Lee received a ray of hope last month when the Pennsylvania Supreme Court agreed to hear his appeal.

What the justices decide might ultimately give 1,100 others a chance at freedom as well. The case, which the court will hear later this year, marks a potential turning point for a state that’s exceptionally punitive by national standards in handing out life without parole sentences.

“With the recent development at the supreme court,” Lee told Bolts in an email last week, “many ppl have been sharing with me how this possibility has restored a [sense] of hope in their life to have another chance at freedom.”

In 2014, Lee, then age 29, participated in a burglary in which his accomplice fatally shot the homeowner. Lee had not been involved in the killing and wasn’t even in the room at the time. Nonetheless, two years later, he was convicted of felony murder, a type of charge that prosecutors can bring against someone who was involved in a crime that led to a death, even if the death was unintentional or the defendant didn’t participate in the killing.

In Pennsylvania, felony murder is classified as second-degree murder, and all convictions for second-degree murder trigger an automatic sentence of life without parole. These abnormally draconian laws have made Pennsylvania home to near-record numbers of people sentenced to die in prison. The state has the second-highest number of people serving life without parole, nearly 5,100 people; approximately one in five have been convicted of felony murder. 

“There are so many other individuals who have [served] so much more time. I hope that they will finally have that opportunity to go back into society and have a positive effect,” Lee told Bolts in an earlier exchange. “It’s easy for us to throw people away. But if somebody is putting in the work to truly transform and can be useful to society, families and communities, then why not use that person? I believe in redemption if somebody has done the work.”

Lee’s appeal argues that his sentence violates the state constitution, which prohibits “cruel punishment.” This wording is different than the federal constitution’s Eighth Amendment, which bans punishment that is “cruel and unusual.” Since some 1,100 people are sentenced to life without parole for felony murder in Pennsylvania, the punishment may not be considered unusual within the state, but Lee’s appeal argues that it is nonetheless cruel to automatically condemn someone to die in prison for a killing they didn’t commit. 

Other state constitutions have similar language against “cruel” punishments; their courts have used those clauses to issue protections that go beyond those afforded by federal courts.

Still, Lee’s appeal is making the case that his sentence also violates the federal constitution. His brief states that Pennsylvania’s statutes are “out of step” with contemporary standards, making them unusually punitive in violation of the federal constitution. Pennsylvania is the only state besides Louisiana that mandates life without parole for second-degree murder. 

Pennsylvania’s superior court, the lower court that handles criminal cases, rejected Lee’s appeal in June, ruling that it was bound by precedent to reject his plea. But one of the judges, Alice Dubow, called on the supreme court to take up the case and revisit the question of whether automatic life without parole sentences for second-degree murder violate Pennsylvania’s state constitution. Dubow is a Democrat, as are five of the seven justices on the supreme court, though partisanship is often not a strong predictor of how judges settle criminal justice matters. 

Life without parole has frequently been proposed as a more humane alternative to the death penalty, but advocates for reform call it “death by incarceration.” Ashley Nellis, senior researcher with the Sentencing Project, points out that LWOP sentences allow for virtually no second chance no matter a person’s transformation or the amount of time that has elapsed. 

“The state is killing you, just slower—and for a wider range of offenses or participation in those offenses,” she said.

Nellis points out that the expansion of life without parole has far outpaced the decline in the death penalty. The number of people serving life without parole has jumped 66 percent since her organization began collecting data in 2003, reaching roughly 56,000 people as of a 2021 report by the organization. In Texas, for instance, the number of life without parole sentences has grown as the number of those sentenced to death has dropped. “When you’re looking at a death sentence, you have a capital attorney and [other] special rights given to you because of the seriousness of the sentence,” Nellis noted, but those protections are not available to those facing LWOP.

Over the past decade, courts and lawmakers have begun to slowly reassess who can face such extreme sentences. In 2012, the U.S. Supreme Court ruled in the case of Miller v. Alabama that mandatory life sentences for children under age 18 were unconstitutional. Four years later, the court made its Miller decision retroactive, enabling thousands to apply for resentencing. 

Since then, more than two dozen states have since outright banned sentences of life without parole for children. Some have also restricted life without parole for “emerging adults”, an acknowledgement of emerging research in neuroscience that shows people’s brains continue developing well into their mid-twenties. Massachusetts and Washington, D.C., have gone the furthest so far, effectively banning such sentences for people under age 21 and 25, respectively; in Massachusetts, the change came through a decision of the state supreme court earlier this year. Some lawmakers have also introduced legislation that would eliminate life without parole altogether, regardless of age. 

In Pennsylvania, the provision to automatically sentence people to life without parole for second-degree murder already is a contentious issue. U.S. Senator John Fetterman tried to expand clemency for that population while he was lieutenant governor, and then faced attacks over that work when he ran for Senate in 2022. Last fall, Democratic lawmaker Tim Briggs announced legislation to end these automatic sentences, though he has yet to file it —the same demand that Lee is making through the legal route.

Lee remains determined not to die in prison. In 2016, the court assigned him an attorney to assist with his post-conviction appeal. In Pennsylvania, a person must file a notice for appeal within 30 days. That attorney filed nothing, leaving Lee barred from making any further appeals for the next five years. By 2020, when Lee successfully petitioned to reinstate his appeal rights, he had connected with attorneys from the Abolitionist Law Center, an organization that had already mounted several challenges to life without parole in the state. The center, along with the Amistad Law Project and the Center for Constitutional Rights, agreed to take on Lee’s appeal and, with it, mount another challenge to the state’s inclination for “death by incarceration.” 

For Bret Grote, the lead attorney on Lee’s challenge and the Abolitionist Law Center’s legal director, a favorable ruling for Lee could have substantial implications for other states. “It could create momentum for legislative and judicial reform,” he told Bolts. “It could [also] provide a persuasive precedent of a state using its own constitution to provide greater protections than the federal constitution.” 

Nellis agrees. These types of challenges on the state level could not only provide relief both retroactively and in future cases, but, she said, “continue to shed more and more light on the fact that this sentence is applied in arbitrary and very unfair ways.” A clear majority of people who serve life without parole sentences in Pennsylvania are Black, according to data compiled by the Sentencing Project.

Lee says he reconnected with his Christian faith behind bars, which gave him the strength to keep fighting his extreme sentence. He says he only has to glance around his cellblock to know that the court’s decision on his case could affect many more than just him. 

“A lot of guys on the block are lifers with twenty, thirty years on their sentence,” he told Bolts. When they heard that the court would consider his appeal, hope rippled through the prison. 

“This is the greatest news I’ve gotten in so long,” he recalled one man, who had been imprisoned for over 30 years, telling him. 

“Your case is going to affect mine immediately,” another man, who had already served 26 years, told him.

The post Pennsylvania Reckons with Its Draconian Laws on Life Imprisonment appeared first on Bolts.

When the Massachusetts supreme court banned sentences of life without the possibility of parole against children in late 2013, the state was ahead of the curve—just five states had taken that step as of the start of that year. 

Today there are 28. In an unusually rapid sea change over the last decade, red and blue states alike have rushed to bar that punishment, which denies someone any possibility of ever leaving prison, for anyone under age 18. That includes GOP-run Ohio in 2021, and Democratic-run Minnesota and New Mexico last year. 

Will a similar surge now shield even more youths from being incarcerated for life with no hope of release?

Once again, Massachusetts is ahead of the curve: The state supreme court issued landmark rulings on Jan. 11 that expanded its earlier holding, and raised the minimum age for a life without parole sentence from 18 to 21. 

In a 4-3 vote, the majority ruled that youth aged 18 to 20 are never beyond redemption, and that they should receive the same consideration as minors due to their continuing mental development. “A sentence of life in prison without parole eligibility review for those up to age twenty-one—individuals with diminished culpability and a heightened capacity for change—is no less cruel or unusual than it is for those up to age eighteen,” Justice Scott Kafker wrote in a concurrence that drew a direct line between the court’s decision in 2013 and its new ruling. 

The decision doesn’t guarantee actual release to anyone. Rather, it grants people opportunities to appear in front of a parole board to showcase their growth—and only once they’ve spent 15 to 30 years in prison, depending on the case. State officials estimate that the ruling made roughly 200 people newly eligible for a parole hearing.

“Emerging adults… must be granted a ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,’” Chief Justice Kimberly Budd wrote for the majority, quoting from a 2010 U.S. Supreme Court ruling that applied to children. The court was considering the cases of two people, Sheldon Mattis and Jason Robinson, who were convicted of first-degree murder and sentenced to life without parole as 18- and 19-year olds. (All seven justices who took part in the decision were nominated to the court by Governor Charlie Baker, a Republican.)

Massachusetts is just the second jurisdiction to ensure that everyone incarcerated over a crime committed before age 21 has some opportunity for release. 

In 2021, Washington, D.C., adopted a “second look” reform that’s functionally equivalent: People convicted as young adults can ask for a review after serving 15 years in prison. (D.C. does not call this review “parole,” so people in this group can technically still be sentenced to life without parole, but they have a mechanism to petition for release.) 

In fact, D.C. applies that reform all the way to age 25, rather than 21, a narrower definition of who is a full adult in the eyes of the law.

The Massachusetts ruling also builds on other very recent gains for reformers pushing for a higher cutoff age than 18. 

Just over the last twelve months, Connecticut and Illinois both adopted laws to restrict LWOP up to age 21. In Michigan and Washington state, judges banned sentencing rules that mandate life without parole for people under 19 and 21, respectively. Each has important carve-outs: Illinois’ law does not apply to people convicted of predatory sexual offenses, nor does it apply retroactively; Connecticut’s law applies only to people convicted before 2005; in Michigan and Washington, judges still have discretion to impose the sentence as long as it’s not automatic. But each concretizes the same principle as Massachusetts’ ruling: that 18 is not the proper place to set a limit for who gets to be considered a young person deserving of special protections. 

“People who committed crimes at a very young age have the capacity to turn their lives around and become productive citizens,” said Alex Taubes, a Connecticut lawyer who represents people on parole and supports his state’s 2023 reform. 

Preston Shipp, who advocates for such reforms nationwide as policy counsel with the Campaign for the Fair Sentencing of Youth, says his advocacy work gets easier when he can tell lawmakers that more and more states have acted against juvenile life without parole. “When one domino falls, it causes the next domino to fall,” Shipp said. “These are very important steps that we’re continuing to take on our journey to make sure that people who don’t have fully formed brains are not thrown away and told there’s no hope.”

Reform proponents in other states are already lining up to be next. California’s supreme court heard a similar case in early December; it could prohibit life without parole up to age 26. 

In Washington state, legislation that would end life without parole up to age 25 received its first hearing on Jan. 15, just days after the Massachusetts ruling. Chelsea Moore, an advocate with the ACLU of Washington, and co-founder of Look2Justice, an organization centered on the rights of incarcerated Washingtonians, is championing that bill. “It’s wonderful that we see this acknowledgement spreading across the U.S.,” she said. “It’s very helpful for us to be able to interact with folks in those states, and to point to those states.”

This momentum reflects the extraordinary changes since the “superpredators” panic of the 1990s, which fueled more life sentences for children. The notion that a young person who commits a crime is particularly dangerous and unredeemable has been debunked, replaced with a consensus that youth is redeeming, a sign that one really could change. But to translate that idea into law would seem to demand drawing a bright line—a legal age that separates youth and adulthood, at least for the purpose of deciding what counts as too young to be sentenced to die in prison. And with different visions of change competing, that task itself is making reformers confront the nuances of age and development, and ponder how to best restrict a sentence that many refer to as “death by incarceration” without leaving too many people behind. 

This sense of an emerging momentum is not just a political boost for reformers like Moore. In the Massachusetts ruling, it actually served as legal evidence.

To justify raising the age from 18 to 21, the state supreme court appealed to the “evolving standards of decency,” an approach to constitutional law that connects people’s rights to contemporary norms, and that’s long been used to expand protections on juvenile defendants. The majority talked about recent laws and rulings in other states—as well as reforms in other nations—to conclude that these standards are shifting. 

Among the reforms the court cites: D.C.’s 2021 law, and Illinois’ 2023 law. 

Bolts asked Lindsey Hammond, policy director of the Illinois-based organization Restore Justice, for her reaction about the Massachusetts court drawing on a law she championed hundreds of miles away. “I think it’s incredible to see this momentum continue to build,” she said. In turn, she hopes that this out-of-state ruling can help her persuade Illinois lawmakers to revisit last year’s law and make it retroactive. 

“It is so encouraging for legislators to know that other states are reaching that same decision that young people are different,” she explained.

Besides these “evolving standards,” the Massachusetts court grounded its ruling on research in neuroscience and psychology that shows that people’s brains continue to develop into their mid-20s. “Advancements in scientific research have confirmed what many know well through experience: the brains of emerging adults are not fully mature,” the majority wrote.

Stephanie Tabashneck, a psychologist and senior fellow at the Center for Law, Brain and Behavior at Harvard Medical School, offers an example: Young adults “can’t regulate their emotions” as well as older adults because their frontal lobes are not fully developed. Tabashneck is not surprised that such findings resonated with the court. She often gives presentations to judges and attorneys, showing them brain scans highlighting the marked differences between younger and older adults; just seeing those images has a powerful effect on her interlocutors, she said. 

