBI SENTENCES % OF TOTAL 80+ 0 0.00% >18 4 3.54% 75+ 5 4.42% 18-21 18 15.93% 70+ 8 7.08% 22-25 29 25.66% 65+ 15 13.27% 26-30 24 21.24% 60+ 31 27.43% 31-35 13 11.50% 55+ 53 46.90% 36-40 10 8.85% 50+ 68 60.18% 41-45 5 4.42% 45+ 78 69.03% 46-50 3 2.65% 40+ 90 79.65% 51-55 4 3.54% 35+ 102 90.27% 56-60 2 1.77% 30+ 109 96.46% 61-65 0 0.00% 25+ 113 100.00% 66-70 1 0.88% TOTAL 136 100.00% Bucks County APPENDIX F PEOPLE SERVING DBI WHO STARTED SENTENCE AT … Tables and Figures DBI SENTENCES BY TIME SERVED AGE DBI SENTENCES % OF TOTAL YEARS IN DOC DBI SENTENCES % OF TOTAL >18 4 3.54% 50+ 1 0.88% 21 or younger 22 19.47% 45+ 2 1.77% 25 or younger 51 45.13% 40+ 10 8.85% 30 or younger 75 66.37% 35+ 24 21.24% 35 or younger 88 77.88% 30+ 37 32.74% 40 or younger 98 86.73% 25+ 52 46.02% 45 or younger 103 91.15% 20+ 63 55.75% 50 or younger 106 93.81% 15+ 72 63.72% 55 or younger 110 97.35% 10+ 90 79.65% 60 or younger 112 99.12% 5+ 99 87.61% 65 or younger 112 99.12% 0+ 113 100.00% 70 or younger 113 100.00% DBI SENTENCES IN BY OFFENSE 103 OFFENSE DBI SENTENCES % OF TOTAL 1st Deg. Murder 83 73.45% 2nd Deg. Murder 18 15.93% 3rd Deg. Murder 0 0.00% Murder/ Criminal Homicide 8 7.08% Sexual Offense 2 1.77% Other Offense 2 1.77% TOTAL 113 100.00% Chester County APPENDIX G Tables and Figures DBI SENTENCES BY RACE 104 RACE DBI SENTENCES % OF TOTAL COUNTY POPULATION % OF COUNTY POPULATION PER 100K Black 43 53.75% 30,623 6.14% 140.42 White 27 33.75% 394,204 79.02% 6.85 Hispanic 9 11.25% 32,503 6.52% 27.69 Others 1 1.25% 41,556 8.33% 2.41 Total 80 100.00% 498,886 100.00% 16.04 PEOPLE SENTENCED TO DBI WHO ARE … AGE RANGE AT COMMITMENT AGE DBI SENTENCES % OF TOTAL AGE DBI SENTENCES % OF TOTAL 80+ 0 0.00% >18 1 1.25% 75+ 2 2.50% 18-21 17 21.25% 70+ 6 7.50% 22-25 22 27.50% 65+ 12 15.00% 26-30 13 16.25% 60+ 18 22.50% 31-35 13 16.25% 55+ 27 33.75% 36-40 6 7.50% 50+ 33 41.25% 41-45 4 5.00% 45+ 41 51.25% 46-50 1 1.25% 40+ 57 71.25% 51-55 2 2.50% 35+ 68 85.00% 56-60 1 1.25% 30+ 72 90.00% 25+ 78 97.50% TOTAL 80 100.00% 20+ 80 100.00% Chester County APPENDIX G PEOPLE SERVING DBI WHO STARTED SENTENCE AT … Tables and Figures DBI SENTENCES BY TIME SERVED AGE DBI SENTENCES % OF TOTAL YEARS IN DOC DBI SENTENCES % OF TOTAL >18 1 1.25% 40+ 2 2.50% 21 or younger 18 22.50% 35+ 13 16.25% 25 or younger 40 50.00% 30+ 19 23.75% 30 or younger 53 66.25% 25+ 27 33.75% 35 or younger 66 82.50% 20+ 34 42.50% 40 or younger 72 90.00% 15+ 46 57.50% 45 or younger 76 95.00% 10+ 60 75.00% 50 or younger 77 96.25% 5+ 68 85.00% 55 or younger 79 98.75% 0+ 80 100.00% 60 or younger 80 100.00% DBI SENTENCES IN BY OFFENSE OFFENSE DBI SENTENCES % OF TOTAL 1st Deg. Murder 47 58.75% 2nd Deg. Murder 24 30.00% 3rd Deg. Murder 0 0.00% Murder/ Criminal Homicide 9 11.25% Sexual Offense 0 0.00% Other Offense 0 0.00% TOTAL 80 100.00% 105 Dauphin County APPENDIX H Tables and Figures DBI SENTENCES BY RACE 106 RACE DBI SENTENCES % OF TOTAL