Clock is ticking on PA legislature's responsibility to address felony murder sentences

The Pennsylvania Supreme Court ruled life in prison for felony murder unconstitutional in March. The court’s decision affected all convictions going forward but left it to the state Legislature to decide by July 24 how it would impact past convictions, leaving more than 1,100 others in limbo, reported the Prison Journalism Project.

A bill authored by Senate Republicans, which passed the chamber on June 25, would impose a minimum sentence of 35 years for second-degree murder except in cases where the defendant meets a strict set of guidelines proving they had no intention, knowledge or participation in the murder itself, in which case they could be sentenced to 10 to 40 years. The bill still allows for life sentences in certain cases.

A competing bill in the Democrat-led House caps sentences at 50 years and expands eligibility for parole after 25 years based on the defendant’s culpability in the crime and consideration of public and victim safety. That bill remains in committee.

If lawmakers cannot reach a consensus, the fate of those convicted of second-degree murder will go back to the court system for resentencing. The uncertainty for the women is exacerbated by limited access to information.

“I feel like there is a lack of information, even conflicting information,” said Tequilla Fields, 53, who has served 21 years in prison for second-degree murder charges stemming from a crime she committed when she was 18. “No one seems to know what’s really going on, not even the people outside. That makes it hard to know what to believe.”

Fields said the mandatory minimum of 35 years imposed by the Senate-led bill is too harsh. 

“Thirty-five years? It doesn’t seem fair, right or logical — it doesn’t make any sense,” Fields said. ”It’s too much time for someone who had no intention to kill anyone, or who didn’t kill someone at all. I do not trust the justice system at all. They don’t care about us. We’re not human beings to them.” 

Tameka Flowers, 51, who has been incarcerated for 31 years for second-degree murder, said a minimum sentence of 35 years serves the same function as a life-without-parole sentence.

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“It is a blessing to have the opportunity to leave prison, but a minimum sentence of 35 is still a death sentence for most,” Flowers said. “They’re trying to sentence people as if they had the intent to kill when they didn’t.” 

Despite her anxiety over her own release, Reyes said she understands the reasoning behind the Senate bill’s 35-year minimum. 

“At the end of the day, we have to understand that a life was taken while we were there, even if we didn’t do it,” Reyes said. ”It’s a life sentence for them.” 

Markman said she was also thinking about her victim and their family.

“It’s hard for me to know that I might get a second chance at life, regardless of how many years from now it may be, but they will not be,” Markman said.

If lawmakers do not pass a bill by the deadline, judges will have wide latitude to impose new sentences. Some women at SCI Muncy are concerned that this scenario will result in further sentencing disparities. 

“My main worry is if a bill isn’t passed and people are kicked back to their counties for resentencing,” Markman said. “Judges will be able to sentence people however they want to, and some counties are harsher than others.” 

Flowers said smaller, rural counties will most likely impose harsh sentences while more liberal cities like Philadelphia will impose more lenient sentences. 

“The judges and attorneys will have to really dig into people’s lives prior to prison, figuring out who we were then and why we made the decisions we made,“ Flowers said. “I feel like a lot of us might get resentenced to the same amount of time.” 

Despite their concerns about how the state Supreme Court ruling will be applied, women serving second-degree sentences at SCI Muncy are hopeful that they will soon have a meaningful opportunity to be released, viewing it as a chance to contribute to society. 

”This means everything to me, and I will not waste the chance I am given,” Markman said. “I am determined to make the most of it by making a positive difference and helping other people. If I can help one person who is going through a similar situation to what I was, it will all be worth it. I have to do something to give back.”

While the state Legislature determines its next steps, the community of women at Muncy are hopeful that politicians will agree that everyone is more than the worst decisions they’ve made. 

”We are not who we were two, three and four decades ago,” Flowers said. ”We were women who were abused, used, put down and beat down. And yet, we have survived and found ourselves. We’ve learned how to aid others. We just want the opportunity to show society that we will be an asset to any community we are a part of. We want to show that change is real.”

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Michigan Supreme Court bans mandatory LWOP for 19-and 20-year-olds

The Michigan Supreme Court ruled that automatic life sentences without the possibility of parole for 19- and 20-year-old individuals convicted of murder are unconstitutional under state law, reported The Detroit Free Press. The ruling builds off a 2022 decision by the court to ban such sentences for 18-year-olds.

In a 5-2 majority opinion, Justice Elizabeth Welch wrote automatic sentences of life without parole for 19- and 20-year-olds with murder convictions violates the Michigan Constitution's ban against cruel and unusual punishment. Welch noted a 2022 Michigan Supreme Court ruling found similar sentences unconstitutional for 18-year-olds because late-adolescence cognitive development can still be taking place.

The ruling issued Thursday applied the interpretation to sentences of life without parole to 19- and 20-year-olds, who also similarly could still be experiencing cognitive development, Welch wrote. It also retroactively applies "to all relevant criminal cases," meaning a prisoner facing a sentence of life without parole for a murder that took place when they were 19 or 20 could ask a judge for a new sentence.

