A newly released Sentencing Project report, “Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences”, lays it on the line: Incarcerated people who have been sentenced to “life” but are eligible for parole are serving excessive sentences. This is the case in spite of the fact that research shows that lifers are extremely unlikely to be rearrested if released.
At the Women’s March in Washington on January 21, 2017, Donna Hylton, a New York justice activist and formerly incarcerated woman, “inmate 86G0206,” declared to the crowd that she was marching for all the women still incarcerated and standing up for those who are tossed aside and told they have no voice. She said, “Today we are marching in solidarity to change that narrative.” Changing that narrative is key to changing policies related to parole.
Giovanni Reid, who has been incarcerated 25 years, since he was 16, indicated in a phone interview from Graterford Prison that he, too, hopes to change how those with life sentences are viewed. Reid, convicted of second-degree murder, is from Pennsylvania, which, according to an ABC news report, tops the nation in the number of youth with such sentences. Reid is one of the state’s 516 juveniles, originally sentenced to life without parole (JLWOP). Pennsylvania has almost 20 percent of the 2500 JLWOP cases from across the country affected by Miller v. Alabama, the 2012 landmark US Supreme Court case that held that mandatory sentences of life without the possibility of parole are unconstitutional for youth. This convergence of science and law is due to emerging understandings in neurosceience about how the particular brains of teens are still developing (though, of course, adults also continue learning and changing throughout their lives).
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Reid spoke on Juvie Podcast about “chomping at the bit”: the stress of waiting for a year to hear more about his status; and desperately wanting to believe his reentry work, programs and education behind bars will pay off and he won’t have to serve more time. He told Truthout, “No matter how it goes, I’ll be home this year.”
But as the Sentencing Project report reveals, death before parole release is not uncommon. Time served for men and women with life sentences has increased steadily in 32 jurisdictions (31 states and the federal government), and parole boards are increasingly hesitant to grant parole to the 110,000 lifers who are eligible.
So, how do we truly give people with life sentences a second chance?
“We need our policy makers to understand that people who have served long sentences have done a lot of thinking,” Release Aging People in Prison (RAPP) member and formerly incarcerated advocate Laura Whitehorn said in an interview. “If you talk to wardens and correctional guards who have a heart, they will tell you these men and women help resolve problems inside prisons. Typically, people who commit violent crimes have new ways to solve problems instead of using violence. In a sense, they are experts when they get out.”
In an interview, Donna Hylton put it this way: “Allowing people second chances should be an indelible right for everyone, not just for the young white teen from Texas with a diagnosis of affluenza … but for people who have situational crimes that certainly will never happen again.”
What the Data Shows
Given the racism embedded in sentencing, it is not surprising that according to the 2016 American Civil Liberties Union (ACLU) report, “False Hope: How Parole Systems Fail Youth Serving Extreme Sentences,” 47. 2 percent of people serving life sentences are Black. Severe sentencing laws of the 1980s and ’90s affected Black people disproportionately.
The Sentencing Project points out that many people serving life sentences are also poor, exposed to violence in their homes and communities, and have high rates of physical and sexual abuse: “Among women serving life sentences for crimes in their youth, over four-fifths report having been sexually or physically abused.”
The key findings in the Sentencing Project’s recent report give us some sense of what those with parole-eligible life sentences are up against with paroling practices. First off, parole has become politicized. State legislatures both delay when they can first appear before parole boards, and increase the wait times for subsequent hearings. In South Carolina, those paroled in 1980 spent an average of 11.6 years behind bars, but by 2013, they served appoximately 27.5 years when finally paroled. In 2008, California increased possible wait times between parole hearings “from between 1 and 5 years to between 3 and 15 years.”
Whitehorn said that people serving life sentences in New York often go before the board commissioners many times before they actually have a shot at parole. “They take the person through the original crime over and over,” Whitehorn said. “It’s like you have to drag yourself through the worst day of your life over and over. They do not rely sufficiently on how you have changed.”