COUNTY POPULATION % OF COUNTY POPULATION PER 100K Black 124 69.66% 48,386 18.05% 256.27 White 35 19.66% 176,115 65.69% 19.87 Latinx 17 9.55% 18,795 7.01% 90.45 Others 2 1.12% 24,804 9.25% 8.06 Total 178 100.00% 268,100 100.00% 66.39 PEOPLE SENTENCED TO DBI WHO ARE … AGE RANGE AT COMMITMENT AGE DBI SENTENCES % OF TOTAL AGE DBI SENTENCES % OF TOTAL 80+ 1 0.56% >18 8 4.49% 75+ 2 1.12% 18-21 49 27.53% 70+ 11 6.18% 22-25 42 23.60% 65+ 25 14.04% 26-30 31 17.42% 60+ 38 21.35% 31-35 24 13.48% 55+ 57 32.02% 36-40 13 7.30% 50+ 72 40.45% 41-45 3 1.69% 45+ 89 50.00% 46-50 2 1.12% 40+ 110 61.80% 51-55 3 1.69% 35+ 129 72.47% 56-60 1 0.56% 30+ 155 87.08% 61-65 2 1.12% 25+ 169 94.94% 20+ 176 98.88% TOTAL 178 100.00% 19+ 178 100.00% Dauphin County APPENDIX H PEOPLE SERVING DBI WHO STARTED SENTENCE AT … Tables and Figures DBI SENTENCES BY TIME SERVED AGE DBI SENTENCES % OF TOTAL YEARS IN DOC DBI SENTENCES % OF TOTAL >18 8 4.49% 45+ 5 2.81% 21 or younger 57 32.02% 40+ 18 10.11% 25 or younger 99 55.62% 35+ 28 15.73% 30 or younger 130 73.03% 30+ 44 24.72% 35 or younger 154 86.52% 25+ 56 31.46% 40 or younger 167 93.82% 20+ 83 46.63% 45 or younger 170 95.51% 15+ 95 53.37% 50 or younger 172 96.63% 10+ 117 65.73% 55 or younger 175 98.31% 5+ 148 83.15% 60 or younger 176 98.88% 0+ 178 100.00% 65 or younger 178 100.00% DBI SENTENCES IN BY OFFENSE 107 OFFENSE DBI SENTENCES % OF TOTAL 1st Deg. Murder 108 60.67% 2nd Deg. Murder 27 15.17% 3rd Deg. Murder 0 0.00% Murder/ Criminal Homicide 40 22.47% Sexual Offense 3 1.69% Other Offense 0 0.00% TOTAL 80 100.00% Berks County APPENDIX I Tables and Figures DBI SENTENCES BY RACE 108 RACE DBI SENTENCES % OF TOTAL COUNTY POPULATION % OF COUNTY POPULATION PER 100K Black 32 26.89% 20,143 4.90% 158.86 White 37 31.09% 274,813 66.79% 13.46 Latinx 49 41.18% 67,335 16.37% 72.77 Others 1 0.84% 49,151 11.95% 2.03 TOTAL 119 100.00% 411,442 100.00% 28.92 PEOPLE SENTENCED TO DBI WHO ARE … AGE RANGE AT COMMITMENT AGE DBI SENTENCES % OF TOTAL AGE DBI SENTENCES % OF TOTAL 80+ 2 1.68% >18 2 1.68% 75+ 2 1.68% 18-21 29 24.37% 70+ 7 5.88% 22-25 30 25.21% 65+ 11 9.24% 26-30 21 17.65% 60+ 20 16.81% 31-35 20 16.81% 55+ 29 24.37% 36-40 9 7.56% 50+ 40 33.61% 41-45 5 4.20% 45+ 54 45.38% 46-50 0 0.00% 40+ 73 61.34% 51-55 1 0.84% 35+ 98 82.35% 56-60 0 0.00% 30+ 112 94.12% 61-65 2 1.68% 25+ 117 98.32% 20+ 119 100.00% TOTAL 178 100.00% Berks County APPENDIX I PEOPLE SERVING DBI WHO STARTED SENTENCE AT … Tables and Figures DBI SENTENCES BY TIME SERVED AGE DBI SENTENCES % OF TOTAL YEARS IN DOC DBI SENTENCES % OF TOTAL >18 2 1.68% 50+ 1 0.84% 21 or younger 31 26.05% 45+ 3 2.52% 25 or younger 61 51.26% 40+ 5 4.20% 30 or younger 82 68.91% 35+ 9 7.56% 35 or younger 102 85.71% 30+ 18 15.13% 40 or younger 111 93.28% 25+ 30 25.21% 45 or younger 116 97.48% 20+ 45 37.82% 50 or younger 116 97.48% 15+ 63 52.94% 55 or younger 117 98.32% 10+ 89 74.79% 60 or younger 117 98.32% 5+ 