It was only for a moment, but on January 20, 2015, this country's criminal punishment system got a general call for reform in President Obama's state of the union address. With 5 percent of the world's population and 25 percent of the world's incarcerated people, it's about time we heard this from our president. But what we didn't hear was an analysis of exactly what we can do to shrink this massive system.
While Attorney General Eric Holder and many others have urged an end to needless mandatory minimums - a good step toward decarceration - this is not going far enough. Research from a variety of nonprofits like the Sentencing Project and Human Rights Watch have shown that the majority of long-term prisoners, including many who have committed the most violent acts, are actually the best bet to exit prisons and not return to crime.
Who Are Our Long-Term Prisoners?
A 2014 study by the National Academy of Sciences reported that during the 1990s, the federal government and more than half the states enacted truth-in-sentencing and three strikes laws - all aimed at harsh punishment - both increasing the prison population and the length of sentences these prisoners are serving.
Age 55 is considered borderline geriatric in prison, because life expectancy is reduced for jailed men and women. The ACLU estimates that by 2030, "over one-third of all prisoners in the United States will be over 55.
Nationwide, as of 2012, the Sentencing Project reported that there were 159,520 people serving life sentences; that comes down to one of every nine individuals who were incarcerated in prisons. Nearly half of these men and women (more than 5,000 were female) were African American, and one-sixth were Latino. Ten thousand were sentenced before they turned eighteen, and in 2009, the Sentencing Project estimated that 77 percent of juveniles sentenced to life were youth of color. One in four were sentenced to life with no chance of parole. Therefore, clemency - the granting of relief from all or part of a sentence by a governor, in the case of state sentences, or by the president, for federal time - would be their only avenue to not dying behind bars, aside from an appeal or a new trial.
In 2009, the Sentencing Project estimated that nationally, the average length of time served by this population prior to parole eligibility was 25 years.
Add to this information a 2010 Human Rights Watch report that determined 124,400 prisoners were age 55 or older. Age 55 is considered borderline geriatric in prison, because life expectancy is reduced for jailed men and women, according to the National Commission on Correctional Health Care. The ACLU estimates that by 2030, "over one-third of all prisoners in the United States will be over 55."
As prison reform becomes a clearer goal on the national horizon, advocates are urging that we acknowledge the plight of aging and long-term prisoners and take into consideration the level of "risk" in releasing them.
Glenn Martin, who served six years in prison for armed robbery, became a paralegal, a policy analyst and a fundraiser when he got out, and now heads JustLeadershipUSA, founded on the principle that "the most compelling advocates of change are those who have been directly affected by incarceration." JustLeadership is dedicated to reducing crime and cutting the prison population in half by 2030.
In an interview with Truthout, Martin said that reducing the incarceration numbers is "all about identifying the person who doesn't belong behind bars" and that means those who are the least risk to reoffend. Some researchers believe that proper risk assessment tools can help us determine those few long-termers who are likely to recommit a violent crime. However, journalist Leon Neyfakh, in The Boston Globe, also labeled the value of these tools as a way to assess workable treatment and rehabilitative programs for those who have lived behind bars for years before exiting prison. There is no national agreement on how exactly to use risk assessment.
Glenn Martin said that even the discussion of risk assessment has a downside. "Instead of merely talking about people who do not belong in prison, we should be indicting the system itself," as it provides no clear access to jobs, housing or community support upon release. The discussion also means understanding that violent crime is most often situational. In other words, those convicted of a violent offense against another person were driven by what, Jonathan Simon, professor of law at UC Berkeley, calls "complex combinations of conflicts, propensities and accelerants like drugs and alcohol."
The best argument for release is a "moral argument," said Martin. If they are no longer a risk, why not give these men and women a second chance?
Of 860 people convicted of homicide and sentenced to life, the study found only five individuals (fewer than 1 percent) returned to prison or jail because of new felonies - and none for a crime that involved taking a life.