"Late adolescents who are 19- or 20-years-old, as a class, share with 18-year-olds the same mitigating characteristics of late-adolescent brain development," Welch wrote. She later added a sentence of life without parole "that does not allow for consideration of the mitigating factors of youth or the potential for rehabilitation is a grossly disproportionate punishment in violation."

A sentence of life without parole could still be possible, but 19- and 20-year-olds convicted of murder will now receive the same right to a hearing to determine if they can be sentenced to life without parole, currently in place for those 18 and younger.

Joining Welch in the majority were Justices Megan Cavanagh, Richard Bernstein, Kyra Harris Bolden and Kimberly Thomas. All five justices in the majority opinion were nominated by Democrats.

The court's two Republican-nominated justices, Chief Justice Elizabeth Clement and Justice Brian Zahra, dissented. In the dissent, Clement argued the severity of a first-degree murder conviction could be met with the most severe sentence possible.

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Creators: Biden's Death Row Clemency Proves Need for Death Penalty

Matthew T. Mangino
Creators
December 23, 2024

Why did President Joe Biden commute the sentences of 37 federal death row inmates?

To start with, the president campaigned in 2020 on ending the federal death penalty. Although he directed the Justice Department to issue a moratorium on federal executions, legislation proposing to end state-sponsored death failed to gain any traction in Congress during his administration.

Additionally, President-elect Donald Trump vowed to carry out executions once in office. His track record reveals he isn't kidding. During the last six months of his prior term, the federal government carried out 13 executions. Contrast that with state executions in 2020, Trump's last year in office. There were seven executions in five states. In 2021, there were eight executions in the same number of states — all below the Mason-Dixon line.

The Trump administration conducted more executions in five months than any other presidency since the turn of the 20th century and carried out six executions during a presidential transition period, more than any other administration in the history of the United States. Prior to 2020, the federal government carried out only three executions in the modern era of the death penalty, most notably Timothy McVeigh, the Oklahoma City bomber.

Whether it was a ploy to bolster his tough-guy bona fides or a lowbrow pitch to his "law and order" constituency, then-President Trump's bloodlust saw no boundary.

According to the Death Penalty Information Center, those executed by the federal government included the first Native American ever executed by the federal government for the murder of a member of his own tribe on tribal lands.

The Trump administration oversaw the first federal execution in 68 years of an offender who was a teenager at the time the crime was committed.

The federal executions of 2020 included: the first federal execution in 57 years for a crime committed in a state that had abolished the death penalty; executions carried out against the wishes of the victims' families; and the first lame-duck executions in more than a century.

As of December 2024, here were 40 men on federal death row. Biden commuted the sentences of 37. All of the offenders were convicted of murder. They will now serve life in prison without the possibility of parole.

According to The New York Times, of the 37 men whose sentences were commuted, 15 are white, 15 are Black, six are Latino and one is Asian. They were sentenced in 16 states, including three that had abolished the death penalty. Nine are on death row because they were convicted of killing fellow federal prisoners.

The three men who did not receive commutations are notorious mass killers. According to Newsweek, they include Dylann Roof, who carried out the racist slayings of nine Black members of Mother Emanuel AME Church in Charleston, South Carolina, in 2015; Dzhokhar Tsarnaev, who was convicted of carrying out the Boston Marathon bombing that killed three and injured more than 260 in 2013; and Robert Bowers, who killed 11 congregants after storming the Tree of Life synagogue in Pittsburgh in 2018, the deadliest antisemitic attack in U.S. history.

Prior to these commutations, Biden had already begun to deploy his clemency power aggressively — commuting the sentences of nearly 1,500 people earlier this month, as well as his controversial pardon of his son Hunter Biden.

In a strange sort of way, President Biden's bold use of his clemency power to prevent the systematic execution of federal death row inmates strengthens the argument in support of the death penalty. He left three men on death row to most assuredly face death. While generally, Biden revealed his disdain for the death penalty, he does believe — and his actions prove it — that there needs to be a death penalty for some.

You are either for the death penalty or you're against it. Like the old saying goes, you can't be a little bit pregnant. One can't be an opponent of the death penalty only until something really bad happens.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on X @MatthewTMangino.

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America's obsession with life in prison

The Sentencing Project: 

Before America’s era of mass incarceration took hold in the early 1970s, the number of individuals in prison was less than 200,000. Today, it’s 1.4 million; and more than 200,000 people are serving life sentences – one out of every seven in prison. More people are sentenced to life in prison in America than there were people in prison serving any sentence in 1970.

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Book Review: Still Doing Life, 22 Lifers, 25 Years Later, Photographs and Interviews of People Serving Life Sentences in Prison Separated by a Quarter Century

Champion Magazine
Authors: Howard Zehr and Barb Toews 
The New Press, 2022, 189 pages
Reviewer: Matthew T. Mangino         

            “Life without parole is a death sentence without an execution date,” Aaron Fox told Howard  Zehr in the early 1990s.  At the time, Fox was serving life without parole in a Pennsylvania state prison.

            In 2017, twenty-five years later, Zehr and Barb Toews visited with Fox again.  In their book “Still Doing Life, 22 Lifers, 25 Years Later, Photographs and Interviews of People Serving Life Sentences in Prison Separated by a Quarter Century,” published by The New Press,  Zehr and Toews not only interviewed Fox 25 years later, they interviewed 21 other lifers, then and now.

