Dispatches on prisons, sentencing, civil rights, race and activism.
This past August, the Lafayette-based IND Monthly published a story about a 54-year-old man named Bill Winters, incarcerated at a medium-security prison in Epps, Louisiana. Winters, who is black, was arrested in June 2009, after he drunkenly entered an unlocked oncologist’s office on a Sunday morning, setting off a security alarm. When police arrived, he had rummaged through a desk drawer, and was in possession of a box of Gobstoppers candy. Winters was convicted of simple burglary a week before Thanksgiving, and given a seven-year prison sentence—hardly a slap on the wrist. But a few days later, the prosecutor in his case, Assistant District Attorney Alan Haney, sought additional punishment for Winters, under the state’s habitual offender law. Based on his record of nonviolent offenses, which went back to 1991 and ranged from cocaine possession to burglary, the trial court resentenced Winters to twelve years without any chance of parole. But Haney was still not satisfied. He appealed the ruling, arguing that the court had imposed an “illegally lenient sentence” and that the rightful punishment was life without the possibility of parole.
At a subsequent hearing, Lafayette Police Chief Jim Craft estimated that Winters had been arrested more than twenty times, calling him a “career criminal who victimized a lot of citizens in our city.” But it seemed clear that he was more of a thorn in the side of law enforcement than a looming threat to society. His brothers, Dennis and James, testified that Winters had been homeless at the time of his offense and that he had a history of addiction; James had overcome his own drug problems and said that he would be willing to “take [Winters] in and work with him.” A former Lafayette police officer who had once worked at a correctional facility where Winters was held, said that although he did not know him well, Winters “didn’t cause problems” and had potential for rehabilitation. But this past summer, the Third Circuit Court of Appeals issued its decision: “The state asserts that because of the defendant’s particular multiple offender status, the law mandates a minimum sentence of life in prison without benefit of parole, probation, or suspension of sentence. We agree.”
Dennis Winters was incredulous when he heard the news about his brother. “What? This makes no sense,” he told IND Monthly. “I don’t understand what these people are trying to do. He’s not a violent person. He’s fragile. He wouldn’t hurt anybody, except maybe for himself. I just don’t get how they’re going to give him life for some Gobstopper candy.”
Today, Winters joins hundreds of Louisiana prisoners sent to die in prison after committing similarly nonviolent offenses, from drug possession to property crimes. The national numbers are tallied in a major new study released today by the American Civil Liberties Union, titled “A Living Death: Life without Parole For Nonviolent Offenses,” which documents scores of cases with echoes of Winters’s story. Across the country, defendants have been given life without parole for such crimes as having a crack pipe, “siphoning gasoline from a truck” and, in another Louisiana case, shoplifting a $159 jacket.
Tales of outsized sentencing for minor crimes may not surprise anyone familiar with the well-documented excesses of three-strikes sentencing in California, for example. But the ACLU’s report is the first to attempt to grasp the national numbers, specifically concerning nonviolent offenders sentenced to die behind bars. The report found 3,278 prisoners serving life without parole in 2012 for nonviolent crimes, of which 79 percent were for drug crimes. This is not the complete picture—Bill Winters himself is not among the prisoners covered—and crucially, only includes formal life-without-parole cases. It does not include life sentences where parole is a possibility—if largely only in theory, given the increasing reluctance of parole boards to free prisoners. It also does not include, say, 100-year sentences, or the kinds of stacked, decades-long sentences that are, in effect, permanent life sentences. “The number of people serving death-in-prison sentences after being convicted of nonviolent crimes is not known,” the report concludes, “but it is most certainly higher than the number of prisoners serving formal life-without-parole sentences for nonviolent crimes.”
Indeed, a report released earlier this year by the Sentencing Project found that one in nine prisoners in the US are serving a life sentence and that “those with parole-eligible life sentences are increasingly less likely to be released.” Including life with parole, the report estimated that “approximately 10,000 lifers have been convicted of nonviolent offenses.”
Determining what qualifies as “nonviolent” is similarly complicated. As the ACLU points out, “Although the term ‘violent crime’ brings to mind very serious offenses such as rape and murder, some jurisdictions define violent crime to include burglary, breaking and entering, manufacture or sale of controlled substances, possession of a firearm by a convicted felon, or extortion.” In other words, the number of prisoners serving life without parole who are far from the “worst of the worst” is higher still.
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Regardless of the exact numbers, and perhaps not surprisingly for the state known as the prison capital of the world, it is clear that Louisiana is home to a disproportionate number of these sentences. It also provides a dramatic illustration of the explosion of permanent life sentences over the past four decades: “In Louisiana, just 143 people were serving LWOP sentences in 1970,” the ACLU notes. “That number had increased to 4,637 by 2012.” The report found that Louisiana had the highest number of nonviolent offenders serving life without parole out of all the states: 429. Florida was a distant second, with 270. (Thanks to the drug war, federal prisoners accounted for the largest share at 2,074.)
Among the Louisiana prisoners highlighted in the report are Fate Vincent Winslow, who, while homeless, “acted as a go-between in the sale of two small bags of marijuana, worth $10 in total, to an undercover police officer;” Timothy Jackson, who stole a jacket from a department store in New Orleans, Paul Carter, convicted of “possession of a trace amount of heroin residue that was so minute it could not be weighed;” and Sylvester Mead, a Shreveport man who drunkenly threatened a police officer while seated, handcuffed, in the back of a patrol car.
Mead’s case, like Winters’s, shows the way in which prosecutors’ wishes consistently trump judicial power when it comes to sentencing people for such crimes. Not only did his trial judge oppose the initial charge of public intimidation, he made it repeatedly clear he opposed sending Mead to die in prison. Mead’s verbal offense “does not warrant, under any conscionable or constitutional basis, a life sentence,” he said. But Mead’s prosecutor appealed multiple times seeking a harsher sentence because of his old convictions. After his previous sentences were vacated by a higher court multiple times, Judge Leon L. Emanuel was bound by Louisiana’s mandatory sentencing statute to hand down a sentence of life without parole. “No matter how long this Court were to deliberate about this matter, it cannot fashion a legal result to explain that the life sentence without probation or suspension of sentence is unconstitutionally excessive,” he concluded.
Such statements from judges are not unusual, it turns out. “In case after case reviewed by the ACLU, the sentencing judge said on the record that he or she opposed the mandatory LWOP sentence as too severe but had no discretion to take individual circumstances into account or override the prosecutor’s charging decision,” the ACLU found. Mandatory sentencing schemes are certainly to blame—in Louisiana, they account for almost all—97.6 percent—of the surveyed nonviolent LWOP sentences. But while mandatory sentencing ties the hands of judges, such punishments do not impose themselves. Prosecutors have the power to seek or not seek them.
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Bill Winters was not the first defendant to find himself in the crosshairs of Lafayette ADA Alan Haney. Indeed, in 2007, Haney created a “career criminal program,” as described by the local Daily Advertiser, to “identify repeat offenders all over Lafayette Parish.”
“We basically had to start this whole project from scratch,” he told the City-Parish Council in September 2010, according to the Advertiser. Thus far, he boasted, some forty-nine people had been sentenced as habitual offenders with the help of the initiative.
In the fall of 2009, the same year Winters was convicted for stealing Gobstoppers, a 29-year-old black man named Travis Bourda was convicted for possessing 130 grams of marijuana “with intent to distribute.” Writing to the ACLU, Bourda insists that no drugs were actually found in his posession and that his court-appointed lawyer “filed no motions, failed to investigate,” and “made no objections at trial.” His initial sentence of eight years was increased to fourteen after Haney filed habitual offender charges based on Bourda’s previous record, which included “carnal knowledge of a juvenile” when he was 19. Responding to Haney’s attempt to seek a sentence of life without parole for Bourda, the trial judge wrote: “I believe a life sentence under the circumstances…would be an unconstitutional sentence. I believe that fourteen years is more than enough considering the underlying charge was possession with intent to distribute marijuana, and that the amount of marijuana involved was not significant.”
But in 2011 the Court of Appeals for the Third Circuit agreed with Haney, vacating the fourteen-year sentence and imposing life without parole. Today, Bourda is serving his sentence at the Louisiana State Penitentiary, famously known as Angola.
Angola prisoners were not allowed to receive visits or speak on the phone to the ACLU. But in response to the questionnaire sent out by attorney Jennifer Turner, who authored the report and corresponded with more than 600 prisoners, Bourda described himself as “the most miserable person there is.” He wrote that he was diagnosed as schizophrenic when he was 13 and that he hears voices that tell him to do things. In a separate, handwritten letter, he wrote to “share my thoughts about the Habitual Offender law,” which he describes as “the most unconstitutional law there is.”
“We paid our debts to society for the past crimes we committed,” Bourda wrote.” “…There is never any forgiveness once you have a record.” In his opinion, he added, “the prosecution is abusing his discretion on a certain race of people which we know to be black individuals.”
Whether or not prosecutorial discretion is to blame, Bourda’s observation about race is certainly supported by the numbers. The ACLU report shows, and Turner wrote to me in an e-mail, that “the racial disparity in life without parole sentencing for nonviolent crimes in Louisiana is staggering.” While the state would not provide figures according to race, the ACLU calculated that black prisoners “comprise 91.4 percent of the nonviolent LWOP prison population in Louisiana,” despite the fact that “Blacks make up only about one-third of the general population in the state.” Black defendants in Louisiana “were 23 times more likely than whites to be sentenced to LWOP for a nonviolent crime.”
There are many factors that could explain this. “The racial disparity can result from disparate treatment at every stage of the criminal justice system, including stops and searches, points of arrest, prosecutions and plea negotiations, trials, and sentencing,” Turner explains. She adds, “In Louisiana, it may also have to do with how prosecutors wield their enormous discretion in deciding whether to charge defendants as habitual offenders.”
I contacted Alan Haney’s office by phone and e-mail to discuss his Habitual Offender Division, but have not received a response. In the meantime, the ACLU report is only the most recent to cast a stark light on Louisiana’s sentencing excesses. While some recent reforms in the state have sought to mitigate some of Louisiana’s harshest sentencing statutes, they still preserve the power of the prosecutor to decide if and when to trigger mandatory sentences. In a report released by the Reason Foundation last month, which closely examines the state’s determinate sentencing laws and makes recommendations for reform, the authors found that a 2012 law signed by Governor Bobby Jindal to allow courts to waive mandatory minimums in some cases put all the power in prosecutors’ hands, giving prosecutors “much more power than they previously had.”