Some public officials echoed the science in praising the Massachusetts ruling. “The practice of putting a person behind bars forever, without paying attention to decision-making ability based on age and the science of brain development, should end,” Kevin Hayden, the district attorney of Suffolk County (Boston), said in a statement. Hayden succeeded Rachael Rollins, a reform-minded DA who’d also backed the litigation against life without parole, as well as efforts to raise the age of youth justice from 18 to 21 in other contexts.

But here’s a rub: Much of this research has found that people’s brains continue developing for years beyond age 21, leaving a gap with where the Massachusetts justices landed. The majority recognizes this, writing that “we acknowledge that the scientific record in this case suggests that the unique attributes of youth may persist in young adults older than twenty-one.” 

And here, too, the majority invoked examples from other states to explain how it reached its decision—except this time, it did that to justify not going up higher, say to 25, rather than to support going beyond 18: “The contemporary standards of decency that govern our decision today do not suggest a societal consensus that those aged twenty-one and above should be treated differently from older adults.”

On this point, the dissenting justices harshly criticized the majority for having it both ways. “[E]ven if it could, science does not definitively place the line of brain maturation at twenty-one, but rather suggests that it extends into the mid-twenties,” wrote Justice David Lowy. He accused his colleagues of “manufactur[ing] a new category of individuals entitled to distinct constitutional treatment,” and usurping the prerogative of lawmakers by deciding what he argues ought to be a political question—what is youth for the purposes of punishment. 

“Perhaps nothing speaks louder to the flaws in the court’s holding,” Lowy wrote, “than the court having crafted a line that ends at age twenty-one, thereby engaging in legislative line-drawing inconsistent with the science upon which it relies.” 

If there’s no switch that flips in a person’s brain the day they turn 18, neither is there one the day they turn 21. For Lowy, the seeming arbitrariness of setting a line at one’s 21st birthday was a reason to not raise the age at all. But for some reformers, it’s a reason to think even bigger.

Moore, the Washington advocate, feels a twinge of concern that if politicians and judges settle on 21 as the new age for juvenile justice, it may make it trickier to push bills with a higher age cutoff—like her state’s proposed legislation, which goes to 25, closer to what scientific studies envisage. “Just like the age of 18 was socially constructed, I think the age of 21 is also socially constructed,” she said. “We’re hopeful that we will continue to move past these social constructions of what we see as mature, into what we really know in science.”

Still, Moore is confident that, no matter how a particular reform defines who counts as young enough, it’ll pave the way for still more change down the line. Since Washington state abolished life without parole for teenagers under 18 in 2018, “We have people running nonprofits, we have people doing anti-violence work,” she said. “It’s so impressive what folks have done.” She points to a study conducted last year by two University of Washington scholars that showed low recidivism among the incarcerated people whose petitions were granted. 

“We just know that that model can be replicated if we bump the age up to 25 for those folks serving life and long sentences,” she added. “Those folks can come home safely and our parole board can determine when it is safe to return to their homes: They’re already doing it, and so they would be able to do it for this other group of folks.”

James Zeigler, who leads the Second Look Project, a D.C.-based group that championed D.C.’s reform and has helped implement them, questions if an age cutoff is needed at all. “If you have to draw a line somewhere, identify when someone becomes a full blown adult for culpability purposes, [25] probably makes the most sense, and it makes more sense than 18 or 21, which are both ages after which people continue to grow and develop quite a bit,” Zeigler said.

But “developmental maturation process doesn’t end at 25 for anybody,” he pointed out. “While it may slow down as a kind of general rule, everybody continues to kind of grow, change, and mature… I have seen it in my work that plenty of people who commit crimes and make serious mistakes well into adulthood, past the age of 25, past the age of 30, can still grow and change in the way that we are talking about, that you hope for in people.”

Katy Naples-Mitchell, a special litigation advisor at Harvard Law School’s Criminal Justice Institute, also wonders how to draw a rigid line as to when one enters adulthood, when the characteristics that make humans capable of change don’t just disappear as one ages.

As the Massachusetts supreme court considered the Mattis and Robinson cases, Naples-Mitchell co-authored an amicus brief in support of ending life without parole for young adults in Massachusetts. The brief focused on the huge racial disparities in who’s serving life without parole in Massachusetts, finding that Black youth between ages 18 and 20 are sixteen times more likely to have received that sentence than white youth.

“People of color are facing more extreme charges for less serious conduct,” Naples-Mitchell told Bolts, explaining that Black people in particular are more likely to face a charge that triggers life without parole. Research by the American Psychological Association has found that people perceive Black youth as older than they are, making judges more prone to treating Black defendants as full adults than they are with white defendants.

Those disparities also apply across age groups, though. According to research conducted by the Sentencing Project, an organization that researches criminal justice, the majority of people serving life without parole in Massachusetts as of 2020 were Black and Latinx; those groups make up less than one-fourth of the state’s overall population. Studies nationwide show prosecutors and judges use harsher charges and sentences for people of color.

For Naples-Mitchell, the debate over young adults should be a gateway for a broader reckoning with how we dole out punishments. “This is an opportunity to reshape norms about life sentences more broadly, beyond the categorical approach in the brain science,” she said. She described the neuroscientific research as critically important to understanding the need for reform but also says “the brain science is a window for the public to access new empathy.”

“There are lots of ways to build on that,” she added, “whether it’s to build to another later-in-life bright line, or to think more holistically about sentences of life without parole, and whether that is something that public policy should promote.”

D.C. underwent just the trajectory that Naples-Mitchell envisions. It first provided an opportunity for release to anyone convicted as a minor. Then, in 2021, it extended that approach to offenses committed up to age 25. And then, the local government chose to expand its reform yet again by guaranteeing any incarcerated person a judicial review after a lengthy term in prison—no matter their age at the time of the offense. That ordinance was part of the omnibus package that was blocked by Congress and President Biden last year. 

State Senator Liz Miranda, a progressive politician from Boston, wants Massachusetts to take the same route. She is sponsoring legislation that would repeal life without parole sentences regardless of the age at which someone commits a crime. Under the bill, anyone incarcerated in Massachusetts would receive a parole hearing after 25 years of incarceration.  

At a hearing for her bill, Miranda talked about her brother, who was murdered in Boston, explaining why she opposes life without parole as a punishment for his alleged killer. “I believe life without parole is death by another name, and I do not believe in death sentences,” Miranda said.

The post A Wave of States Reduce “Death by Incarceration” for Young Adults  appeared first on Bolts.

In late July, Treina Kinder traveled about 200 miles from her home in Huntsville, Alabama, to Montgomery to ask the state’s parole board to release her husband, Richard Kinder. He was 17 when he was convicted of capital murder and sentenced to spend his life in prison for his role in the killing of Birmingham teenager Kathy Bedsole. By the time of his parole hearing this summer, Richard had been incarcerated for nearly 40 years. 

Walking into the hearing in Montgomery, Treina was optimistic. Accompanying Richard’s application was a long list of achievements like college degrees and 40 certificates, including for the completion of drug and alcohol rehabilitation programs. He’d lived in a faith based honors dorm since 2005 and had only one minor disciplinary infraction during his incarceration at St. Clair Correctional Facility, which has at times been the most violent prison in Alabama, a state that in recent years has had one of the country’s highest prison homicide rates. Richard’s furniture and refinishing instructor at the prison supported his release, writing in an affidavit, “I am 1000% convinced that if Richard Kinder were released, he will not violate the law and will become a productive member of our society.”

Importantly, Richard’s application also included a letter from the former lawyer for his co-defendant, David Duren, who said Duren had admitted the plan to kill Bedsole was his alone and that Richard had no idea he was going to shoot her (Duren received the death penalty and was executed in 2000). 

Richard was initially sentenced to life without the possibility of parole, but in 2017, after a pair of U.S. Supreme Court decisions ruled that imposing mandatory sentences of life without parole on minors was unconstitutional, an Alabama judge reduced Richard’s sentence to life with the possibility of parole. The judge wrote there was “uncontradicted evidence” of Richard’s rehabilitation. Even so, the board denied Richard parole in July 2018, his first hearing after he became eligible.

But Treina hoped this summer would be different. “I thought … that we had a really good chance,” Treina told me of the latest hearing. “There’s nothing else he could have done. I mean nothing.” 

At the hearing, which took place at the parole board’s office, each person was given two minutes to speak in support or opposition of Richard’s release. Treina spoke about Richard’s accomplishments and his plan to live with her and find work in Huntsville. Richard’s brother and one of his lawyers also spoke in favor of his parole application. Bedsole’s sister and father opposed his release, as did a representative from Attorney General Steve Marshall’s office. 

Unlike other states, prisoners aren’t allowed to attend their parole hearings, so Richard sent a letter for board members to review ahead of time. “I realize the severity and seriousness of my offenses, and I understand that granting parole to me may be a difficult decision for you,” he wrote. “My hope is that my record will adequately reflect to you the effort I have put into my personal growth and change I have made in my life during the 40 years of my incarceration.”

His lawyer, Richard Jaffe, said the board conferenced for just “a couple minutes” before denying Richard Kinder parole and telling him he’d have to wait five more years to petition them again. A sheet explaining the reasons for denial shows the board decided against his freedom because of the severity of his offense and opposition from Bedsole’s family and the attorney general’s office.  

Treina says she broke down crying in the parking lot. “I was devastated,” she said. “I really thought he was going to get out.”

Jaffe said every piece of evidence his team gave the board showed that Richard had been rehabilitated and reformed, and that there was no plausible reason for the denial. “To say it was disheartening would not come close to describing this injustice,” Jaffe wrote in an email.

Since Richard’s first hearing in 2018, it has become even more difficult for people to get out on parole in Alabama, a privilege reserved for prisoners who meet a certain set of guidelines, such as showing they’re unlikely to commit another crime. State parole data shows that people who meet that criteria have been denied release at much higher rates over the past five years, blocking an important mechanism for release from the state’s dangerous and overcrowded prisons. Alabama’s parole board, which years ago released more than half of people who applied, approved just 10 percent of applicants last year. Richard was one of 245 people the parole board denied release from prison in July; the board granted freedom to just 11 people that month, a parole grant rate of four percent. 

In many cases, the board points to opposition from the attorney general’s office and a victim’s rights group to support its decision to deny release. Legislative efforts to add oversight and stricter guidelines for the board to follow have failed, even as the board appears to flout constitutional requirements by discriminating against Black applicants.  

State Representative Chris England, a Democrat who represents Tuscaloosa and who has introduced bills to reform the board in the past two legislative sessions, told me the board is not following its own guidelines. “What you see, in my opinion, is an out-of-control board,” England said.

Right around the time Richard Kinder first became eligible for release, politics and policies around Alabama’s parole board started to change.

Four days before Richard’s first parole hearing in 2018, a man on parole killed three people. As criticism grew over the board’s decision to grant him parole, Lyn Head, who was chair from 2016 to 2019, says Governor Kay Ivey pressured board members to stop releasing people. Head recounted a meeting in October 2018 led by Ivey and Marshall, who are both Republicans, that set the tone for how the board was expected to vote for people convicted of violent crimes—a category that’s broadly defined in Alabama law to include drug trafficking and third degree burglary and covers approximately 80 percent of people in Alabama prisons. 

According to Head, Ivey was puzzled as to why board members would vote to release people who had committed such crimes. “Why would you even consider letting someone convicted of a violent crime go free?” Ivey asked, according to Head.

Head says she explained to the governor that the parole board is required by the legislature to use a risk assessment tool that helps predict whether someone is likely to reoffend, and that people convicted of violent crimes were often considered low risk based on that available data. According to Head, Ivey “banged her hand on the table and said, ‘But don’t you think these people need to pay a price?’”

Head says she started changing the way she voted on cases because of pressure from Ivey and Marshall. “There were cases where I did not vote to parole even though I knew I needed to because I was afraid of losing my job,” she told me, explaining that she had two children in school at the time. 

A spokesperson for the governor’s office did not return requests for comment on Head’s account. Amanda Priest, a spokesperson for Marshall, declined to comment. 

The legislature passed a bill the next year that gave Ivey even more control over the board. Previously, the governor selected board members from a list provided by a five-person nominating commission that was chaired by the chief justice of the state supreme court; the commission also included the presiding judge of the court of criminal appeals, the house speaker, senate president and lieutenant governor. The 2019 law eliminated the judges from that commission and narrowed it to just the three other leaders of the state legislature. It also gave Ivey power to directly appoint the parole board’s director and added the requirement that at least one member have at least 10 years of experience in law enforcement and “the investigation of violent crimes or the apprehension, arrest, or supervision of the perpetrators thereof.” 

Head resigned in the fall of 2019 and Ivey replaced her with Leigh Gwathney, who was a senior prosecutor in charge of violent crimes and assistant attorney general under Marshall in the AG’s office. 

After Gwathney’s appointment, parole releases began to plummet, from a grant rate of 53 percent in 2018 to 20 percent in 2020. Last year, the grant rate was 10 percent. 

Head attributes the low grant rate partly to Gwathney’s unwillingness to seek training on a risk assessment tool. Under the board’s rules, members are supposed to consider information from a risk assessment as well as an evaluation from a parole officer who looks into people with upcoming hearings. In August, the most recent month with data available, the system found that roughly 80 percent of people met the parole requirements, yet the board granted parole to just five percent of applicants that month. 