By 2012, per the Sentencing Project, 48 states had parole as a mechanism for lifers to get second chances - a way to release those no longer considered a danger to the community. Martin believes this form of releasing prisoners back into the free world can "give you someone in your corner," but that means a parole officer must be trained in treatment and support for his clients, not just in supervision. While parole is not without problems - parole officers can send people back to prison for noncriminal violations such as missing appointments or a failed drug test, and parole is not always used effectively in our states, and is banned in others - it can give people a second chance if there is real reentry support and not just a list of rules to follow.
According to a 2011 Stanford Law School study, California lifers who were eventually released on parole went back to committing serious crimes a "miniscule" amount. Of 860 people convicted of homicide and sentenced to life, the study found only five individuals (fewer than 1 percent) returned to prison or jail because of new felonies - and none for a crime that involved taking a life.
According to a 2009 study by the Michigan-based Citizens Alliance on Prisons and Public Spending (CAPPS), parolees originally convicted of homicide reoffended the least of all groups of ex-prisoners. Of 2,558 homicide parolees in that state, only 2.7 percent were returned to prison for any new crime, and larceny was the most common.
"We are never going to get to the root of the problem unless we get to the heart of the 'punishment paradigm,' and the way we can do that is ask when is punishment enough."
While the results may seem counterintuitive to the public, these studies are not surprising to men and women who have served time. Mujahid Farid, incarcerated for 33 years in New York, saw the parole board nine times before his release. "If the risk is low, let them go," he said in an interview with Truthout. This is the motto of the Release Aging Prisoners Project (RAPP), an organization Farid founded with colleagues in 2013 and currently directs. Many long-term prisoners are also elderly and sick or dying. RAPP has worked with heartbreaking cases - people who've served many years beyond what was a deterrent to crime and beyond any ostensible retributive value of incarceration.
One such person is Mohaman Koti, who at 86 is in a wheelchair, and far from the healthy 40ish-year-old convicted for attempted murder of a police officer. The New York Times stated that the case was so old that the parole board could not find a copy of the transcript from his sentencing. At his sixth parole hearing in 2013, suffering from a slew of medical problems, he heard a loud "No" to parole. As the Village Voice reported, "The board said he had a history of violence, was at risk to commit another crime, and letting him go would create disrespect for the law."
Laura Whitehorn, another RAPP founder who served more than 14 years behind bars and now advocates for aging prisoners, told Truthout that Koti finally earned parole in 2014 after he appealed the state decision. He was released by the state. However, the US government decided to intervene because of a federal parole violation based on old charges: "He was picked up by the Feds and pointlessly re-incarcerated in a federal facility," Whitehorn said. In no way does he present a threat to public safety, so activists like Whitehorn wonder why we are spending resources on keeping the elderly behind bars.
"We are never going to get to the root of the problem unless we get to the heart of the 'punishment paradigm,' and the way we can do that is ask when is punishment enough," said Farid. That means realizing that people age out of crime. As the Stanford Law School report clarifies: most acts of violence are committed by people under age 30; the number declines drastically after age 40, and even more so after age 50.
Why Are There Public Misperceptions About Lifers?
The so-called tough-on-crime era brought us public officials who politicized crime, often to their advantage. The Sentencing Project's research indicates that states' reluctance to use parole or clemency mechanisms for lifers coincides with elected officials who fear looking "soft" on crime. The media too, has played into misunderstandings. First, there has been little explanation to the public about parole and how it can aid in reducing prison populations. Secondly, the media publicizes false statements from policy makers such as "life means life." As reported by the Sentencing Project, if the public believes that "life sentences require whole-life imprisonment," then "when a lifer is paroled, they often believe that somehow the system has failed."
An example is former California Gov. Gray Davis, who honed his tough-guy reputation with the pronouncement that those convicted of homicide would only leave prison "in a pine box" and that, "[i]f you take someone else's life, forget it. I see no reason to parole people who have committed an act of murder." He made good on his word: only eight lifers in California were released during his 1999-2003 term - in a state where, in 2003, some 20,000 prisoners were serving life sentences, eligible for parole at some point during their sentence.