The ACLU also makes recommendations for reform. It calls on the states and federal government to get rid of laws that mandate or allow life without parole for nonviolent crimes, and exhorts state governors, as well as the Obama administration, to commute such disproportionate punishments. “Life without parole sentences for nonviolent offenses defy common sense,” it concludes, and “are grotesquely out of proportion to the conduct they seek to punish.”
In Bourda’s words, “I never committed a capital offense such as murder….I don’t deserve to be sentenced like a hard-core criminal.”
Liliana Segura interviewed a former prosecutor who encourages jurors to refuse issuing convictions for nonviolent drug offenders.
This past March, a Philadelphia man named Christopher Knafelc jumped onto the train tracks at a local SEPTA station to save a man who had fallen off the platform and into harm’s way. His story quickly became a tale of heroism and redemption; Knafelc, it turned out, was a “recovering drug addict with a long rap sheet,” according to the Associated Press, a man who “often wondered if he was a good person.”
The answer was yes: Knafelc’s act of bravery meant he could hold “his head a little higher, viewing the good deed he did, and the praise that followed, as another sign that he is on the right path in life,” according to the AP. “It did help reinforce that I’m a good person,” Knafelc said. “I questioned that a lot because of my colorful past.”
This past included charges of theft, a DUI and child endangerment. But the media narrative was clear and feel-good. Knafelc’s act of heroism had redeemed him, proved his worth to society. “It’s amazing,” a transit worker told reporters. “This incident may be the start of really good things for him.”
Knafelc, who is white, is not nearly as well known as Wesley Autrey, the African-American “Subway Samaritan” who in 2007 achieved instant fame after he saved a 20-year-old film student on the train tracks in Harlem. Unlike Knafelc’s case, in which no train was pulling into the station, Autrey saw the lights of an oncoming train and nevertheless, threw himself over the man, lying in a drainage ditch as train cars passed over them. It was an extraordinary act of courage; Autrey was showered with praise and gifts; Donald Trump presented him with a check for $10,000 and saluted him in the pages of Time magazine’s 100 Most Influential People issue. He was even an honored guest at George W. Bush’s 2007 State of the Union Address, where he received a standing ovation.
It probably didn’t hurt that before he was hailed as a hero in such official quarters, Autrey was a “modest, hardworking construction worker” and Navy veteran who strived to be a parent to his kids, unlike his own father. “The world looks at black men as deadbeat dads,” he told New York magazine. “But that’s not me.”
But what if it was? What if it turned out that Autrey had a rap sheet like Knafelc’s? Worse, what if it turned out that he had a history of violence and had done time in prison for hurting people? Would “convicted felon” have trumped “hero”? Would he still have been welcome at the White House?
It took just one day for Charles Ramsey, the black man who helped save Amanda Berry, Gina DeJesus and Michele Knight from a ten-year living nightmare in a Cleveland home, to go from hero to “hero” in the press. “America is embracing the hardworking dishwasher,” the New York Daily News reported on May 8, calling him “America’s hero neighbor.” The next day, the Daily News headline read, “Cleveland ‘hero’ and Internet celeb Charles Ramsey has a criminal past.”
The new narrative turned on revelations that Ramsey is “a convicted felon whose rap sheet includes three separate domestic violence convictions that resulted in prison terms,” as the Smoking Gun revealed on Wednesday afternoon. As word spread and people considered the unfortunate “irony” that this man had committed violence against his wife, adulation turned toward disappointment, hand-wringing and bemusement. (“Perhaps, one might think, it’s unwise for a brand to want such a man as a spokesperson,” Time’s Brad Tuttle wrote in a post about a previously discussed McDonald’s endorsement.) Blog posts were hastily updated; others were written to maintain that he was still a hero, regardless of his past. “The fact that a convicted abuser intervened to stop abuse is a good thing, not a scandal,” Joan Walsh argued at Salon, while also leaving open the possibility that “more details may yet emerge to complicate Ramsey’s character.” (It would be “shameful,” she wrote, if it turned out that he knew anything about his neighbor’s crimes and stayed silent.) At Poynter, the episode was a lesson in “the dangers in lionizing someone at the heart of a breaking news event too soon.”
Behind the backlash against Ramsey was right-wing Cleveland radio host Dave Ramos, who first posted links to his Cuyahoga County criminal profile under the headline: “Hometown ‘Hero’: This Story Stinks.” Ramos insisted that the public was “being fooled” by Ramsey’s portrayal in the press and was determined to set things straight. (Never mind that he had no confirmation that the record he posted actually belonged to the correct Charles Ramsey—that was just a lucky guess.)
To Ramos, it was apparently intolerable that a man that looked, talked and acted like Ramsey could possibly be hailed as a hero. He didn’t bother trying to conceal his racism, citing dubious “sources” who told him that “Ramsey appeared on a local TV station accompanied by an entourage of more than a dozen men, would not budge from the TV station’s green room, and had to be escorted off of the station’s property by police.” In other words, he is not only criminal at the core, he is threatening and generally obnoxious. “He couldn’t freaking speak English!” Ramos said on Twitter, after boasting that he was the first to break the story about his criminal record.
But few seemed as eager to publicly revel in the exposure of Ramsey’s past, even commenters on Ramos’s website. Comments at the Smoking Gun were largely angry and indignant, demanding to know why anyone felt compelled to dig up dirt on a man whose actions were admirable, regardless. On Facebook, the Daily News reported, Ramsey’s ex-wife posted old photos of her former husband, writing, “Ok so for the record ppl do change and you shouldn’t hold the past against someone. The (main) thing is Charles Ramsey did a good deed and those girls are safe.”
Speaking on his own behalf, Ramsey told TMZ that his past actions “helped me become the man I am today and are the reason why I try to help the community as much as I can,” words that one blogger dismissed as a “valiant effort to put a positive spin on some despicable actions.” It makes sense that such a response might come off as self-serving; too many are willing to forgive domestic violence if it is committed by somebody whom people want to love and admire—see celebrities and sports heroes—and the blunt tools offered by the criminal justice system have proven woefully ineffective in addressing domestic violence.
But the question of whether Ramsey is or is not a hero—a term he himself rejects—is ultimately not the most helpful or important, especially when we recall that all those we like to call “heroes” are, in fact, flawed human beings, even if those flaws are never exposed. As a fixed category, the notion of a “hero” applies to very few people in the American imagination—mainly to those who put on a military uniform—and a man like Charles Ramsey fits much more neatly in the public mind into a different fixed category—not just “felon,” with all its permanent implications, but “criminal,” a label automatically assigned to black men. In particular, the notion that black men who have committed violent acts cannot change and should be forever defined by that violence is what fuels our harshest prison policies. If there’s any value in the current debate over Ramsey’s “checkered past,” to me, it is that so many people are daring to suggest that a man who went to prison for a series of violent crimes can be more than that; that people are more than the worst things they have ever done.
Nowhere is this concept more absent than in our criminal justice system, which has lengthened sentences, foreclosed on parole and made pardons a near impossibility. Although the problem of mass incarceration has entered the public consciousness, thanks largely to the excesses of the drug war, the harshest penalties for violent crime (or those labeled “violent” because of any number of aggravating factors) continue to go unquestioned. For anyone who takes prison reform seriously, or is aware of the aging prisoner population, this should be a problem. “The reality is that close to half of the national growth in imprisonment since 1980 consists of increased punishment for ‘violent’ crime,” Berkelely law professor Jonathan Simon has written. “If we are to cut into that growth, and just as importantly, permanently reduce the public appetite to punish drug users and other non-violent prisoners, we need to revisit the policies that send so many to prison for so long.”
But even criminal justice reformers, for understandable reasons, tend to shy from taking on punishments for people who commit violent acts. Legislation across the country is aimed primarily at “nonviolent offenders.” Anti–death penalty activists focus largely on innocent people sent to death row—while widely pushing the next-most-punitive penalty, life without parole, for the guilty. Even behind bars, prisoners serving life without parole have less programming and are less eligible for compassionate release. When it comes to those who commit violent crimes, our most punitive instincts still rein.
Race has everything to do with this. Fear of black criminality continues to drive permanent punishment, based on the idea that African-Americans are less capable of rehabilitation or redemption. So African-American kids are given life sentences at a staggeringly disproportionate rate. So Assata Shakur finds herself on the FBI’s Most Wanted List forty years after the crime for which she was accused, based on the claim that she represents a threat to public safety. So Texas prisoner Duane Buck faces execution date after execution date in part because a state psychologist told jurors that, as a black man, his potential for “future dangerousness” was higher. I recently sat in a Memphis courtroom as a white prosecutor pointed at a black man whom he hoped to send back to death row, imploring jurors not to be fooled by the “well-dressed, well-groomed” man before him. “Not quite the same as he was back then!” he cried, triumphantly, pointing at a sixteen-year-old mugshot of the defendant, confident that the dark image of him in a hoodie would look threatening enough to scare the jury. You can put a black man in a suit, in other words, but underneath it he is still a criminal.
Some criminals, like some heroes, are allowed to be complex, as we are reminded in the wake of mass shootings committed by white men who are immediately scrutinized for signs of mental illness. Confusion and debate over what Ramsey really is—criminal or hero (or jolly Internet meme)—shows how little complexity we afford people like him. It may have taken an extraordinary action, the saving of three white girls, to make him worthy of people’s collective empathy—and it’s certainly likely that if his criminal record included, say, first-degree murder that this empathy would largely evaporate. But if we more broadly applied the logic of legions who have lept to his defense as a changed man, if we started thinking that more people might be worthy of a second chance, we might start to change the conversation around prisons and sentencing.
Every day behind prison walls, inmates—some elderly, some caring for them—wonder, like Christopher Knafelc, if they, too, are “good” people; if they, too might have contributed something to the world if they had been given the chance to try again. Charles Ramsey did. Can we dare to imagine that there are many others like him?
Youth activists from across Florida are rising up to defend a pushed-out high schooler from Polk County. Read more at StudentNation.
On a rainy Friday in December, Eugene Jarecki took a small group of fellow filmmakers to a special screening of his acclaimed documentary, The House I Live In, in New York City. The film, a powerful indictment of the war on drugs, enjoys such celebrity producers as Brad Pitt and John Legend, and won the Sundance Film Festival Jury Prize in 2012. But the venue that day was a far cry from the glittering scene in Park City, Utah. That morning, Jarecki and his crew left the SoHo headquarters of Charlotte Street Films and made their way north, toward Rikers Island, New York’s largest jail.