            Zehr is a distinguished professor at Eastern Mennonite University and Toews is an associate professor at the University of Washington Tacoma. Their book immediately caught my eye because of the home of the lifers—Pennsylvania. I served two terms as district attorney of Lawrence County, Pennsylvania, a rustbelt community north of Pittsburgh, and followed that with a six-year term on the Pennsylvania Parole Board. Zehr and Toews’ book is both fascinating and sad.  The book provides insight into what would seem a hopeless existence and how these men and women manage to keep the faith, the humanity and the respect for themselves and others with whom they touch.

             In Pennsylvania, a conviction for First or Second Degree murder is a mandatory sentence of life in prison without the opportunity for parole. Simply put, in Pennsylvania, life means life.

            Second to only Florida, Pennsylvania has more lifers than any other state. Even more troubling, Pennsylvania leads the nation in offenders serving life who committed the underlining offense as a juvenile.

            What grabbed me when I first picked up “Still Doing Life” are the photographs of the 22 people interviewed by Zehr and Toews. There are two photographs of each person. The first in street clothes and the second, twenty-five years later—in a similar pose, wearing prison garb.

            Bruce Bainbridge explains why, “When we had to get rid of the civilian cloths due to a policy change in 1995, it was depressing for me because I had to throw away my identity.  That’s one of the biggest things that gave me character.” He went on to say, “I didn’t want to turn into a prisoner. I still struggle with keeping my humanity. I don’t want to get numb to that.”

            The first interviewee in the book, Kimberly Joynes, reveals a painfully astonishing short-coming in the criminal justice system. “When I was sentenced, my judge literally believed that after seven years it was possible I would be paroled.” Joynes thought, as did the courts, that she would see the Parole Board.  That was not to be. Now she relies on the possibility of clemency from the Board of Pardons.  Unfortunately, prior to Governor Tom Wolf, clemency for a lifer in Pennsylvania was about as rare as Punxsutawney Phil not seeing his shadow.

            Ricardo Mercado told Zehr that “It broke a lot of people here when they [Board of Pardons] changed from majority vote to . . . unanimous.” Politics, not some evidenced-based practice, was the reason behind the change. 

            In 1994, Congressman Tom Ridge was running for governor against then Lt. Governor Mark Singel.  The Lt. Governor serves by statute on the Board of Pardons.  That same year, a majority of the board recommended clemency for Reginald McFadden. 

            McFadden was granted clemency by the governor and committed a series of rapes and murders after his release. Ridge used McFadden’s clemency against Singel and got elected.  Once Ridge took office, he called a special legislative session on crime and changed, among other things, the board’s clemency recommendation from a majority of the Pardons Board to unanimity for serious violent crimes.

            The pain of a life sentence is no better demonstrated than in the second interview with Kevin Mines.  Kevin shared with Zehr and Toews when he called a niece that he didn’t really know very well and she was reluctant to come to the phone. When she finally did, she told Mines “I don’t know you like that.” The girl’s mom told Mines, “I told her not to talk to strangers.”       

            For decades policymakers have wrestled with holding offenders accountable while still recognizing the dignity of those incarcerated—all the while trying not to be portrayed as soft on crime.

            A small step in the direction of dignity is a movement to drop the dehumanizing label of “inmate” for those who are incarcerated. Cyd Berger, one of eight women interviewed for the book, makes the best argument I’ve heard in support of such a change. She told Zehr and Toews in 2017, “There’s no single description of an inmate because we are people . . . ‘Inmate’ is a word that the prison system gives us, but that’s not who we are.”

            That is exactly what Zehr and Toews do with “Still Doing Life.”  The book humanizes a group of people who society has hidden away and forgotten. Despite the seeming hopelessness that comes with being locked-up forever, Aaron Fox told the authors in 2017, “I have to confess, I’ve been blessed with a good life, even in prison.”

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former district attorney of Lawrence County, PA.   He is the author of The Executioner’s Toll. 2010. You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com)

Over half of all U.S. prisoners are serving sentences of 10 years or more

The Sentencing Project released an extensive analysis of the hundreds of thousands of Americans who have served 10 or more years behind bars. The report finds that in 2019, over half of the people in U.S. prisons – amounting to more than 770,000 people – were serving sentences of 10 years or longer. That’s a huge jump from 2000, when 587,000 people were serving such sentences. 

“Extreme sentences are so common in America that 10 years behind bars can seem like a relatively short imprisonment. But it’s an incredibly long period of time – one in which people can experience profound change. After a decade of imprisonment, many incarcerated people mature, take accountability for their actions, and acquire skills to support their successful re-entry,” explained Nazgol Ghandnoosh, Ph.D, Senior Research Analyst at The Sentencing Project and co-author of the report. “Unfortunately, people with excessive sentences are rarely given an opportunity to show how they have changed and have their sentences re-evaluated. That’s a major flaw in our legal system.”

Other key findings of the report – titled “How Many People Are Spending Over a Decade in Prison?” – include: 

In 2019, nearly one in five people in U.S. prisons – over 260,000 people – had already served at least 10 years. Back in 2000, just 133,000 people had served 10+ years. 