The board declined to comment on a list of questions about the low grant rates. 

Kim Davidson, who served on the board from March to June, told me in a text message that those guidelines “have no teeth” because the board doesn’t have to follow them. She recommended that officials make the guidelines for release presumptive rather than advisory, and introduce an appeals process. Davidson, a lawyer, was appointed to fill in for board member Dwayne Spurlock, who retired before the end of his term. During her short tenure, she voted in favor of parole more often than her fellow board members. 

Ivey did not appoint Davidson to another term, however, a snub Davidson blames on Marshall, who she says did not want people to be released on parole. “I could have played the long game and voted more in line with denials and odd set dates,” wrote Davidson. “But, that just isn’t me.” Davidson claimed the attorney general’s influence looms large over the board because of Gwathney, whom she found to mistakenly apply the law at times. “The only thing he needs to do is keep Leigh on the Board,” Davidson said. 

Head says the board’s refusal to release people who have worked to change themselves does not improve public safety. She’d like to see more focus on re-entry programs that support people leaving prison and have been proven to reduce recidivism rates. “They want to show or demonstrate to the public that we’re keeping you safe because we’re keeping these people locked up better than anybody has before us,” she told me. “But the problem is, they’re lying to the public. Because if they would explain to the public, this is how you reduce recidivism.” 

After I interviewed Head, she reviewed an article I wrote in The Appeal in 2019 chronicling Richard’s case after his first parole hearing. She said she did not remember his case and was puzzled as to why she voted against his parole. “Don’t understand and surprised,” she wrote in a text message. Asked whether she regretted voting that way, she replied that she couldn’t say without looking at his file. “But if there is nothing in the file that indicates his record is other than all that you found, yes,” she said. 

When researchers from the ACLU of Alabama observed around 260 parole hearings this summer, they found that Gwathney granted parole less frequently than the other two parole board members. She also maintained an allegiance to her old employer, denying parole in every case that the attorney general’s office opposed, according to their final report.

“I think that any parole hearing that the attorney general’s office opposes, Gwathney should recuse herself. She has a conflict of interest,” said Alison Mollman, senior legal counsel for the ACLU of Alabama. “But that has not been her practice. She continues to sit and vote with her former employer in all these cases.”

The researchers discovered another troubling finding. Since Ivey took over control of the board, Black people were far less likely to be granted parole than white applicants. In 2019, Black and white prisoners were granted parole at similar rates, with 34 percent of Black people granted parole compared to 36 percent of white applicants. But that disparity grew by 2020, with 16 percent of Black applicants receiving parole compared to 29 percent of white people, according to their report. 

In the hearings observed by the ACLU of Alabama this summer, white people were granted parole 11.8 percent of the time. Black people had a grant rate of 4.7 percent despite being similarly situated. 

Black people incarcerated in Alabama’s prisons also receive sentences that are on average nine years longer than for white people, and spend significantly longer behind bars before receiving parole. A recent analysis of state court data by AL.com found that nearly half of Black men granted parole over a two month period this year had already served at least 75 percent of their court-ordered sentence. White people granted parole during that same period had served, on average, less than a quarter of their sentence. 

Shrinking parole has also become a barrier to alleviating overcrowding inside a prison system so dangerous that the U.S. Department of Justice has sued the state and the Alabama Department of Corrections after an investigation showed excessive force by correctional officers and “serious risk of death, physical violence, and sexual abuse at the hands of other prisoners.” There were roughly 19,800 people in the state’s men’s prisons at the end of September yet the facilities are designed to hold just around 11,700. 

“I think that when we see how violence has just skyrocketed in Alabama’s prisons, it’s directly related to the lack of hope that people have,” Mollman told me.

Despite these problems, there’s been little movement from the legislature and Ivey’s office to make it easier for people to get out on parole. For the past two years, England, the Tuscaloosa lawmaker, has introduced legislation that would create a panel to oversee the board and create guidelines for members to follow. It would also require the board to issue a written decision when deviating from those guidelines and create an appeals process for prisoners. “They don’t have to follow guidelines and it’s completely discretionary,” England said. “So when you don’t have any oversight, you get systems that are clearly abusing the discretion that they have.”

England’s bill failed to gain traction among other legislators, some of whom deny there are any problems with the parole board. “I’ve spent 25 years with Pardons and Paroles and I just want to say that it’s a hoax that the parole board is not releasing folks,” Representative Jerry Starnes, a Republican who represents Prattville, said in a House Judiciary Committee hearing on the bill earlier this year, according to the Alabama Political Reporter. 

As chances for parole shrink in Alabama, people inside its prisons are confused about what they can do to earn their freedom. 

In a telephone call from St. Clair Correctional Facility, where Richard is incarcerated, he talked about the board’s focus on the crime he was a part of 40 years ago. “Look at the reasons why they turned me down for parole and they’re reasons that I can do nothing about. Capital murder is always going to be a severe offense, I can’t change that,” he said.

He’d followed the parole board since his last hearing and knew it had become much harder to get out, he said. Going into his hearing this summer, Richard said he was hopeful but not optimistic about the board voting in favor of him. “They would have to be willing to really look at our record, you know, what we’ve done in here, and say, ‘Hey, this warrants a chance.’”

Still, he expressed remorse for his role in Bedsole’s death. “I mean, how much time is enough?” he asked. “I don’t know… When I look at myself, personally, I think about a 16-year-old girl that’s lost her life. I don’t know how long she would have lived. You know, she may have lived way older than me. I don’t know how much time is fair for her life. How much time is fair for me to do regardless of who I am in here and how I changed or anything?”

The post In Alabama, an “Out of Control Board” Cuts Chances for Parole appeared first on Bolts.

For more than 25 years, Mike Rose felt alone. After his son Jeremy was arrested at age 17 in 1994, sentenced to life in prison, Mike and his wife had no community with which to share the pain of losing a son to prison. “In the battle to help your loved ones, it feels like you’re by yourself, fighting this battle on your own,” he says. Jeremy was shipped to an out-of-state prison, as New Mexico does with many kids serving long sentences, deepening his parents’ isolation. 

Then, about four years ago, Mike says his world opened up after he stumbled upon a coalition that had assembled in New Mexico to fight extreme sentences imposed on children. 

“It was like a breath of fresh air,” he told Bolts. “I was able to join them and it’s like, I’m not by myself anymore. We’ve got resources, we’ve got people who are in the same situation, we can pull our knowledge and our strengths and start working on the passage of legislation. It was a godsend.” 

The coalition has for years pushed legislation to give every ‘juvenile lifer’ a meaningful chance at release, which faltered in repeated legislative sessions until they finally succeeded this spring: In March, lawmakers adopted Senate Bill 64, a law abolishing sentences of life without parole for children. 

The law also addresses other extreme sentences by making anyone convicted of a crime they committed under the age of 18 eligible for parole hearings—usually after 15 years in prison, though in some cases after 20 or 25 years behind bars. 

“In a moment of pretty extreme political polarization around crime and public safety, our community was able to pass one of the more progressive juvenile parole laws in the country, and we did it with bipartisan support,” said Denali Wilson, an attorney at the ACLU of New Mexico who co-founded this coalition, though she also stresses that 15 years remains too long a time. “For people that went to prison when they were 15-16 years old, we’re talking about a lifetime to wait for just an opportunity—just an opportunity to come home.”

The law does not guarantee release for anyone. It only provides review by a parole board, a shot to showcase one’s rehabilitation inside and ask for a second chance that the governor-appointed board can still deny. Many people newly eligible for review will still likely remain in prison for decades. 

Still, Mike Rose calls himself “eternally optimistic” and says the law’s passage opens the door to having his son home by the end of the year. Jeremy, who was convicted of murder alongside two other minors for the stabbing deaths of two elderly people three decades ago, received a sentence that made him eligible for parole after 30 years in prison, and likely would have had a parole hearing next near even without the new law. But Mike, whose wife died of cancer two years ago without seeing her son have a hearing, is keenly aware of what shaving even just a few years off his sentence could have meant—and now he’s eager to help others besides his son get a second look. 

“He left a boy of 17 and hopefully I get the opportunity to have him here shortly as a man of 47,” Mike said of his son. “There’s a huge push across the country to recognize the fact that we as a society cannot sentence our juveniles to a life behind bars… You’re not doing things to solve the crime problem, what you’re doing is throwing the next generation away.”

So far in 2023, two other states besides New Mexico have adopted similar reforms, making people convicted as children eligible for release after some lengthy term of incarceration: Illinois with House Bill 1064 in February, and Minnesota, which included the reforms in a large public safety package, in May. 

They are just the latest states to adopt such laws over the last decade, ever since the U.S. Supreme Court issued a series of decisions in the late 2000s and early 2010s affirming that minors deserve “meaningful opportunities to obtain release.” The laws passed in New Mexico, Illinois and Minnesota mean there will now be 28 states that no longer sentence kids to life without parole.

“Every state that ends the practice of condemning children to die in prison creates pressure for the next state to do so,” said Preston Shipp, a policy counsel with the Campaign for the Fair Sentencing of Youth, a national organization that is helping spread those reforms.

Shipp traveled to Santa Fe and St. Paul this year to lobby lawmakers and share information about the many similar reforms that have already been implemented elsewhere, pointing to the low recidivism rate for people who have been released on parole in other states. He also tries to talk to lawmakers about research in neuroscience and psychology showing developmental differences between adults and youth.

“We know from the science of adolescent brain development that [kids] don’t appreciate all the consequences of their conduct; peer pressure hits differently,” Shipp said. ”In a flash point, this person does something that’s tragic, and it changes people’s lives, but it doesn’t mean that they cannot experience rehabilitation. It doesn’t mean that they’re beyond the hope of redemption.”

More states could soon make reforms. Shipp has traveled to Lansing three times this year to help bills that would end juvenile life without parole in Michigan. Connecticut already adopted similar reforms in 2015 for kids under age 18, but in June lawmakers passed a bill that extends parole eligibility to people with long sentences who were convicted before age 21. (The new Illinois law also applies to people up to age 21.) That measure now goes to Governor Ned Lamont, a Democrat who has blocked other efforts to curtail long sentences for juveniles. 

Despite the similarities, the youth sentencing reforms that three states have passed so far this year will vary widely in actual impact. In Illinois, people already serving extreme sentences for juvenile convictions are still set to spend their lives behind bars without review: The bill that passed this year—just like the 2019 law it builds on—isn’t retroactive. 

In New Mexico and Minnesota, by contrast, dozens of people incarcerated for decades are now suddenly poised to receive parole hearings very soon because of the new laws. “There are just a lot of people who have spent a lot of time in prison being introspective and growing and developing into adults,” State Representative Sandra Feist, a Democrat who helped shape Minnesota’s legislation, told Bolts. “And I’m just excited for them to get a second chance.”

For advocates like Wilson who hope to reduce the prison population and spent years guiding these bills through the state legislatures, that effort was just about setting up the difficult parole processes that are only now starting.  

“It’s the moment that our community has been preparing for,” Wilson said. “We knew that passing the law was only the first step. Making the law mean something, making it mean real opportunity for people to come home, is the next chapter.”

The states that adopted new juvenile sentencing reforms this year significantly limited if not eliminated discretionary parole in the late 1970s and early 1980s, a period during which many states toughened sentencing and gutted paths to release throughout the country. That gives advocates a chance to start fresh—after all, established parole boards are typically dysfunctional and punitive—but creating a new process out of virtually nothing is also a daunting task. 

Wilson warns that legal services in New Mexico aren’t trained to counsel the people who are newly eligible for parole, even as their hearings are coming up soon. “The work ahead is happening outside of existing institutions in the state because this is new work,” she said. “This reform was passed without any kind of budget allocation from the state, and so much of the work is around shoring up resources to make sure that people are supported in the way that they deserve.” Wilson has set up an organization, Deserving Life, that’s crowdfunding to help provide people with this support. 

Wilson says she knows of at least 75 people incarcerated in New Mexico who were given decades-long sentences for crimes they committed as minors and will be affected by SB 64. More than half are already eligible for a hearing under the new law because they’ve served more than the minimum period (15 to 25 years, depending on the crime). The actual number is likely higher: ProPublica exposed in March how the state lost track of nearly two dozen people locked up since they were sentenced to life in prison as kids. 

Meanwhile, close to 100 people will be affected by Minnesota’s new law, according to Perry Moriearty, who helps run a law clinic at the University of Minnesota that represents “juvenile lifers” and played a central role in crafting and championing the reforms over the last decade. In Minnesota, like in New Mexico, most people will be eligible after 15 years in prison, though it will be longer for some categories of crimes. Moriearty says nearly half have been in prison long enough that they are already eligible for a hearing.

But the panel that will review these cases doesn’t even exist yet. Minnesota lawmakers this spring created a brand new review board that must still be staffed. For cases that involve people who were sentenced as minors, that five-member board will be supplemented by two additional members who must be experts in neurodevelopmental science.  

Advocates for the law say these two additional members will be critical to remind the rest of the board of what makes youth different. “One of the things that neurodevelopmental experts may be able to speak to is why, with a lot of kids who are incarcerated, the first few years look bumpy,” said Moriearty, the University of Minnesota professor.  “For kids who are told that they’re entering prison and they’re gonna die there, there tend to be more infractions in those early years.”