Laura Whitehorn pointed out how people rarely consider that there are women serving long sentences. "I was locked up with many women serving enormously inflated sentences on 'girlfriend crimes.' They had been connected to a man who was a drug dealer, and due to the bizarre federal conspiracy laws, some of the women ended up with longer sentences than the men."
The public also has little idea of the cost of keeping people locked up, which varies from state to state. In Massachusetts, for example, according to the Massachusetts Executive Office of Public Safety and Security, it costs an average of $45,500 to house a prisoner in a state facility; contrast this with $5,000 to supervise her on parole. But if the person is sick or dying, the ACLU says, nationally, it costs more than $68,000 to keep that person behind bars - and that's a conservative figure for Massachusetts, where costs far exceed the national average of $34,000 per prisoner.
What Are We Really Afraid of?
Some policy makers and prisoner advocates worry that the discussion of how to release people from prison is fraught with race and class biases. Attorney General Eric Holder touched on this in a recent speech to a gathering of the National Association of Criminal Defense Lawyers: "By basing sentencing decisions on static factors and immutable characteristics - like the defendant's education level, socioeconomic background, or neighborhood - they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.''
Risk assessment is yet another part of a punishment system which many have described as biased - from arrest to filing of charges, conviction, incarceration and to who gets parole. Activists and scholars like Professor Angela Y. Davis have written that we must acknowledge that "criminality and deviance are racialized."
While policy makers claim our parole policies are harsh because they are afraid to release so-called dangerous people onto our streets, Glenn Martin is one who takes exception to the underbelly of the word "dangerous." He said, "What we are really afraid of is men of color - not crime." He added, "People lean on the criminal justice system as a way of keeping those scary people away from them."
RAPP's Mujahid Farid put it this way: "If we see people as 'the other,' we are less likely to have empathy towards them and respond to their needs, which touches on what we have experienced with the police." Speaking of what happened when Eric Garner recently was killed by a police officer in New York, he said, "How can we choke a man to death 11 times unless we feel that he is 'the other?' "
Radical Solutions Needed
Understanding the reality of those who live behind bars is one of the first steps toward solving the problem of mass incarceration. Increasing the use of executive clemency, which Families Against Mandatory Minimums reported in 2010 has been almost nonexistent for three decades, is crucial; restoring the role of parole for lifers is another important step. But Professor Jonathan Simon, author of several books and many articles on the justice system, offers new ideas that could actually help right the inequities plaguing our punishment system most quickly.
Simon told Truthout that we need a radical new approach to sentencing, "a dramatic reduction in length," because "there is no empirical foundation that lengthy sentences prevent recidivism. They are always justified as 'retributive,' " he said. "When we look around the world, 10 to 15 years is a standard used for homicide. Beyond 10 years, there is no deterrent value." Ten years would still be respectful to the victims of violent crimes, Simon added.
To deal with prisoners already serving long sentences, Simon suggests "an amnesty policy." This policy would apply across the board to prisoners who've served a determined amount of time. Simon advocates that, once that period of time is served, prisoners should be released wholesale. (Upon release, they would be provided with all the best possible help for reentry.)
This approach - "retroactively resentencing without individually considering cases" - is quite different than parole, in that it doesn't depend on risk assessment or on individual records. Simon said this amnesty policy could provide a "legal demarcation that our mass incarceration policies were wrong," and it would "underscore the fact that our justice system is really broken." He realizes that amnesty would take careful planning, but it could work quickly to release substantial numbers of people and shrink the size of the prison system as a whole.
As Simon wrote on October 21, 2014, about his home state of California's prison crisis, "We will need an initiative to roll back sentences on violent crime. . . . The vast majority of people convicted of an offense against the person . . . are no more likely to commit such an act in the future than those who have not been convicted, but come from the same social circumstances and situation. There are far better ways to spend money on reducing violence than incarcerating aging prisoners who once did something violent. But for now, few even in the anti-mass incarceration community are ready to take on that fight."
It is a moral imperative to do so.