In 12 jurisdictions, two-thirds or more of the prison population were serving sentences of at least a decade – including Georgia, Louisiana, Maryland, and Washington, D.C.

Racial disparities are stark among those serving longer sentences. In 2019, Black Americans represented 14 percent of the total U.S. population, 33 percent of the total prison population, and 46 percent of the prison population who had already served at least 10 years.

An abundance of criminological evidence shows that criminal careers typically end within about10 years, after which recidivism rates fall measurably.

Drawing on this research, the report makes a case for pragmatic and humane reforms, including giving incarcerated people the chance to have their sentence re-evaluated within 10 years. Importantly, this does not mean every person would be resentenced; it simply means people would have the opportunity to make their case before a court. In line with this reasoning, the American Bar Association – the largest voluntary association of lawyers in the world – just passed a resolution recommending that people receive precisely such resentencing opportunities.

The list of recommended reforms includes:  

•      Create an automatic judicial sentence-review process within a maximum of 10 years of imprisonment, with a rebuttable presumption of resentencing 
•    Bolster front-end sentencing reform by eliminating mandatory minimum sentences and changing prosecutorial practices 
•    Limit maximum prison terms to 20 years, except in rare cases
•    Increase investments in effective violence prevention and interventions outside of the criminal legal system

The full report is available here. 

Felony murder could mean life in prison

Felony murder is on the books in a number of states. It is an arcane legal concept that broadens the crime of murder to include those who set into motion a series of events that lead to a person’s death, regardless of their intent. The legal doctrine can be traced back to Elizabethan England, but was abolished in the United Kingdom decades ago, and no longer exists in other common law countries.

Currently, there are 13 states that accept a proximate theory of felony murder – meaning that a person can be liable for a “foreseeable” death, even if the victim was killed by an outside party, such as a police officer, according to The Gothamist. For instance, New York and Pennsylvania share that distinction with states like Texas, Alabama, Florida and Georgia.

The legal framework has resulted in convictions widely seen as draconian. In 2004, a Florida teenager who lent his car to a group of friends who later murdered a woman was sentenced to life in prison. More recently, a pregnant woman in Alabama was charged in the death of her own fetus, after police said she started the fight that led to her being shot in the stomach.

In recent years, support for the doctrine has shown signs of weakening. It was deemed “barbaric” by the Supreme Court of California, which scaled back its own law in 2019, following a similar decision in Massachusetts. Both Illinois and Colorado have since amended their felony murder laws as part of criminal justice reforms passed in the wake of George Floyd’s 2020 murder by a police officer.

That has left New York as one of four blue states – with New Jersey, Pennsylvania and Wisconsin – that still has the law on the books, according to Guyora Binder, a law professor at SUNY Buffalo and the author of the book Felony Murder.

“Most states have an agency rule that would prevent Jagger Freeman from being guilty for a friendly fire killing by a police officer,” Binder said. “New York has the most expansive version of the law.”

Research suggests the charge is wielded disproportionately against Black defendants. Of the 649 people convicted of felony murder in New York over the last two decades, 83% have been Black or Latino, according to data provided to Gothamist by the state’s Division of Criminal Justice Services.

In New York City, the numbers are even more skewed: Since 2002, 92% of all defendants charged with felony murder in the five boroughs have been Black or Latino.

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LWOP is replacing the death penalty but the lawyering isn't keeping up

Life-without-parole sentences are steadily replacing the death penalty across the United States, reported The Marshall Project. Almost 56,000 people nationwide are now serving sentences that will keep them locked up until they die, an increase of 66% since 2003, according to The Sentencing Project, a nonprofit that advocates for shorter prison terms.

By comparison, only 2,500 people nationally are on death row according to the Death Penalty Information Center; the number of new death sentences dwindled to 18 last year, as prosecutors increasingly seek life instead. Executions are less popular with Americans than they used to be, according to Gallup, and are astronomically expensive to taxpayers. In Dallas, the district attorney’s office says it asks for capital punishment only for egregious crimes where defendants present a continuing threat to society.

But as life without parole displaces capital punishment, the country’s patchwork system of public defense hasn’t kept up. Only 11 states report having minimum qualifications for lawyers who represent impoverished people facing a lifetime behind bars, according to the nonprofit Sixth Amendment Center. In Texas, there’s a continuing dispute over whether the standards for death penalty defense apply if prosecutors seek life without parole instead.

Most states have no rules, The Marshall Project and The Dallas Morning News found. Someone just out of law school could handle a life-without-parole case in Illinois or Nebraska. In California, where a third of the prison population is serving some form of life sentence, minimum qualifications apply only in death penalty cases; the state hasn’t executed anyone since 2006.

Other states have minimal standards. South Carolina requires just three years of experience in criminal law; Arkansas specifies that lawyers should have handled at least one homicide trial.

When it comes to life without parole, “the idea that you would treat these cases like you would treat other felonies is somewhat incomprehensible to me,” said Pamela Metzger, the director of the Deason Criminal Justice Reform Center at Southern Methodist University in Dallas. “The sentencing stakes are so high and often irreversible.” People facing life have far fewer chances to appeal than those facing capital punishment, and their cases draw far less scrutiny, she said.