Avra Anagnostis was 14 when her 16-year-old best friend, Roberto Lopez-Rios, was arrested and sentenced to life in Minnesota in 2001. “Life in prison, obviously, as kids, we couldn’t really comprehend what that meant,” she told Bolts. “It sounded so scary and overwhelming.” 

For more than two decades, Anagnostis has advocated for her friend to get a second look. She and Lopez-Rios co-founded an organization called Juvenile Sentencing Reform MN, paired up with Moriearty to advocate for reform, and reached out to people who have been incarcerated since they were kids. “Some of these guys are really alone,” she said. “Several have never had anyone reach out to them.” 

“For them to know that this group of people was coming together, people that they’ve never met, and advocating for them and saying, you are more than the worst thing you did as a child, that was huge,” she added.

From prison, Lopez-Rios has developed his painting, working with a group called Art from the Inside to have his art sold and shown at exhibitions. In April, this Minnesota-based organization hosted an art workshop in St. Paul alongside Juvenile Sentencing Reform MN that featured Moriearty and other coalition members talking about their bill.

Moriearty says that most kids sentenced to spend their life in prison in Minnesota come from Hennepin and Ramsey counties, which include the twin cities of Minneapolis and St. Paul, the most diverse area in the state—and that the vast majority, 81 percent, are also Black and Latinx. The prosecutors who represent these population centers—Ramsey County’s John Choi, who has long backed this issue, and Hennepin County’s Mary Moriarty, who was elected in November in a victory for progressives—both supported the reform this year. 

Nevertheless, the statewide association of county attorneys opposed Minnesota’s bill this year. Robert Small, its executive director, told Bolts that the organization agreed with the principle of ending juvenile life without parole but thought that people should wait for longer periods before being eligible, and that the decision should be made by a judge and not by a parole board. Feist says the support her bill received from Choi and Moriarty helped counter the idea that local law enforcement was uniformly hostile to it.

New Mexico’s prosecutors association, which has a long history of torpedoing criminal justice reforms and opposed prior iterations of this bill, remained neutral on the 2023 version after extracting concessions that extended how long kids have to wait before becoming eligible for parole. (An earlier version of the bill made most minors eligible for parole after 10 years.)

Advocates in both New Mexico and Minnesota say they insisted the bills be retroactive, bringing hope to the very people who were championing them. They also pressed lawmakers to cover anyone who was convicted of a crime as a kid, no matter how serious. 

“The reason why we are so adamant that there should not be carve outs is because this whole policy is all about the difference between kids and adults,” Shipp said. “It’s not about the nature of the offense.”

All three bills adopted this year passed Democratic-led legislatures and were then signed by Democratic governors. In each case, the opposition largely came from GOP ranks, even though the bills in Illinois and New Mexico each received Republican support. (Minnesota’s package, which incorporated many other reforms, passed on strict party lines.) Some GOP-run states have adopted similar legislation—most recently, Ohio in 2021. 

In Illinois, a Republican state senator even played a lead role this year in pushing lawmakers to fix the fact that HB 1064 does not apply to past cases. In the same week Governor J.B. Pritzker signed it into law in February, Senator Seth Lewis filed new legislation, SB 2073, to make it retroactive. Lewis’ bill would also apply to an earlier sentencing reform that Illinois adopted in 2019, which curtailed juvenile life without parole but did not eliminate it. If it passes, it would make hundreds of people incarcerated since they were kids eligible for parole, according to Lindsey Hammond, policy director of the Chicago-based Restore Justice. 

SB 2073 drew numerous Democratic co-sponsors but it received no vote by the end of the legislative session in May. Majority Leader Kimberly Lightford, a Democrat, did not respond to a request for comment on her plans for next year.

While the sentencing reforms in Illinois are limited to only new convictions, the state has still gone further than most others (including New Mexico and Minnesota) in another dimension: age. 

Reforms that take a more rehabilitative approach to youth are traditionally written to apply to people who committed a crime before age 18, but the laws Illinois passed in 2019 and 2023 instead both draw the line at 21. Hammond says the usual arguments for treating kids differently apply to young adults too. “Eighteen isn’t a line that you magically become an adult,” she told Bolts. “The emerging brain science shows that our brains continue to develop till the mid-20s.” 

Hammond says there was interest in the Illinois legislature to set the age of eligibility at 25: “Why are we stopping?”

Back in 2021, Washington, D.C., became the first jurisdiction to eliminate life without the possibility of parole for anyone convicted of a crime committed under age 25. Bolts reported last year that the reform sparked releases but at a slower pace than its proponents hoped for because of pandemic delays and recalcitrant prosecutors. Other states, like Massachusetts and Vermont, have also raised the age until which someone can be treated as a juvenile past 18. Connecticut could join that roster if its governor, Lamont, signs SB 952, the bill that ends life without parole for youth under 21. 

People in other states are watching these developments closely. In Minnesota, Moriearty says they didn’t press raising the age of adult criminal liability in this year’s session but hopes to revisit it in the future. “We didn’t necessarily feel like we had time,” she says.

Some advocates also hope to build on these new laws to make a broader case: They wonder if re-opening the door to parole for juveniles may make people more receptive to the idea that we shouldn’t throw anyone away for life. They’re pushing for reforms to cap prison terms, expand parole hearings for the elderly, or guarantee everyone some form of “second look.”

“If we allow ourselves to believe or to entertain the possibility that a child is more than the worst thing that they’ve ever done,” Wilson says, “it’s really not that far of a leap for people to wonder if that may be true for everybody.”

The post “Just an Opportunity to Come Home” appeared first on Bolts.

Three of the court’s four rulings came down in narrow 4-3 decisions, all along party lines with the four Democratic justices banding together and the three Republicans dissenting. (One Republican crossed over in the final case.) Each of the Democrats wrote for the majority in one of the four rulings, signaling their broad agreement that state practices are in need of change.

This shake up highlighted the importance of Michigan’s upcoming Supreme Court elections, which could flip the court’s partisan balance. Democrats currently enjoy a 4-3 advantage on the court, but one justice from each party is running for re-election in November. The Republican justice on the ballot, Brian Zahra, dissented in all four cases and made it clear in his opinions the lengths to which he would go to make punishment harsher in Michigan.

The decisions come as some progressives look to state courts as one possible workaround for the conservative control of the federal bench. On matters ranging from abortion to criminal justice, state courts can provide greater protections than those the U.S. Supreme Court finds in the federal constitution by turning to state statutes or state constitutional provisions.

Michigan’s court decided the four cases by building on U.S. Supreme Court decisions, but they relied on the Michigan Constitution and Michigan laws to go further than the U.S. Supreme Court has gone—and has signaled it will go with its current membership. 

The U.S. Supreme Court restricted harsh sentences against children in a series of major rulings between 2005 and 2016. The court first banned imposing the death penalty on minors and life sentences without the possibility of parole (called LWOP) for non-homicide cases. Then, in a 2012 ruling (Miller v. Alabama), the court barred mandatory LWOP sentences for any crimes, including first-degree murder, committed by people under 18; four years later, in Montgomery v. Louisiana the court held that Miller decision applied retroactively, and that people already sentenced under a mandatory LWOP law should have an opportunity for a different outcome.

Under a mandatory sentencing scheme, any minor who is convicted of certain acts is automatically handed an LWOP sentence, with no additional consideration. The U.S. Supreme Court, in these rulings, held that LWOP is so extreme that, before subjecting a child to it, a court has to at least consider whether the acts reflect “permanent incorrigibility” rather than “transient immaturity.” The court did not bar sentencing minors to LWOP, but it opened a door for many who expected to die in prison and limited future LWOP sentences.

Michigan was heavily impacted by the Miller and Montgomery rulings, due to the large number of minors handed mandatory LWOP sentences in the state. As of 2015, when Montgomery was heard, Michigan had 368 incarcerated people in that category. Only Pennsylvania, a state known for very aggressive life sentences, had more.

In implementing the decisions, the Michigan legislature eliminated mandatory LWOP sentences for acts a person committed while a minor. It also allowed for anyone sentenced to a mandatory LWOP sentence as a child to be resentenced under the new rules. 

Still, many other states have gone much further over the past decade by entirely abolishing LWOP sentences for minors. Michigan has not. Incarcerated Michiganders who get a new day in court are entitled to have their sentence reconsidered, but they can end up with a new LWOP sentence—and many local prosecutors have fought to ensure that they do.

In the years since, reform advocates have kept fighting to reduce the scope of these sentences, including by electing prosecutors who promise to not fight resentencing hearings and filing new lawsuits to chip away at the sentences. And they scored successes in court last month.

In its first 4-3 case, the Michigan Supreme Court ruled that it is unconstitutional under Michigan’s constitution to sentence a minor to life without parole for second-degree murder. Chief Justice Bridget Mary McCormack explained that the Michigan Constitution’s bar on “cruel or unusual punishments” provides “slightly broader protection” than the U.S. Constitution’s Eighth Amendment bar on “cruel and unusual punishments”—“not surprisingly given the plain meaning of conjunctions.” 

The notion that this distinction—between “or” and “and”—makes Michigan’s constitution more protective was not a new argument; it is the court’s longstanding position, fleshed out into a test for the court to apply decades ago and established even earlier. In People v. Lorentzen, a 1972 decision, the court held that a mandatory minimum sentence of 20 years for the sale of marijuana is unconstitutional due to Michigan’s “cruel or unusual” provision: “The prohibition of punishment that is unusual but not necessarily cruel carries an implication that unusually excessive imprisonment is included in that prohibition.”

The court has since adhered to this critical holding. But Zahra, the Republican justice who wrote the primary dissenting opinion in the case, made it clear he wants to change this. The court should “revisit whether the textual difference between [the Michigan Constitution] and the Eighth Amendment translates into a greater protection under the Michigan Constitution,” he wrote. Zahra’s move prompted McCormack to write a separate opinion detailing the history of the court’s approach.  And that in turn prompted Zahra to lambast McCormack. “Chief Justice McCormack embraces a cafeteria-style approach to constitutional interpretation,” he wrote at one point.

In a second decision, written by Justice Megan Cavanagh, the court increased the burden on prosecutors who are looking to sentence a minor to LWOP. The court ruled 4-3 that a prosecutor must prove that they are not seeking a disproportionate sentence. In plain English, the court held that Michigan’s legislature had made it clear that it was the prosecutor’s decision to seek LWOP, and, as such, it was up to the prosecutor to prove that it’s justified and not the defendant to prove it’s not justified. (Here again, the court’s three Republican justices dissented.)

The court’s third and fourth decisions, issued on the same day, brought the logic of shielding children from mandatory LWOP into new spaces—in one case to protect slightly older teenagers, and in another to question other types of harsh sentences.

In the third case, the court considered the mandatory LWOP sentence that was imposed on a teenager who was already 18 at the time of his crime, and so was no longer covered by the protections afforded under the Miller and Montgomery rulings. Even so, the court ruled in another 4-3 opinion that the mandatory LWOP sentence that he received violated the Michigan constitution’s “proportionality” requirement and was cruel under the state’s constitution. 

The majority opinion, written by Justice Elizabeth Welch, took issue with an arbitrary cutoff age of 18 for protections for youth. “Because of the dynamic neurological changes that late adolescents undergo as their brains develop over time and essentially rewire themselves, automatic condemnation to die in prison at 18 was cruel,” she wrote. “The logic articulated in Miller about why children are different from adults for purposes of sentencing applied in equal force to 18-year-olds.“ 

The court ruled that other 18-year old defendants should also be entitled to an “individualized sentencing procedure,” rather than a mandatory sentence, when they face LWOP. But Zahra wrote in dissent to again say that he would have the court revisit its longstanding interpretation of the state constitution’s “cruel or unusual” clause.

In the fourth and final case, the court looked beyond life without parole.  It provided new protections for some Michigan youth facing other sentences that are technically lower but still very harsh.

The 5-2 decision, written by Justice Richard Bernstein, applies only to the sentencing of people convicted of the high-level crimes that are eligible for LWOP.  In those cases, the court ruled, judges must consider youth as a mitigating factor in sentencing even when LWOP isn’t being sought, and even the prosecutor is instead seeking a set number of years of prison time. (The court also ruled, though, that the sentencing court does not need to explicitly detail how it considered youth as a mitigating factor. Justice Elizabeth Clement, the one Republican to join the majority, split on one of the two cases under consideration, saying that a brief mention of the defendant’s youth at sentencing was enough. The four-justice Democratic majority disagreed and still sent it back to the lower court for further review.)

Zahra, again, wrote the dissenting opinion, arguing that the court should not “extend” Miller to cases where prosecutors are not seeking LWOP sentences. He concluded that he therefore would have upheld both of the sentences—of 40 to 60 years in prison—without any further inquiry. Clement, one of Zahra’s two fellow Republicans on the court, wrote separately, in part to counter Zahra’s claim, writing that “the majority opinion in this case” is not “extending” Miller. “Accordingly, I concur with its holding that the mitigating effects of youth must be considered during term-of-years juvenile sentencing,” she wrote.

