The Lord giveth and the Lord taketh away, nowhere with more caprice than with the criminal justice system. On the plus side, there are at least a couple of good trends: a tilt from the death penalty (with serious qualifications about the "living death" alternative I discussed two weeks ago) and a move away from imprisonment for victimless crimes–as evidenced by medical marijuana laws; impending reform of the Rockefeller drug laws; and Prop 36 in California, offering treatment alternatives to prison.
On the minus side, there are some grim developments. For violent felons, sentencing laws have been getting steadily worse. There have been big increases in sentencing enhancements (time added to your "base sentence" for using a gun, having prior felony convictions, gang-related nature of the crime, hate crimes, etc.). Some of these enhancements are new; others have been around for a long time but have gotten much more punitive. (There was a heartening victory in California in November with the defeat of Prop 6, which would have increased penalties for gang-related crimes.)
Other bad trends include the growing use of solitary confinement units, the tendency to try juveniles as adults and, of course, the post-9/11 general loss of civil liberties, thanks to the ever more conservative federal judiciary. This is not to forget the vindictive sex-offender laws that have been passed in the last few years.
So the introduction of "living death"–life without the possibility of parole (LWOP)–as a sentencing option can be seen as part of the overall trend of toughening sentences for violent criminals, except when it is introduced as an alternative to the death penalty, and even here there’s a paradox: there’s much less money and access to the appeals process available in states like California to fight life imprisonment without parole, or with parole for that matter, than there is to fight the death penalty.
But the focus on LWOP tends to blur the fact that it is very hard for lifers not doing LWOP to get out on parole. Scott Handleman, an attorney in San Francisco who has spent much time representing prisoners in parole cases, has been helpful with the chastening data. In California last year, 31,051 prisoners were serving sentences of life with the possibility of parole. Of those, 8,815 have passed their "minimum eligible parole date," meaning they have served long enough to be receiving parole hearings. Of those, 6,272 had hearings on the Board of Parole’s calendar last year. (Some prisoners serving beyond their minimum eligible parole date do not get hearings in a given year because they were denied for multiple years in a prior hearing.) Only 272 lifers were found suitable for parole by the board in 2008.
Moreover, the board’s decisions in these 272 cases were subject to Governor Schwarzenegger’s review. The California governor has the power, in murder cases, to reverse the board’s ruling and take away the parole date. For other life-sentence crimes, he can order the board to reconsider its decision. So only a fraction of those whose parole cases got reviewed were actually released to the streets. In 2007 the board found 172 lifers suitable for parole; Governor Schwarzenegger reversed 115 of those decisions, referred eighteen back to the board for reconsideration, modified two and let stand only thirty-seven. That means in 2007 somewhere between thirty-seven and fifty-seven life-term prisoners got out of prison in the whole state of California. Out of the roughly 30,000 prisoners who were serving sentences of life with the possibility of parole in 2007, somewhere around 0.1 percent to 0.2 percent were released. Last year the situation improved very slightly, thanks in part to a Supreme Court of California ruling that parole cannot be denied forever.
There’s a popular conception, nourished by the shock jocks on talk-radio, that people doing life sentences get put back on the streets by way of a revolving door, Willie Horton style. In fact, release for lifers is a rare phenomenon.
That being the case, what is the point of introducing LWOP as a sentencing alternative? What LWOP means is that for convicted murdurers who would otherwise get life with parole, often at very young ages, and who redeem themselves through rehabilitative efforts, even the remotest possibility of release will never become available. The hopelessness that comes with an LWOP sentence is a heavy psychological burden to bear. According to the Equal Justice Initiative, at least seventy-three inmates–most of whom are minorities–are serving LWOP for crimes committed at age 13 or 14.
It’s expensive running an ever-expanding gulag. State after state is finding that herding the dangerous classes into prison with tools such as the Rockefeller drug laws and throwing away the key for decades or forever by nonnegotiable mandatory minimum sentencing costs too much. But then there’s the problem: what to do about the prison unions and the towns (like many in New York) that survive economically only because of prison jobs, where the prison population is greater than the population of free people, and the free people love it because, apart from the jobs keeping their kids from fleeing the postindustrial or post-ag wasteland, the prisoners count in the census, giving these towns and regions more representation in statehouses, hence more political power, than they deserve.
Shades of Gogol, who was born 200 years ago this year. The motor of his great novel is the economic use of "dead souls"–deceased serfs listed by the state as assets of the landlords. The novel’s central character, Chichikov, goes around buying them up. New York State could take Gogol’s hint and start auctioning its "living dead" as income generators to other states in need. Looking at our criminal justice system here, Gogol would surely use the line carved on his gravestone: "And I shall laugh my bitter laugh."
