Fighting to End the Other Death Sentence: Life Without Parole

When incarcerated people in 17 states initiated a 19-day prison strike last month, one of their 10 demands was that all “imprisoned humans have [the] possibility of rehabilitation and parole.” This includes the opportunity for early release, allowing prisoners both to exit before the end of their sentence and to serve their remaining time in the community.

It also means an end to the harsh sentencing practice known as life without the possibility of parole (LWOP). In an August 26 interview with MSNBC, formerly incarcerated activist Darren Mack described LWOP as “death by incarceration,” explaining, “You will not leave prison until you die.”

Noted political scientist and author Marie Gottschalk has called life without parole “death in slow motion.” Pope Francis deemed it “a death penalty in disguise.” Kenneth Hartman, who served more than 37 years in prison before California governor Jerry Brown commuted his sentence, was the first to label it “the other death penalty.” When he was still behind bars, Hartman wrote for The Marshall Project that life without parole is “the sense of being dead while you’re still alive, the feeling of being dumped into a deep well struggling to tread water until, some 40 or 50 years later, you drown.”

Across the country, activists inside and outside prison are making headway in organizing to end this harsh sentencing practice. They say more and more people are realizing that the US is an outlier in extreme sentencing. Jonathan Simon, writing in Life Without Parole: America’s New Death Penalty by Charles Ogletree and Austin Serat, Jr., explains that the United States, unlike Europe, rejects the role of “dignity” in its sentencing practices. Joseph Dole, currently serving life without parole at Stateville Correctional Center in Illinois, and the author of numerous articles (several published in Truthout) discussed progress against harsh sentencing in a letter: “There has finally been an acknowledgment that long sentences are the main driver of mass incarceration, that people age out of crime and are thus less of a threat when they are older, and that longer sentences don’t deter or reduce crime.”

Ashley Nellis, senior research analyst at The Sentencing Project, a nonprofit research and advocacy center, reported in Still Life: America’s Increasing Use of Life and Long-Term Sentences (2016), “It is not ‘tough’ to imprison people long past their proclivity—or even physical ability—to commit crime; to the contrary, it is a poor use of resources that could be put toward prevention.”

How We Got Here

Marie Gottschalk wrote for Prison Legal News that in 1913, “a ‘life’ sentence in the federal system was officially defined as 15 years.” Many states at that time had similar rules. But political, social and economic interests pushed for a new system of punishment, wrote Nellis, in her article, “Tinkering With Life: A Look at the Inappropriateness of Life Without Parole as an Alternative to the Death Penalty.”

Thus, by the 1980s and 1990s elevated crime rates and a fear that crime would continue to rise added fuel to the fire. (It did not continue to rise.) Nellis wrote that “The rapid rise in [life without parole] sentences can partly be attributed to a desire for a reliable, terminal punishment to replace the death penalty after it was declared unconstitutional in 1972.” Another way of looking at it, per Gottschalk, is that states rebelled and there was a conservative backlash nation-wide. The Supreme Court, by a series of rulings, essentially opened the door for states to reinstate the death penalty. Today, 31 states allow the death penalty, but life without parole is often the required alternative if a prosecutor doesn’t succeed with his death sentence bid. Gottschalk said death penalty abolitionists helped to “normalize [this] sanction.”

In an interview, Kenneth Hartman, recently released by the California Parole Board that approves or disapproves commutations, said, “All the energy in the room is sucked up by the death penalty abolitionists because they believe we should trade the death penalty for [life without parole].” Of course, not all who believe in ending the death penalty advocate for life without parole, but it is important to note that replacing death with life without parole merely changes what Hartman called “the method of execution.” He said that these “hidden death sentences” mean prisoners must live the rest of their lives in “prisons with extraordinarily high suicide rates, with substandard medical, dental, and mental health care, and with scant rehabilitative programs. Prisons rife with gang violence, racism, and despair.”

Research has shown that despite historic crime lows and falling prison figures, the number of people serving life without the possibility of parole sentences has continued to rise, quadrupling since 1992. Still Life spelled out that there were 53,290 people serving life without parole sentences as of 2016, i.e. one in every 28 prisoners.

In relation to life without parole sentences, there is also extreme racial disparity: African Americans make up two-thirds or more of the life without parole population in nine states: Alabama, Illinois, Georgia, Louisiana, Maryland, Michigan, Mississippi, New Jersey and South Carolina. Additionally, a few states are responsible for half the prisoners sentenced to life without parole: Florida, Pennsylvania, California, Louisiana, and the federal system.

There has been some judicial relief, but so far, just for juveniles. In the 2010 Graham v. Florida decision, the US Supreme Court ruled that sentencing juveniles convicted of non-homicidal crimes to life without the possibility of parole was unconstitutional. In 2012, Miller v. Alabama stated no juvenile could receive a life without parole sentence for any homicide without consideration of his or her age. In 2016, Montgomery v. Louisiana made the Miller decision retroactive. According to a 2017 Sentencing Project report, “States can remedy the unconstitutionality of mandatory juvenile life without parole sentences by permitting parole hearings rather than resentencing the approximately 2,100 people whose life sentences were issued mandatorily.”