Zahra and Bernstein are each seeking new eight-year terms this fall. Michigan’s supreme court races follow a hybrid system; partisan nomination processes are followed by general elections where candidates for all seats share a single ballot that does not note their party ID. In 2022, this means that Bernstein and Zahra will be on one ballot alongside other candidates, and the top two vote-getters will win.

Neither party has yet held its convention to nominate candidates, but Kyra Harris Bolden, a state lawmaker, will likely be the Democratic nominee and Paul Hudson, an appellate lawyer, will likely be the GOP nominee.

Democrats need only to win one of the two seats to maintain the majority, while Republicans must sweep both to flip the court. Hundreds of court cases involving minors are working their way through Michigan courts, and the high court signaled its interest in bringing new scrutiny to how youth are being treated. But whether that interest lasts beyond 2022, and perhaps pushes into new directions, now hangs in the balance.

The post Michigan Supreme Court Restricts “Cruel” Treatment of Youth in Run of Major Decisions appeared first on Bolts.

Colie Long has lived behind bars longer than he did on the outside. Long, 44, was sentenced to life in prison for murder when he was just 18 years old. He used to think he’d die in lockup until last year, when the District of Columbia passed a law that could provide him with a pathway out. “I didn’t really have no realistic chances of looking to go home,” Long told Bolts from prison. “But then, lo and behold, they pass this bill.”

Long and hundreds of others are now eligible for resentencing under Washington, D.C.’s Second Look Amendment Act (SLAA), which D.C. adopted in April 2021. One of the more sweeping sentencing reforms in the country, the law allows people who have served at least 15 years of their sentence and were younger than 25 at the time of their offense to apply for resentencing and potential release. 

Now a year removed, advocates for the law say it has led to the release of at least half a dozen people who would have otherwise remained in prison. But obstacles and applications are also piling up, raising questions of how much the SLAA will deliver on its unique promise. The law made D.C. into the first jurisdiction to effectively end sentences of life without the possibility of parole for youth up to age 25—the culmination of a wave of reforms that have transformed approaches to youth sentencing over the past decade. 

A series of U.S. Supreme court decisions starting in 2005 compelled many states to revisit harsh sentencing laws and give people who have been incarcerated since they were children a shot at release. Those reforms typically only applied to people who were under the age of 18 at the time of their offense, but that cutoff point has blurred in recent years due to advances in neuroscience. 

Research showing that the brain is still developing into early adulthood has brought new momentum to the push for second chances. So have the human and fiscal realities of a bloated and aging prison system; the number of people serving life sentences in American prisons has more than quadrupled since the 1980s, with the cost of keeping them behind bars growing as they continue to age. 

A growing list of states are now clawing back life sentences imposed on young adults. The Washington State Supreme Court barred mandatory life without parole sentences for anyone under the age of 21 last year. Connecticut’s parole board recently reduced the sentences of 11 men who committed crimes when they were 25 or under to acknowledge “increased understanding in the science of brain development.” South Dakota’s GOP-run Senate passed a bill last year that would have barred life without parole for anyone under 25, though it eventually died. D.C.’s law is also part of a larger “second look” movement that is driving reforms beyond youth sentences and generating hope behind bars for others sentenced to extreme terms.

Advocates in D.C. have now turned their attention to putting the new second look reform into practice. While hundreds of incarcerated people have begun the process of applying for resentencing since last year, release isn’t guaranteed. They face major hurdles, including prosecutors who have opposed most petitions and COVID-19, which has exacerbated crisis conditions inside the notoriously dysfunctional and violent federal prison system.

People convicted of serious crimes in D.C. are typically incarcerated inside federal prisons because the district has no prison of its own. Those applying for sentencing review were usually sent to a local jail run by the D.C. Department of Corrections, but transfers to the D.C. lockup effectively stopped during the pandemic, according to lawyers who assist with resentencing petitions. Destiny Fullwood, a lawyer and deputy director of the Second Look Project, says resentencing applications are difficult to complete with clients in far-flung federal prisons for reasons that go beyond just struggling to arrange calls. 

“It’s really difficult to talk to people about trauma and abuse and neglect over the phone,” Fullwood told Bolts. “It’s especially difficult if maybe your client isn’t as high functioning as other clients are.”

Michael Boone, 50, who recently became eligible to apply for resentencing under D.C.’s new law, is currently incarcerated at USP Coleman I, a high security federal prison in Florida, while he completes the process for review. He told Bolts that the lockdowns are frequent and without warning, which sometimes complicates the application process. Still Boone, who was sentenced to 55 years in prison for murder at age 20, considers the mere chance for release to be a blessing, which he says balances out the harshness of his current surroundings. 

“I look at the Second Look Act as one of my greatest blessings,” Boone said. “So all the hardship that’s coming with it, the COVID, the lockdowns… We’re basically in limbo.”

D.C.’s initial big jump into sentencing reform came in the form of the Incarceration Reduction Amendment Act (IRAA), which allowed people convicted of serious crimes committed before their 18th birthday to apply for resentencing. The original IRAA, passed in 2016, required that applicants serve at least 20 years of their sentence before applying, but a later amendment cut that down to 15 years served and allowed even those who had been denied parole to apply for resentencing. The new law D.C. council members passed last year, SLAA, was another amendment that further extended eligibility to people who were up to age 25 when their crimes were committed. 

Prosecutors testified against the SLAA, and the Washington Post editorialized against it when it was being considered by the council last year. But lawyers, academics and the friends and families of incarcerated people wrote to the council supporting the reforms, including Latoya Briggs, who told council members about Edward Williams, a loved one who she hoped might be resentenced under SLAA. Briggs insisted Williams had changed since his conviction. She described Williams as being “sucked into the cowboy phase of life” when he committed the crime he was incarcerated for.  

James Zeigler, a D.C. lawyer and the director of the Second Look Project, said that while only about 100 people were made eligible for resentencing through the original IRAA, last year’s amendment expanded that to at least 600 people. Zeigler estimated that, between the public defender’s service, lawyers appointed by the court and pro-bono counsel, between 200 and 300 people now have attorneys working on resentencing petitions. 

“Many who did not believe they would ever have a kind of viable opportunity for release all of a sudden did,” Zeigler told Bolts. “It became clear pretty quickly that this actually was pretty consequential.” 

People petitioning for resentencing under SLAA have their entire life put under a microscope during the application process. A court reviews the petitioner’s disciplinary records from the federal Bureau of Prisons (BOP). Petitioners also have to be reviewed by a forensic psychologist, and their family members are interviewed.

Anthony Petty, who was released from prison in December 2020 under IRAA, said he learned things about himself and his family that he had never realized until putting his application together. Petty, who went to prison for killing a man during a fight that got out of hand when he was just 16 years old, said the process helped him better understand the trauma that paved his path to prison. 

“You’re going over your neighborhood you lived in, your household you come from, your schooling, you’re going over everything—your early incarceration as a youth, your incarceration as an adult,” Petty said. “It gives the courts a better understanding of who we are as individuals. … the violence we grew up in, the households we grew up in.” 

Petty said that transferring from federal prison in Kentucky to the D.C. jail during his resentencing process greatly helped his eventual transition back into society. People who transfer to the local jail can be there for more than a year during their application for resentencing. He described federal penitentiaries as being violent, abusive and “focused solely on warehousing individuals,” which can make it more difficult for petitioners to keep a clean BOP record. “If a person goes to stab you and you’re fighting back, fighting for your life, they’re going to put a disciplinary report saying you were in an altercation,” he said. “In the court’s eye, you haven’t changed.” 

Transferring to the D.C. jail, Petty said, “was one of the best things that happened for me.” According to Petty, the jail offered more support services for incarcerated people and also tended to house people with resentencing petitions together. Petty recalled how people with strong incentives to keep their records clean helped set a more positive tone and culture inside the jail. “It’s a respectful place,” Petty said. “You’re not inmate 7 now. You’re a resident.” 

For Long, transferring to the D.C. jail has helped him transition and prepare for life after prison. He said the prospect of being turned back to federal prison now is nightmarish and spoke of an incarcerated friend who had his petition denied after spending two years inside the D.C. jail. The friend was devastated upon learning that he was going back to federal prison.

“Just imagine,” Long said. “You’re looking forward to having a job, you’re looking forward to being able to pay rent, to having meaningful relationships with people outside, and then they take you back to an environment where you’re around guys who don’t have nothing to live for.” 

Boone, who remains in federal prison while his application for resentencing is pending with the court in D.C., says the Second Look reforms have generated excitement, even among people who won’t directly be helped by the new law. He says people incarcerated with him sometimes ask him about the reforms that have made him eligible for resentencing. 

“If you go to the federal system in other states, they be asking questions about it… ‘How did D.C. become the leader of it? How did D.C. become the groundbreaking people?’” Boone said. “There’s more positivity in the institutions, even with guys it doesn’t apply to right now, because they feel like even within a year or two or somewhere down the line, it could be part of the federal system.”

People released under D.C.’s sentencing reforms have self-published books, earned college degrees and have become violence interrupters after returning to their communities. Since being released in 2020, Petty has worked as a “Credible Messenger” for the D.C. government, helping reduce violence among local youth. Petty is also active in Neighbors For Justice, a community organization that connects the D.C. Jail to the neighboring community. 

But Zeigler says the frequent resistance from local prosecutors has limited the reach of D.C.’s landmark sentencing reforms.

“Their treatment of these cases since day one has been aggressive and rigid and oppositional in a way that is not contemplated by or justifiable under the statute,” Zeigler said of D.C. prosecutors, who work in the U.S. Attorney’s Office for the District of Columbia. 

According to the office, 95 resentencing motions filed under SLAA and its predecessors have been decided so far, 84 of which were granted. The office told Bolts that it had opposed or objected to the timing of release in all but 12 of those motions. 

The office, now headed by U.S. Attorney Matthew Graves, declined a request for an interview on their approach to the law. Prosecutors have said 15-year sentences are too short, and that the people applying for release may re-offend. A man who was freed in 2020 through the original “Second Look” reform, after being originally incarcerated over a crime he committed when he was 16, was arrested last year for murder. At the time, federal prosecutors said he was the fourth person released under resentencing reforms arrested for a new crime, such as unauthorized use of a motor vehicle, but the first to be accused of a new violent offense.

Zeigler cautions that the arrest has not yet resulted in a conviction, and that the broader recidivism rate for all people released from prison is often higher. “No system is going to be able to offer a 100 percent guarantee that no one will commit crimes, and the fact a very small number of people have recidivated seems to be a poor justification for incarcerating people into old age with no opportunity to demonstrate rehabilitation and be released,” he said.

Advocates for Second Look petitioners say that the way cases are distributed across D.C.’s Superior Court judges also presents a challenge. While in the past resentencing petitions were assigned primarily to judges with criminal calendars, according to Zeigler, they are spread across the bench to judges with less experience in relevant criminal matters. 

Zeigler also says he worries about compassion fatigue among judges, telling Bolts, “The excitement and momentum that kind of benefited a lot of earlier IRAA cases has kind of dissipated.” 

Long, who’s now midway through the process of petitioning for resentencing under SLAA, says he wants a chance to show that he’s changed since entering prison as a teenager. “It should be acknowledged the steps that we’ve taken to correct the behaviors that we did,” he told Bolts. “Give us a second chance.”

“The bad things we did to get things in prison were acknowledged and we ultimately suffered the consequences,” he told Bolts. “I think equally important, (are) the steps that we’ve taken to correct the behaviors…  There’s so much untapped potential in here.”

The post Waiting for a Second Look appeared first on Bolts.

When the pandemic started in 2020, Celeste Trusty worked furiously to alert public authorities of the dangers the virus posed to people trapped in Pennsylvania’s crowded prisons. As state director of Families Against Mandatory Minimums, a criminal justice reform group, she also called on the state’s Board of Pardons to “broadly provide clemency” and “do everything within their power to provide relief to those who have been crushed by the justice system.”

Last month, Trusty was appointed secretary of Pennsylvania’s Board of Pardons—the same body she recently pressured, and which reviews applications for pardons and commutation of life sentences. She now vows to bring the outlook she displayed from the outside into her new role. 

“If this is our only shot to get these people out, we need to be doing everything we can to really change and quicken the process so that people aren’t just shut down whenever they apply,” she told Bolts. “We’re completely ignoring the human capacity to change.”

Trusty, who has worked with incarcerated people in various roles, is walking into a dire situation. Due to draconian sentencing laws, Pennsylvania is home to near-record numbers of people sentenced to die in prison. More than 5,300 Pennsylanians are serving life without the possibility of parole, according to a study by the Sentencing Project, and thousands more face sentences that are so long as to be the functional equivalent. Nearly two-thirds of them are Black.

For these thousands of aging incarcerated Pennsylvanians, whose stories were captured last year in the podcast What is Life, there is little hope other than receiving a commutation, which requires a recommendation by the board and then approval by the governor. And those are very rare. 

Clemency used to be much more common. One governor in the 1970s commuted over 250 life sentences. But as tough-on-crime norms hardened, life sentences soared. Clemency rules were harshened in 1997 after one man committed several murders upon his release. According to data by the pardons board, a total of only six commutations were issued between 1997 and 2014.

Commutations did pick up when Governor Tom Wolf came into office in 2015, and even more so when John Fetterman became lieutenant governor in 2019. That role has also made Fetterman chair of the board of pardons, and he has gone further than is usual for a politician in embracing clemency, ending the application fee and pushing the board to recommend more commutations. Since 2019, Pennsylvania has commuted 37 life sentences. 