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Felony murder no longer life without parole in Colorado

Colorado Gov. Jared Polis signed into law a bill that reforms Colorado's felony murder statute, reported The Denver Post.

Under the prior law, there were six felony crimes that could have lead to a felony murder: burglary, robbery, arson, kidnapping, escape and sexual assault.

Felony murder carries an automatic sentence of life in prison without parole. That penalty could be imposed even if the person who was convicted did not directly kill another person.

"That person could merely be a person who was the driver of a car who didn’t even know his partner, his associate was going to go in and commit a murder," said Senator Pete Lee, D-Colorado Springs, one of the sponsors.

Under the new law, the sentence would be 16 to 48 years in prison. The measure is not retroactive, and Lee said it would not apply to cases that have already been through the judicial system.

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MCN/USA TODAY NETWORK: The time is right to fix punishment for felony murder

Matthew T. Mangino
MCN/USA TODAY NETWORK
February 19, 2021            

           Pennsylvania has not carried out an execution in 22 years.  More than 58 years have passed since the last prisoner in the Commonwealth was executed involuntarily.

            Although Pennsylvania might not be carrying out executions—Governor Tom Wolf has declared a moratorium on executions—Pennsylvania has thousands of de facto death sentences. There are about 5,200 state prisoners serving what has been referred to as “death-by-incarceration.”

            What is death-by-incarceration? Offenders condemned to life in prison without the possibility of parole. 

           Under Pennsylvania’s sentencing scheme, offenders—other than lifers—are sentenced to a minimum and a maximum term of sentence.  The maximum must be at least twice the minimum.    

            In Pennsylvania, once an inmate has served her minimum sentence she is eligible for parole.  Release from prison is determined by the parole board.  Once released the offender is supervised on parole until the expiration of her maximum sentence. 

            A life sentence in Pennsylvania has no minimum—there is no opportunity for parole—life means life in Pennsylvania. 

            There isn’t much sympathy for an offender who has been sentenced to life without parole for killing another human being.  However, in Pennsylvania more than 20 percent of lifers didn’t kill anyone.  Those offenders were convicted of second-degree murder—felony murder. 

             Felony murder is a statutory crime in Pennsylvania promulgated at 25 Pa.C.S.A. 2502 (b) providing “[C]riminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.”      The law in Pennsylvania is clear, if a death occurs during the commission of a felony, the death is considered murder and anybody who participated in the felony is equally responsible for the murder, regardless of whether they had any criminal intent to harm or cause death.

               The concept of felony murder can produce bizarre outcomes.  For instance, two teens go into a convenience store unarmed. They pretend to have guns and ask the store owner to turn over the cash. The owner pulls a gun and kills one of the would-be robbers.  The surviving robber can be convicted of Second Degree Murder and sentenced to life in prison, even though he had no intent to kill and no means to kill.

            Pennsylvania lawmakers have tried to provide hope for those serving life sentences. A recent proposal would have allowed lifers a chance at parole after serving 35 years on a first-degree murder conviction and 25 years on second-degree murder.  The proposal never made it to the floor for a vote.

             Now a lawsuit has been filed on behalf of six people convicted in their late teens of “felony murder,” arguing that prohibiting parole consideration for felony murder is cruel and unconstitutional under Pennsylvania law. Article I, Section 13 of the Pennsylvania Constitution prohibits “cruel punishment.” Pennsylvania’s constitutional provision predates the Eighth Amendment to the U.S. Constitution.

           According to the lawsuit, the plaintiffs are three women and three men who have served between 23 and 47 years in Pennsylvania prisons. Each was sentenced to life after a felony murder conviction. None committed or intended to commit any killing in the course of the crime.

             The Pennsylvania Board of Probation and Parole has denied the plaintiffs parole consideration through 61 Pa.C.S.A. 6137(a) that prohibits individuals serving life sentences from parole eligibility. The plaintiffs seek to show the parole statute is “grossly disproportionate to any legitimate penological interest as applied to individuals who did not take a life or intend to take a life, and must be struck down.” 

             With essentially no death penalty in Pennsylvania—and what appears to be the slow undoing of the death penalty nationwide—it is ridiculous to impose the same sentence of life in prison without parole on an individual who commits planned premediated murder and someone who is along for the ride.  The legislature must act to provide a sense of hope for those serving a felony murder life sentence and provide the option of parole for those sentenced in the future.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. in New Castle, PA. He is the author of The Executioner’s Toll, 2010. His weekly syndicated column is distributed by Gannett. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

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One-third of California inmates are serving life sentences

Nearly 40,000 inmates, a third of California’s total prison population, are serving life sentences, a figure greater than the combined total of the next three states with the highest proportions: Florida, New York and Texas, reported The New York Times Magazine. Unless the sentence explicitly bans the possibility of parole, a “lifer” in any state can theoretically be paroled after serving some minimum number of years. But most of the nation’s 162,000 inmates serving life sentences have little hope of ever achieving freedom; that possibility of parole exists almost entirely on paper.