107 89.92% 65 or younger 119 100.00% 0+ 119 100.00% DBI SENTENCES IN BY OFFENSE 109 OFFENSE DBI SENTENCES % OF TOTAL 1st Deg. Murder 82 68.91% 2nd Deg. Murder 27 22.69% 3rd Deg. Murder 0 0.00% Murder/ Criminal Homicide 8 6.72% Sexual Offense 0 0.00% Other Offense 2 1.68% TOTAL 80 100.00% Lancaster County APPENDIX J Tables and Figures DBI SENTENCES BY RACE 110 RACE DBI SENTENCES % OF TOTAL COUNTY POPULATION % OF COUNTY POPULATION PER 100K Black 38 31.93% 19,035 3.66% 199.63 White 48 40.34% 415,241 79.94% 11.56 Latinx 29 24.37% 44,930 8.65% 64.54 Others 4 3.36% 40,239 7.75% 9.94 TOTAL 119 100.00% 519,445 100.00% 22.91 PEOPLE SENTENCED TO DBI WHO ARE … AGE RANGE AT COMMITMENT AGE DBI SENTENCES % OF TOTAL AGE DBI SENTENCES % OF TOTAL 80+ 2 1.68% >18 8 6.72% 75+ 3 2.52% 18-21 21 17.65% 70+ 6 5.04% 22-25 37 31.09% 65+ 12 10.08% 26-30 21 17.65% 60+ 20 16.81% 31-35 12 10.08% 55+ 31 26.05% 36-40 7 5.88% 50+ 42 35.29% 41-45 5 4.20% 45+ 56 47.06% 46-50 2 1.68% 40+ 74 62.18% 51-55 4 3.36% 35+ 93 78.15% 56-60 1 0.84% 30+ 106 89.08% 61-65 0 0.00% 25+ 117 98.32% 66-70 0 0.00% 20+ 119 100.00% 71-74 1 0.84% TOTAL 119 100.00% Lancaster County APPENDIX J PEOPLE SERVING DBI WHO STARTED SENTENCE AT … Tables and Figures DBI SENTENCES BY TIME SERVED AGE DBI SENTENCES % OF TOTAL YEARS IN DOC DBI SENTENCES % OF TOTAL >18 8 6.72% 50+ 0 0.00% 21 or younger 29 24.37% 45+ 2 1.68% 25 or younger 66 55.46% 40+ 5 4.20% 30 or younger 87 73.11% 35+ 10 8.40% 35 or younger 99 83.19% 30+ 16 13.45% 40 or younger 106 89.08% 25+ 28 23.53% 45 or younger 111 93.28% 20+ 50 42.02% 50 or younger 113 94.96% 15+ 68 57.14% 55 or younger 117 98.32% 10+ 85 71.43% 60 or younger 118 99.16% 5+ 99 83.19% 65 or younger 118 99.16% 0+ 119 100.00% 70 or younger 118 99.16% 74 or younger 119 100.00% 111 DBI SENTENCES IN BY OFFENSE OFFENSE DBI SENTENCES % OF TOTAL 1st Deg. Murder 88 73.95% 2nd Deg. Murder 25 21.01% 3rd Deg. Murder 0 0.00% Murder/ Criminal Homicide 5 4.20% Sexual Offense 1 0.84% Other Offense 0 0.00% TOTAL 119 100.00% York County APPENDIX K Tables and Figures DBI SENTENCES BY RACE 112 RACE DBI SENTENCES % OF TOTAL COUNTY POPULATION % OF COUNTY POPULATION PER 100K Black 44 40.74% 24,344 5.60% 180.74 White 46 42.59% 360,738 82.93% 12.75 Hispanic 18 16.67% 24,397 5.61% 73.78 Other 0 0.00% 25,493 5.86% 0.00 TOTAL 108 100.00% 434,972 100.00% 24.83 PEOPLE SENTENCED TO DBI WHO ARE … AGE RANGE AT COMMITMENT AGE DBI SENTENCES % OF TOTAL AGE DBI SENTENCES % OF TOTAL 80+ 1 0.93% >18 2 1.85% 75+ 3 2.78% 18-21 26 24.07% 70+ 9 8.33% 22-25 32 29.63% 65+ 14 12.96% 26-30 15 13.89% 60+ 22 20.37% 31-35 13 12.04% 55+ 43 39.81% 36-40 8 7.41% 50+ 54 50.00% 41-45 4 3.70% 45+ 62 57.41% 46-50 5 4.63% 40+ 74 68.52% 51-55 3 2.78% 35+ 84 77.78% 30+ 91 84.26% TOTAL 108 100.00% 25+ 102 94.44% 20+ 108 100.00% York County APPENDIX K PEOPLE SERVING DBI WHO STARTED SENTENCE AT … Tables and Figures DBI SENTENCES BY TIME SERVED