Fetterman, a Democrat who is now running for U.S. Senate, appointed Trusty to her new role on the board’s staff. (Trusty had been working for Fetterman’s campaign since the spring of 2021.) 

Trusty she says she will use it to push for more changes. But the clock may be ticking to significantly expand clemency in the state. Pennsylvania elects new statewide officials this fall, and any number of the winners could choose to effectively shut down commutations again. By 2023, the state will have a new governor, attorney general, and lieutenant governor; any one of those officials has de facto veto power over commutations.

In a wide-ranging interview, Trusty spoke with Bolts about the role she intends to play in reforming the state’s clemency process and the human capacity for change. 

You’ve long worked on reducing incarceration from an outsider position. How are you  approaching this transition to an insider role?

It’s great to be able to walk into work and carry all of these folks with me who have mentored me throughout my journey as an advocate, to try to help liberate people who have mentored me and might still be fighting for freedom. It’s really interesting for me to come into this role with that advocacy background and a good understanding of the struggles that folks are going through while they’re applying, that families are going through while their loved ones are applying, and really taking that to heart and looking at how we can improve this process to be more transparent, more accessible, and more compassionate for everyone involved. 

The board recently hired people who had themselves received clemency. How can broadening the perspective of the people involved in the clemency process can make a difference?

Having the expertise of George Trudel and Naomi Blount, the two folks you are talking about the lieutenant governor hired, is invaluable for the folks who are currently applying. Both Georgia and Naomi had been sentenced to life without parole, and they fought for decades for their freedom. They are taking that experience and trying to help guide those folks who are going through it. They also provide great guidance to the folks who work on the board staff. People who are experts don’t necessarily need to be coming from academia, they don’t necessarily need to have a PhD. Who better to work in these positions and lead in these roles than folks who have been impacted by that system and who have that direct knowledge?

In 2019, the board lifted the fee that people had to pay to apply until then. What other changes can the board make to alleviate the burden of applying?

I want to recognize the improvements that have been made over the last few years. As you mentioned, there’s no fee to apply for a pardon or commutation; that was a huge barrier before. There are wonderful organizations in the community that do pardon clinics, who will help people apply. At the same time, there’s still so much more that can be done. Since clemency is the only option for so many people, we need to be making sure that we’re working to make the process easier, simpler, more transparent. One of the things we constantly hear from folks is when they send their application they don’t hear anything for a while. We really want to make sure it doesn’t feel just like a black box.

How can more of the burden be shifted onto the state? For instance, can the state ensure that people going through the process have access to counsel?

Pennsylvania has historically underfunded legal support, and the Board of Pardons. This leaves so many people to navigate this often confusing process on their own, with family members, or with the support of our legal aid and advocacy communities. We are committed to taking whatever steps we can as an agency to help improve this process. We also released a new application that reduces some of the burden of gathering records on applicants and places some of that work on the Board of Prisons and our partner agencies.   

Far more people are sent to prison for life in Pennsylvania than in neighboring states. What explains the scope of life sentences there?

Pennsylvania is an outlier with life without parole and virtual life without parole sentences, and that is not something that I think any Pennsylvanian should be proud of. One of the big things is mandatory life without parole sentencing for first degree and second degree murder. Second degree murder, that’s felony murder: Even without the intent to cause that great harm, those folks are sentenced to life without parole. We have over 1,000 people in Pennsylvania serving life for second degree murder, and 70 percent of those folks are Black. These folks, who were largely young adults when these things occurred. We’re removing them from society for the rest of their lives, and that’s something that is just beyond me. 

When we send people to mandatory life without parole, we’re completely ignoring the human capacity to change. We all have caused harm, every single one of us has. We’ve all been in need of mercy and forgiveness at some point. But that’s not applied at all to how we sentence people. 

How do you see your role when it comes to confronting this stark racial disparity?

The issue starts with how we handle the legal system from start to finish. In every single step of the legal process, you see disparities, and then when you look at people who have resources to hire best attorneys, that’s going to have an impact as well. 

We are pulling and removing so many Black and brown people from their communities, pulling them out of the workforce, pulling them out of being able to provide for their families. Communities need elders, people who have lived in a community for 50 years and know everybody’s kids. We’re removing so many of those possible mentors and leaders from a community forever because they might have done something at a young age. We’re doing a disservice not just to people who we’re putting in prison, but to people who need those mentors and elders. We need to look at the impact of what we’re doing not just on the people inside of our prisons, which is of course a huge issue, but on our communities at large. 

Commutations were almost never granted for decades as the prison population exploded, but that’s changed in recent years. There were more commutations of life sentences in 2019 alone than over the previous 20 years combined. What prompted this shift?

Looking at the last few years, you see how important it is to have people in power who care about clemency and second chances. There have been 47 commutations of life sentences in the last 25 years. 41 of those came out of the Wolf Administration. It shows that, when we care, we’re able to impact lives. Think about those 41 people who now are home, who are able to work and contribute to the community, who are able to take their experience and mentor folks in their community, who are able to parent and grandparent in their community. 

Why do you think people in power have grown more supportive of clemency?

There has been a gigantic shift in the last decade. We’ve seen incredible results from research showing that folks who were convicted of violent offenses and sentenced to life or extremely long sentences are able to come home and be incredibly productive members of society. You look at the recent juvenile lifers in Pennsylvania; they’ve come home, and so many are making the community and the world better and using their platforms to uplift stories of other folks who haven’t had the opportunity for relief yet. That helps shift the conversation where more people feel comfortable talking about second chances for people who might have caused great harm.

There’s something about this that resonates with everybody. Something about seeing old men and women who are walking with a walker, who could not hurt a fly if they tried, who have served 50 years in our state prison, who do not need to be there anymore—whether that tugs at your heartstrings, or whether that tugs at your wallet, there is something about criminal legal reform and second chances that I think really appeals to everybody. 

Pennsylvania made commutations harder in 1997 after someone committed murders upon his release from prison, requiring a unanimous vote from the five-member board instead of a simple majority. How much of an obstacle is that rule to expanding clemency?

When that was changed in 1997, clemency really shut down. To get five people to agree that someone who has caused great harm is ready to come home and be productive, no matter how remorseful they are, no matter how much work they’ve done—it is hard to get five people to agree on anything. If you need a simple majority, if you need three people to see that you are a human being willing and ready to come home, I think that’s really one huge change that could open up clemency to so many more people.

One of the huge obstacles for clemency comes out of that one case that could derail absolutely everything. Reginald McFadden behaved in a way that was awful, and we are still today seeing what one terrible case can do to thousands of incredible cases. But one thing I hear constantly is that the folks who are applying know what one bad decision can do to the rest of the people who deserve to come home. And they bear that every single day. That’s a burden that I can’t even imagine, on top of everything else that they’re going through. 

There are more than 5,000 people in Pennsylvania serving life without parole, yet we are discussing 41 commutations as the most in decades. Each commutation is meaningful, but the sheer gap between those numbers is so striking. What do you think about the asymmetry between these two figures?

The issue is that Pennsylvania needs to create more mechanisms outside of clemency. We need to expand and continue to build upon clemency, but it can’t be the only way because clemency is hard, and it does take long. As much as each of those 41 people should be celebrated and their story should be told, we should be really holding our commonwealth to a higher standard. 

And we don’t know what administrations are going to look like in the next years and decades; we can’t rely on the boost in clemency that we’ve seen in the last few years. 

What other mechanisms would you want to see?

A lot of it is legislative. We need to look at felony murder reform. Over 1,000 people are serving mandatory life without parole for felony murder. They did not intend to take a life, and they are given the same exact punishment as a first degree case. 

Then, medical and elder release mechanisms. When you look at our prison population, largely because so many people serve life without parole and virtual life sentences, people are getting old and sick. You should be allowing opportunities for folks to seek relief. If they are old, if they are sick, their continued incarceration serves no further purpose outside of just vengeance. Why are we then turning a blind eye to the benefits of second chances? 

So many folks are afraid of approaching the subject.  It’s about who is willing to stand up and say, ‘This is not okay. These are the people who need the opportunity to be heard and supported, and come home to our community.’

I challenge everybody to go inside of a prison and meet these people who are serving life without parole. They have changed my life on a grand scale. You start to see that, yes, they might have caused great harm at one point, but some of these folks are doing more with their lives while they’re inside, with no opportunity and no hope for relief, then a lot of the folks who have never been impacted by the criminal legal system. They’re not the same person they were when they were 18, or 25. They’re 40, 50, 60, 70, even 80 and 90 now, and they’re not that same person that a court of law said, ‘That’s it, you did this, and now we’re gonna completely ignore your capacity to change.’  

We need to make sure that our laws reflect evidence and science, and the innate understanding that you and I and every single person is not the same as we were when we were younger. We all change. 

This interview has been edited for length and clarity

The post New Pardon Board Official Wants to Expand Clemency in Pennsylvania, Where Thousands Are Sentenced to Die in Prison appeared first on Bolts.

Five years ago, a social worker who believed in rehabilitation joined the New York State Board of Parole. During her time on the board, she voted to grant parole at a higher rate than the other members — but found herself repeatedly isolated on panels and outvoted. 

“I wanted to look at who the person was today, and what their transformation has been, rather than just focusing again at the crime that they were already convicted for, which they can never change,” Carol Shapiro told Bolts and New York Focus.

Shapiro resigned in 2019, worn down and discouraged by the difficulty of shifting the board’s approach. The board, which considers thousands of parole applications each year, has for decades been dominated by a philosophy of presumptive detention, helping drive New York prisons’ exploding population of elderly long-term detainees.

Shapiro’s appointment came as part of a broader attempt to reorient the board away from that philosophy. The parole release rate nearly doubled by the next year—helping thousands more gain release—though it has since receded and the number of cases heard has dropped.

Now, New York reformers have another chance to transform the Board of Parole. In her inaugural State of the State address last month, New York Governor Kathy Hochul announced that she will nominate four more members, bringing the board—chronically understaffed in recent years because former Governor Andrew Cuomo declined to fill vacancies—to its full complement of 19 commissioners. 

The announcement was received with cautious optimism by proponents of parole reform, who have complained for years that the board’s understaffing leads to unsustainable caseloads and hurried parole reviews. Almost nothing is known about the governor’s process for identifying candidates, and her office did not respond to questions for this story. But if Hochul picks commissioners with perspectives and backgrounds similar to Shapiro, it could presage a new, more decarceral era for the board.

“If you’re starting from scratch, trying to figure out who should be a parole commissioner,” said Steve Zeidman, director of the Criminal Defense Clinic at CUNY School of Law, “you’d say this has to be someone with experience in therapeutic and rehabilitative services, someone with experience with people who are trying to address past mistakes and problems.”

But Shapiro’s tenure and a review of how the board functions shows that, even if Hochul does choose to appoint reform-minded commissioners, they will likely face massive obstacles: political pressures, antiquated technology, minimal training, and an entrenched culture, operating under a vague statutory mandate—dynamics that some lawmakers are pushing to reform through legislation this year. They will also likely face tensions with their colleagues; a new analysis, shared with Bolts and New York Focus, shows for the first time how some commissioners have remained more resistant to release than others.  

“If you’re going to change parole in New York, there’s no question that having different people on the board is a necessary part of that,” said Jennifer Scaife, executive director of the Correctional Association of New York, an organization that monitors the state’s prison system. “At the same time, putting different people in the seats isn’t going to be sufficient on its own to make real change.”

—

For decades, a seat on New York’s parole board was regarded as a patronage position, with nominations subject to the impenetrable legislative horse-trading that characterizes much of Albany politics. The result was a board that largely reflected the white, conservative, upstate legislators who controlled the New York State Senate, and shared that group’s tough-on-crime approach.

“People might say, ‘Oh, you have to let ’em out, you have to let them out, that’s the only thing that matters,’” James Ferguson, who was appointed to the board by Governor George Pataki, told a New Yorker documentary crew last year. “No, it’s not. I have members of the public who feel that the component of retribution has not been satisfied.”

After a 2016 New York Times analysis that found stark racial disparities in the decisions of the then-overwhelmingly white board, and under pressure from parole-reform advocates, Cuomo appointed new classes of commissioners, more diverse in race and professional background than their predecessors, in 2017 and 2019.

The new appointments, along with minor regulatory changes, helped increase the release rate. Rates leapt from 30 percent of decided hearings in May of 2017 to 54 percent a year later, according to data from the Parole Preparation Project, a non-profit group that helps incarcerated people serving life sentences apply for parole. But the rate dipped to 38 percent last November and 45 percent in December, the last two months for which statistics are available. The board decides many hundreds of hearings a month, so that fragile increase has outsized effects on New York’s prison population.

And racial disparities persist. Between 2018 and 2020, the board granted parole for 46 percent of white people who sought it, and only 39 percent for people of color, a report from the advocacy group FWD.us found. From 2017 to 2019, an incarcerated person from Schuyler County, in New York’s Finger Lakes region, was twice as likely to receive parole as someone from the Bronx. 

