Humane Criminal Justice Is Not Hopeless

Pope Francis concluded his historic first visit to the United States on Sunday, spending most of his final few hours with women and men imprisoned at Philadelphia’s Curran-Fromhold Correctional Facility and putting an exclamation mark on a central theme of his visit: the need to infuse more dignity and hope into America’s criminal justice system.

Last week, during his address to Congress, Pope Francis called for “global abolition of the death penalty,” because “every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes.” The pope’s address also criticized life without parole sentences, offering “encouragement to those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation.”

Here’s a sentence I never thought I would write: Much of the pope’s sermon to America on the need to curb our corrosive penal excess echoes themes emerging from the Supreme Court, particularly its recent cruel and unusual punishment jurisprudence. Indeed, Pope Francis’ homily on dignity and hope must have struck a familiar cord with Justice Anthony Kennedy, who was sitting in the audience during the address.

“When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint,” Kennedy wrote in a 2008 opinion barring the death penalty for nonhomicide offenses. In another recent death penalty case, Kennedy reiterated that death is an excessive punishment for intellectually disabled offenders, because “to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being.” Kennedy wrote for the court in a 2010 decision that barred the imposition of life without parole on juvenile offenders who commit a nonhomicide offense: “Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.”

Both Pope Francis and Justice Kennedy have expressed deep concern about prison conditions, and solitary confinement in particular. Last year, in a speech at the Vatican, Pope Francis referred to solitary confinement as a “genuine surplus of pain that is added to the suffering of detention.” He deplored the “paranoia, anxiety, depression,” and elevated “chances of suicide” that such isolation entails. Kennedy, in testimony to Congress last year, said: “Solitary confinement literally drives men mad.” This year, Kennedy wrote in a separate concurring opinion that because “years on end of near-total isolation exact a terrible price, the judiciary may be required” to place limits on the use of solitary confinement.

That the judiciary would intervene to eradicate excessive punishment or to alleviate abhorrent prison conditions was an empty promise until very recently. Courts are supposed to step in to ensure, as Kennedy wrote, “moderation or restraint” in punishment. In other words, the judiciary has an obligation to protect us from undue government coercion—whether it be an excessively long sentence or inhumane prison conditions, the punishment and its administration must meaningfully serve a legitimate objective of punishment, or else it’s unconstitutionally excessive.

Justice Harlan Stone, writing in the 1938 case of United States v. Carolene Products, explained that courts might have to intervene to invalidate excessive punishments because the “political processes ordinarily to be relied upon to protect minorities” often falter when it comes to laws that target “discrete and insular minorities.” As Justice William Brennan put the point, especially in times of public panic over real or perceived crime spikes: “Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society’s demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life.”

And so it was as violent crime spiked in the 1980s and ’90s and the public panicked. The ghost of Willie Horton, a man who committed murder while on a work furlough from a Massachusetts prison, propelled states to curb or eliminate parole. The death of college basketball star Len Bias from a cocaine overdose triggered brutally tough punishments for possessing or selling crack cocaine. The murder of young Polly Klaas in California spawned the passage of so-called three strikes laws across the country. The traditional media added fuel to the fire, spreading panic like a virus through our television sets and newspapers. Politicians, too, exploited fear for political gain by, for example, labeling as “soft on crime” anyone foolish enough to consider humane sentencing practices.

The Supreme Court did little to slow down the excessively punitive trajectory. In 1989, the court affirmed the constitutionality of the death penalty for both intellectually disabled and juvenile offenders. In 1991, near the height of the war on drugs, the court affirmed a life without parole sentence for a Michigan man convicted of possessing “more than 650 grams of cocaine” even though the jury in that case—and in most life without parole cases—had no opportunity to consider “the particularized circumstances of the crime and of the criminal.” In 2003, the Supreme Court upheld two California “three strikes” cases each involving a sentence of 25 years to life—in one case the defendant was convicted of “stealing three golf clubs, worth $399 apiece” while the other case involved a man who “stole approximately $150 worth of videotapes.”

Times are finally changing. This convergence between Pope Francis’ call for a more humane justice system and the Supreme Court’s increasingly robust role in policing penal excess reflects more than shared values. The pope’s sermon, like the court’s revitalization of its cruel and unusual punishments jurisprudence, tapped into a growing national dissatisfaction with the penal extravagance that shaped criminal justice over the past three decades.

In 2010, Congress passed a bill eliminating the egregious sentencing disparities between crack and powdered cocaine. In 2012, a California ballot measure to repeal the 1990s era three strikes law passed with a whopping 69 percent of the vote. Nine states in three years have abolished life without parole for juveniles who commit murder, meaning that these young offenders will have the opportunity to try to convince a parole board that they have transformed their lives and are fit to re-enter society. 

