The following is an excerpt from a study done on the Life Sentence.
The use of life sentences, and life without parole, has increased dramatically over the past two decades. At the same time, the use of discretionary release mechanisms has been substantially curtailed. The consequences of unnecessary or wrongful life sentences are great, highlighting the importance of making appropriate decisions to incarcerate for life from both a humanitarian and fiscal perspective. In calling attention to these developments in a 2003 address to the American Bar Association, Supreme Court Justice Anthony Kennedy noted that pardons have now become infrequent and the pardon process has been “drained of its moral force.” Kennedy called upon the ABA to advocate to “reinvigorate” the pardon process at the state and federal levels.”
Life sentencing policies should incorporate a range of perspectives. These include the varied goals of sentencing in such cases, the harm to and needs of victims, public safety objectives, and the impact on costs and management of corrections facilities. The following represent key policy changes that can address these issues:
Defense Representation and Sentencing
In recent years documentation of inadequate defense representation in capital cases has become widespread. In Illinois and other states, this has contributed to innocent persons being sentenced to death. This suggests that representation in lifer cases may be even more challenging, given that the levels of legal representation and defense resources are generally lower than in capital cases. In order to reduce the risk of error and to allow for full consideration of the appropriate sentence in serious cases, states should provide adequate funding to assure adherence to standards of representation promulgated by the American Bar Association and other professional bodies. Such standards include sufficient funding for uniform statewide representation, investigation, experts, and sentencing specialists. Caseloads must be reasonable so as to permit the rendering of quality representation, “vertical representation” should be mandated to insure continuous representation of the client through all trial stages, and counsel should be assigned with appropriate training and experience to match the complexity of the case. Moreover, a full presentence report should be required by both a court service as well as the defense, which will include a recent investigation into the defendant’s history. Finally, standards recommended by the American Bar Association for indigent defense representation and for the conduct of the pretrial, trial, and sentencing stage should be followed in practice. In order to permit redress of a wrongful or dubious conviction or sentence, state legislatures and/or high courts acting in their supervisory roles should also reconsider Strickland’s restrictive limitations imposed on meaningful review of defense counsel’s adequacy in any particular case.
Restore appropriate discretion to sentencing judges
The most significant change in sentencing policy over the past several decades has been the limiting of judicial discretion. With the imposition of mandatory sentencing, “three strikes” policies and similar measures, judges in many jurisdictions are now greatly restricted in the sentences they can impose for many offenders. For lifers, the issue is generally not a question of whether the offender should be sentenced to prison, since virtually all persons convicted of these serious offenses would be imprisoned under any sentencing scheme. But the mandatory nature of many penalties often unduly restricts the ability of judges to sentence based on the individual circumstances of the offender and the offense. Restoring judicial discretion in such cases would permit judges to evaluate the appropriate mix of sentencing objectives to be achieved in each case while avoiding overly restrictive practices that do not contribute to public safety. In addition, factors that permit a judge to sentence below a mandatory minimum or guideline sentence should be expanded to include whether the defendant has a history of abuse at the hands of the victim, a mental disability or illness, or was a juvenile at the time of the offense.
Restore professionalism to parole boards
In 1967, the President’s Crime Commission recommended that parole boards be staffed by
corrections professionals, as opposed to political appointees. Despite this, politically appointed
boards are the norm in almost all states, with two-thirds of states maintaining no standards for
professional qualifications for service. One exception is the state of Ohio, in which parole board
members are persons with strong backgrounds in criminal justice who are appointed by the
commissioner of corrections and serve in civil service capacities. The politicization of parole, as
noted earlier in the case of California, renders the prospect of a rational and empirical
consideration of each individual’s application for parole unlikely, with future electoral concerns
more likely to guide decisions. Instead, parole board members should have strong backgrounds
in corrections or social services so as to best assess risk and release decision making.
Adopt risk-based policies for release
Persons sentenced to life represent a broad range of offenses and individual characteristics,
which in turn suggest varying prospects for public safety upon release from prison. While parole
guidelines were widely used in the 1970s and 1980s to promote a greater degree of equity in
release consideration, they have largely fallen into disuse as parole boards have lost much of
their discretionary power. Guidelines that incorporate risk assessments for lifers can be used as a
tool by professionals on parole boards to develop release decisions that restore accountability
and public safety as primary goals of the system.
The state of Texas adopted parole guidelines in 2001 that score inmates on a risk system based on factors that include the severity of the offense, prior incarcerations, prison disciplinary record, and age. By using such a system, state parole officials have available a guideline that builds public safety prospects into the release decision.
Restore prison programming to prepare inmates for release
The growing interest in prisoner reentry has focused attention on the importance of providing programming in prison that can better prepare inmates, including lifers, for release to the
community. In recent years, though, as the prison population has steadily increased, programming and services within prisons have actually declined. Between 1991 and 1997, for
example, the proportion of state prison inmates nearing release who had participated in vocational programs fell from 31% to 27%, along with a decline from 43% to 35% in education
programs.60 Since research has demonstrated that participation in such programming can reduce recidivism, public safety considerations suggest that restoration of program services would lead to better preparation for release. This approach echoes the remarks by Supreme Court Justice Anthony Kennedy in a 2003 address to the American Bar Association, in which he notes we must “acknowledge that the more that two million inmates in the United States are human beings whose minds and spirits we must try to reach.”
Expand release consideration for elderly, ill prisoners
The increasing use of life sentences will result in larger numbers of elderly and infirm prisoners. Incarcerating such offenders serves no public safety objective and is very costly for corrections systems. States should adopt policies that provide for careful review of such cases so that societal interests in balancing competing objectives of punishment, public safety, compassion, and cost control can best be achieved. While some states consider ways in which they can release elderly and ill prisoners without risking public safety, strict legislative provisions in the federal system make early release an unlikely option. The federal government should consider adopting legislation to permit persons over the age of 60 who have served one-third of their term to apply for early release.
Eliminate life without parole in all but exceptional cases
Imposing a sentence of life without parole makes an assumption that an offender will never be considered for release, no matter how old or changed in behavior. Experience suggests that many persons sentenced to life in fact change substantially while in prison, both by expressing genuine remorse for their actions and engaging in programming and changed attitudes. In states that employ the death penalty, a sentence of life without parole is often viewed as a lesser alternative, but the scale of such sentences -- 33,633 such persons in prison today – suggests that these penalties are being imposed in a far broader range of cases. While policymakers may wish to maintain the option of life without parole, its imposition should only be considered in cases where either the circumstances of the offense or public safety considerations mandate its use.
Exempt juveniles from life sentencing
As the recent case of 12-year-old Lionel Tate has demonstrated, life sentences are particularly inappropriate for juveniles. The Tate case demonstrates that juveniles should not be subject to life prison terms because they do not have the maturity of an adult in aiding in their defense. In addition, as noted by Judge Moore in the case of Nathaniel Abraham, life sentences represent an entire rejection of the longstanding traditions of our treatment of juvenile offenders, which is that rehabilitation should be considered as a primary objective when sentencing children. This report has documented the vast increase in the use of life sentences in the United States in recent decades, resulting in one of every eleven persons in prison now sentenced in this manner. These developments raise questions of public safety, use of tax dollars, and the efficacy of criminal justice policies.
As we have documented, many lifers have been convicted of serious crimes and present an immediate threat to public safety, but many others are housed in prison long after they are dangerous due to overly restrictive parole and commutation policies. Additional numbers of lifers would probably not have received such severe sentences had they had access to adequate defense representation or had judges not been overly constrained by sentencing policies requiring such prison terms.