Scott Forsyth, The Daily Record Newswire
Life without parole. A sentence for the baddest of the bad- cop killers, terrorists and drug lords-right? Sadly, no.
Last November the ACLU identified 3,278 persons serving life without parole for nonviolent offenses in the United States. It studied the inmates in the federal prisons and the prisons in nine states, mostly in the South. Seventy-nine percent of the 3,278 were convicted of nonviolent drug-related crimes, such as possession or distribution, and 20 percent of nonviolent property crimes like theft.
The ACLU report is full of stories of persons locked up for life for the silliest of reasons — possession of a crack pipe, acting as a go-between in the sale of $10 of marijuana to an undercover officer, sharing several grams of LSD with Grateful Dead concertgoers, attempting to cash a stolen check, shoplifting two jerseys, and possession of stolen wrenches.
Many of the convictions were the defendants’ third felony, causing them to be sent away for life pursuant to the states’ habitual offender statutes. Judges bemoan the severity of the sentences, but sentencing statutes deprive them of any discretion.
State legislatures and Congress adopted the strict sentencing statutes during the 1980s and the 1990s, as part of the wars on drugs and crime. We are now witnessing the unintended consequences of those misguided wars.
The ACLU analyzed the data and found a staggering racial disparity in life-without-parole sentencing for nonviolent offenses. It estimated 65 percent of the persons so sentenced were black, 18 percent were white and 16 percent were Latino.
In the federal system, blacks were sentenced to life without parole for nonviolent offenses at 20 times the rate of whites. While blacks may be more involved in criminal activity than whites, this fact does not explain fully the disparity.
The ACLU quantified the cost to the taxpayer of incarcerating persons until they die for nonviolent offenses — at least $1.784 billion. Doing away with life without parole for nonviolent offenses in the federal system alone would save more than $1.2 billion.
The ACLU only focused on the impact of the sentencing practice on the correction budgets for the United States and the nine states. It acknowledged but did not count the indirect costs, such as the loss in tax revenue from one more person not working and the expense of the prisoner’s family that must rely more on society’s safety net.
The United States is among the minority of countries — 20 percent — which sentence persons to life without parole. Within that minority, the use of the sentence is much rarer than here.
Many countries require a review of the sentence after 25 years of incarceration. If the prisoner demonstrates rehabilitation, he is released.
To quote Attorney General Eric Holder, “(t)oo may people go to too many prisons for far too long for no good law enforcement reason. We need to ensure that incarceration is used to punish, deter and rehabilitate — not merely to warehouse and forget.”
What has the Supreme Court said about life without parole? Might it be cruel and unusual punishment, in violation of the Eighth Amendment, especially for convictions of nonviolent offenses? Yes and no.
The concept of cruel and unusual “embodies a moral judgment,” a concept whose application changes as the “standards of decency that mark the progress of a maturing society” evolve, Estelle v. Gamble, 429 U.S. 97, 102 (1976).
Under this test, a sentence must not be “grossly disproportionate” to the offense committed. All of the circumstances of a case must be considered, an approach which has led to divided and contradictory decisions.
For example, the Supreme Court has held excessive a life without parole sentence for a defendant’s seventh nonviolent felony, the crime of passing a worthless check for $100, Solem v. Helm, 463 U.S. 277 (1983). Eight years later a plurality of the court did not find excessive the same sentence imposed on a first-time offender convicted of possessing 672 grams of cocaine, Harmelin v. Michigan, 501 U.S. 957 (1991).
Michigan law mandated the sentence, which seemed to influence the plurality. This deference to legislative determinations of appropriate sentencing continues, with a major exception.
Recently the Supreme Court has disapproved sentencing juveniles to life without parole, Graham v. Florida, 560 U.S. 48 (2010) (sentence for crimes other than murder excessive); Miller v. Alabama, 132 S.Ct. 2455 (2012) (mandatory sentence for any crime excessive).
Both decisions went back to the roots of Eighth Amendment case law. They looked at sentencing nationwide and found a national consensus against the life without parole practice for juveniles. They then examined the meaning and purpose of the Eight Amendment to make “an independent judgment” that the punishment categorically violated the Constitution.
The ACLU argues the decisions reflect a further evolution in our standards of decency. Life without parole for nonviolent offenses committed by adults is equally unconstitutional.
A sentence of life without parole is but a death penalty by another name. Just as the courts restrict the use of the death penalty, so too must they check the spread of life without parole, particularly for nonviolent offenses. Defendants deserve individualized and proportionate sentencing.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