AGE DBI SENTENCES % OF TOTAL YEARS IN DOC DBI SENTENCES % OF TOTAL >18 2 1.85% 50+ 0 0.00% 21 or younger 28 25.93% 45+ 0 0.00% 25 or younger 60 55.56% 40+ 10 9.26% 30 or younger 75 69.44% 35+ 19 17.59% 35 or younger 88 81.48% 30+ 28 25.93% 40 or younger 96 88.89% 25+ 43 39.81% 45 or younger 100 92.59% 20+ 50 46.30% 50 or younger 105 97.22% 15+ 60 55.56% 55 or younger 108 100.00% 10+ 77 71.30% 5+ 86 79.63% 0+ 108 100.00% DBI SENTENCES IN BY OFFENSE OFFENSE DBI SENTENCES % OF TOTAL 1st Deg. Murder 75 69.44% 2nd Deg. Murder 24 22.22% 3rd Deg. Murder 0 0.00% Murder/ Criminal Homicide 9 8.33% Sexual Offense 0 0.00% Other Offense 0 0.00% TOTAL 108 100.00% 113 114 APPENDIX L 115 Model Sentence Review Policy I n any appeal filed by a defendant serving a life-without- Case Review: Cases will be reviewed based on all parole sentence or in a submission presented to the relevant information, whether it was admitted at trial District Attorney’s Office (DAO) that raises a claim of arguable or not, and whether it would be admissible or not. The merit challenging the conviction or sentence the Sentence review should include any mitigation information provided, Review Unit will agree to vacate the conviction and enter including information about the defendant’s childhood into an agreement to accept a plea to third degree homicide and adolescence and evidence of rehabilitation during or other appropriate charge when the equities of the incarceration. The following is a non-exclusive list of criteria case, including but not limited to any mitigating evidence that must be considered in relevant cases, and any one of presented to the DAO, circumstances of and the defendant’s these may, in the appropriate case, justify the imposition of a role in the offense, and behavior and rehabilitation during sentence less than LWOP: incarceration warrant the imposition of a sentence that allows for release from prison. • 18-25 year olds: Recent U.S. Supreme Court jurisprudence has recognized that the age-related 116 In cases submitted to the DAO, either before or after the characteristics of youth render juveniles less culpable filing of an appeal, that make a prima facie showing of an than adults and therefore has prohibited the mandatory excessive sentence, the DAO will initiate a comprehensive imposition of DBI. These cases have been predicated review and reconsideration of the charging and sentencing on neuro- and social science that has established that outcome. When the facts and circumstances of the case adolescent brain development continues into the mid-20s. warrant it the DAO will pursue a negotiated re-sentencing These age-related characteristics of youth must be taken by means of a Vacate-and-Plea agreement, wherein the into account in reviewing the total circumstances of a DBI defendant shall file an appeal and the DAO will agree case. to concede relief based on the