Sitting on the East River, just a stone’s throw from La Guardia Airport, Rikers is a monument to the drug war; of more than 12,000 inmates living there on a given day, some 75 percent have “some substance abuse problem,” according to the city Department of Corrections. Many are detainees who can’t afford bail and about a third have been diagnosed with mental illness. In response to rising violence, ostensibly because of a shortage of punitive “segregation beds,” the DOC is expanding its use of solitary confinement on the island.
Once home to a single jail opened in 1932, Rikers’s population exploded in the ensuing decades; brick-and-mortar penitentiaries were followed by trailers, modular units and other hasty additions. “The island has been consumed by the seemingly endless demand for jail space,” New York magazine reported in 1994, when the Rikers inmate population was teetering close to 16,000 and violence had reached crisis levels. While there are fewer prisoners there today—thanks in part to the rollback of New York’s notorious Rockefeller Drug Laws—the island is still often referred to as the world’s largest penal colony, comprising ten different facilities, multiple gymnasiums, sports fields and more. (A floating prison, the Vernon C. Bain jail barge, houses Rikers overflow, some 800 additional prisoners.)
“We’re sitting here outside of a makeshift thing,” Jarecki muses as we sit in a van with bars on the windows, waiting to be taken over the bridge from Queens. “They never imagined that this would become a way of life in America.”
The challenges of screening in prisons and jails can be considerable; members of Jarecki’s team spend hours on the logistics. Asked why he’s made this his mission—he plans to visit 100 in 2013—Jarecki describes being haunted by something Ralph Nader told him after he made Why We Fight, a film about the Iraq War. “He said, ‘You make a very good movie. I don’t know that you deploy it very well.’ ” It was that word, “deploy,” that stuck with him. Having filmed in a federal prison in Oklahoma, Jarecki first decided to show the finished product there, out of a sense of obligation. “I owe it to those prisoners,” he remembers thinking. But later he realized that inmates and their families would be central to spreading the message of the film to those most directly impacted by the drug war. To that end, all in attendance will receive postcards with contact information for Charlotte Street Films in case they want to follow up.
The van drops us off at the Eric M. Taylor Center, home to teenage and adult prisoners, all of who have been sentenced to a year or less of jail time. (This is a small portion of Rickers inmates, about 18 percent. The rest are awaiting trial and will eventually be shipped elsewhere.) A Christmas tree stands at the entrance and on the wall across from the metal detector is a poster for a Winter White Holiday Celebration, hosted by the DOC (“The Bravest”) in Long Island City.
The screening is held in a gym, whose door is marked by a hand-painted basketball hoop and the words “Old Gymnasium.” Inside, the walls are adorned with murals painted by incarcerated youth—blue and purple acrylic images of bald eagles and the like, accompanied by uplifting words like “Grace” and “Inner Balance.” Rows of plastic chairs are set up for some 120 prisoners.
Linda Eaddy, director of community partnerships, tells us the audience will be “adolescents”—prisoners between 16 and 18 years old. (“Did you know that when you’re 19 years old, you’re an old-timer around here?” she says, raising her eyebrows.) But the first group arrives walking with canes, followed by another group of clearly older inmates. They all wear green jumpsuits; when the teenagers arrive, they wear dull beige-and-black sneakers. The vast majority have black or brown skin.
Eaddy has worked at Rikers for more than twenty-five years. For eleven she was a substance abuse counselor. “It’s one of the main issues that brings people to jail,” she says. Asked for her impressions of the sentencing policies that drive this, she demurs. “I have no opinion on what the justice system decides. Whatever they say is appropriate is appropriate. My job is to house them.”
Jarecki kicks off the screening by introducing himself and asking, “How many of you are here on drug charges?” Surprisingly, only a small handful of men raise their hands. Asked how many are there on “drug-related” charges, a couple more go up. (“Gun charges!” one prisoner calls out.) As the murmurs die down, the film begins, its opening minutes reflecting on Jarecki’s family background. His parents, Jews fleeing the Holocaust and the pogroms in Russia, instilled values born of persecution and injustice. “As children,” Jarecki narrates, “my brothers and I were taught that we were the lucky ones who made it out, but with that luck came a responsibility. ‘Never again’ didn’t just mean that people like us shouldn’t suffer; it meant others shouldn’t suffer either.”
The men fidget, whisper, study the postcards they’ve been given (“40 YEARS $1 TRILLION 45 MILLION ARRESTS: THIS IS THE WAR ON DRUGS”). When the film introduces Nanny Jetter, the African-American woman who cared for Jarecki when he was little, and who lost a son to heroin, the room grows quieter.
Jarecki interweaves this personal story with that of other African-American families caught up in the drug war, while also providing the perspectives of those paid to wage it—from cops to judges to prison guards. The portrait that emerges is not just one of a grim criminal justice failure, it is of an insidious system of racial control.
There are stirs of recognition from the audience—scoffs when Richard Nixon and George (H.W.) Bush appear onscreen, some audible enthusiasm at New Jim Crow author Michelle Alexander and The Wire creator David Simon. Though there’s a lot to relate to—footage of law enforcement profiling black men is all too familiar—other moments are met with surprise. When the film introduces a white man serving a life sentence on meth charges, a number of prisoners gasp.
To Jarecki’s chagrin, the screening must be cut short, so that prisoners can return to their cells for “count.” But even the truncated Q&A gives them a chance to share their thoughts. “I don’t believe there’s a war on drugs,” one inmate says, arguing that the drug supply is as steady as ever. “I believe there’s a war on low-income communities. That’s my personal opinion.” A second responds. “If we don’t have a ‘war on drugs,’ we definitely have victims.” Another prisoner says he recognizes the housing project depicted in the film, Cromwell Towers. “We used to go to Yonkers to give away crack for sexual favors.”
The discussion is rushed but revealing; an inmate suggests that the drug war, like 9/11, is a “false flag operation.” Another says that winning the drug war will happen only if manufacturing comes back to the United States. Another, drawing on Michelle Alexander, asks what the difference is between today’s drug war and “the old Jim Crow.” When Jarecki observes that the vast majority of prisoners in the room are black, an inmate says this is because “when they send the squad cars out they send them to those houses. They don’t send them to white houses.” (“I live in a white area,” Jarecki half-jokes in response, “I can’t even find a cop when I need one.”)
Out of time, Jarecki says goodbye, and Eaddy takes the mic. “I really hope that you got something out of this film,” she says to the men. “All of you, this is your life. I hope it made you think.” Then she adds, “With that, officers, they’re yours.”
The older prisoners file out while the younger ones stack chairs. The few men I have time to speak to have pled guilty to nonviolent drug charges. Sam Mazatio, 32, is at Rikers for the second time, on petty larceny and cocaine possession. He’s getting out in five days and aspires to write an autobiography about life in the Bronx, which he tells Jarecki about. Another prisoner, Quinn Torres says he is grateful for the film. “I related to it,” says, telling me his father, like Nanny Jetter’s son, died of AIDS.
“I dropped out of school at 15,” Torres says, explaining that he aspired to be like his father and uncle, who were both hustlers. Torres was arrested for selling pills—oxycodone and xanax—to an undercover cop in Spanish Harlem. That was just over two weeks ago; he says he’ll be out in six months. It’s his sixth time at Rikers; at one point he was locked up at the same time as one of his kids. “You don’t know how bad I felt.”
Torres says he’s tried to take legitimate jobs—cooking, cleaning—but that the search is not easy. “You fill out the application and the first thing they ask you is if you’ve ever been convicted of a crime.” I ask him about the small number of hands that went up when Jarecki asked about drug charges. “Some people are in denial,” he says. “Most people here are on drug charges.” He says if they had to answer the same question after seeing the film, more hands would go up. “They’d be able to relate to it more.”
Leaving the jail and climbing back into the van, Jarecki is gratified by the inmates’ response but upset that the film was cut short. “This is the reality of prison life. Everything is frustration.” He won’t have time to dwell. A screening is planned for Riverside Church the next night; there are upcoming screenings planned for nine facilities in LA County, as well as San Quentin, and Angola in Louisiana. Someone suggests showing the film to prison guards and Jarecki likes the idea, jots it down. “When you see the staff, they’re all poor and working people.”
Leaving Rikers, Jarecki thinks out loud about how he might avoid such snafus down the line. “We may say to people, ‘What time is count?’ ” There’s also a shorter cut of the film, but he doesn’t like volunteering that to the prisons. “I wouldn’t have made the movie without the parts they don’t see.”
As we drive back to Manhattan, Jarecki discusses how moviegoing has changed, the fact that more people are watching documentaries at home, on their computers. “The benefit is that they watch it on the same machine on which they connect to their social media community.” On the other hand, he says, there’s never been “a revolution based on mouse clicks.”
As we sit in downtown traffic, SoHo’s holiday shop windows look foreign, like they exist in an alternate reality. It’s not unlike walking back out onto any bustling city street after seeing a film that makes visible the country’s 2.3 million prisoners. The documentary is a work of art, but the world outside it feels less real than the dark universe it illuminates. On that level, Jarecki’s road from film festivals to prisons makes sense.
“I first went [to screen in prisons] for a sense of wholenesss,” Jarecki says. “Then, when I got in there, the prisoners asked me, ‘What should I do?’ ” It’s a question any viewer might ask.
There’s no easy answer, of course. But as Jarecki told one man at Rikers, “You need to be a voice for greater fairness…We have far too little compassion.”
Go here to watch a Nation interview with Eugene Jarecki.
When it premiered at South By Southwest last March, Code of the West was an eye-opening, at times gripping, chronicle of Montana’s battle over medical marijuana—and a window into the high-stakes standoff between states that legalize it and a federal government devoted to the War on Drugs. After a pro-legalization voter initiative passed with strong bipartisan support in 2004, tens of thousands of Montana residents obtained medical marijuana cards and dispensaries cropped up with little regulation. The proliferation of pot paraphernalia led to hysteria; activists like Cherrie Brady, co-founder of a group called Safe Communities, Safe Kids, warned that the drug was seeping into schools and creating a whole generation of drug addicts—a claim with no basis in reality. Even as efforts were made to build upon and improve the law, in 2011, Republican Speaker of the House Mike Milburn—urging his colleagues to take back Montana’s “culture” from “hippies” and Colombians alike—introduced a bill to repeal it completely, much to the dismay of patients and providers who had strived to comply with state law for years.