John McKenzie, for example, who saw the New York Parole Board 10 times, and finally, out of desperation, per the Village Voice, resorted to suicide, was what Whitehorn called “more than a model prisoner — he was teaching others how to change and how to transform and how to make recompense to their victims in spiritual terms; in other words, how to take responsibility for what they’ve done and their community.”
But the nuances of who these men and women are seem lost on politicians and policy makers, especially when a state must deal with a parolee who recommits a crime. The report spells out how “Governors in some states have overhauled the composition of parole boards to reduce parole grants.” In Massachusetts, recent Gov. Deval Patrick revamped the parole board, following a high-profile killing of a police officer in December 2010, and thereby significantly reduced parole grants. The state still has a dismal rate of lifer parole under the current governor, Charles Baker, and more than 70 civil rights and social justice organizations recently signed a 10 page letter declaring that change in the justice system is desperately needed — including demanding that the Governor find ways to improve the 17 percent grant rate since September 2015 for those with life sentences.
In spite of the fact that “older parole applicants pose a reduced risk” of returning to crime, “parole boards have not increased, and sometimes have even reduced, their grant rates,” states the report. For example, “In 1994, Missouri overhauled its sentencing laws to require lifers convicted of a ‘dangerous felony’ to wait 23 years for their first parole hearing — 10 years longer than under the previous law.” In addition to the increase in longer prison sentences, the graying of America’s prisons stems from the fact that some prisoners are never eligible for parole.
“Life without parole got pushed through in so many states,” said Whitehorn. “We never stopped to think about where that would go. In New York, the elder population in prison has gone up by 98 percent since 2000.”
How can this not add up to an aging prison population that requires more care and costs more money? A 2016 Pew Charitable Trusts Report spelled out that “Corrections departments across the country report that health care for older prisoners costs between four and eight times what it does for younger prisoners.”
Rights are narrowed for potential parolees in other ways. According to the Sentencing Project, in some states, such as Wyoming and Minnesota, prisoners can only appear before parole boards via teleconferencing or video. In Florida, lifers cannot attend their own hearings. The ACLU reports that the power to release them is curtailed by another level of approval after a parole board decision — “in Michigan, through judicial intervention, and in California, Maryland and Oklahoma, by the governor.”
Whitehorn, referring to the “punishment paradigm,” stated that just as race and class impact sentencing, people serving life sentences face greater obstacles when it comes to parole.
Hylton said she had to go to 3 or 4 parole board hearings before she was granted parole. This was because she was seen simply for her involvement in a very high profile crime, the kidnapping and murder of a Rikers Island real estate agent. “All they saw was my offense. They never looked at what I’d done or who I was,” she said. But if they had delved into her past, they might have seen how she developed from “a heartbroken, abused young woman” and eventually began to believe “I’ve got to bring some positive rehabilitative things to the world.”
While in prison, along with a core group of women, Hylton was able to address the needs of many incarcerated people, creating prison necessities, such as an AIDS program. “That was all part of my activism,” she said. “We helped bring college back into prison.” But New York Boards ignored the merit she was awarded for her efforts. She added that “most of the Boards are former law enforcement [officials] and see parole through that lens.”
The Sentencing Project states: “When asked to rank the significance of 17 factors for parole decisions in 2015, parole board chairs ranked three static factors as the most significant: nature and severity of the offense and prior criminal record.”
Juveniles in the Mix
Montgomery v. Louisiana (2016), which made the Miller decision retroactive, i.e. a mandatory life sentence without parole should not apply to juveniles convicted of murder, and this should be applied retrospectively.“Children who commit even heinous crimes are capable of change,” wrote Justice Anthony M. Kennedy, in the 2016 decision
Still, in spite of Supreme Court rulings, states have found ways to severely limit parole for juveniles saddled with life sentences. The ACLU report notes this devastating reality: In 12 states alone, more than 8,300 juvenile lifers are serving sentences of at least 40 years or life with parole.