For years, this was true in California as well. But over the past decade, the state has begun to inch the gates open. According to the state’s Board of Parole Hearings, more than 5,000 California lifers were eligible to go before a two- or three-person parole panel in 2019 to make the case that they are suitable candidates for release. In the first 11 months of the year, 1,074 of them, or 19 percent, were granted parole. While that number is still dwarfed by the tens of thousands left inside, it’s a striking shift from previous decades, when fewer than 1 percent of those who went before the board ever returned to society.

Life sentences usually stem from convictions for violent crimes such as murder, rape and kidnapping, although by the end of 2016 almost 11,000 of the nation’s lifers had been given those sentences for nonviolent crimes. Violent criminals are generally the people the public feels least ambivalent about locking up; life sentences have historically been seen as a humane alternative to the death penalty. As a result, the number of people serving such sentences — including “virtual life sentences” that exceed an offender’s expected life span — is growing steadily, even as the rate of violent crime sinks to its lowest levels in decades. A 2017 report by the Sentencing Project, a criminal-justice research-and-advocacy group, found that the number of people serving life sentences nationwide grew by 21,000 from 2008 to 2016, driven both by a growth in the imposition of life sentences and by the reluctance of most states to grant parole to those who are eligible. Even as politicians from both parties have begun embracing alternatives to mass incarceration, criminal-justice reform has yet to touch those deemed the worst of the worst. “It’s hard to get that people who committed a serious crime are not always potentially on the verge of committing another one,” says Ashley Nellis, a senior research analyst for the Sentencing Project.

Yet lifers are highly unlikely to reoffend once released. A 2011 study by the Stanford Criminal Justice Center followed 860 California murderers paroled after 1995 and found that only five — less than 1 percent — went on to commit another felony. None committed another murder. This can be explained partly by age: People become less likely to commit crimes as they get older. But many of those who work with lifers will attest to another factor, something that the American punitive, retributive criminal-justice system scarcely seems to believe is possible: lasting change. Deep in the heart of the largest correctional systems in the country, men and women who have been locked up for decades have improvised a path to rehabilitation using whatever methods they can muster: self-help groups, 12-step programs, books, journal-writing, Bible study, peer mentoring — all of them leading up to the hearing where they must try to win their freedom.

California’s parole hearings are something like an ordeal of the soul, an investigation of every stage of an inmate’s life from birth onward. Held on prison grounds, they can take one hour or last as long as nine hours. While a lifer will have a lawyer present — one who is appointed by the state, usually — it is the inmate who will do almost all of the talking, responding to detailed questioning by the commissioner and deputy commissioner who conduct the hearing. “I’m not sure that there are really any other places in life where somebody is scrutinized so much in such a public way by people they don’t know,” says Jennifer Shaffer, the executive officer for the California Board of Parole Hearings.

Inmates are expected to show that they understand how they became the person who could commit a terrible crime. As Shaffer puts it: “If you don’t understand the factors that led you to do what you did before, how would anybody know that you’re not going to do it again?” The result is a moral interrogation before interlocutors who can alternate between sympathy and condemnation as they ask inmates to dig deep into the most traumatic episodes of their lives. “That boardroom,” says Lawrence Strauss, the state-appointed lawyer who represented Morgan at his hearing, “is a house of pain.”

The modern idea of basing a prisoner’s release on evidence of his or her rehabilitated character can be traced to 1870, when the inaugural meeting of the newly formed American Prison Association took place in Cincinnati. There, representatives from 25 states, Washington, D.C., and Canada adopted a declaration of principles, among them that prisoners should be rewarded for good conduct and that a “prisoner’s destiny should be placed, measurably, in his own hands.” To achieve this, they argued, “sentences limited only by satisfactory proof of reformation should be substituted for those measured by mere lapse of time.”

By 1922, nearly every state in the union had adopted indeterminate sentencing, in which judges hand out sentences that are formulated as a range of years — a minimum and a maximum amount of time to be served. The responsibility for deciding exactly when in this range an inmate had been rehabilitated enough to be released was vested in state parole boards. (The federal penal system has its own early-release process.)

Over the next half century, it became clear that there was an intrinsic tension between the high-minded notion that inmates should be in control of their own destinies, by deciding whether or not to reform, and the practical difficulty of determining whether they had actually done so. By the 1970s, the discretionary parole system was under attack. Liberals argued that a parole board’s broad leeway allowed racial and class biases to rule unchecked. Conservatives argued that parole boards were releasing dangerous felons who then went on to commit more crimes. A rising national crime rate made the public increasingly dubious of the paternalistic promises of a rehabilitative system.

Over time, some states got rid of parole entirely, while others drastically increased the minimum amount of time an inmate would need to serve before becoming eligible to go before a board. In Georgia, for example, inmates who received a life sentence for a serious crime committed before January 1995 became eligible for parole after seven years. Those who have received a life sentence for a crime committed after June 2006 don’t become eligible for parole until they’ve served 30 years.

But discretionary parole continues to exist in most states, even if it’s often limited to a small pool of longtime inmates whose lengthy periods of incarceration have consigned them to near-oblivion. Conducted by panels of political appointees with varying levels of professional expertise, little accountability and almost unlimited discretion, parole hearings rarely garner attention except when a high-profile inmate comes up for parole.