Director Rebecca Richman Cohen takes viewers into the Montana state capitol over the course of the 2011 legislative season, as activists on both sides of the issue make their case. She introduces us to women like Lori Burnam, a grandmother with terminal cancer who prefers marijuana to pills with punishing side effects, and who occupies the film’s moral center. But the dramatic turning point occurs when federal agents raid a growhouse operated by Montana Cannabis, one of the largest providers in the state, and the business at the heart of the film. The Drug Enforcement Administration carried out the raid on March 14, 2011, at the very moment state senators were voting against repealing the law. One of twenty-six conducted throughout the state, the film shows how the raid reinvigorated the repeal effort and sparked backlash at the same time, spreading fear among growers and sellers, and, ultimately, helping to dismantle the medical marijuana business in Montana.
But the story doesn’t end there. Mere months after Code of the West premiered, a number of its protagonists were indicted on federal drug charges. The film’s main character, affable pro-legalization lobbyist and former managing partner of Montana Cannabis, Tom Daubert, pled guilty and was given five years probation. Another partner, Chris Lindsay, struck a deal as well. But their former partner, Chris Williams, refused to plead guilty to conduct that his own state did not consider criminal. (When viewers first meet Williams, he is chatting cordially with state authorities touring his operation; he vows to show them around whenever they wish. Later, he acknowledges the contradiction. “Even now, the DEA could come kick our door in and arrest us all.”) The federal Controlled Substances Act prohibited Williams from invoking the legality of the state law at the time of the raid, so the fact that he was in compliance with Montana law has no bearing on his fate. Today, Williams, who has a teenage son, faces a mandatory minimum sentence of more than 80 years in prison.
More tragic still, 68-year-old Richard Flor, a Vietnam veteran who does not appear in the film, was given a five-year sentence and died in federal custody this past summer. “I wasn’t planning on being a martyr or ending my life in prison,” says Tom Daubert at the start of the film. But for Flor, this is exactly what happened.
Today, Rebecca Richman Cohen is working to update her film to tell these men’s stories. (Go here to donate to her Kickstarter campaign, which is in its final days.) “In the epilogue of the film, they’re in the process of plea-bargaining,” she says. But when she finished taping, “I had no idea that Chris would be facing a sentence of upwards of eighty years.” I spoke to Cohen over the phone about the film, the fate of the people it portrays, and the Obama administration’s policies on medical marijuana.
Liliana Segura: You have focused much of your recent attention on Chris Williams’s case. I understand that part of the reason his sentence is so harsh is that it involves mandatory minimums for guns—legal guns—he was keeping on the property at Montana Cannabis and that, had there not been marijuana involved, he would have been charged with no crime.
Rebecca Richman Cohen: That’s exactly right. The gun charges are four counts of possession of a firearm in furtherance of a drug trafficking offense. So, it’s not that he brandished them, it’s not that he threatened [agents]. It’s just that he owned guns. In fact, most Montanans own guns, that’s a pretty standard thing.
Prosecutors often use these threats of draconian mandatory minimums to force people to take pleas. You see almost none of those cases go to trial because rational people [fear] the charges against them. Chris was growing and selling medical marijuana. He had guns at the growhouse. So, in terms of those facts, he’s largely guilty of what he’s accused of. Most people wouldn’t want to test that in front of a jury. But Chris really wanted his day in court, and he wanted to expose the story of how unjust these prosecutorial tactics are.
In some ways Chris Williams’s case is incredibly unique. But in other ways his case is not unique. Because many other medical marijuana growers and many people caught up in the criminal justice system are facing charges that carry mandatory minimums. Chris’s case got national attention because he made—in my opinion—what is in some ways an irrational decision and, as a result, he may spend the rest of his life behind bars. Most people when faced with the threat of eighty-plus years in prison would take the plea. And so their stories wouldn’t be known.
Meanwhile, Tom Daubert, who figures so prominently in the film, got such minor time by comparison and was able to use the film in his own defense. Why was that?
Tom was given a plea deal; in exchange for pleading guilty and for testifying against Chris Williams during his trial, the US attorney only charged him with Conspiracy to Maintain a Drug Involved Premise, which carries no mandatory minimum. And at his sentencing, his lawyer was able to use the film as an exhibit to present a larger context of how Tom was operating. Had he gone to trial, Tom would not have been able present a defense that he was complying with Montana state law. But in the sentencing phase defendants are allowed to bring in a much broader array of evidence and testimony.
Did you know Richard Flor?
I didn’t know him personally. I’ve come to know his family since he passed away. Richard was based in Miles City in the far eastern part of the state. He was the first registered caregiver in Montana and he’d had some years of growing under his belt when they came together in 2009 to form the partnership that was Montana Cannabis. He ran a family business; his wife was sentenced to two years and his son was sentenced to five. His daughter, Kristin Flor, had nothing to do with the family business. But she’s become as become a real activist and has been traveling, speaking at events, and trying to raise awareness about what happened to her father. Right around the time of his death, it got some national media attention but not a lot. It really begs for a deeper investigation.
The film is very effective in portraying the irrational federal approach to medical marijuana and marijuana more broadly—particularly in the dramatic scene where Montana Cannabis is being raided, and particularly knowing that these raids have been ramped up by the Obama administration.
In Obama’s first term there were more federal raids on medical marijuana growers than there were during the entire eight years of Bush’s presidency.
What do you think accounts for that policy? And if it’s related, what do you think explains the timing of the raids in Montana?
It’s true that the raid was on the day that the Senate Judiciary Committee was voting on the repeal of the state’s medical marijuana law. But I don’t have any intuition that the raid was timed to the day, because if they really wanted to affect the vote they probably would have done it right before it, not during it. But I think there’s good reason to suspect that, at the very least, it was timed for the middle of the legislative session. I think it sent a very clear message to patients, to growers, and to legislators about the federal government’s enforcement policies.
I don’t know what accounts for Obama’s enforcement policy. It wouldn’t surprise me if there’s lots of different feelings within the administration. When the history about this gets written it will be fascinating—I think there are lots of things we don’t know right now. Even though there was a crackdown, which we documented, starting in 2011 recently there haven’t been a great deal of raids. In fact, the administration was silent on the votes in Massachusetts, Arkansas, Colorado and Washington leading up to the 2012 election. That wasn’t true two years prior in California. The administration was very vocal in its opposition to its 2010 legalization ballot initiative. So, I think it’s telling, public opinion has shifted. In Colorado marijuana got more votes than Barack Obama. So this really is just a different historical moment. There’s an opportunity for the administration now to step back and rethink its policies.
The Obama administration’s response to the votes in Colorado and Washington—the silence has been absolutely deafening. I think it’s surprising to many people that the only comment the administration has made is that the federal Controlled Substances Act is still in effect and we’ll say more later. We can hope that this is an opportunity to create a moment to explore some experiments in sensible drug policy.
What could states like Colorado and Washington learn from Montana’s experience. Does your film serve as a cautionary tale?
I think it’s definitely a cautionary tale. I think first and foremost, one of the lessons learned from the film is that it was the visibility of marijuana that motivated Cherrie Brady and the opposition to try to repeal the law. The law was passed in 2004 and it wasn’t until 2009 or 2010 that she really started mobilizing. Regulatory measures as simple as zoning could avoid a lot of the pitfalls that we saw in Montana. And the states that are continuing to legalize and to create sensible regulations aren’t running into those problems. There weren’t nationwide raids, there were raids in the states that had loose regulations. And so I think Massachusetts and Colorado and Washington are well poised to think through these lessons learned.
How did you come to this issue and how did you come to focus on Montana specifically?
I went to law school and I teach courses on law and film. When I was in law school, I worked at a public defender’s office. I interned at the Bronx Defenders and I sat in arraignments day in and day out, and I saw people arrested for nonviolent drug crime whose lives were really badly affected—sometimes destroyed—by these charges. It just seemed absolutely senseless. So, that was my original interest in drug policy issues. But I also came to medical marijuana issues very skeptically. My only exposure to it was walking down Venice Beach and seeing all the doctors’ shops and head shops there and thinking very cynically about it.
For the purpose of the film, we knew there was going to be a big showdown in Montana and we knew that the state legislature only meets every two years for ninety days and then goes home. So one way or another they’d pass some law. But also, of all the medical marijuana states, Montana had, I think, one of the most problematic laws. There was almost no regulation in place and, in particular, the weakest part of the law was that there were no zoning regulations in place for most of the state. Some cities, like Bozeman, did create zoning ordinances, but most of the cities and towns didn’t. So in places like Billings, you had medical marijuana dispensaries opening up kitty-corner from schools. And it infuriated people.
At the start of the film, we see Cherrie Brady, the lead opponent, who is very religious, driving through Helena, and what she seems most disgusted by is the “culture” of marijuana. And that disgust—and the fearmongering claims about the effect on children—in many ways overtakes the actual problems at the heart of the law.
That’s right. Cherrie Brady’s platform was that they were going to lose an entire generation of children to drugs under “the guise” of medical marijuana. And lo and behold, when you look at the federal government’s own survey, a survey designed by the Centers for Disease Control and by the Montana Superintendant of Schools—two institutions that have no stake in promoting medical marijuana—you actually see that there was a substantial decrease in the number of children who were using marijuana since the law was passed. The legalization of medical marijuana wasn’t causing teen use. There wasn’t even a correlation between the two.
One of the things that would probably be most eye-opening for viewers who may be, as you were, a bit cynical about the medical marijuana movement is when you see patients describe how medical marijuana has helped ease their pain in a way other drugs cannot. I am curious about the fate of Lori Burnam, who had to go back to using the meds she hated.
Lori Burnam is doing pretty well. Her doctor, almost three years ago, gave her six months to live. She’s really become an outspoken advocate. She’s down to 65 pounds. But she’s doing okay. She’s still going.
How are you using the film as an advocacy tool?
We’ve partnered with drug policy reform organizations across the country. Law Enforcement Against Prohibition has helped us organize speakers at some of the festival screenings we’ve done. The ACLU of Montana organized a grassroots screening tour across the entire state. We’re working with Americans for Safe Access and Drug Policy Alliance. And NORML has been very supportive as well.
You are hoping to raise money to update the film. What would an updated version of Code of the West look like?
We really want to update at the very least the end of the film. Most important we want to make sure we include Richard Flor’s tragic death and Chris Williams’ trial. Chris is not a central character in the cut as it exists and we want to flesh out his stakes and his personality.
