JURIST Guest Columnist Daniel J. Wright of The Law Office of Daniel Wright discusses the need to revisit life without parole sentencing in the US justice system…

“No one truly knows a nation,” Nelson Mandela wrote, “until one has been inside its jails.” The story of America’s jails and prisons is a sad reflection: dirty, overcrowded, riddled with gang violence, drugs sold by prison guards and lack of rehabilitative programs. Notwithstanding this, the incarceration rate of the United States is the highest in the world. The United States has 4.4 percent of the world’s population, but has almost 22 percent of the world’s prisoners. The number of incarcerated Americans has more than tripled since 1980. There is no evidence of a corresponding increase in safety or decrease in crime as a result of these policies.

One category of prisoner, the non-violent drug offender, has gathered attention recently. President Obama sponsored initiatives to reduce sentences and secure the release of drug offenders in federal institutions who posed little risk to the community. Other prisoners were not so fortunate. One of the categories of prisoners who have not received relief are those sentenced to life in prison, life without parole and extraordinarily long, death-in-prison sentences.

Many countries around the world have abandoned the concept of life imprisonment. Portugal [Portuguese] was the first. Life sentences were abolished there in 1867, and the last execution is recorded to have taken place in 1847. Other countries followed suit, and life sentences are not imposed in Norway, Mexico, Brazil, Ecuador, Spain and many other countries. A more common alternative is to allow parole after a certain term of years: 25 in Canada, 14 years in Belgium, 15 in Switzerland, 21 years in Italy [PDF]. In the United States life without the possibility of parole is permitted, as is capital punishment.

It is well known that the percentage of adult males incarcerated in American prisons is disproportionately African-American and Latinos. The rate of incarceration of African-American males is more than six times the rate of adult white males. It should come as no surprise that the punishment of life imprisonment is also visited disproportionately upon African-American defendants, and more disproportionately than incarceration in general. In Maryland, 85 percent of those serving life sentences are African-American. According to Michelle Alexander, the United States “imprisons a larger percentage of its black population than South Africa did at the height of apartheid.”

The rates of life imprisonment vary widely among the states. An important component of the rate is the possibility of parole—the real possibility, not theoretical. Life prisoners make up 10 percent of all Maryland prison inmates. One reason for this is that Maryland doesn’t have a functioning parole system for life inmates. The Governor still has a veto over the parole of life inmates, a politicization of the process that has been abandoned by the vast majority of states. As a result, only a fraction of the life inmates eligible for parole have been given a serious consideration for parole [PDF].

This is troubling for a number of reasons. Unlike many states, Maryland has experience with the release of inmates serving life sentences. In 2012, a ruling by the Maryland Court of Appeals [PDF] concerning improper jury instructions in the 1970s and 1960s led to the release of almost 100 prisoners serving life and LWOP sentences. Most had served several decades in maximum security prisons. Notwithstanding the conditions in which they had lived while incarcerated, the prisoners released overwhelmingly managed to transition successfully to a positive life upon their release. There has been little recidivism. Inmates who have served long sentences often simply “age out” of crime. California has released large numbers of inmates in response to court rulings brought about by overcrowded conditions. Recidivism among inmates released has been low. Many people also have trouble understanding that errors are often made at trial, and the innocent convicted.

Charles A. Scott was convicted of murder at the age of 19 in Baltimore. By now he has served almost 49 years in prison. He is 69 years of age. He hasn’t had a rule violation in years and can hardly be considered a risk to the community. Even though he has spent almost five decades in prison, like many life prisoners he has never given up hope for a future life on the outside. In earlier years, he dug tunnels and managed to escape on three different occasions. He was out for more than a year. He recently managed a successful post-conviction appeal. Although sentenced to die in prison by a judge as a teenager in the 1960s, he refused to lose hope or accept the life-denying categorization of the rest of his life.

It isn’t obvious what benefit can be gained by further incarceration of elderly prisoners, but the prisons have many inmates in their 70s and 80s. They pose little risk to the community, but continue to be held because parole procedures make their release difficult or impossible. The rising cost of their medical care is borne by the State. The cost of housing an inmate is more than $38,000 per year in Maryland, even before medical costs for elderly inmates is factored in.