In an email to New York Focus and Bolts, Thomas Mailey, a spokesperson for the Department of Corrections and Community Supervision, within which the Board of Parole is housed, did not address questions about racially skewed parole outcomes. He has in the past criticized similar findings for failing to account for more detailed factors such as applicants’ disciplinary records. But any effort to evaluate that claim, or anything else about who receives parole in New York, is hampered by the board’s extreme opacity. The board’s last report on its activities was published in 2017. It publishes a monthly schedule of hearings and decisions, but nothing that would allow an analysis of patterns in parole outcomes or in the decisions of individual parole commissioners.

But a previously unreported analysis commissioned by the Parole Preparation Project and shared with Bolts and New York Focus sheds rare light on these internal dynamics. It combines published parole decisions with parole hearing schedules, tying specific commissioners to specific outcomes. The data covers the period between January 2018 to January 2020, and nearly 20,000 parole hearings. The data is inevitably limited: It can only track the aggregate decisions of the three-person or two-person panels, not the votes of the individual commissioners themselves. Nevertheless, the report shows that parole rates vary significantly depending on who hears the application. 

Shapiro sat on panels that granted release in more than 61 percent of hearings decided; this corresponds to more than 1,200 incarcerated applicants granted parole. She was the only commissioner whose panels granted applications significantly more than half the time.

A lifelong prison reform advocate with a background in social work, Shapiro was an atypical appointee who says she approached her work on the parole board as a reformer. (The Parole Preparation Project’s statistics likely understate Shapiro’s propensity to support parole applications since the study was only able to measure a panel’s aggregate decisions. In hearings where Shapiro supported release but was outvoted, the study counts that as a denial.)

Joseph Crangle, Charles Davis, and former commissioner William Smith Jr. sat on boards with just over 50 percent release rates.

At the other end of the spectrum, panels that included Ellen Evans Alexander, a former prosecutor and Rhode Island prison administrator appointed to the board in 2012, released fewer than 41 percent of parole applicants. Commissioner Marc Coppola, a former Republican state senator, is only slightly more lenient, sitting on panels with a release rate below 44 percent. Advocates have tried to remove Coppola from the board for years over conduct they describe as unprofessional.

The gap between an approval rate of 41 and 61 percent may seem marginal, but projected onto the board’s decisions over the period studied, it would mean the difference between release and incarceration for more than 3,000 incarcerated New Yorkers.

Still, Shapiro says she wanted to see more change. Reflecting on her tenure, which ended in 2019 when she quit in frustration, Shapiro says a host of factors, from hurried schedules to an absence of training, all hindered her efforts to persuade fellow commissioners. She struggled to get them to see beyond someone’s underlying offense. Shapiro also suspects, though she is careful to be clear that she cannot prove it, that in some instances the board’s particular commissioners are cherry-picked for a panel in order to achieve a desired outcome. “With the really heinous high-profile cases, I think there is some thought given to the composition of the board,” Shapiro said. “There were a couple times when I wasn’t supposed to be on a board and then all of a sudden I was.” 

Mailey, the DOCCS spokesperson, flatly denies that panel composition is ever deliberate. “The Panels are selected at random,” he wrote in response to questions. “To insinuate that an attempt to manipulate the process or a decision is insulting.”

Shapiro isn’t so sure. She suspects she was sometimes put on panels because the board’s leadership was confident the other two commissioners would vote to deny parole, saying, “I was the token liberal to show the advocacy community that this person got a fair shot.” 

—

Vacancies are only the tip of the iceberg when it comes to the parole board’s bizarre staffing issues. Seven of the 15 current commissioners have exceeded the duration of their appointments without being renominated or going through another legislative confirmation process. They exist in a sort of bureaucratic gray-zone, continuing to draw salaries and performing the official work of commissioners, even as their official mandate for doing so has lapsed. They have collectively worked for thirteen years beyond the limited mandate they were given by the people’s representatives. Tina Stanford, the board’s chairperson, has been leading the body for three years past the expiration of her term.

This peculiar state of affairs is possible because nothing automatically triggers new hearings for parole commissioners when their term expires. Nobody but the governor can call such hearings. Nothing prevents zombie commissioners from carrying on without a legislative mandate for as long as they please unless the governor intervenes—which Cuomo chose not to do. 

When lawmakers get a say, it has historically served to empower legislators allied with law enforcement associations who press nominees for assurances that they will be cautious about granting parole, giving most weight to the gravity of the original offense and the wishes of crime victims. 

Commissioners seeking reappointment have personally canvassed support from these legislators. Some go so far as to contribute to their campaigns. Coppola, for instance, has given $550 to the election campaigns of Patrick Gallivan, a Republican state senator who holds the fate of commissioner candidates in his hands as a member of the Senate Committee on Crime Victims, Crime and Correction. Gallivan told Bolts and New York Focus that Coppola’s donations had no influence on his support.

Gallivan is vocal about what he wants from the board. He says it is inappropriate for commissioners to serve with an avowed decarceral mission. In 2018, he issued a press release calling a panel’s decision to grant parole to a 70-year-old man who served 45 years in prison for killing a police officer “indefensible and an affront to law-abiding citizens.”

But in recent years, public opinion on mass incarceration has shifted, and decades-long prison sentences have become a campaign issue that reform candidates are willing to run against. Confirmation hearings for parole board members have also presented an opportunity for reform-minded legislators and advocates to challenge the presumption of perpetual incarceration.

In 2019, parole reform advocates had enough allies on key legislative committees to scuttle the nomination of Richard Kratzenberg,  who had a long career in corrections and community supervision. During Kratzenberg’s confirmation hearing, he emphasized the significance of the original crime in deciding who should be granted parole. Kratzenberg’s nomination never made it out of the corrections committee, and Governor Cuomo later withdrew his name. Cuomo never nominated or renominated another parole commissioner.

“The governor’s office doesn’t want to be publicly humiliated by having one of their nominees not be reappointed,” said Michelle Lewin of the Parole Preparation Project, one of the groups that lobbied against Kratzenberg’s nomination. “They don’t want to deal with that process of having their commissioners be questioned by the legislature and have to be recertified for a position that many of us are questioning whether they’re qualified for to begin with.”

—

This year, advocates for reform are pushing to change the rules that govern the Board of Parole and guide commissioners, arguing that even reform-minded commissioners will struggle to make significant changes in the absence of structural changes. 

The Fair and Timely Parole Act would eliminate parts of the current statute, often cited in denial decisions, that emphasize the severity of the crime for which applicants were sentenced, and it would add language forcing commissioners to consider “evidence of rehabilitation and reform” in their decisions. The legislation faces long odds this session, though Brian Benjamin, now Hochul’s lieutenant governor, was a co-sponsor of the bill when he was still in the legislature last year, giving proponents some cause for optimism. The governor’s office did not respond to requests for comment.

Legislative clarity would help nudge the board towards a presumption of release for incarcerated people who are eligible for parole and a low risk for recidivism, but it’s unlikely to revolutionize parole in New York on its own. Increasing the maximum size of the board beyond 19—the New York State Bar Association has recommended a 30-person board—would give commissioners more time to actually consider each case. So would upgrading the board’s antediluvian technology, which relies almost entirely on paper records and fax machines. Commissioners currently receive parole applications, which often fill several file boxes, only a day before interviewing applicants. Professional training for commissioners would help, too, as would greater transparency from the board, reform advocates say. 

Hochul’s commitment to fill the four vacant seats on the Board of Parole is already a departure from her predecessor. But her willingness to embrace broader parole reform remains uncertain. 

The first test may well be who she appoints to the board. It’s currently unclear who or what will guide those decisions. The governor’s office did not respond to questions about what experience she is looking for, what process she is using to identify candidates, and who she is consulting. 

Parole reform advocates hope for new commissioners who shift the board’s focus from the crimes that landed people in prison to the changes and growth they’ve experienced by the end of their sentence.

“There are so many factors that contribute to parole being the broken system that it is in New York today,” Lewin said. “But there’s no question: Getting people on the board who understand how to actually talk to people, who understand that the 70-year old sitting in front of them is more than just the crime he was convicted of as a teenager, who aren’t guided by pressure from politicians or police lobbyists—that’s a huge piece of this.”

The post Vacancies and Zombie Commissioners Leave Opening for Parole Reform in New York appeared first on Bolts.

This article is part of a partnership between New York Focus and The Appeal: Political Report to cover Manhattan’s 2021 DA race. Read our first articles, on the war on drugs, statewide advocacy, and sex work.

Jose Saldana spent 38 years in New York’s prison system after a Manhattan court found him guilty in 1980 of attempted murder of a police officer. He was denied parole four times. Each time he was denied, and again at the parole board hearing that led to his release in 2018, Manhattan District Attorney Cy Vance submitted a letter asking that he not be granted parole.

Parole commissioners mentioned the letters at all five hearings, Saldana recounted. None of the letters spoke to the person he was after decades in prison, he said; none mentioned the remorse he felt about his crime, the associate’s degree he’d earned, or the many younger incarcerated people he had mentored.

“He would oppose my release just on general principle, not knowing a damn thing about me, 30 years later,” Saldana said of Vance, adding that his experience is common among people convicted by the Manhattan DA.

Saldana is now the director of the Release Aging People in Prison (RAPP) campaign, which advocates for New York to expand early release for people who face the risk of dying in prison. This is a strikingly common fate in the state: Approximately 8,000 people are serving life sentences in New York today—nearly a fifth of the state’s prison population. Eighty percent of them are Black or Latinx.

The DA election in Manhattan looms large in advocates’ efforts to change the state’s culture around incarceration. Vance is not seeking re-election, and eight candidates are running in the Democratic primary on June 22 to replace him. 

Many of these candidates told New York Focus and The Appeal: Political Report that they would roll out new policies to reduce life sentences or very lengthy sentences.

They are making the case that people change and deserve second chances. Data shows that older people are far less likely to commit crimes. Lengthy prison sentences cost immense amounts of money, and there is little evidence that they significantly deter crime. 

Several candidates said they would never oppose someone’s parole application, echoing a new policy rolled out this year by New Orleans’s progressive DA, and most said they would support many more applications than at present. Some candidates said they would restrict if not prohibit their staff from seeking new sentences that exceed 20 years, let alone life sentences.

Such reforms would represent a major break from prevailing practices in the Manhattan DA’s office, public defenders and legal advocates said.

“For years, the Manhattan DA has been up-charging, pushing for long and life sentences, and opposing mitigation and alternatives on the front end and parole on the back end,” said Katie Schaffer, director of organizing and advocacy at the Center for Community Alternatives. 

“A new DA committed to shrinking the size, scope, and harm of the office could limit the number of New Yorkers whose lives and families are torn apart by carceral responses.”

Death by incarceration

Seven of the eight candidates running for DA—all but former prosecutor Liz Crotty—spoke to New York Focus and the Political Report for this story. (Crotty did not respond to requests for comment.) All seven vow to take some measures to impose fewer life sentences, but there are sharp differences in the scope of their approaches. 

For advocates who want to bring down the nation’s sky-high incarceration rate, there is no way around targeting the ease with which the criminal legal system imposes life sentences or decades-long sentences that may also condemn a person to die in prison. New York imprisons more people for life, as a proportion of its population, than countries like Germany or Japan imprison people at all.

“We won’t eliminate or even make a serious dent in mass incarceration without dealing with these deep-end sentences,” said Ashley Nellis, a senior research analyst at the Sentencing Project and co-author of a book on life imprisonment.

Because sentence lengths tend to be determined in relation to each other—with shorter sentences set on robbery than on homicide, for example—reducing the lengthiest sentences is the most effective way to reduce incarceration rates as a whole, Nellis explained.

Lawmakers in Congress and in various state legislatures have proposed reforms to reduce life imprisonment, including for violent crimes. But until such changes come to New York’s court system, its DAs will continue playing an outsize role in whether the status quo changes.

Sentences in New York are officially set by judges. But they generally correspond to the charges that defendants face, and prosecutors have extremely wide discretion in deciding what charges to bring, if any, against arrestees, as well as what sentences to recommend to judges.

Attorneys who practice in New York told New York Focus and the Political Report that Vance’s office has not used its power to turn the tide against life sentences.

“There is no policy or practice in place [under Vance] to avoid maximum sentences, to avoid sentences that go over 20 years, to avoid life sentences,” said ElizabethFischer, a public defender with Neighborhood Defender Service, an organization based in Harlem. 

“The current DAs office uses their discretionary power to charge the highest possible charge on which they think they can get an indictment,” Fischer continued. “In cases where a life sentence is authorized, more often that not, the life sentence is the offer or recommendation from the DA’s office.”

Vance’s office did not respond to multiple requests for comment.

But these sentencing practices could shift significantly next year, when a new DA will take office.

Asked about their approach to lengthy sentences, many candidates challenged the imposition of prison sentences of more than 20 years. Last year, voters in places like Los Angeles and Austin, Texas, elected prosecutors who ran on curbing sentences that exceed that length. Now some Manhattan candidates are drawing even starker lines in the sand.

Two candidates—civil rights attorney Tahanie Aboushi and public defender Eliza Orlins—went the furthest, committing to never seek sentences of more than 20 years. 