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On a Tuesday last March, the state of Mississippi executed Larry Matthew Puckett, a 35-year-old man convicted of sexually assaulting and killing his boss’s wife, 28-year-old Rhonda Hatten Griffis, in 1995. Matt, as his family called him, was an Eagle Scout at the time; he had just graduated from high school and was days away from leaving for basic training with the Navy before he was arrested. From the beginning he insisted on his innocence, claiming that his former employer had killed his wife in a rage upon discovering her and Matt together in her mobile home. Although his story contained inconsistencies, there were red flags. Griffis was beaten to death with a club, yet her blood was nowhere to be found on Puckett’s clothes, just on her husband’s. Nor was Puckett’s semen found on her body.
The Mississippi Innocence Project reviewed his case in 2008, primarily due to concerns over the role of one of two now-famously discredited medical examiners whose testimony had sent innocent men to death row. But neither man was central to his case. Nor was there DNA to test. No further inquiry went forward. The courts upheld his conviction.
But Puckett’s family continued to believe him, particularly his mother, Mary. When his lawyers pushed to fight for his sentence to be commuted to life without parole, she recalls, “We always protested and said no, that’s not what we want for him. We want him to come home.”
Mary is petite, with graying blonde hair and blue eyes. Wearing a purple T-shirt, jeans and sandals, she told me her story outside the Texas state capitol in Austin. She and her best friend had driven up that same morning from Englewood, southwest of Houston, to attend the Campaign to End the Death Penalty’s Abolition Weekend, which included the thirteenth annual March to Abolish the Death Penalty on November 3. Organized by a coalition of local and national activists, the march took place on a hot and humid Saturday, just days after the 250th execution carried out under Texas Governor Rick Perry. As different groups set up tables and passed out posters under the trees across from its steps, tourists streamed in and out of the capitol building.
Although Texas is notorious for capital punishment—it has killed almost 500 prisoners since the reinstatement of the death penalty in 1976—Mississippi has ramped up its executions this year. Puckett was the second of six prisoners killed in 2012 so far. The first was “one of his best friends,” according to Mary, a man named Edwin Hart Turner. “He was a guilty person,” she says, “but he was also mentally ill.” At 18, he had tried to kill himself by putting a rifle in his mouth and pulling the trigger. He survived but was grossly disfigured, often wearing a towel so that people could not see his face. Matt, she said, “was the only person that he trusted.”
Puckett himself spent much of his time on death row writing essays—lucid, first-person reflections, some of which were posted on the website Prisoner Express. One recalls his time in the Boy Scouts and how he overcame his fear of public speaking. Another, “Taking a Stand,” describes a short-lived hunger strike he helped organize among his fellow prisoners at Parchman Penitentiary, in protest of poor living conditions on death row. These ranged from unsanitary plumbing to the fact that the men could only ever wear flip-flops, even on cold days. The protest eventually attracted the attention of the ACLU; In the end, Puckett wrote, “We got pretty much what we wanted, but we didn’t get shoes.”
As her son’s execution date neared, Mary created a Change.org petition to save his life, attracting thousands of signatures. “We just thought we would bring him home one day,” Mary says. Instead, the Department of Corrections returned his lifeless body.
Describing the night her son was killed, Mary’s expression twists into a combination of pain and disgust. After a final two-hour visit, through Plexiglas, with guards looking on, her family left him one last time. As they prepared to drive away, Mary says, a guard told them, “You all are gonna have to leave the property, ‘cause the victim’s family’s coming in—and we don’t want them to have to look at you today.” It was a humiliating coda to another exchange, when her son first went to death row. When she asked an official when she might get a contact visit, “the lady said, ‘Oh you can’t ever do that. You don’t get to touch him until they’re getting ready to kill him.’ ” That was sixteen years ago, and she never did.
It’s not uncommon to hear descriptions of contemptuous treatment from relatives of death row prisoners. The stigma of having a loved one sentenced to die can bring a paralyzing loneliness—one that makes it hard to find strength in numbers. Though the march has varied in size over time—this year it drew a few hundred people—for those with such a personal connection to the death penalty, the community it represents is a lifeline, no matter how small.
“It’s most definitely needed,” says Mary. Today she’s working with a group called the ELLA Foundation to bring more anti–death penalty organizing to Mississippi, the kind she could have used over the years she tried to advocate for her son. While she connected to a number of activists through Facebook in the months leading up to his death, “We didn’t really have a group to support us as a family. Our family supported each other.” A group called Mississippians Educating for Smart Justice backed her, she says, “it took a long time.”
Plus, she adds, “our lawyers didn’t encourage us to reach out to anybody, because [Matt’s] case was still active. As long as we had a case pending in court, they felt that we might jeopardize him if we did advocate for him. Now I realize that’s just not true.”
Nobody knows that better than Lawrence Foster, the grandfather of Kenneth Foster Jr. With a broad smile and wearing a blue dress shirt and clean Converse sneakers, the 85-year-old Mr. Foster had driven to Austin from San Antonio. In 2007, his grandson came within an hour and a half of execution before winning the rarest of commutations from Governor Perry. It was a stunning victory for a grassroots coalition—spearheaded by the Campaign to End the Death Penalty—that succeeded in publicizing the egregious excesses of Texas’s Law of Parties, an overly broad felony murder statute that has sent many to death row. (In Kenneth’s case, he had been the driver during a series of robberies and was eighty feet away in a car when his accomplice shot his victim. The triggerman, Maurecio Brown, was executed in 2006.)
“If it was not for this [organizing], Kenneth would have been executed in 2007,” Mr. Foster says firmly. “There was no individual that could have saved him. This is why we are here now. We are committed against the death penalty.”
The march began at the capitol, passing the shops and restaurants along Austin’s Congress Avenue, and pausing in front of Governor Perry’s house. Marchers carried signs remembering Cameron Todd Willingham and Carlos DeLuna, two men whose innocence became all but certain only after they were dead and buried. “If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops,” Judge Anthony Scalia said in 2006, dismissing the notion that innocent people have been killed by the state. More than a year after the execution of Troy Davis, a man whose case led to the rallying cry “Innocence matters,” activists continue to shout their names.
Innocence does matter. But so do the guilty, who represent the majority of people on death row. Exonerations may continue to help turn the tide of public opinion against executions, but as Mary Puckett knows too well, they are not enough. Texas proves this again and again: less than two weeks after the march, Preston Hughes was executed, despite evidence he was framed by police. The abolitionist movement’s most important (and challenging) task going forward will be to convince Americans that the death penalty is wrong for all people, even those that commit terrible crimes.
After the march, an African-American woman named Barbara Lewis, wearing a purple skirt and black boots, took the mic to address the crowd. Just one year ago, in the fall of 2011, she feared her son’s execution was a foregone conclusion. Robert Gattis had been convicted of killing his girlfriend in Delaware in 1990. He had no innocence claim. He had committed the crime. He had faced execution several times. Like Mary’s son, his mother was his primary advocate. Barbara, too, has lost members of her family to murder, too. But she is not what death penalty supporters think of when they talk about “victims’ family.”
Barbara never gave up, working with local activists to publicize Robert’s case before he was scheduled to die in January of this year. A petition described how the jury never heard about the brutal and systemic sexual abuse he endured as a child, which was described by once expert as “catastrophic.” It described how during his years on death row he showed consistent remorse for his crime, maintained his relationship with his two sons and mentored other prisoners on death row, as described by guards themselves. “The act of clemency is recognition that even among the condemned there are those who need not be removed from the human community,” it read.
On January 17, three days before Robert was scheduled to die, Delaware Governor Jack Markell granted clemency, sparing his life, and commuting his sentence to life without parole. In the process, he gave Barbara a second lease on hers. With her son off death row, today she is fighting for other people’s sons.
“Texas, I am your sister…,” Barbara said. “I represent hope.”
Eighteen-year-old Terrance Williams “did not fit the mold of a typical street criminal,” the Philadelphia Inquirer reported in September of 1984. “He was a bright, talented college student, former star quarterback of the Germantown High School football team. His friends, teachers, coaches and neighbors could not believe that he would be involved in murder, or any sordid activity.”
Yet Williams, who is African-American, had committed two grisly killings. One victim, the Inquirer reported, was 50-year-old Herbert Hamilton, who had been found naked, with a knife through his throat, on his kitchen floor. The other, Amos Norwood, who led the altar boys and directed the Youth Theater Fellowship at Philadelphia’s St. Luke’s Episcopal Church, had been beaten with a tire iron, set on fire, and left in a cemetery.
“The problem I find with you, Mr. Williams, is you are a Jekyll and Hyde, apparently,” one judge told him. Tried as an adult for the Hamilton murder despite being 17 at the time, Williams was already in prison when he was sentenced to die for killing Norwood. “We were glad we did it,” one juror told the press.
Today, Williams, 46, is facing death by lethal injection. This August, Pennsylvania Governor Tom Corbett signed a warrant scheduling his execution for October 3. But in the meantime, the same jurors who sealed his fate have had a dramatic change of heart. At least five say that if they could go back, they would never have sent Williams to death row. That’s because they were never told a salient and deeply disturbing detail about his relationship with his victim. Williams, it turns out, had been violently and systematically raped by Norwood, beginning when he was 13 years old.
In fact, behind the image of Williams as a model student athlete was a childhood marred by horrific physical and sexual abuse that began from the time Williams was just 6 years old. Relentlessly beaten by his mother (herself a victim of abuse) and his alcoholic stepfather and gang-raped at a juvenile detention center when he was 16, by the time Williams killed Norwood he was regularly cutting himself, abusing drugs and alcohol, and had endured more than a decade of abuse.
Among the others who sexually assaulted him: his other victim, Herbert Hamilton.
Hamilton’s preying on teen boys seemed to be an open secret. The same Inquirer story opened with a description of the man as a devoted supporter of the Ben Franklin High School basketball team, a man who bought warm-up suits for the players and “bought a van to shuttle the team to and from games.” But he “also often invited youths he met through sports to his West Philadelphia apartment to join him, according to police, in homosexual activity.”
Williams was among them. While the Ben Franklin basketball coach claimed not to know about the abuse—a word conspicuously absent from press reports at the time, along with “rape”—he told the Inquirer that Williams was one of the boys who was “was over to his house a lot.”
Williams was shown some leniency for the Hamilton killing, in part because it reportedly occurred during a violent struggle after Hamilton demanded that Williams pose naked for him. He was convicted of third-degree murder and given a maximum sentence of twenty-seven years. But such evidence played no role in the trial for Norwood’s murder. His co-defendant, Marc Draper, the son of a police officer, testified against him to save his own life, claiming that Williams had been primarily motivated by a desire to rob Norwood. He got a life sentence, while Williams was given the death penalty.