claim(s) of the appeal contingent on the defendant accepting a plea to a lesser offense that permits release from prison. • Felony-Murder/Second Degree Convictions: These are convictions based on participation in the underlying felony that resulted in a homicide. These The policy will be implemented in similar fashion and offenses do not require the defendant to have had any parallel to the review of innocence claims. Here the focus intent to kill, and frequently ensnare people who did is not on wrongful convictions, but instead on excessive not have such an intent. Almost all instances of second- sentences. A task force, committee, or staff within the degree homicide will be prima facie excessive and Conviction Review Unit should be commissioned to review deserving of relief. cases submitted to the DAO directly or via a PCRA or other appellate filing. This task force should also create guidelines • Intellectual Disability: This is another category of for review of such cases based on input from advocacy diminished culpability recognized by the U.S. Supreme organizations and according to the criteria suggested in the Court as sufficient to prohibit the imposition of the death implementation section of this memo. penalty. It should be recognized as sufficient to prohibit a death-by-incarceration LWOP sentence as well. • Childhood/Adolescent trauma: Criminal offenses are Re-sentencing: In those cases where the DAO decides often committed after the failures of many systems that the balance of equities justifies a lesser sentence then and institutions from the familial to the societal levels. the DAO will seek a lesser sentence through a vacate-and- How these impact a child or adolescent have severe plea agreement entered into between the defendant and consequences and the extent to which an individual’s life the DAO. The “balance of equities” in the context of this trajectory was shaped by trauma, abuse, poverty, neglect, policy refers to the fundamental fairness and justification etc. must be considered when assessing the injustice of a of a criminal penalty. The appeal filed with the court shall DBI sentence. raise arguable legal claims that are case-specific and that support a claim for relief, and the DAO will forego • Evidence of rehabilitation during incarceration: This procedural defenses to meritorious claims in the interest of information is important in assessing whether re- pursuing justice through a fair and just re-assessment of the sentencing is appropriate as the DAO should be assessing appropriate penalty for the offense(s) at issue. the conviction and sentence in light of its continuing public safety validity. Rehabilitated individuals and those who pose no appreciable risk to public safety are strong candidates for re-entry to the community. Their records should be assessed as part of the balance of equities by the DAO. 117 118 119