The United States Supreme Court ruled in 1987 that inmates who have been sent to prison for life have no due-process right to be released unless the wording of their state’s parole statute created one. In the absence of such rights, parole decisions can be remarkably arbitrary. A 2017 survey of paroling authorities by the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School found that 41 percent of parole boards never make public the logic behind a parole denial, and at least seven states don’t require their parole boards to provide a written explanation for their denial to the parole-seeking inmate. Prisoners are often unable to see the file that the parole board bases its decisions on — in Alabama and North Carolina, inmates are not even allowed to be present for the hearing. While every state except Kentucky and New Mexico allows inmates to have a lawyer at their hearing, very few states will pay for one, which means only a tiny minority of inmates have a lawyer with them at their hearings. “You have about 3 percent of the procedural rights before a parole board as you would in a courtroom,” says Kevin Reitz, the Robina Institute’s former co-director.

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Philly DA seeks to undo death sentences

Philadelphia DA Larry Krasner, a Democrat and former criminal defense attorney, had made clear while running for office his opposition to capital punishment, reported the Philadelphia Enquirer.  "I will never seek the death penalty — ever,” he said in a 2017 campaign video. “The DA’s Office is not required to do it and there’s no good reason to do it. It costs a fortune. We don’t execute anyone anyway, and Philadelphia does not have to remain the only city in the Northeast that still has the death penalty.”

But his efforts to reverse death sentences in years-old convictions have raised concerns among law enforcement officials and victims’ advocates about whether his office has been transparent with victims’ families. They also have brought pushback from those who say Krasner is attempting to impose his agenda by asking courts to undo punishments decided by juries.

In one filing last year, a former ranking Philadelphia prosecutor now working for the state Attorney General’s Office said letting new district attorneys invoke “prosecutorial discretion” to overturn past verdicts and decisions could lead to “chaos” in the courts.

“Each new prosecutor could quickly work to reverse every legal precedent of predecessors with whom he disagreed,” said the brief from Ronald Eisenberg, senior appellate counsel in the AG’s Office. “Thousands of convictions would be in jeopardy every four years; the law would be a seesaw.”

Asked to elaborate on the office’s stance on death-row appeals, Krasner’s spokesperson Ben Waxman said all post-trial decisions about whether or not to pursue the death penalty are considered by a committee within the District Attorney’s Office, which then makes a recommendation.

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51 percent of Americans support LWOP over the death penalty

U.S. voters support the death penalty for murderers by a 58 to 33 percent margin, but they choose the option of life in prison with no chance of parole, 51 to 37 percent, reports the Quinnipiac University Poll. Quinnipiac says that was the first time a majority backed the life without parole option since the poll first asked the question in 2004.

Democrats back the “life” option by 73 to 19 percent. Women back “life” 56 to 33 percent; among men, 45 percent back the “life” option and 42 percent support the death penalty. Imposing the death penalty for people convicted of selling drugs that cause a lethal overdose was opposed, 71 to 21 percent. “It’s a mixed message on a question that has moral and religious implications. Voters are perhaps saying, ‘Keep the death penalty, but just don’t use it,” said Tim Malloy, assistant director of the survey.

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Oklahoma death row inmate dead, it is not what you think

This week, a man who was on death row for more than 32 years after being convicted in the 1983 strangulation death of a county jail inmate's life ended in the Oklahoma State Penitentiary in McAlester where so many of his fellow death row inmates were executed.

DOC public information officer Alex Gerszewski told the Tulsa World that Sammy Van Woudenberg, 65, died on March 5 of natural causes. That's right, natural causes, he wasn't executed although he sat on death row for 32 years.

Van Woudenberg was convicted of first-degree murder in the 1983 death of Mark Berry, who was 25 when he was strangled in the Muskogee County Jail in Oklahoma.

A roster of current death row inmates maintained by the DOC appears to indicate Van Woudenberg, at 32 years and 56 days, had been on death row the longest at the time he died.

Gerszewski said prison staff discovered he was dead while delivering his evening meal to his cell at the .

Tulsa World archives indicate Van Woudenberg had been found incompetent to be executed in 1994, and that he had been sent at that time to a unit for prisoners with special needs to receive psychiatric care. A judge said his death sentence could be carried out if his mental health improved, according to court documents.
So as it turns out, was Wouderberg's sentence really a life sentence--he spent his entire life after the crime in prison?  Was it a death sentence because he died in prison--like a lot of death row inmates or is every life sentence actually a death sentence because the lifer will--like death row inmates--ultimately die in prison?

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PA senator seeks to remove life in prison sentence from felony murder

Pennsylvania State Senator Daylin Leach is working on legislation that would remove the felony murder rule from Pennsylvania’s definition of second degree murder.

People convicted of second degree murder in Pennsylvania face a mandatory life sentence.

“The focus is on eliminating the idea of strict liability for murder when committing another felony, regardless of your role in that murder,” Leach told LancasterOnline.

In a press release announcing his proposal, the Democratic lawmaker said people should be punished for crimes “they commit or intend to commit in a way commensurate with the crimes.”

He said the felony murder statute violates that principle because people receive life sentences even though they did not kill or intend to kill anyone. 