Assemblymember Dan Quart said he would set up a “rebuttable presumption” of not seeking a sentence longer than 20 years, adding he would be “unlikely” to overturn it; he has told the Political Report he would consider doing so in “extreme cases, such as mass shootings and domestic terrorism.” A spokesperson for Alvin Bragg, a former chief deputy attorney general for New York, said he would make 20 years a “default maximum sentence,” though the campaign did not specify under what circumstances he would veer from that default.

Aboushi, Bragg, Orlins, and Quart also say they would never seek sentences of life without the possibility of parole. 

“Life without parole is a death sentence, and it’s capital punishment by different means,” Quart said. Aboushi mirrored this position: “Like the death penalty, life without parole labels a person as nothing more than the worst thing that person ever did and ignores the reality that everyone is capable of growth, change, and rehabilitation.”

The remaining candidates, former prosecutors Lucy Lang, Diana Florence, and Tali Farhadian Weinstein, made no mention of a 20-year threshold. Still, each said they would rarely seek the maximum sentence allowed by law. Farhadian Weinstein and Lang also said their default policy would be to seek the minimum sentence that falls within sentencing guidelines, though they did not specify in what cases they might seek longer or maximum sentences. In addition, these three candidates did not rule out seeking life without parole sentences.

Commitments to generally seek minimum sentences are less bold than they sound, Fisher warned, because mandatory minimum statutes can trigger lengthy sentences under some circumstances, depending on the charges a prosecutor has filed.

For instance, “felony enhancement” statutes mandate long periods of incarceration for second and subsequent felony offenses. Prosecutors could sidestep these by filing misdemeanor rather than felony charges when prosecuting individuals with prior felony convictions—by charging possession of half a gram of cocaine, for example, as a misdemeanor rather than as a felony potentially carrying a sentence up to life imprisonment sentence for third or subsequent felony offenses. 

Six candidates—Aboushi, Bragg, Florence, Lang, Orlins, and Quart—said they would make efforts to avoid felony enhancements by charging misdemeanors instead.

Farhadian Weinstein, though, expressed skepticism toward prosecutors lowering charges to make a sentence less harsh. “I believe in truth in charging—we must bring the charges that fit the facts,” she said.

Rigodis Appling, an attorney with the Legal Aid Society, said prosecutors’ charging decisions testify to their values when it comes to incarceration. Typically, she said, Manhattan prosecutors respond to the facts of a case by “taking a perspective that is the harshest you could take when looking at those facts.”

Another choice that Manhattan prosecutors sometimes make is opposing the “youthful offender” status for children whom they are prosecuting as adults.” The designation is a legal framework available for minors that limits the possible felony sentence length to four years and automatically seals the child’s record. Without it, the child would face a lengthy sentence.

“Supporting youthful offender status in every case would have a tremendous effect on young people’s ability to overcome criminal legal system involvement and lead successful, productive lives,” Fishcer said.

Bragg, Quart, Aboushi, Orlins, and Lang said they would always support granting “youthful offender” status to minors. Farhadian Weinstein and Florence said they would generally or presumptively support this status, though they left the door open to opposing it.

Beyond the courtroom

To make a dent in the large prison population serving life sentences in New York, advocates say, any new strategy would need to include releases of people who are already in prison. Here, too, a DA can stand in the way or facilitate the process. 

The letters to parole boards that DAs often write to support or oppose parole applications can be very influential. 

Legal practitioners say Vance has been reluctant to write letters of support. Saldana added that Vance’s office “routinely” contacted parole boards to oppose applications like his own.

Saldana thinks it would make a difference if the next DA was more supportive of applications, or at least was willing to get out of the way. “The parole commissioners are of like minds, and anything they can hang their hat on to deny someone [release], they will,” he said, explaining why a single letter by a DA’s office that prosecuted the case decades earlier can have such weight.

Aboushi, Orlins, and Quart told New York Focus and the Political Report that they would never step in to outright oppose a parole application, even when they do not support it. 

“I have seen firsthand how the current Manhattan DA’s office’s policy of writing letters that strongly oppose the early release of a person who is incarcerated has been devastating to families and communities across our city,” Orlins said.

Florence said she would oppose applications from people convicted in some extreme cases. Farhadian Weinstein mentioned a policy she worked on while general counsel in the Brooklyn DA’s office that required prosecutors to obtain supervisory approval to oppose an application, but she did not answer a follow-up question on whether she would ever oppose applications as DA. Bragg and Lang did not address whether they would ever oppose parole applications.

Asked how they would change current practices on when to actively support an application, four candidates—Aboushi, Bragg, Lang, and Orlins—said they would make it a “default position” or a “presumption” to support applications. They mostly did not specify the circumstances that would limit that presumption, though Aboushi mentioned “evidence of recent, violent conduct in prison,” and Lang mentioned the highest-level offenses such as serial murders. 

Farhadian Weinstein said she would establish a default of supporting parole applications in cases where incarcerated people had pleaded guilty, noting that she helped institute such a policy in the Brooklyn DA’s office. In 2019, Brooklyn DA Eric Gonzalez announced a default policy of supporting applications for people who pleaded guilty and then maintained a clean disciplinary record in prison, saying his office used to “ordinarily oppose” applications and that his new policy would “reflect the bargain we made with” people who pleaded guilty.

But Appling, of the Legal Aid Society, worries that making it more likely that someone can achieve parole if they plead guilty amounts to a “trial tax,” referring to the common practice of seeking harsher terms against individuals who take their case to trial instead. “The only reason I can think of is to coerce [guilty] pleas,” she said, explaining that it may add to the pressure to forgo a trial.

Florence and Quart laid out no rule or presumption on when they would step in to support parole applications.

—

If the next DA were to make a serious effort to reduce sentences, avoid enhancements, and support parole applications, the effect would be transformative.

And it could reverberate far beyond Manhattan. Reform advocates are pushing New York lawmakers to increase opportunities for parole for incarcerated people over 55, a reform known as “elder parole,” and pass other bills that would increase parole eligibility for all incarcerated people. 

Theresa Grady, an activist with the RAPP campaign, hopes that the next Manhattan DA will join those efforts. 

“I’ve seen people go into jail at 25 years old, and when you see them in another year or three years, they’re looking like 55 already,” she said. “Hopefully, with a new progressive DA, it will be that they look at them in another light, and see that it doesn’t have to be long sentences.”

Note: The text and the accompanying graphic have been updated with additional information about candidates’ positions on the maximum sentences they would pursue.

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Maryland has banned life without the possibility of parole for people convicted of crimes that occurred when they were children. On Saturday, the Democratic-run legislature overrode Republican Governor Larry Hogan’s veto of the legislation.

Maryland is the 25th state, in addition to Washington, D.C., to bar these sentences. With the vote, hundreds of people will have an opportunity for earlier release. 

“I had anticipated that Governor Larry Hogan would veto the bill but had full confidence that the Maryland General Assembly would do the right thing,” said Fatima Razi, co-founder and executive director of the Maryland Juvenile Justice Coalition. “This body of legislators has brought me closer to restoring my faith in Maryland’s justice system.”

The legislation, Senate Bill 494, known as the Juvenile Restoration Act, applies retroactively. It allows anyone who has served at least 20 years for a crime that occured when they were a minor to petition the court for a sentence reduction, including if they were sentenced to life without the possibility of parole. The court then must hold a hearing where a judge should consider a number of factors, including the offense, evidence of rehabilitation, childhood trauma, and victim statements. A person whose petition is denied can request a hearing two more times, three years apart.

In Maryland, nearly 50 people were serving a juvenile life without the possibility of parole sentence as of December, but the law’s impact extends to hundreds of others who were sentenced to lengthy prison terms or life with parole. More than 300 people, who were not sentenced to life without the possibility of parole, will be immediately eligible for resentencing because they have already served more than 20 years for offenses that occurred when they were children, according to the Campaign for the Fair Sentencing of Youth. 

Of the more than 400 people immediately eligible for resentencing, over 85 percent are Black, according to the campaign. 

In Maryland, the overwhelming majority of children tried as adults are Black, according to the state’s racial impact analysis of SB 494. From July to December 2019, more than 80 percent of the 459 children charged as adults were Black. 

The growing movement against police violence and white supremacy in the wake of the killing of George Floyd in Minneapolis helped spur the passing of SB 494, say its supporters.

“As instances of police brutality have come to the fore of mainstream consciousness, the nation is reckoning with a reality that impacted communities have known all along—there is a throughline from slavery to our current-day criminal justice system,” said Erica Suter, a post-conviction appellate attorney and first vice president of the Maryland Criminal Defense Attorneys’ Association. “I think we have reached a boiling point where none of us have the luxury of looking away any longer.”

A diverse coalition, including victims’ family members and State’s Attorneys Marilyn Mosby and Aisha Braveboy, supported SB 494, which passed with bipartisan support. But their colleagues were some of its most vocal opponents. Hogan’s veto message listed 14 state’s attorneys, including Baltimore County State’s Attorney Scott Shellenberger, who urged him to veto SB 494. He did not mention Mosby or Braveboy, who represent two of the state’s most populous regions, Baltimore City and Prince George’s County. 

But those who petition for sentence reductions could still spend the rest of their lives in prison, said Suter. The bill does not guarantee release for people convicted of crimes that occurred when they were under the age of 18. 

“[SB 494] gives hope and an opportunity to a huge population in our prisons,” said Suter. The bill, she said, does not go far enough. 

“Unfortunately there are some judges in some jurisdictions who are not, who I’m afraid will not, be persuaded,” she said, “no matter how many good things someone has done.”  

—

The United States is the only known country that sentences children to life without the possibility of parole, according to the Sentencing Project. At the start of 2020, approximately 1,400 people were serving life without the possibility of parole for crimes that occurred when they were children. But more states are rejecting this practice. 

“We’ve fortunately seen this dramatic national trend away from life without the possibility of parole for kids and other very extreme sentences,” said Preston Shipp, a former prosecutor who is now senior policy counsel with the Campaign for the Fair Sentencing of Youth. “This is not a partisan issue, it’s a moral issue.” 

In 2012, the Supreme Court banned mandatory juvenile life without the possibility of parole sentences. About four years later, the court made that decision apply retroactively, which meant about 2,000 people who had been automatically sentenced to life without the possibility of parole could receive resentencing or parole hearings.

Since then, many states have chosen to abolish these sentences altogether. In January, Ohio Governor Mike DeWine, a Republican, signed legislation that provides an opportunity for parole after a certain number of years served for those convicted of crimes that occurred when they were children. Similar legislation passed last year in Democratic-run Virginia. 

On Thursday, North Carolina Governor Roy Cooper, a Democrat, issued an executive order that establishes a clemency board to review petitions from those who have served at least 20 years for crimes committed when they were minors. 

But more work is needed to ensure children, as well as young adults, do not spend decades in prison, say youth justice advocates. 

The Supreme Court’s 2012 decision was based, in part, on research that shows the adolescent brain is “not yet fully mature in regions and systems related to … impulse control, planning ahead, and risk avoidance,” Justice Elena Kagan wrote for the majority, quoting from an amicus brief filed by the American Psychological Association.

These traits do not end on a person’s 18th birthday. Research has shown the brain keeps developing until a person is in their mid-20s. Recognizing this, Washington, D.C., approved a law in January that will allow people serving life sentences to file for a sentence reduction for offenses that occurred before they were 25. Previously, this consideration was only extended to people convicted as minors. (Congress has the power to block laws passed by D.C., so the law will not be enacted until later this spring after a waiting period passes; Congress is not expected to intervene.) 

Other states, including Illinois and Washington, have also created pathways for the early release of people who were convicted as young adults. The Maryland Court of Appeals is now considering a rules change to permit some people who were under 25 at the time of the crime to petition for a sentence modification after serving 15 years. 

“There’s really no reason to draw the line arbitrarily at 18,” said Riya Saha Shah, managing director of Juvenile Law Center.

Warren Hynson, who spent more than 25 years incarcerated in Maryland, told The Appeal he was held with other men who, like him, arrived in prison in their mid to late teens. They should be given a chance, like he was, to return home and succeed, he said. “It’s devastating for a human being to feel that he or she has no hope,” said Hynson. Suter represented Hynson during his parole process. 

In 1992, when Hynson was 17, he was sentenced to natural life, with the possibility of parole, for felony murder. When the judge sentenced him, he assumed he would be home in five years. Hynson only began to understand his sentence when he got to prison. 

“I felt, man, this is where I’m going to die.” he said. “I started meeting dudes, that’s older, with gray hair, gray in their beards. And they said they’ve been locked up since they were 15, 16 years old.”

While incarcerated, Hynson said he was a youth mentor, attended classes, and worked on his art, even having his pieces exhibited at a local college. In 2001, he was resentenced to life suspended and 43 years. In 2016, the parole commission recommended him for parole, but Governor Hogan denied it. Hynson went home in 2019, when he was 45 years old. 

Hynson and his fiance now live minutes from his mother’s home in Maryland. After he gets home from work, he creates art, and intends to exhibit at future shows. 

“People do change, people do grow, people do evolve into better human beings,” said Hynson. “Don’t throw us in prison and throw away the key. Don’t throw us in prison and not give us any tools to grow.”

Disclosure: Juvenile Law Center and the Campaign for the Fair Sentencing of Youth were sponsors of Elizabeth Weill-Greenberg’s interview-based play on juvenile life without parole, “Life, Death, Life Again: Children Sentenced to Die in Prison.”

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