Earlier this year, a Republican-led Legislature in Nebraska repealed the state’s death penalty, becoming the seventh state in eight years to do so. Applause erupted from corners of the congressional floor when Pope Francis called for the abolition of the death penalty last week. Later that day, in response to the pope’s message, Newt Gingrich (who infamously suggested capital punishment for marijuana offenses) said that he was “more open” to ending the death penalty. In a speech at Rhodes College in Memphis, Tennessee, Justice Antonin Scalia said that four of his colleagues on the Supreme Court believe that the death penalty is unconstitutional and that he “wouldn’t be surprised” if the court ultimately holds that the death penalty is a cruel and unusual punishment.

The Supreme Court is changing, too. Reversing its 1989 decisions, the court barred the death penalty for both juvenile and intellectually disabled offenders. It also held that the death penalty is an excessive punishment for nonhomicide offenses. In 2010, the court held that juveniles who commit nonhomicide offenses couldn’t be sentenced to life without the possibility of parole. Two years later, the court invalidated mandatory life without parole for juveniles who commit murder, meaning that jurors must be given the opportunity to consider the circumstances of the offense and the background and characteristics of the teenage offender.

But the Supreme Court has only just begun to fulfill its rightful role.

Though most jurisdictions have abandoned the death penalty in law or practice, this punishment is the symbolic crown jewel of a criminal justice system that degrades dignity and rejects the possibility of redemption. Justice Stephen Breyer explained in his recent dissent in Glossip v. Gross, “the number of active death penalty counties is small and getting smaller.” Indeed, of the 3,143 county or county equivalents in the United States, “only 15 counties imposed five or more death sentences”—an average of one per year—since 2010. This shows that the death penalty is unusual, and looking closely at the people whom we ultimately execute also shows that it is cruel.

Take just this week, for example:

No. 1: On Tuesday, Georgia is scheduled to execute Kelly Gissendaner, a woman who persuaded her lover to kill her husband. Gissendaner has mentored despondent prisoners, people who when released became productive members of society, including those who are now social workers and literacy teachers. “Kelly is the poster child for redemption,” one of those women said. “Killing Kelly is essentially killing hope.”

Gissendaner’s case has parallels to the case of Karla Faye Tucker, a drug-addicted woman who became a born-again Christian while on Texas’ death row. A spokesman for the National Association of Evangelicals called Tucker “a woman of such obvious spiritual change.” Conservative minister Pat Robertson reminded then-Gov. George W. Bush that “any justice system that is worthy of the name must have room for mercy.” Robertson said that executing Tucker would be “more an act of vengeance than it is appropriate justice.” Texas executed her anyway.

In 2005, California executed Stanley Tookie Williams, one of the co-founders of the Crips street gang. During his incarceration on death row, Williams became an anti-gang activist, helped to create a peace protocol between the Bloods and the Crips, and authored children’s books on the perils of gang violence. He was nominated for the Nobel Peace Prize five times. As Bryan Robinson wrote, Williams’ supporters thought that his “execution would extinguish the hopes of imprisoned gang members considering reform, telling them that no one, no matter what they do to change their ways, is worth saving— that there is no mercy for the reformed.”

No. 2: On Wednesday, Oklahoma is scheduled to execute Richard Glossip. Justin Sneed confessed to the murder of Barry Van Treese, a motel owner for whom Glossip and Sneed both worked. However, police inserted the idea that Glossip ordered the killing and offered to not pursue the death penalty against Sneed if he testified against Glossip. Justin Sneed then changed his story. Recently, Sneed’s daughter wrote a letter to the Oklahoma Pardon and Parole Board, stating that her father acted alone in killing Van Treese and that he refused to recant his trial testimony out of fear that the district attorney would still pursue a death sentence against him.

A former cellmate of Sneed’s saw news of Glossip’s pending execution, performed a Google search to identify Glossip’s lawyers, and then wrote in an affidavit that Sneed claimed to have acted alone. Another cellmate of Sneed’s, Michael Scott, claims to have overheard Sneed boasting about how he framed Glossip. Scott wrote in an affidavit: “Among all the inmates, it was common knowledge that Justin Sneed lied and sold Richard Glossip up the river.” In what Glossip’s lawyers say is witness intimidation, both of these men were arrested for minor probation violations after they came forward.

If he is innocent, Glossip’s death sentence would hardly be unique. A recent study demonstrates that 1 in 25 death sentences nationally involves the conviction of an innocent person. Since 1973, 155 wrongfully convicted women and men have been exonerated from death row. Post-conviction DNA testing alone has led to the release of 20 condemned prisoners.

