The Bay State has a fraught history of sentencing people to serve life without parole. Now lawmakers have a chance to end the bad deal Beacon Hill made to trade the death penalty for natural life sentences.
In 1997, after a string of gruesome killings including the brutal kidnapping and murder of 10-year-old Jeffrey Curley, Massachusetts was on the brink of reinstating the death penalty.
But legislators made a deal.
In a lastminute dramatic turnaround, Rep. John P. Slattery of Peabody cast the deciding vote in the House, defeating the death penalty bill. Many in the Commonwealth were up in arms, but Slattery was sure the measure would end up putting juveniles to death and said he followed his conscience.
Other lawmakers took to the papers to defend their votes. Jay R. Kauffman of Lexington justified his in a Boston Globe editorial, “We need to do a better job of educating our friends and neighbors that first-degree murderers do not walk away.” He added, one imagines, to show that death penalty opponents were no shrinking violets, “Commit a murder and you’re locked away for life. Period.”
Massachusetts capital punishment opponents were proud of their 1997 decision, as research showed that there was no deterrence with the death penalty. Its costs were astronomical as well; per the Guardian, since 1978, 13 California death penalty cases that ended in executions cost about $300 million each. Additionally, there had been a number of cases that made national headlines in which prisoners were executed in spite of strong evidence of innocence, prompting outcries of injustice.
Left without arguments based on deterrence, cost, or justice, all that remained for those seeking an eye for an eye was revenge. And so Massachusetts struck a deal: The state gave up the death penalty, but put in place life without parole (LWOP).
All these years later, several studies show that LWOP provides no assurance of more public safety. Nor does it reduce crime rates or give victims the tools to truly heal. The sentence of life without parole is its own brand of death; however, a new bill in Mass aims to end the bad deal and provide all prisoners with a chance at parole.
A battle is already brewing, as victims of crime and their families have begun to protest sorely needed legislation—proposed both in the House by Rep. Jay Livingstone of Boston (H.3358) and in the Senate by Sen. Joseph A. Boncore (S.826)—that would allow the opportunity of parole for all. It’s a familiar fight; every time that any state seeks to end life without parole, crime victims seek solutions in petitions, phone calls, and meetings, with a goal of keeping perpetrators of violent crime behind bars forever.
However, as more and more people recognize that harsh sentencing has added to mass incarceration, states are beginning to rethink keeping people imprisoned for life. Massachusetts could be leading the way.
The History of LWOP
The idea of eliminating the death penalty was historically more “palatable to a fearful public” if people had a “guarantee” that the prisoner would never be released, Ashley Nellis, a senior research analyst at the Washington, DC, nonprofit the Sentencing Project, wrote in 2013.
Today in Massachusetts, LWOP is an automatic sentence for anyone 18 years old or over who is convicted of first-degree murder defined by law: “Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life.” Research by the nonprofit Criminal Justice Policy Coalition shows that since 2012, the Commonwealth’s “Three Strikes” law can lead to LWOP as well: “It has also been mandated for anyone convicted of one of 18 non-homicide crimes carrying a potential life sentence when that conviction is the third for a felony offense.”
But the sentence known as “life means life” was not always the law of the land. In 1913, a person sentenced in the federal system was generally incarcerated for only 15 years, wrote noted political scientist and author Marie Gottschalk in 2012 for Prison Legal News. Although the federal system held the right to keep those behind bars they deemed dangerous, parole reviews took place and many prisoners were set free. States had similar rules.
Marc Mauer, executive director of the Sentencing Project who recently co-authored The Meaning of Life: The Case for Abolishing Life Sentences, noted in a talk at Harvard Law School earlier this year that before 1970, only seven states had a LWOP provision. One of those states was Massachusetts.
In 1972, after the case Furman v. Georgia declared the death penalty unconstitutional, the country clamored for the harshest sentence available. Almost immediately, a multitude of jurisdictions began to adopt LWOP as a “fallback,” Mauer said. Four years later, the US Supreme Court resumed executions, but LWOP sentences were still in place. Today, life without parole is often the required alternative if a prosecutor doesn’t succeed with his death sentence bid. According to Gottschalk, death penalty abolition work helped to “normalize [this] sanction.”
By 1990, according to a 2013 report by the Sentencing Project, all states except Alaska had adopted a LWOP sentence (the District of Columbia and the federal system haven’t adopted one either). Alaska, meanwhile, has a 99-year sentence that is the functional equivalent of LWOP.
As a result of harsh sentencing, the number of people in prison began to soar. Lock ’em up and throw away the key became the tenor of the day as the so-called war on drugs proliferated. Crime did not rise, in spite of fears that it would, as more and more people were sent to prison in the US—for life. Looking at the big picture, Joseph Dole, who is the author of numerous articles on the topic and is currently serving life without parole at Stateville Correctional Center in Illinois, wrote in a letter for this article: “There has finally been an acknowledgment that long sentences are the main driver of mass incarceration.”