The ACLU research also shows that “those who commit serious, even violent, offenses are not on the whole likely to participate in future crimes as they age into their mid-20s.” Yet “these [sentencing and parole-related] practices persist, and are disproportionate, unjust, and unnecessary.”
In an interview, forensic psychologist Dr. Robert Kinscherff of William James College, and the Center for Law, Brain and Behavior at Massachusetts General Hospital, clarified that “a juvenile lifer seeking parole is different from an adult in that he or she had to make important choices in how to adapt for decades.”
He added that anecdotally, most successful juvenile lifers have followed what he calls “Track 1” or “Track 2.” “Some are young people who were never problematic in their communities but got caught up in something that caused the death of a person,” Kinscherff said. “They engage [in prison] in education and rehab activities from the start. Others are people who were involved in chronic or violent delinquency before incarceration and go by the law of the streets. In the prison setting, they may have a poor institutional adjustment but by the time they hit their mid-twenties, they mature and look at long-term consequences of their actions. They stabilize, work, become involved in rehab programming — and are successful when released.”
Giovanni Reid had no prospects of being paroled when he began his education behind bars, but he had a strong desire to set himself up for a positive future. He ended up becoming one of the many “jailhouse lawyers” who get involved in helping others with legal work. He echoed Kinscherff as he said, “No one is the same at 15 or 16 that they are at 40 or 50. No one carries that same belief system that they had at that age.” Speaking of the other juveniles he has seen come through the system, he said, “Most of these guys just want to go home and be with their families.”
Reid faces uncertainty in his future, though he knows he has an opportunity for release. He hails from a particularly difficult county in terms of parole, Philadelphia County, whose practices seem to be leading to the long sentences in the ACLU and Sentencing Project reports. According to Reid’s friend, law student La Tasha Williams, “The prosecutor will offer some amount of time after reviewing his case. So far, they have been offering deals, for example 35 to life.” If the prisoner has not served 35 years (Reid has served 25), or for one reason or another decides not to take the deal, he or she must go before a judge at a resentencing hearing. “Philadelphia County is different,” Williams told Truthout, “because they are proposing sentences that have life as the maximum … other counties are not doing that.” She added, “If someone gets offered a term of years, say 15-30, and they’ve already served 28 years, then they must go before the parole board, ideally to get out and be on parole for two years.”
“I am hoping for a individualized sentence,” said Reid; “Otherwise, I will go into a resentencing hearing.”
The Sentencing Project has four recommendations to improve the dire situation for those with life sentences. First off, reduce the number of years that applicants must serve before their first parole hearing and shorten wait times. Parole decisions should not be connected to politics (i.e. the governor) but based solely on “meaningful assessments of public safety risk,” the report says. Credible evidence of risk does not mean solely depending on risk assessments, which can be racially biased, according to a 2016 ProPublica analysis. “Members of paroling authorities should be civil servants, rather than governor-appointees,” says the report.
Parole hearings also need to be fair, with applicants having the right to know how they are judged, and the public having a clear understanding of decision-making criteria and outcomes. Importantly, the Sentencing Project urges parole boards to assume that parole candidates are suited for release “at the initial, and especially subsequent, parole hearings unless an individual is deemed to pose an unreasonable public safety risk,” i.e. they recommend across the board what is called “presumptive parole.” This would both save money and motivate prisoners to prepare for their release.
The ACLU recommends a number of changes, including abolishing juvenile life without parole in all instances; prohibiting the prosecution of juvenile lifers in adult courts; and expanding medical parole so that the elderly and sick in all states can be safely released into the community.
Laura Whitehorn of RAPP, who served 14 years behind bars, has her own recommendation. “We need restorative and transformative justice programs to help transform people, and more healing,” she said. “If we don’t change from a system where we say you are punished permanently for the rest of your life, then we will never get free of the dominance of prisons in our country.”