by Matt Clarke

Cutting the U.S. prisoner population by half is the goal of the #cut50 and End Mass Incarceration movements, and of the criminal justice reform group JustLeadershipUSA, but that will not be possible for at least 75 years unless the issue of long sentences for violent offenses is addressed. That was the conclusion of “The Next Step: Ending Excessive Punishment for Violent Crimes,” an April 2019 report by The Sentencing Project, a nonprofit research and advocacy organization.

While the violent crime rate has plummeted by half since hitting its peak in the early 1990s, the number of people imprisoned for violent crimes has grown, the report notes, peaking at 740,000 in 2009 – nearly half of the 1.6 million people then held in state and federal prisons. It has declined by just three percent since then.

The reason? Overly harsh sentencing, the report concludes, despite evidence that excessive penalties are counterproductive because they keep older prisoners behind bars who pose little physical threat; they divert funding from better public safety investments; and they have almost no deterrent effect as the best proven deterrent to crime is likelihood of arrest, not the possibility of serving a lengthy sentence if arrested.

The annual cost of holding so many people in prison is at least $182 billion, the Prison Policy Initiative estimates, which is why formerly “tough on crime” lawmakers have begun warming to the idea of sentencing reform. But the tide is slow to turn.

“Shortening sentences and releasing people from prison is perceived as politically risky,” noted New York defense attorney Kathrina Szymborski.

She is part of a “first-in-the-nation partnership” between state and national legal groups, announced in 2017 by Governor Andrew Cuomo, designed to connect more clemency applicants with pro bono lawyers. Symborski hopes the initiative will prove to “give clemency some legs” and “allow it to be used as it should be: to advance mercy and fairness.”

One of the two clemencies granted by Cuomo in the partnership’s first year went to Symborski’s client Michael Flournoy, 44, who spent over 20 years in prison for maiming a bystander during a 1996 drive-by shooting. He was fingered by eyewitnesses who later recanted and confessed that their testimony had been coerced.

Over 1,700 clemency petitions were granted by former President Barrack Obama during his term in office, mostly for prisoners convicted of non-violent crimes. [See: PLN, March 2017, p.12]. Yet what about those who committed violent offenses – can they prove a change in their behavior sufficient to merit clemency, too?

For example, prisoners like Michael Crawford, who spent two decades behind bars in New York for a murder he committed at age 17. During that time he earned associates and bachelor’s degrees from the Bard Initiative; earned a master’s degree from New York Theological Seminary; obtained certification as an HIV/AIDS counselor; became a sighted guide for other prisoners who are blind; and coached other prisoners dealing with anger management issues.

He also worked with Needle Wizards to crochet clothes and toys for cancer patients and homeless shelters, trying to “shed a different light on what a prisoner can do with their time if they’re allowed the opportunity,” he said.

“Prison can be an incubator or a casket,” noted Flournoy, who was encouraged to file his clemency application by Crawford. “[It’s] a place where you learn to be a better criminal or a place where you transform your thinking, transform your behavior.”

Governors in Arkansas, California, Colorado and Tennessee have commuted sentences for violent crimes in recent years. And after retroactively reducing the truth-in-sentencing threshold for non-violent offenses in 2008, the Mississippi legislature reformed its law for certain violent crimes to allow parole after serving 50 percent of a sentence instead of 85 percent.

There is consensus that the main drivers of mass incarceration have been the “war on drugs” and a concurrent war against reasonable sentences, along with a mistaken belief that a greater likelihood of receiving a long prison sentence is a deterrent to crime despite a low probability of arrest.

As a result, by 2016 a quarter of the prisoners incarcerated for violent offenses were serving life sentences. Due to this huge population of lifers, “scaling back the most excessive penalties is key to ending mass incarceration, ” The Sentencing Project report notes. Recent reforms for the punishment of violent crimes fall into three main categories:

• Legislative action, such as a move by California lawmakers to limit the felony murder rule to those who participated in the murder or intended to kill;

• Executive action, such as an offer by Philadelphia’s District Attorney of below-guidelines resentencing for people sentenced to life without parole (LWOP) as juveniles; and

• Judicial action, such as a ruling by Iowa’s Supreme Court that all mandatory sentences for juveniles are unconstitutional.

LWOP became popular as an alternative to the death penalty, especially after the U.S. Supreme Court banned capital punishment for juvenile offenders in its 2005 ruling in Roper v. Simmons. Three subsequent Supreme Court decisions curtailed LWOP for juvenile offenders, by limiting life-eligible crimes to homicide, in Graham v. Florida (2010); striking down mandatory LWOP for juveniles in Miller v. Alabama (2012); and extending the ban on LWOP retroactively in Montgomery v. Louisiana (2016).

A juvenile offender may still be sentenced to LWOP, the Supreme Court has held, so long as the sentence is not mandatory but instead based on the individual facts of the case. Still, that left around 50,000 prisoners serving LWOP in 2016 – over four times the number with life without parole sentences in 1992.

The Sentencing Project suggests that real reform first needs to address excessive sentences for juveniles, before moving on to reforming parole and sentencing for adult offenders, and encouraging policymakers to end unjust punishment.

The District of Columbia has followed this process with its Incarceration Reduction Amendment Act(IRAA), which was implemented in three phases. First, in April 2017, it created a path to sentence reductions for prisoners who had been tried as 16- or 17-year-olds and convicted as adults, so long as they had served at least 20 years and not yet become eligible for parole by the time they applied. Then in May 2019, the law shortened that 20-year requirement to 15 years and included those previously denied parole, while also removing “the nature of the offense” from the list of factors a judge must consider when making a determination on sentence reductions. Finally, in August 2019, the IRAA’s provisions were expanded to include prisoners who were up to age 25 when tried and convicted.

Of over 70 motions for sentence reductions, only one was denied and 16 have been granted, including a dozen cases involving murders, two involving rapes, one involving armed robbery and one for armed kidnapping.

It is estimated that 583 eligible D.C. prisoners could ultimately apply for early release under the IRAA, with an expected three-year recidivism rate of about 33 percent – which is why the U.S. Attorney’s Office opposed the second and third expansions of the law.

“Our communities are safer when we do a better job of rehabilitating offenders in our custody,” observed U.S. Attorney Jessie K. Liu.

Yet with high recidivism rates nationwide, it is apparent that lengthy prison terms are not rehabilitative – and reducing the amount of time that people are exposed to a negative and often violent prison environment may be a better alternative, particularly in cases where offenders no longer pose a threat to public safety.

Such as New York prisoner Michael Crawford, mentioned above, who was granted clemency by Governor Cuomo in January 2019 after serving 20 years. The governor granted pardons or commutations to 28 other current or former prisoners at the same time, including several convicted of violent crimes, stating they had “demonstrated substantial evidence of rehabilitation and a commitment to community crime reduction.” 

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Sources: cut50.org, sentencingproject.org, theguardian.com, justice.gov, governor.ny.gov

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