At a post-conviction relief hearing in the late 1990s, attorneys argued that Williams had inadequate representation—his original lawyer, who would later be disbarred, did not meet him until one week before trial—and presented proof that, in addition to being raped at age 6 by a neighbor and “repeatedly molested by a [male] teacher” in his early teens, when he was 13, “[he] met and began a relationship with Norwood,” who was “cruel and physically abusive at times.” Family, friends and teachers attested to the abuse, and a trio of mental health experts would describe him as “suffering from extreme mental or emotional disturbance when he killed Norwood.” (Court filings describe how Norwood raped Williams in a parking lot the night before he was killed.)
But appeals at the state level were denied. And while a federal District court would acknowledge that Williams’s trial lawyer “failed to recognize that it was his duty—not his imprisoned client’s—to identify and pursue potentially mitigating evidence,” it, too, denied relief on procedural grounds.
It was not until this past winter that another witness would come forward, a former pastor named Charles Pointdexter, who knew Norwood for thirty years. He admitted having known that he had sexually abused teen boys.
“Amos seemed to have lots of close relationships with young men…” he stated in an affidavit signed February 9, 2012, saying that he began to suspect that they were “inappropriate” in nature. A few years before Amos’s death, one of the parishioners, the mother of a 15-year-old boy, told him that he had “touched her son’s genitals” during a car ride and that “Amos had inappropriately touched a number of boys at the church.” Pointdexter kept the knowledge to himself.
According to Williams’s lawyer, Shawn Nolan, this revelation was key. Speaking to The Nation after visiting his client on death row last week, he described how it would ultimately lead to the jurors’ coming out against the execution. “Once we talked to Rev. Pointdexter and he told us this stuff, we did further investigation and that led us to another guy…who indicated that Mr. Norwood approached him and propositioned him,” Nolan said. “And none of that evidence had ever come out before this year.”
Then, “we went and talked to the jurors,” he said. “And the jurors said if they had known this, they wouldn’t have voted for death.”
Indeed, affidavits signed in July include repeated statements to this effect. “If I had known about the sexual abuse and how it related to the crime,” one former juror wrote, “it would have changed my mindset.” Another wrote, “Now that I know that he was a victim of sexual abuse by Mr. Norwood, I would have voted for life without parole instead of the death penalty.” In addition, three of these jurors also explained that they had sentenced Williams to die partly based on the fear that he might be eventually released. (Pennsylvania is the only state that does not compel sentencing judges to make clear that a life sentence means life without parole.) “The reason that I opted for the death sentence was because I was under the impression that if we sentenced Terrance Williams to life in prison then he could get out on parole,” one former juror said. “I didn’t want him to get out of prison.”
“That’s powerful to me,” says Nolan. And as he seeks clemency for his client, “hopefully that’s powerful to the governor.”
Also powerful is a signed declaration from Norwood’s widow, Mamie, who says she has forgiven Williams for killing her husband. “I do not wish to see Terry Williams executed,” she said, citing her Christian faith. “He is worthy of forgiveness and I am at peace with my decision.… I wish to see his life spared.”
On the victims’ side, says Nolan, “There is nobody in this case that is asking for the death penalty.”
Indeed, there is overwhelming support for clemency. Among those calling on the state to spare Williams’s life are twenty-two former prosecutors, eight retired judges and forty-seven mental health professionals—a highly unusual display of support. Part of this is likely due to an increased public awareness of sexual abuse. Particularly in the wake of the Penn State abuse scandal, says Nolan, “when you put that in the context of the bigger discussion that everyone’s been having over the last year,” the case for clemency is compelling. “We have learned that so many young people have been the victims of sexual abuse [in Pennsylvania],” he says. While not all victims murder their abusers, Williams’s petition argues that his case is largely about devastating effects of that victimization.
At a hearing on Monday, September 17, Williams’s attorneys will have thirty minutes to convince the state pardons board to spare his life. It won’t be easy: the five-member body is notoriously stingy when it comes to commutations. Its members include the lieutenant governor and state attorney general, who, Nolan “interestingly is our opposing counsel in some of this litigation.”
Recommendations for clemency must be unanimous, and the governor must then agree. “It’s a tough process,” says Nolan. But he believes if there was ever a case for clemency, this is it.
This is not the first time Williams has faced the death chamber. Governor Ed Rendell signed an execution warrant for him in 2005—the thirty-ninth of his term. (He would go on to sign many more, boasting a total of 119 by the end of his tenure.) In fact, despite piles of execution warrants signed over the years—Corbett has signed at least nineteen since taking office—Pennsylvania has not carried out the death penalty since a prisoner volunteered in 1999. The last time Pennsylvania put a man to death against his will was in 1962.
To his supporters, resuming executions by killing of Terrance Williams would put a particularly ugly face on the state’s death penalty. —To me, this is a much more compelling case than a lot of cases that you see,” says Nolan. “It has that direct correlation to the crime. The man who was killed was victimizing this young boy, for years. And the jury never knew that. And that’s outrageous.”
Go here to read the clemency petition, signed affadavits, and more in support of Terrance Williams.
It’s not very often the concept of restorative justice gets much play outside scholarly publications or reformist criminal justice circles, so first, some credit for Max Fisher at The Atlantic for giving it an earnest look last week. In seeking to explain Norway’s seemingly measly twenty-one-year sentence for remorseless, mass-murdering white supremacist Anders Breivik—a sentence that is certain to be extended to last the rest of his life—Fisher casts a critical eye on the underlying philosophy that animates that country’s sentencing practices, finding it to be “radically different” from what we’re used to in the United States. When it comes to criminal sentencing, he notes, the United States favors a retributive model—in which an offender must be duly punished for his crimes—over a restorative model that “emphasizes healing: for the victims, for the society, and, yes, for the criminal him or herself.”
“I don’t have an answer for which is better,” he says at the outset, acknowledging that his own sense of outrage over Breivik’s sentence—like that of many Americans—“hints at not just how different the two systems are, but how deeply we may have come to internalize our understanding of justice, which, whatever its merits, doesn’t seem to be as universally applied as we might think.”
This is true, and a promising place to start. The United States is uniquely punitive when it comes to sentencing compared to much of the rest of the world, whether the crime is murder or drug possession. Putting aside the death penalty, which lands us in dubious international company, in countries with life sentences on the books, prisoners are often eligible for release after a few decades. “Mexico will not extradite defendants who face sentences of life without parole,” the New York Times’s Adam Liptak noted in 2005 (Most of Latin America has no such sentence). “And when Mehmet Ali Agca, the Turkish gunman who tried to kill Pope John Paul II in 1981, was pardoned in 2000, an Italian judge remarked, ‘No one stays 20 years in prison.’ ”
The same article quoted Yale law professor James Q. Whitman, author of a book comparing US sentencing with Europe. “Western Europeans regard 10 or 12 years as an extremely long term, even for offenders sentenced in theory to life,” he said. Today, there are more than 41,000 people serving life without parole in the United States compared to fifty-nine in Australia, forty-one in England and thirty-seven in the Netherlands. That’s according to a study released this spring, which found that we are “in the minority of countries using several sentencing practices, such as life without parole, consecutive sentences, juvenile life without parole, juvenile transfer to adult courts, and successive prosecution of the same defendant by the state and federal government.” In the United States, prison sentences have gotten longer and longer—a sea change that Americans have come to accept relatively quickly (largely because the targets have been people of color). Just a few decades ago in high-incarceration states like Louisiana, lifers were eligible for release in ten and a half years. Today in Louisiana, there is no longer parole for lifers, and thus virtually no hope of release, ever. And when it comes to crimes prosecuted under the War on Drugs, three-strikes sentencing and mandatory minimums have not only sent people away for life for minor drug offenses—an anomaly compared to the rest of the world—they have led to a current reality in which the vast majority of people arrested on nonviolent drug charges plead guilty—whether they are or not—in order to avoid such draconian prison sentences, a decision that can have lifelong implications.
To be fair, Fisher is not talking about US-style drug sentencing—or sentencing as it exists on the ground here at all. But he should have, because the fact that there are nonviolent drug offenders serving the same amount of time as convicted murderers in the United States is rooted in a Frankenstein version of the very retributive model he is writing about. The War on Drugs was ostensibly designed to harshly punish those responsible for massive harm to our communities (while in practice, ensnaring low-level offenders who harm no one, except possibly themselves). Mandatory sentencing statutes, supposedly devised to fulfill a retributive ideal, have instead tied the hands of judges when it comes to imposing fair, proportionate sentences, leading to systemic perversions of justice. It is the reason New York has had to roll back its notorious Rockefeller Drug Laws. It is the reason the Supreme Court recently struck down mandatory sentences of life without parole for juvenile offenders. And it is the reason our prison system is so disproportionately comprised of African-American men, who are perceived to be the most dangerous criminals in our society, and the most deserving of harsh punishments.
But in a brief paragraph defining retributive justice in theory without addressing how it works in reality, Fisher doesn’t acknowledge any of this. “At its foundation,” he writes, “…retributive justice is about enforcing both rule of law and more abstract ideas of fairness and morality. Crimes are measured by their damage to society, and it’s society that, working through the court system, metes out in-turn punishment…. In a retributive system, the punishment fits the crime, and 21 years in a three-room cell doesn’t come close to fitting Breivik’s 77 premeditated murders.”
Even if you agree that Breivik’s twenty-one-year-sentence in a “three-room cell” with a TV, etc., is a grossly inadequate way of dealing with his barbaric actions, the notion that a retribution-based system hands out sentences that “fit the crime” is wildly and tragically false if the United States is your guide. In the United States, grandmothers are sentenced to life for first-time drug offenses. Mothers who fire a “warning shot” in self-defense at an abusive husband get twenty years in prison. Teenagers who kill their abusive pimp get sentenced to life without parole. Kids who commit crimes at 14 have been condemned to die in prison—getting raped along the way—with no consideration for their age, mental health or abusive upbringing. People land on death row for failing to anticipate that an accomplice in a crime might kill someone—and people are executed for killings committed by others who then go free. The American model—which Supreme Court Justice Antonin Scalia recently summed up by musing, “I thought that modern penology has abandoned that rehabilitation thing”—is a system rife with injustice.
But Fisher is less interested in confronting the problems of our criminal justice system than he is in getting to a harder, more abstract truth about Norway’s “gentler system,” which, he acknowledges, manages to “reduce crime, reduce the cost of imprisoning criminals, and reduce recidivism”—three whopping accomplishments we might learn from. But “even if we accept all of the data suggesting that society as a whole is better off under a Norwegian-style restorative model,” he says, “those numbers don’t account for the more abstract, difficult-to-define sense of justice as its own inherent good.” There is, he says, “a basic human need for justice and fairness,” as evidenced by one study on the “moral outrage felt by those who witness transgressions” and another showing that “people who believe they’ve witnessed injustice become less happy.” With Breivik in mind, he concludes, “Norwegian-style restorative justice subverts those human desires for justice and fairness.”