No. 3: On Thursday, Virginia is scheduled to execute Alfredo Prieto, who “for the last seven years … has spent 23 hours or more every day alone in a 71-square-foot cell.” His case exhibits a common theme of long-term solitary confinement—many people exposed to this form of torture are among our most vulnerable, including juveniles and people with severe mental illness and other disabilities.

More than almost any other, though, Prieto’s case exemplifies the need for the Supreme Court to enforce the principle that the justice system should exercise restraint in the face of an undoubtedly brutal crime. Prieto committed multiple horrific crimes, including rape and murder. However, regardless of the severity of the offense, the Eighth Amendment permits the execution only of offenders with extreme personal culpability. Prieto is intellectually disabled. He has IQ test scores of 64, 66, and 73. In a letter urging Gov. Terry McAuliffe to stop Prieto’s execution, the Virginia Chapter of the Association for Retarded Citizens wrote: “We believe that allowing Mr. Prieto’s execution to go forward on the evidence as it stands is unjustified scientifically and would endorse a misunderstanding of intellectual disabilities.”

Prieto is hardly unique among recently executed offenders. I co-authored a report that examined the cases of 100 recently executed offenders and found that the vast majority of those executed fall into one or more of the following categories: “intellectually impaired, too young to buy a beer, severely mentally ill, or chronically abused as children.” As Charles Ogletree of Harvard Law School concluded, “severe functional deficits are the rule not the exception among the individuals who populate the nation’s death rows.”

So far in 2015, as David Menschel reports:

• “Georgia executed Andrew Brannan, an Army veteran who developed PTSD while earning a bronze star in Vietnam.”
• Georgia also executed Warren Hill. “All of the doctors who examined Hill—including three who testified for state—eventually conceded Hill was mentally retarded.”
• Texas executed Robert Ladd, despite compelling evidence of intellectual disability. “Though Ladd had an IQ of 67, Texas said that he did not sufficiently prove that he is mentally retarded.”
• Texas executed Kent Sprouse, a drug-addicted man who suffered from paranoid delusions.
• Missouri executed Cecil Clayton, “a 74-year-old man with severe brain damage. Clayton was left severely disabled by a sawmill accident in which he lost 20 percent of the frontal lobe of his brain.”*

A restrained justice system does not execute people like Kelly Gissendaner, Richard Glossip, and Alfredo Prieto.

* * *

Even if the death penalty ended tomorrow, the Pope’s admonition that “a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation” would remain valid. There may be room for disagreement about the cruelty of life without parole sentences in general. But there are people serving these more accurately named “death in prison” sentences for whom the hopelessness of the punishment is patently excessive.

Death in prison sentences for children who commit homicide offenses are one example.  In the 1990s, academics and politicians peddled the racist and disproven idea that urban youth represented “a new generation of street criminals [that] is upon us—the youngest, biggest, and baddest generation any society has ever known.” This morally bankrupt idea caused a public panic that helped ratchet up punishment on kids. This month, a report issued by the Phillips Black Project documented that, “although JLWOP [juvenile life without parole] dramatically expanded between 1992 and 1999—an era of hysteria over juvenile superpredators,” today the nation has “rapidly abandoned JLWOP in law and practice.” Indeed, similar to the isolated use of capital punishment, the sentence today is concentrated in a handful of outlier counties. Though the precise figure is hard to pin down, Philadelphia County alone accounts for nearly 10 percent of the national total of juvenile life without parole sentences.

Next month, in Montgomery v. Louisiana, the Supreme Court will hear arguments on whether its earlier decision barring mandatory life without parole for children who commit murder applies retroactively to those sentenced before the court issued its decision. Pending before the court, though, are two additional petitions—one from Michigan and one from Louisiana—that ask the court to declare death in prison sentences unconstitutional for juvenile offenders who commit murder. The point is not that every teenager who commits a homicide will eventually be released, but instead that it is impossible to know at the time of the trial whether any particular juvenile offender will eventually transform his life so much so that he is fit to re-enter society. In short, then, ending juvenile life without parole means only that every child has the possibility of redemption and the hope of release.

Personal transformation is not an abstract idea. Where given hope and a chance, kids who were in prison for homicide have changed themselves. Consider, for example, George Toca, sentenced to mandatory life without the possibility of parole in Louisiana. In a filing to the U.S. Supreme Court, Louisiana argued that Toca should never have an opportunity for release from prison. However, once the Supreme Court decided to hear his case, the state decided Toca was “no longer a public safety risk” and agreed to his immediate release in exchange for his agreement to waive his appeal (presumably because if the state lost the case in the Supreme Court, it would have to provide an opportunity for other juveniles to try to prove that they have transformed their lives). Since his release, roughly three decades after being sentenced to die in prison, Toca obtained a job and then started a small business.