Writing in the University of Miami Law Review, researchers concluded that most European countries and many others across the globe exist without the “other death penalty,” recognizing that no one is beyond redemption and that harsh sentencing does not promote public safety.

Organizing to End Life Without Parole in Pennsylvania

“There has definitely been more advocacy on LWOP [life without parole] in the past five years,” Pennsylvania activist Ellen Melchiondo told Truthout. She attributes this, in part to the legislative victories for juveniles, the cost of caring for elderly and dying prisoners, and the children and parents of lifers being more engaged in the fight against life without parole. Spearheaded by the Coalition to Abolish Death By Incarceration, which includes Decarcerate PA, Fight for Lifers, The Human Rights Coalition and Right to Redemption (an organization of people who are incarcerated at the State Correctional Institution of Graterford), rallies across the state have been held to end the other death sentence, garnering a lot of media attention. Legislative action is in the offing. Pennsylvania activists are working to pass Senate Bill 942 in 2018-9, which advocates for parole eligibility after 15 years.

The cost of extreme sentencing has also caught the attention of some district attorneys, such as Philadelphia’s Larry Krasner. The Morning Call reported that Paul A. Studenroth of Bucks County, Pennsylvania, now 72, “has been jailed for 54 years, costing $1.98 million.” Krasner is now rolling out reforms, some related to finance.

It is on-the-ground activists like Melchiondo, a stay-at-home mom earning her Master’s degree in 1996 when she began this work, who are the ones fighting to change minds. Melchiondo found prisoner Sharon Wiggins through a photo exhibit of adults convicted as juveniles, serving life sentences. She understood that Wiggins was sentenced to 44 years in Pennsylvania, close to what the Sentencing Project considers a virtual life sentence: 50 years. They began corresponding, and that led to Melchiondo fighting for women behind bars sentenced to life without parole.

Pennsylvania is second in the nation, following Florida, in the number of prisoners serving life without parole eligibility, reported The Morning Call in 2015. While there are 5,371 prisoners serving life without parole sentences in Pennsylvania, only 208 of them are women, what Melchiondo calls a “silent population,” because historically they have been relatively unnoticed by policy makers.

Wiggins tragically died in 2013, before the courts ruled that juveniles should not be sentenced forever. But before she died, she asked Melchiondo to be the megaphone for women behind bars.

In an interview, Melchiondo talked about the difficulty of building a consensus against life without parole among legislators and others in power. She said that in this climate, “I call organization a victory.” Her organizing “lays the groundwork to change minds and practice…to get more people thinking of how to release prisoners” sentenced to life without parole.

She is the co-developer of The Women Lifers Resumé Project of PA (WLRPPA), created with Darlene Williams, a mother whose daughter is in prison. They began the Resumé Project, Melchiondo said, “to highlight the accomplishments of women serving life without parole and change the conversation to what they have they been doing.” The WLRPPA solicits letters for support and is “data central” for Pennsylvania legislators, lawyers, and others who seek information about women serving life without parole.

The Resumé Project has served as a tool to help revive the underused practice of commutations, in which a governor (or president, at the federal level) reduces a person’s prison sentence. Marie Gottschalk wrote that “commutations were vital features of the US criminal justice system throughout the 19th century and much of the 20th century … a key mechanism to manage the prison population, correct miscarriages of justice, restore the rights of former offenders and make far-reaching public statements about the criminal justice system.” But signing off on commutations has become extremely political. Gottschalk said, “Between 1967 and 1994, Pennsylvania’s governors and pardon board commuted the life sentences of nearly 400 prisoners.” From 1994 to 2012, only six commutations were granted.

In Pennsylvania, it can take several years for a person’s commutation application to reach a public hearing where the Board votes for or against release of the petitioner. J.P. Kurish, the Press Secretary for the Lieutenant Governor and the Board of Pardons, told Truthout that Gov. Tom Wolf signed two commutations in 2017, out of 561 he received. (Those two people have been released.) Governor Wolf is currently considering three others, said Kurish.

Five women are waiting for merit reviews from the five-member Board and many more have applied. Melchiondo said that, so far, no woman has had her sentence commuted in 30 years. “That is a conversation starter,” she added. “People are asking, ‘Why not?’”

California on the Commutation Forefront

California has done much better on commutations than any other state in the country under Governor Jerry Brown, according to activists in New York who are calling on Governor Andrew Cuomo to follow his lead. This is in part due to organizing.

Geri Silva, who founded California’s Families to end LWOP (FUEL) said in emails that since 2017, Brown has commuted 64 people’s sentences, and of those commutations, 42 serving life without parole had their sentences reduced to 25 years to life. Many have since been released, after having been approved by the Board of Parole Hearings.