Despite historic crime lows, the number of people serving life sentences without the possibility of parole has continued to rise, quadrupling since 1992. In Still Life: America’s Increasing Use of Life and Long-Term Sentences, researcher Ashley Nellis noted in 2016 that there were 53,290 people serving life without parole sentences, i.e., one in every 28 prisoners.
As of May, 2017, according to the Sentencing Project, Massachusetts had the fifth-highest rate of people serving first-degree, second-degree, or virtual life sentences (more than 50 years). That’s 2,038 prisoners, or roughly 1 in 4 (23.2 percent). Per the Massachusetts Department of Correction (DOC), in terms of LWOP, as of 2018, there were 1,059 men and women sentenced to die in our prisons.
The “Other Death Penalty”
Marie Gottschalk of Prison Legal News has called LWOP “death in slow motion.” Gottschalk has pointed out that in spite of “mounting evidence that lengthy sentences have minimal impact on reducing the crime rate and enhancing public safety,” the US has held tight to what many have called the “other death penalty.”
Kenneth Hartman was the first to so label it, having served more than 37 years before California Gov. Jerry Brown commuted his sentence (commutation leaves the conviction intact but reduces the punishment). Before his sentence was commuted and he was released on parole in 2017, Hartman penned an editorial titled “Death by Another Name” for the Marshall Project, writing that the sentence of life without parole only changes “the method of execution.” LWOP is “the sense of being dead while you’re still alive,” Harman wrote, “the feeling of being dumped into a deep well struggling to tread water until, some 40 or 50 years later, you drown.”
Hartman stressed that “hidden death sentences” mean many incarcerated men and women must live the rest of their lives in “prisons with extraordinarily high suicide rates, with substandard medical, dental, and mental health care, and with scant rehabilitative programs. Prisons rife with gang violence, racism, and despair.”
Most of those serving LWOP make up an overwhelmingly elderly population, and certainly prisons are not set up to be nursing homes. According to Prisoners’ Legal Services, it’s up to three times more expensive to house an elderly prisoner in the general population; much more than the going rate in Massachusetts of $65,477 per person (from the DOC). Plus, research has proven that people age out of crime and those aged 50 and older are unlikely to recommit crimes. According to a 2015 report by the Center for Justice at Columbia University, “Nationally, arrest rates are just over 2% for people aged 50+ and are almost 0% for people aged 65.”
There is also extreme racial disparity in life without parole sentencing, just as there is in every other part of the punishment system: Black people make up two-thirds or more of the LWOP population in nine states: Alabama, Illinois, Georgia, Louisiana, Maryland, Michigan, Mississippi, New Jersey, and South Carolina.
Additionally, just four states—Florida, Pennsylvania, California, Louisiana—and the federal system are responsible for half the prisoners sentenced to LWOP.
According to attorney Patricia Garin, who supervises Northeastern University School of Law students representing lifers at Massachusetts Parole Board hearings, the reasons why we have more prisoners serving life without parole sentences are important.
“We have gotten more and more punitive as a society,” Garin said in an interview for this article. “In the past, prosecutors were more often willing to believe that persons should be given parole eligible life sentences so that they could earn a second chance. Presently, prosecutors’ charging decisions are often driven by politics and a misguided belief that they should always be seeking the longest sentence possible.”
The felony murder doctrine has also added to the number of people sentenced to life. Felony murder is generally defined as “an unintended killing during a felony and/or an accomplice’s role in a murder.” A 2009 report by the Children’s Law Center of Massachusetts found that 20% of those sentenced to life without parole committed a felony such as armed robbery, but most were not the ones who actually killed the victim or had intent to do so.
James Rutherford, imprisoned at MCI-Norfolk, compared serving a sentence of LWOP to “a death in the family.” Rutherford was 27 when he was convicted in 2013 of first-degree murder in Massachusetts for his part in the stabbing and beating death of Francis P. Spokis during a robbery in Spokis’ home, asreported in the Worcester Telegram.
Rutherford told his wife, Brooke Hadley, “At first everyone shows up to the wake showing their support and then afterwards the funeral comes; people attend the funeral and little by little they forget you as time passes and they move on. I felt like I existed but I wasn’t really living.”
Hadley said in an email that she understands how devastating it is for a victim to lose someone they love, “but the person who committed the crime also lost everybody around them … including themselves.”
At the Harvard forum about life without parole, one woman described her pain: “When you’re living with someone who is serving LWOP, it becomes part of your life. … Knowing that my husband could die in prison and not have the opportunity to come home is almost unbearable.”
Clementina Cherry knows all about loss for both those who commit violence and those who experience it. Testifying before the Massachusetts Joint Commission on the Judiciary in 2014, she spoke about how she had worked with the family of the young man who served 15 years for killing her son, Louis, who was gunned down in a crossfire between rivals. Cherry founded the Louis D. Brown Peace Institute in Dorchester “to develop a structure for the way families can heal,” and said that in 1994, there was “no blueprint for families” who had lost their loved ones to violence.
“And so it goes each time a child commits a crime against another; at least two families lose; two families mourn; two families must try to heal, and two families are left to wonder what could have been done to prevent this ongoing cycle of kill or be killed,” Cherry said.