Sebastian McMillian has served more than 25 years in a Maryland prison after his attorney recommended that he plead guilty to a double murder rather than go to trial. The benefit she promised him was that the two life sentences he would receive would be concurrent rather than consecutive—no benefit at all. He has been a model inmate, however, with no infractions and an outstanding institutional adjustment. Raheem Rahman was convicted of attempted murder in 1999. Since that time he has pursued education and written a book about his experiences. He hasn’t gotten in trouble. Although these men would have been released long ago in many countries, they remain incarcerated: an example of warehousing rather than individualized assessment of danger and potential.

The jurisprudence that leads to these results includes mandatory minimum sentences, repeat offender statutes (“three strikes” laws), and mandatory life and LWOP sentences for certain crimes. In many states, homicide leads to mandatory life and LWOP sentences. In states such as Maryland that don’t have viable parole mechanisms for life inmates, a life sentence effectively becomes an LWOP sentence. Since parole exists on the books, but largely not in reality, the problem is in many respects hidden. Another factor is the promotion of LWOP by those seeking the abolition of the death penalty. Those seeking to avoid the horror of capital punishment sometimes hold up LWOP as an acceptable alternative. Yet there are many times more inmates facing the irrational punishment of life and LWOP than capital punishment and they simply do not get the publicity or attention in the public mind that capital inmates do.

The decision of the Supreme Court in Montgomery v. Louisiana, 577 U.S. ____ (2016) [PDF], may offer a helpful beginning. That case involved a juvenile, Henry Montgomery, convicted of murder at the age of 17 and sentenced to death. His sentence was later reduced to a mandatory sentence of life without parole. At the time of the Supreme Court’s decision, he was 69 years old, like Charles Scott. He sought collateral review of his sentence in light of the court’s earlier decision in Miller v. Alabama, 567 U.S. _____ (2012)[PDF], which held that mandatory LWOP sentences for juvenile homicide offenders violates the Eight Amendment’s prohibition of cruel and unusual punishment. Miller required that sentencing courts consider a child’s diminished culpability and heightened capacity for change in rendering sentences. The State of Louisiana argued, as several state courts and federal courts had held, that Miller was not intended to be applied retroactively. The Supreme Court, through Justice Kennedy, held that Miller was indeed intended to apply retroactively. Rather than ordering new trials for all the prisoners who suffered Miller violations, however, the court held that states could remedy the violation by permitting prisoners to be considered for parole. In other words, parole commissions could look at a prisoner’s institutional record and make a determination of the inmate’s growth and maturity since the time of the original sentence. Many inmates will have shown an ability to reform their behavior and no longer pose a danger to the community. Under Miller, these prisoners will be released and start the process of transitioning back to the community.

Henry Montgomery is 69 and has spent approximately 50 years in prison. Sadly, there are many more like him. The Supreme Court has determined that his life deserves a second look. Many prisoners have changed with time. Juveniles are not alone in the process of maturation. The decision in Montgomery is a recognition that no judge can predict at the time of sentencing how an inmate will respond to the process of incarceration and the passage of time. Judges have a gavel, not a crystal ball. If there is benefit in taking another look at a juvenile offender’s life after a period of years, then the same logic can, and should, be applied to other inmates as well.

I mounted the steps of the Lincoln Memorial with a feeling akin to awe, and stood for a long time before the seated figure of one of the greatest men of history, surely the greatest of all the rulers of the nations, the man who would spend a sleepless night because he had been asked to order the execution of a young soldier. He certainly knew that in pardoning we are pardoned.”

—Alan Paton

Daniel Wright is an attorney in the State of Maryland. He has been practicing law for 35 years and concentrates on trial work, including criminal trials and post conviction. He is a graduate of the University of Wisconsin Law School.

Suggested citation: Daniel J. Wright, Life— It’s Worth a Second Look, JURIST – Professional/Commentary, Feb. 27, 2016, http://jurist.org/hotline/2016/02/daniel-wright-second-look.php.