Norwegians, of course, including survivors and their family members, seem to have widely accepted Breivik’s sentence, suggesting that the system has actually fulfilled their desire for justice and fairness (a fact Fisher acknowledges and finds “jarring”). “That’s how it should work,” one survivor of the massacre said of the sentence. “That’s staying true to our principles and the best evidence that he hasn’t changed society.” Like victims’ family members who oppose the death penalty in the face of a system that seeks to convince them that executions are for their own good, these voices should be amplified, not dismissed.
There is little within the US system that fulfills this human desire for justice and fairness. It is a system dramatically out of step with the rest of the world, one that overwhelmingly and disproportionately punishes the most vulnerable for some of the most innocuous crimes. Theory aside, the American prison system is staggering proof of just how pathetically we have failed at defining—and delivering—“justice” using a retributive model.
Fisher does grant that “the retributive approach absolutely has its pitfalls,” citing articles about solitary confinement and the plight of mentally ill prisoners in the United States, but, he maintains, “at least it’s meant to be just.” Whether you think our system as it stands was ever about good intentions—a notion facing considerable backlash right now—this is bewildering if you care about how it works in practice. (Or about crime rates compared to, say, Norway, for that matter.) To imply that restorative justice falls short because it fails to satisfy an abstract yearning to punish the worst among us is to be driven by the same emotional response that drive real-life counterproductive prison policies. Ultimately, the problem with using monstrous examples like Anders Breivik as a lens through which to examine models of criminal justice is that, as the American death penalty system has repeatedly shown, the most punitive punishments are not reserved for the most horrendous offenders. Breivik, in the scheme of things, is the exception, not the rule. The same cannot be said for harsh punishment in the United States.
Courtesy: Texas Department of Criminal Justice
Updated Tuesday, August 7, 7:42 pm
If 54-year-old Marvin Wilson is put to death on Tuesday, it will not be because Texas denies that he is intellectually disabled, or as the legal literature puts it, “mentally retarded.” This much, the state recognizes. It just does not believe that Wilson is disabled enough not to be executed in Texas—a flagrant violation of the 2002 Supreme Court ruling in Atkins v. Virginia, which held that “the mentally retarded should be categorically excluded from execution,” period.
Thus, barring a last-minute intervention, a man who has been diagnosed with an IQ of 61 and who sucked his thumb well into adulthood now faces the prospect of being strapped to a gurney and injected with lethal chemicals until he is pronounced dead. “It doesn’t usually get to this point when you have an Atkins claim this strong,” his lawyer, Lee Kovarsky, told me over the phone on Sunday. “This claim is really sort of the worst of the worst.”
Kovarsky grew up in Texas and has seen his share of death row injustices. Yet, clients like his are hardly exceptional. “If getting the death penalty is like getting struck by lightning,” he says, drawing on Justice Potter Stewart’s famous quote about the arbitrariness of capital punishment, “then it seems to strike offenders with MR a lot. Because their disability prevents them from effectively disputing guilt or culpability, they end up on death row for some of the least aggravated first-degree murders that are tried to verdict.”
Indeed, a list compiled by the Death Penalty Information Center shows forty-four such prisoners executed before Atkins, noting that some claiming intellectual disability have been killed since then. Others, like Johnny Paul Penry—a man with an IQ of 56 who did not know how many hours there were in a day, still believed in Santa Claus and came within days of execution in 2000—are now imprisoned for life. (The DPIC lists twelve more Texas prisoners whose sentences were reduced after Atkins.) Just last month, Georgia death row inmate Warren Hill came close to execution despite also being diagnosed as mentally retarded. (He lived to see another day because of unrelated concerns, over the state’s lethal injection protocol.) Weeks before that, Ohio Governor John Kasich granted clemency to John Eley, in part due to concerns expressed by the former prosecutor in his case over his “low intellectual functioning.”
Wilson was convicted for the 1992 kidnapping and killing of a police informant named Jerry Williams, who had accused him of dealing cocaine. According to court filings, “eyewitnesses saw two men—Mr. Wilson and his accomplice, Andrew Lewis—attack Mr. Williams at Mike’s Grocery store in Beaumont, Texas.”
From there it gets murkey.
The eyewitness testimony as to the primary assailant was inconsistent…. The eyewitnesses saw the assailants force Mr. Williams into a car, and one witness testified that, shortly thereafter, she heard what were either gunshots or noises from a nearby refinery. The forensic expert testified that attributes of the body strongly indicated that Mr. Williams was not killed immediately after the incident at Mike’s Grocery, but shortly before he was discovered at 7:00 a.m. the next morning…. In light of evidence discovered on June 18 of last month, there have been and will be proceedings seeking to establish that Mr. Williams was entrapped in the early hours of November 10, that Mr. Wilson was not the shooter, and that he did not otherwise have a significant role in the murder that he did not know was about to take place. The evidence that Mr. Wilson was the principal perpetrator came from testimony of Terry Lewis, the wife of Mr. Wilson’s accomplice. Ms. Lewis testified that, when she became concerned that her husband pulled the trigger, Mr. Wilson calmed her by assuring her that Mr. Lewis was not the primary assailant.
“In short,” his lawyers argue, Wilson was sentenced to die “under precisely the circumstances that make the capital punishment of offenders with MR problematic: he was one of multiple perpetrators, the eyewitness identification of the primary assailant shifted over time, the more-sophisticated accomplice fingered Mr. Wilson as the leader and evidence of Mr. Wilson’s ‘confession’ came from the accomplice’s wife.”
Putting aside the (rather salient) question of whether Wilson actually committed the murder, there are compelling reasons for the US Supreme Court to intervene. As Kovarksy points out, the Court has been “showing a renewed interest in questions of personal culpability,” a trend most recently on display in its ruling in Miller v. Alabama, which limited life without parole for juvenile offenders. What’s more, he says, the Court is currently considering another case out of Texas, which grapples with the state’s similar attempts to circumvent its ruling in Atkins. In that case, attorneys for death row prisoner Elroy Chester argue that while Atkins “permitted states to adopt their own procedures for determining whether someone suffers mental retardation, this deference to the states did not authorize Texas to adopt a standard that permits the execution of mentally retarded offenders.” Yet that’s precisely what has happened. While most death penalty states have passed legislation to define what qualifies as intellectual disability, based on similar clinical standards as the Atkins court, Texas has not.
Instead, it focuses on a dubious set of invented criteria that are known as the “Briseño factors.” Named after another Texas death row case, these seven non-clinical measures are meant to show whether a given defendant displays a “level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.” As an example, the Briseño court cited the fictitious character of Lennie Small, the mentally impaired migrant worker from John Steinbeck’s novel, Of Mice and Men. (“Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt” from execution, the court concluded.) These measures are rooted in ignorance: notions that intellectually disabled people do not know right from wrong, cannot lie in their own self-interest, are incapable of leadership and so on. The American Association on Intellectual and Developmental Disabilities has described them as “based on false stereotypes about mental retardation that effectively exclude all but the most severely incapacitated.” What’s more, Kovarksy notes, they are “extraordinarily elastic”; in a different case, Hall v. Texas, Wilson’s attorneys argue, “the Briseño factors allowed the State to rely on a co-worker, a waitress who served the defendant once, the arresting detective, and prison guards who had limited contact with the defendant to controvert three defense expert opinions.”
Based on his experience teaching sports to mentally challenged individuals, the eighteen-year-old co-worker opined that defendant Hall was not mentally retarded. One prison guard claimed that he “knew some kids in school with Down’s syndrome” and therefore did not think Hall was mentally retarded. Another guard asserted that her neighbor’s daughter was mentally retarded and that in her opinion Hall was not. A third guard had an uncle who was mentally retarded and reasoned that Hall “was nothing like his uncle.”
“There’s no psychological standard-setting body that has even suggested those factors are valid,” Kovarksy says. And as a judge on Texas’s own Court of Criminal Appeals observed in Lizcano v. Texas, “We seem to have granted a certain amorphous latitude to judges and juries in Texas to supply the normative judgment—to say, in essence, what mental retardation means in Texas…. Is the Texas fact-finder at liberty to define mental retardation differently than a consensus of Americans would define it for Eighth Amendment purposes?”
That question should have been long since resolved. As his client is prepared to be led to the death chamber, Kovarsky says, “If Texas executes Mr. Wilson, then the once-promising Eighth Amendment rule against executing offenders with MR will have been reduced to a capital exemption in name only.”
UPDATE: The Supreme Court declined to intervene. Marvin Wilson has been executed.
Lee Kovarsky released the following statement:
We are gravely disappointed and profoundly saddened that the United States Supreme Court has refused to intervene to prevent tonight’s scheduled execution of Marvin Wilson, who has an I.Q. of 61, placing him below the first percentile of human intelligence. Ten years ago, this Court categorically barred states from executing people with mental retardation. Yet, tonight Texas will end the life of a man who was diagnosed with mental retardation by a court-appointed, board certified specialist.
It is outrageous that the state of Texas continues to utilize unscientific guidelines, called the Briseño factors, to determine which citizens with intellectual disability are exempt from execution. The Briseño factors are not scientific tools, they are the decayed remainder of an uninformed stereotype that has been widely discredited by the nation’s leading groups on intellectual disability, including the American Association on Intellectual and Developmental Disabilities. That neither the courts nor state officials have stopped this execution is not only a shocking failure of a once-promising constitutional commitment, it is also a reminder that, as a society, we haven’t come quite that far in understanding how so many of those around us live with intellectual disabilities.
In May The Nation introduced readers to Trina Garnett, a woman serving life without parole in Pennsylvania for a crime she committed in 1976. A severely neglected and abused child with serious mental problems, Trina was only 14 when she was arrested for setting a fire that killed two boys, on an impoverished block in the Philadelphia suburb of Chester. Represented by a pitifully inadequate attorney who was later disbarred, Trina was convicted and given two life without parole sentences. The judge, bound by the state’s mandatory sentencing statutes, called the case “one of the saddest I’ve ever seen involving a juvenile.”