One of the most serious obstacles to curbing penal excess is the artificial line that the Supreme Court has drawn between sentences it has addressed, such as some death penalty and juvenile life without parole cases, and all other forms of excessive punishment. It is now time for the Supreme Court to alter the miserly approach to regulating excessive sentences that it took in Harmelin (the Michigan cocaine possession case), Andrade (the $150 videotapes case), and Ewing (the golf clubs case).

“Maturity can lead to that considered reflection which is the foundation for remorse, renewal, and rehabilitation,” Justice Kennedy wrote in Graham, the case that first curtailed the use of juvenile life without parole. Why should the possibility of redemption and rehabilitation be limited to those under the age of 18? Adults change, too, often dramatically. Addicts and alcoholics get sober. People with serious mental illness get treatment. Others transform themselves through religion or education or work. And, though less profound, most people simply age out of serious criminality.

In 2013, the American Civil Liberties Union released a report that documented the then 3,278 people serving a death in prison sentence for a nonviolent crime. Of these prisoners, nearly 80 percent were incarcerated for a drug crime. Here are a few of the crimes that led to a life without parole sentence, according to the report: “possession of a crack pipe,” “possession of a bottle cap containing a trace, unweighable amount of heroin,” possession of “a trace amount of cocaine in clothes pockets that was so minute it was invisible to the naked eye and detected only in lab tests,” and “having a single, small crack rock at home.”

Akin to how capital punishment and juvenile life without parole sentences are becoming more rare, the country is abandoning life without parole sentences for nonviolent offenders. Most states now formally prohibit such a sanction.

In a sign of the times, in July, President Barack Obama commuted the sentences of 46 nonviolent offenders, many of them sentenced to life imprisonment. However, more than 3,000 women and men will continue to languish under these extravagant sentences, until the Supreme Court holds that the Eighth Amendment, as a forthcoming law review article by Bidish Sarma and Sophie Cull concludes, “offers these offenders an opportunity to demonstrate the unconstitutionality of their punishment to the Supreme Court, which is in a position to redress these excessive sentences of a bygone era.”

* * *

Pope Francis focused his critique on the nation’s harshest sentences. During his visit to the Philadelphia jail, however, he mostly met people awaiting trial. Some of them are in jail, separated from their families, communities, and jobs, because of a couple of hundred dollars’ worth of fines or fees that they cannot afford to pay. The Eighth Amendment applies not only to cruel and unusual punishments but also to “excessive fines.” The judiciary pays virtually no attention to the exorbitant fines and fees that tie citizens, especially those in poverty, to the criminal justice system.

In the wake of the civil unrest in Ferguson, Missouri, in 2014, Joseph Shapiro reported: “In 2013, the municipal court in Ferguson—a city of 21,135 people—issued 32,975 arrest warrants for nonviolent offenses, mostly driving violations.” These offenses are often resolved by payment of court costs and a fine; however, the debt is often unmanageable for many impoverished residents. Shapiro profiled one woman, Ebony, who owed $2,000 in fines and fees. She explained that she had previously been arrested for failure to pay her fines, including “just two weeks after she had given birth” and despite the fact that her “lawyer was calling and saying that I’m under doctor’s care, I just had a baby.”

In Georgia, the Southern Center for Human Rights recently represented a woman, Ora Lee Hurley, who had been imprisoned for almost 12 months “due to her inability to pay a $705 fine from a 15-year-old drug conviction.” Even though Hurley worked “full-time at a restaurant that sent her paycheck directly to the Department of Corrections,” the department charged her a daily fee that “took nearly every penny of her earnings.” As the Southern Center for Human Rights said in connection with a lawsuit against the Department of Corrections: “Left with only $23 per month to buy food, toiletries, and pay her fine, Ms. Hurley was being confined in perpetuity.”

These fines and fees serve no legitimate objective of punishment. They simply strip the dignity from the people buried under them and eradicate their hope for a brighter future. These fines and fees are every bit as emblematic of an extravagantly punitive justice system as life without parole sentences or the death penalty.

Pope Francis’ first visit to the United States came at a time when the desire for a more humane criminal justice system has reached an inflection point. We see it in legislative proclamations, in the charging practices of prosecutors, and the verdicts of juries. But we also must know that we are not immune to another era of moral panic like the one that drove the punitive turn in American criminal justice during the 1980s and ’90s. That’s why we have an Eighth Amendment and a judiciary to enforce it. Courts, especially the U.S. Supreme Court, failed to fulfill their constitutional obligation to curb excessive punishments at the end of the 20^th century. Now, as America begins to come out from the other side of those decades of misery and suffering, it is important for all of us—and especially the justices who occupy the highest court of the land—to remember, as Justice Kennedy put it, “The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.” That’s a homily that even the pope might find inspiring.

*Correction, Sept. 29, 2015: This article originally misidentified Cecil Clayton as Clayton Lockett.