One such person, Kenneth Hartman, released in December 2017, began his activism against life without parole while he was incarcerated. He told Truthout that “The Other Death Penalty Project came about in 2000, to empower men and women’s voices.” They began by sending out postcards and flyers, aiming at death penalty groups, saying, “You shouldn’t be using us to make your argument against execution.”

Hartman said that 400 copies of Too Cruel, Not Unusual Enough were handed out to policymakers, judges, and thought leaders nationwide, “including death penalty abolitionists who argue for LWOP as a ‘reasonable alternative.’” He currently is taking his message to universities and schools around the country.

Geri Silva, also one of the key activists who fights against life without parole, initially founded Families to Amend California’s Three Strikes (FACTS), which fought to amend the harsh law in California. She told Truthout that meeting Ken Hartman added to her “radical quest for justice.”

She said, “FUEL began in mid-2017 and has grown significantly over the past year. When people are desperate for freedom and life, they kick in to make things happen.” FUEL is part of the Fair Chance Project, which is led by “liberated lifers (formerly incarcerated men & women), prisoners & loved ones of term to life prisoners organized around the demand for just sentencing laws and fair parole practices.”

FUEL is also pushing for legislative action, with prisoners’ lives and words leading the way. Silva immediately worked to get about 400 prisoners involved, and their stories are educating legislators. She said now they’re in touch with more than 1000 prisoners.

While she cannot say that the significant number of increases in commutations is directly due to activism, the correlation is certainly there. For example, California mother Lizzy Stewart created a petition for her son to get his LWOP sentence commuted. She garnered 57,000 signatures and sent the petition to the governor. Jeremy Stewart was granted a commutation in 2017 by Governor Brown. Silva believes this is a promising tactic.

Additionally, there has been strong grassroots activism from her group and others like Californians United for a Reasonable Budget (CURB) and the California Coalition for Women Prisoners (CCWP), which started a campaign called “Drop LWOP.” On August 6, more than 100 organizations joined CCWP and CURB to lobby and ask Governor Brown to commute the sentences of all 5000 people serving LWOP in California.

Fighting LWOP Behind Bars

Mark Wilson, a prolific writer for Prison Legal News and Criminal Legal News is one of the thousands of incarcerated people who each year become jailhouse lawyers to gain familiarity with the law in their quest to change it or question its abuse. Considering that each state has its own sentencing practices, this means they must spend hours in the prison’s law library. They often begin with their own case and move on to helping others. Such is the situation with Wilson.

Wilson, in a letter to Truthout, described how he was sentenced at age 18, has so far served 32 years in the Oregon State Correctional Institution, and by 20, became what he called a “legal assistant.” While Wilson was not sentenced to LWOP, he wrote, “Oregon’s parole board commonly engages in practices which effectively convert life with the possibility of parole sentences to life without parole sentences.”

He has recently been working on filing cases so Oregon’s prisoners might get the benefit of the recent three juvenile SJC decisions, stating that “Oregon courts have displayed tremendous resistance to complying with the Supreme Court’s decisions.” As of 2017, according to the Associated Press, Oregon still has five prisoners serving life without parole and seven persons serving de-facto life sentences since they are not eligible for release until they are 65 years old.

Additionally, Wilson said he is filing cases to apply the law to people who were 18 or 19 at the time of their crimes, working with the Campaign for the Fair Sentencing of Youth, which has crossed the country working to ban juvenile life without parole.

Joseph Dole, an incarcerated writer (whose comic is pictured above), also has worked on several legal cases for fellow prisoners to overturn their LWOP or de-facto LWOP sentences. However, his main work has been on a campaign to bring back discretionary parole for Illinois, since the state abolished a paroling system in 1978.

Illinois is one of 16 states, as of April 2018, that sentences people to what are called “determinate” sentences, not allowing for any chance of serving the remainder of their sentence in the community. According to the Chicago non-profit, Restore Justice, “When state legislatures across the nation began abolishing parole in the late 1970s, their rationale was often that parole failed to increase public safety or reduce repeat offenses…. More up-to-date research now shows discretionary parole can effectively reduce the likelihood of new crimes.” They add, “While not the only factor, the abandonment of parole has contributed directly to increased sentence lengths and more crowded prisons.”

In March 2018, Dole gave a speech to 18 Illinois state legislators on prosecutorial objections to parole. The speech was published in the San Francisco Bay View. Sadly, Dole’s program, the Justice Debate League, was suspended a few weeks later. But he has continued his activism.

ParoleIllinois.org, which was developed by people in and out of prison, is up and running, providing resources, highlighting stories, detailing policy, and fighting tooth and nail for the future. The prisoners were also able to introduce legislation they wrote on the issue to lawmakers at the debate. The name of the bill illustrates their commitment to ending harsh sentencing: The Transformative Release Bill.