Death Penalty Statement Life With the Possibility of Parole after 25 Years: A Different Approach for Massachusetts
A Statement by the Board of the Criminal Justice Policy Coalition
The Board of the Criminal Justice Policy Coalition, after several years’ consideration, is endorsing Life With the Possibility of Parole after 25 Years (LWPPA25) as the appropriate maximum sentence to be given to those convicted of any crime, including first-degree murder. Currently the Commonwealth imposes the sentence of Life Without Parole (LWOP) as the maximum sentence for those convicted of first-degree murder. The CJPC opposes LWOP as it does the Death Penalty, viewing both sentences as antithetical to a criminal justice policy based on restorative principles.
Many people believe that those convicted of first-degree murder are too dangerous ever to consider releasing them from prison. Some people are convinced that a life sentence is harsher than execution and is therefore appropriate for individuals convicted of the most heinous crimes. Others, opposed to execution, worry that pushing for a lesser sentence than LWOP will give support to those seeking reinstitution of the death penalty in Massachusetts; death penalty opponents frequently justify their opposition by saying, “We don’t need it – we have life without parole.” The CJPC does not dismiss those concerns; we are horrified and saddened by acts of murder, and we continue to seek ways of eradicating the conditions which lead to such acts. In suggesting the proposed maximum sentence of LWPPA25 the CJPC does not dispute that some offenders remain too dangerous ever to be let out of prison; rather we disagree on who is to make that judgment, when the judgment is to be made, and the wisdom of that judgment being final.
Currently in Massachusetts, all first-degree murder convictions mandate a LWOP sentence. This includes increasingly younger offenders as more and more youth are subject to adult court rather than juvenile court for violent crimes. (The CJPC acknowledges serious reservations about these changes.) In addition, many convictions are of offenders whose judgment was impaired through substance abuse. Finally, and perhaps most important, the indictment is wholly in the hands of elected district attorneys, who may choose to seek first- or second-degree murder (second-degree murder conviction requires Life With the Possibility of Parole after 15 Years) or indeed a manslaughter conviction (manslaughter conviction sentence is no more than 20 years) based not so much on the particulars of the crime but rather on the probability of conviction, as well as on factors based on the individual prosecutor’s experiences. Two different prosecutors may determine that different charges are appropriate for the identical crime and identical suspect. Frequently in felony murder cases involving two or more individuals, the difference between who is charged with a first-degree murder as opposed to second-degree murder is determined by which suspect pleads guilty first and agrees to testify against his/her accomplice(s). This occasionally means that the one who actually committed the murder is only convicted of second-degree murder. Meanwhile the accomplice, who may not have brought a weapon to the crime scene and had no intention of a murder being committed, is sentenced to LWOP under a first-degree conviction.
Determining which offenders have undergone a transformation and are safe to release, and which individuals remain unreformed is not an easy task. Certainly a jury and judge are not capable of foretelling what changes may occur in individuals over the course of many years; it is unrealistic and even irresponsible to expect such clairvoyance from anyone. These determinations need to be made after a period of time, allowing such damaged individuals the ongoing opportunity to make necessary changes to themselves, and where possible to provide reparations to those they have injured. Murder victims’ survivors have a role to play in these determinations if they so choose. So do the disciplines of psychiatry and psychology, religion, art and literature. It is imperative that we work toward making our prisons truly houses of healing, wherein all prisoners have continuing opportunities to change themselves in order to become contributing members of the whole community.
Some people believe that LWOP needs to be retained as an ultimate penalty but available for a narrower class of offenders. Any attempt to preserve LWOP by narrowing the class of first degree offenses through limiting the conditions required to be present (premeditated and with malice aforethought) will likely fall short, ethically if not legally; such discussions will result in attempting to determine which murder is more heinous, or which victim is more important. Such an attempt would also depend on an absolute and universal correlation between the heinous nature of a murder or value of victim and certainty of the offender’s inability to change. How do we determine which offender is not capable of redemption or of character change? And can that judgment be accurately made without error today, and with clear knowledge that nothing can or will change any one particular imprisoned offender tomorrow? What are the bases for that evaluation? And how could we codify necessary restrictions such that LWOP would be available only against those few expected to be incapable of future change? In addition, given the discretion that prosecutors must have, there are serious questions about whether legislative attempts to narrow a class of offenders subject to certain penalties can stand against understandable pressure on prosecutors to respond to public calls for harsh sentences, and therefore define the crime to fit available punishments. Only by excising the natural life sentence can we begin to ensure a process of evaluating the productivity of time spent in prison, when appropriate, for those convicted of first-degree murder and/or of other heinous crimes.
Will mistaken judgments result in the release of some unreformed and therefore dangerous individuals? Possibly the answer is yes. No part of the criminal justice system is perfect, nor will it ever be. More to the point, because of prosecutorial discretion, it is incorrect to assume that the most violent and dangerous persons always receive the harshest sentences. Additionally, current conditions in our prisons increase the tendency towards violence in many prisoners, including those serving shorter terms for offenses not involving murder; many inmates do get released without having come to understand the true impact of their violence. The response to these problems lies in the training and expectations of prosecutors, a reconsideration of prison conditions, and post-release supervision and assistance.
On the other hand, as a class, those convicted of murder have a lower recidivism rate than do other classes of violent criminals. This may be partly because they are not released until advanced ages because of the long sentences they serve. It may also be because most of them are aware of the horrible consequences of their criminal acts not only on the victim and for his/her family and friends, but also for their own family and friends. Further, supervision for those on parole, which for those convicted of murder, would likely be extensive, ensuring that those the parole board deemed rehabilitated would be given the assistance needed to continue with the changes made.
If society is determined to confront violence and to work for the lessening of that scourge, we will need to commit greater resources to building community and equal access across the divides of race, class, sex and gender identification. The CJPC acknowledges the important role required of society to protect the many from violent actions of the few. Personal security for all is foremost among our responsibilities and occasionally we must separate those who commit violence from the community. However, we will need to acknowledge the truth that each of us is more than our worst actions, and that everyone is given the right to work continually toward healing the damage that each of us does.
In working towards elimination of LWOP citizens should not wait for other changes suggested above to occur. Improvements of the conditions of confinement and post-release supervision have always been subject to the whims of the political leadership and/or the prevailing political climate. Instead, serious consideration of LWPPA25 may help encourage discussions and the changes alluded to in the preceding paragraphs, perhaps even a change in the goals for our criminal justice system. A review of the goals and tools and composition of the parole board is certainly included.
In the end, our state needs to determine what prisons or “houses of correction” are about. Are they about vengeance and inflicting pain, and psychological and physical torture? Or should they be about public safety and correction, healing, rehabilitation and the possibility of redemption? If the latter, mandatory LWOP as well as the death penalty has no place in our criminal justice system.