Monalisa Smith, founder of the Boston-based Mothers for Justice and Equality, said that a part of supporting victims’ families is recognizing that the families of perpetrators are also suffering. Her organization saw early on that many of them had family members who were on both sides of such scenarios—they had been a victim of crime and had committed a violent act. She has since created numerous programs for healing and reducing community violence.
Danielle Sered, founder of Common Justice and the author of Until We Reckon: Violence, Mass Incarceration, and a Road to Repair, has had major success in helping mostly teen survivors and perpetrators by developing and advancing solutions to violence. She examined numerous studies, and in her book, says that she found, “There is no evidence whatsoever … that connects the length of a defendant’s sentence to the well-being of a victim of crime. None.”
In the first-ever survey on victims’ views on safety and justice, completed in 2016, most victims say that they prefer rehabilitation to punishment, while 3 to 1 believe in holding people accountable through options beyond prison, and 6 to 10 advocate for shorter prison sentences rather than LWOP and want more money spent on prevention and rehabilitation.
Gottschalk said that the debate over juvenile life without parole (JLWOP) sentences can teach us a lot about the fight against ending LWOP. Just as legislators in Massachusetts believed LWOP would be the last stop, those who wanted juvenile murderers sent to prison for the rest of their lives have had difficulty with the many Supreme Court rulings that have given relief to juveniles. According to a 2013 report by the Sentencing Project, this includes more than 10,000 life-sentenced prisoners. These men and women have been “convicted of crimes that occurred before they turned 18 and nearly 1 in 4 of them were sentenced to LWOP.”
A series of US Supreme Court cases have yielded landmark rulings: It became unconstitutional in 2010 to sentence juveniles to life without parole for nonhomicidal crimes (Graham v. Florida); since 2012, no juvenile can receive a life without parole sentence for any homicide without consideration of their age (Miller v. Alabama); in 2016, the Miller decision became retroactive (Montgomery v. Louisiana).
As Gottschalk has written, brain research proved to be an extremely promising avenue to end or at least limit the use of JLWOP. These “legal and political strategies” were rooted in arguments that the underdevelopment of teenage brains led to diminished culpability for their crimes. Which is not to say that adults are not capable of transformation after sentencing.
Garin, the Northeastern law professor, said that several studies have shown that people serving life sentences are the best bets for parole (I also wrote about this truism in my 2016 book, Boy with a Knife: The Story of Murder, Remorse, and a Prisoner’s Fight for Justice). Said Garin, “By and large, these are people who have transformed themselves in prison. We ignore the fact that second-degree lifers have the lowest recidivism rate of all prisoners.”
Rutherford, the prisoner at MCI-Norfolk, is an example of an adult who has transformed his life. He has completed a slew of programs in prison and is currently on the waiting list for enrollment into Boston University’s college program behind bars.
“Sobriety is possible as long as you mentally leave ‘maximum security,’” Rutherford said. “The depression and shame I carry is permanent but I know using drugs is not the answer. … I have come a long way, not only because I wanted to change for myself, but I wanted my family to have the James that they always loved and knew. I am so thankful I have a positive support system and a positive outlook.”
Hope on the Horizon
An Act to Reduce Mass Incarceration (H.3358) has been filed by Rep. Livingstone. The same bill has been filed in the Senate by Sen. Boncore (S.826). The bill promises parole eligibility for all after 25 years and is retroactive for those already serving a LWOP sentence. So far 28 legislators have signed on to the House bill, and 14 in the Senate. There will be a hearing this fall in the Judiciary Committee, potentially followed by a vote in the Massachusetts Legislature. Vermont is also considering such legislation that would end LWOP for all.
Livingstone emphasized that there is no guarantee of parole release with the bill. Twenty-nine percent of juvenile lifers and 24% of adult lifers have received positive votes for parole since former Chair Paul M. Treseler took over the Parole Board in September 2015. These are records I have kept from when he took over until January 2019, when he became an associate justice of the Boston Municipal Court. It often takes two, three, four, or even more hearings for a petitioner to earn parole. If successful, serving the remainder of one’s life in society means lifetime parole supervision for anyone with a life sentence.
Asked about his bill, Livingstone said at the Harvard talk with Marc Mauer, “No one decades later is the same person they were decades earlier, and the idea that the State would just be writing off those people where they would be locking them up so they would never get out just struck me as wrong.”
The representative also pointed out the Commonwealth’s shameful record of zero commutations by any governor in more than 20 years. In January, Gloriann Moroney, who was recently nominated by Gov. Baker to be a member of the Parole Board, told the Governor’s Council (who approved her nomination) that 240 commutations had been filed by those hoping to have their sentences commuted. None of these had been acted on.
“The way I try to think is, How can we get the best results for society?” Livingstone said.
For those like Brooke Hadley, who speaks for her husband and many of the 1058 other prisoners serving life without parole, the hope that this bill will be passed “is keeping us going.”
This article was first published in DigBoston on 05/23/2019. It is being re-posted here with the express permission of that fine publication.