In June 2015, the Pennsylvania Superior Court denied a Maryland man’s appeal of a life sentence he received in 1990 on two counts of second-degree murder in the deaths of Horace and Mary Swarr more than a decade earlier.

George Burkhardt was convicted of conspiring with three other men to tie up and rob the Swarrs in their Lancaster city home in 1979.

According to newspaper records, the Swarrs were bound and gagged during the robbery and were not discovered until a week later. They died of starvation and dehydration.   

Two of the other men convicted in the robbery also were sentenced to life. The fourth man cooperated with police and served a lesser sentence.
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As goes death, so goes life

As the death penalty continues its slow demise--28 executions this year.  It is important to realize if the death penalty disappears, the battle will turn to a different form of execution, death by life in prison.
In a recent article in the Lewis and Clark Law Review, Some Facts About Life: The Law, Theory, and Practice of Life Sentences, Melissa Hamilton writes, "life sentences occupy unique legal and political statuses."
For instance, life sentences are akin to capital punishment in likely ending in death within prison environs, yet enjoy few of the added procedural rights and intensity of review that capital defendants command. In contrast to term prisoners, lifers cannot expect to reenter civil society and thus represent an exclusionist ideological agenda. The paper reviews whether life penalties remain justified by fundamental theories of punishment in light of new evidence on retributive values, deterrence effects, and recidivism risk.
The next frontier for criminal justice reformers is life in prison.

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Colorado jury reflects public opinion in Holmes verdict

The jury’s decision n Colorado theater shooter James Eagan Holmes – life in prison without parole instead of execution – reflects the nation’s attitude about such cases tied to mental illness, says the Christian Science Monitor as reported on The Crime Report. While most Americans still favor the death penalty (63-33 percent for those convicted of murder, says the Gallup survey), a clear majority oppose the ultimate punishment for those diagnosed with severe mental illness amounting to insanity: 58-28 percent, a Public Policy Polling survey found in December.
That opposition is consistent across party affiliations: 62 percent of Democrats, 59 percent of Republicans, and 51 percent of independents agree that mentally ill persons should not be executed. Similar majorities were found across both genders, as well as economic and education levels. “The poll joins other new data demonstrating that sentencing trends are down across the country for death-eligible defendants with severe mental illness,” said University of North Carolina at Chapel Hill law Prof. Robert Smith, who commissioned the survey. “Combining this public polling, sentencing practices, and the recommendations of the mental health medical community, it’s clear that a consensus is emerging against the execution of a person … who suffers from a debilitating illness which is similar to intellectual disability in that it lessens both his culpability and arguable social value of his execution,” he said
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Poll shows death penalty falling behind life without parole as preferred penalty

A majority of Americans favor life imprisonment without parole over the death penalty for convicted murderers, a first in ABC News/Washington Post polls.
Given a choice between the two options, 52 percent pick life in prison as the preferred punishment, while 42 percent favor the death penalty - the fewest in polls dating back 15 years. The result follows a botched execution by lethal injection in Oklahoma in late April.

Without an alternative offered, 61 percent continue to support the death penalty, matching 2007 as the fewest in polls back to the early 1980s. That's down sharply from 80 percent in 1994.Clearly there's remaining ambivalence; when offered the option of life imprisonment with no chance of parole, 29 percent of death penalty supporters prefer the alternative.

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The Graying of America's prisons

The U S. spends $16 billion annually on incarceration for individuals aged 50 and older, about double the cost of incarcerating a younger person, reported the Albany Times-Union and The Crime Report. Prisons were not designed to meet the basic needs of elderly individuals. Wheelchair inaccessibility and bunk beds make daily life difficult for people with mobility impairment. When the health ward proves incapable of providing care, prisoners must be cared for at an outside hospital with expensive around-the-clock guards.
Many "long-termers" are so old, sick, and frail that they pose virtually no safety risk to the public, with a national recidivism rate of only 4 percent for those over 65. What are the solutions?
In New York, roughly 17 percent of the state's prison population is elderly. By 2030, the aging are expected to account for one third of the prison population, write Elizabeth Gaynes of the Osborne Association and former New York state corrections commissioner Brian Fischer in the Times-Union.
The Senior Ex-Offender Program in San Francisco is the first re-entry program in the U.S. that exclusively focuses on the aging population. In New York, the Osborne Association will begin a pilot project to provide discharge planning and case management support for elders released to New York City. "Any systemic and sustained change is contingent upon our collective willingness to deal with the looming crisis of a graying prison population in ways that reduce costs and improve lives while recognizing the inherent dignity of all people," say Gaynes and Fischer.

Life Imprisonment Sentences in the Federal System

The U.S. Sentencing Commission issued a report on life in prison in the federal criminal justice system.
In fiscal year 2013, federal courts imposed a sentence of life imprisonment in 153 cases. The number of these cases in prior years has varied, with the highest number of life sentences having been imposed in fiscal year 2009, when the courts sentenced 280 offenders to life imprisonment. As of January 2015, there were 4,436 prisoners incarcerated in the Federal Bureau of Prisons serving a life prisonment sentence. 33 They accounted for 2.5 percent of the federal sentenced offenders in the BOP system.
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