On June 25, in Miller v. Alabama, the Supreme Court struck down such punishments, ruling that mandatory sentences of life without parole for juveniles are cruel and unusual, in violation of the Eighth Amendment. In a 5-4 decision written by Justice Elena Kagan, the Court held that “such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it.” Such characteristics include the recklessness, immaturity and underdeveloped sense of consequences that common sense suggests—and science confirms—define all teenagers. What’s more, Kagan noted, mandatory sentences leave no room to consider the basic distinguishing features of a given case. “Under these schemes,” she wrote, “every juvenile will receive the same sentence as every other—the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one. And still worse, each juvenile…will receive the same sentence as the vast majority of adults committing similar homicide offenses.”
The decision leaned heavily on recent Court precedent. In 2005 Roper v. Simmons banned the death penalty for juveniles based on the vast neurological differences between teens and adults, which render the former less culpable and thus “less deserving of the most severe punishments.” The same logic led the Court in 2010 to forbid life without parole for teens who commit nonhomicide offenses. That ruling, in Graham v. Florida, drew parallels between the death penalty and life without parole, which were cited by Kagan in Miller. “In part because we viewed this ultimate penalty for juveniles as akin to the death penalty, we treated it similarly...We imposed a categorical ban on the sentence’s use, in a way unprecedented for a term of imprisonment.”
So why did the Court limit its ruling to mandatory sentences instead of banning juvenile life without parole altogether? One death penalty lawyer described this decision as “incrementalism at its very worst,” pointing out that under Miller, “it would still be OK for a jury to sentence…any 14-year-old to life in prison without the possibility of parole, as long as the jury has the option not to issue that sentence.”
But even as a limited (and split) decision, the ruling is an important rebuke to decades of zero-tolerance reforms that sought ever-harsher punishments for youth. “Adult time” for teens is largely the legacy of criminologists and politicians in the 1980s and ’90s, whose warnings that a new breed of “superpredators” would bring a wave of violent crime were not only false but rooted in racism. While Miller does not note the disproportionate impact this had on minority youth like Trina—race is not mentioned once—it reaffirms the need to treat kids as kids.
The ruling also recognizes that in an age of historically long sentences for violent crimes, at least some people who do terrible things deserve a chance to change. “This mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it,” Kagan wrote, contradicting Justice Antonin Scalia’s glib assertion during oral arguments that “I thought that modern penology has abandoned that rehabilitation thing.”
Finally, for the majority of the 2,589 people serving juvenile life without parole, the ruling’s implications are significant. As Bryan Stevenson, who argued the case before the Court, said following the decision, “Most of the kids that have been sent to life without parole were sentenced in mandatory jurisdictions.” Indeed, in Pennsylvania, which has the largest number of these prisoners, not only are such sentences mandatory for certain crimes, there is no minimum age at which a child can be tried as an adult. Kids as young as 11 have faced the prospect of dying in prison under automatic sentencing rules. Miller should change this. "We think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon," Kagan wrote. As Stevenson points out, “When you actually give judges and sentencers the discretion to impose a lower sentence involving a juvenile offender, they frequently impose it.”
In the twenty-eight states with mandatory sentencing statutes on the books, prisoners serving juvenile life without parole now have a shot at a new sentence. This will not happen automatically: the onus is on inmates—most of them ill-equipped—to seek a re-sentencing hearing. As Stevenson points out, “There are a lot of jurisdictions where there is no right to a lawyer for this kind of proceeding.” What’s more, even if a prisoner has a chance to make his or her case, there’s no guarantee that he or she will not be given the same punishment—or a similarly harsh one.
For hundreds of others sentenced under non-mandatory statutes, the future is even less certain. This includes some 300 inmates in California, where legislative efforts to abolish juvenile life without parole have repeatedly failed. Still, Stevenson is optimistic that even those states will be forced to re-examine their sentencing practices. “I think the Eighth Amendment would require that kind of review.”
For now, Stevenson and his organization, the Equal Justice Initiative (EJI), will work to secure counsel for prisoners affected by the ruling, some of whom “have been waiting for decades for the opportunity to have their sentences reconsidered.” While he says “a fair review is much more important than a quick review,” he acknowledges that “it’s difficult, when you feel you’ve been wrongly sentenced, to remain patient.”
In Trina’s case, time is not on her side. Thirty-five years after being locked away, she suffers from multiple sclerosis and can no longer walk. Her family is increasingly concerned about her declining health and the inadequate medical care she gets in prison. But she is fortunate to be represented by EJI lawyer Jacqueline Jones-Peace, who will seek a new sentence, as well as a family eager to welcome her home should she be freed. Reached at her home near Chester hours after the ruling, Trina’s sister Linda was overwhelmed with emotion. She called the decision “a miracle.”
“Words cannot express how we feel right now,” she said. “We are so grateful.” She is particularly grateful to EJI for seeking out her sister and taking her case. And she is grateful to those who read about Trina after all these years. “As children,” she said, “we didn’t have a chance to speak out. We didn’t have a chance to tell our story.”
Kuntrell Jackson. Courtesy: Arkansas Department of Correction.
“A throwaway person.” That’s how Supreme Court Justice Ruth Bader Ginsberg characterized the societal status of a 14-year-old who is sentenced to life without parole, as oral arguments in Jackson v. Hobbs wound down on Tuesday. She was responding to the claim by Little Rock Assistant Attorney General Kent Holt, representing the Arkansas Department of Corrections, that condemning a teenager to die in prison for murder “reinforces the sanctity of human life.”
“You say the sanctity of human life,” Ginsburg pushed back, “but you’re dealing with a 14-year-old being sentenced to life in prison, so he will die in prison without any hope.” In other words, aren’t kids’ lives still worth something even when they’ve committed a grievous wrong?
This was the fundamental question before the Court as it heard arguments in Jackson v. Hobbs and Miller v. Alabama, which were argued back-to-back. Civil rights attorney Bryan Stevenson believes they are; representing defendants in both cases, he stressed that teenagers are works in progress, and cannot possibly be judged in the same way as adults. Not only does science back this up—teenagers’ brains are still developing, particularly the parts that affect judgement and impulse—the Court itself has concluded the same thing in such cases as Roper v. Simmons, which struck down the death penalty for children under eighteen on Eighth Amendment grounds. “What this Court has said is that children are uniquely more than their worst act,” Stevenson argued.
Holt disagreed with Ginsberg that sentencing a teenager to life without parole necessarily robs them of “hope,” offering that the prisoner in question “has made efforts to obtain his GED” and “has taken anger management classes,” while saying nothing about how such things might meaningfully serve him when he has no chance of release—or even review by a parole board.
The prisoner in question is no longer a child. Sentenced in 2003, the now 26-year-old Kuntrell Jackson was convicted of felony murder and aggravated robbery for a 1999 crime that occurred when he was just 14. Now living in a maximum security prison in Tucker, Arkansas, Jackson did not pull the trigger that led to the victim’s death. Nor was there evidence that he planned for—or even anticipated—that a murder would occur. Rather, Jackson, his fourteen year-old cousin, and a 15-year-old friend, Derrick Shields, decided while hanging out in the Chickasaw Courts housing projects in the town of Blytheville, Arkansas, that they would rob a video store. Shields was carrying a sawed-off shotgun and killed store clerk Laurie Troup when she refused to give him the money in the cash register.
Jackson was tried as an adult and given life without parole, the same sentence given to Shields. Even if he did not plan for a murder to occur, the state concluded, the fact that Jackson knew Shields had a gun made him guilty of “reckless indifference” to human life. In Arkansas, as in several states, life without parole is a mandatory sentence for such felony murder cases. This meant that Jackson’s age, lack of maturity or potential for rehabilitation could not be considered, even if the judge had wanted to.
As with capital cases where defendants are sentenced to death for an indirect role in a murder, some Americans might be surprised to learn that such a young teenager, indirectly involved in a homicide, could face so permanent a sentence. Indeed, the United States is virtually unique in the world in sentencing such children to die in prison, a fact that has much to do with states’ mandatory sentencing statutes and laws passed in the 1980s and ’90s allowing children to be tried as adults—a trend that was largely rooted in racist (and since discredited) rhetoric about juvenile “superpredators.” It is no coincidence that 70 percent of the prisoners serving life without parole sentences today for crimes committed at 13 or 14 are youth of color.
Mandatory sentencing was a constant theme throughout Tuesday’s oral arguments. The fact that the vast majority of teenagers sentenced to life without parole are sentenced under such statutes seemed to trouble Justice Kennedy, who asked: “Just as the death penalty is unique for anyone and therefore requires mitigating elements, isn’t life without parole special enough for an adolescent that you have to let him at least make any mitigating arguments he wants?”
And Justice Breyer, suggesting that a person who “aided” a homicide is less culpable than a person who actually committed it, asked, “What is the argument for not allowing a judge or a jury, at least to think about that question, before…imposing mandatory life without parole?”
One outcome in Miller and Jackson, which will be decided by early summer, could be that the Supreme Court will strike down all mandatory sentences of life without parole on juveniles—which would have a major impact on sentencing practices across the country. Another possibility is that the justices will strike down life without parole for children 14 and younger, given in part their rarity (only seventy-nine such prisoners exist)
But as Stevenson argued, the Court’s own legal logic should inform a broader ruling, striking down life without parole sentences for all offenders under the age of 18, regardless of their crime. In Roper, after all, the Court ruled that “it would be misguided to equate the failings of a minor with those of an adult,” even in murder cases, partly because “the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.” And in Graham v. Florida, the precursor to Jackson and Miller, the Court used the similar logic to rule that juveniles’ comparative lack of judgement should preclude them from being sentenced to die in prison for non-homicide crimes.
But as Stevenson repeatedly reminded the Court, “these deficits in judgment are not crime-specific. The person who intends to kill doesn’t actually have any better judgment, any more character, any more maturity, any more impulse control than the person who doesn’t.”
For the attorneys representing the states, the best defense for tossing kids in prison and throwing away the key comes back to the crime. Unlike in Jackson, the defendant in Miller did commit a (grisly) homicide, beating a man with a bat and setting fire to his trailer. “Society’s primary goal here…is expressing the retributive judgment about the wrongfulness of murder,” argued John Neiman, representing Alabama. (And anyway, remarked Justice Scalia glibly, “I thought that modern penology has abandoned that rehabilitation thing.”)
So which is more important? The nature of the crime? Or the nature of juveniles? The Court’s decision will hinge on this question. As attorney David L. Hudson wrote in a legal analysis: "Ultimately, this case may come down to which ‘difference’ is more important—death or children."
For more on Miller and Jackson, see “Why Life Without Parole Is Wrong For Juveniles,” by Randy Hertz.