The Other Death Sentence

Pennsylvania has over 5,400 men and women condemned to serving life sentences without the possibility of parole—death by incarceration. Prior to September 2012, there were even more. But thanks to the United States Supreme Court’s recognition of the evolving standards of decency, the Justices ruled that it was cruel and unusual punishment to condemn a child to serve a mandatory life without parole prison sentence. See: MILLER v. ALABAMA 132 s.cr. 2455 (2012).   This case hopefully will provide 500 human beings who were convicted when they were children a second opportunity at living productive lives.

But there still remain 4,900 men and women condemned to death by incarceration. Pennsylvania does not now nor has it ever had parole for men and women condemned to die in prison. The framers of the Pennsylvania Constitution in their infinite wisdom realized that to condemn a human being to a Life-Without-Parole prison sentence is to kill the human spirit and destroy any and all human possibilities and potential. In order to avoid institutionalizing hopelessness, the framers of the Pennsylvania Constitution provided a mechanism allowing human beings to demonstrate qualities expressing their transformation, such as: a contrite understanding of their negative and destructive actions and the impact their decisions had on families and the suffering on the communities at large. Thus showing their diligence on improving themselves to become productive members of the community. If they were able to show that they had undergone this process through education and program compliance they could then apply to the board of pardons for commutation.  Commutation is a form of mercy that allows a human being to serve the remainder of his/her life sentence on parole. Upon applying, if a person could get a majority vote (there are five members on the board of pardons), his application would then be viewed by the sitting Governor, who would make the ultimate decision on that person’s freedom. 

In l997 this process would be forever changed, effectively shutting the door on thousands of human beings and their hopes for redemption. The rationale for this draconian measure was one man–Reginald Macfadden. After being incarcerated for twenty-five years for the rape and murder of a elderly woman, in 1995 Macfadden’s life sentence was commuted. At the time of his release the prisoners who knew him were shocked. After all, it wasn’t a secret that Reginald Macfadden was mentally disturbed. But what they didn’t know was the fact that,what facilitated Macfadden’s release was his cooperation in the successful prosecution of a prison assault case during the Camphill prison riot. Desperate for a conviction, the authorities made a deal with a man who they knew hadn’t been rehabilitated. Sufficient to say that not long after Macfadden’s release he raped dn murdered two more elderly women. 

In the Pennsylvania governor’s race of 1995, this one tragic event became highly politicized. Tom Ridge was able to defeat then-Lieutenant Governor Mark Single. Mark Single sat on the board of pardons and voted for Macfadden’s commutation. Tom Ridge used that vote against him and promised to keep Pennsylvanians safe by keeping the “MURDERERS” behind bars forever. Out of all the promises made during this gubernatorial campaign season, this was one promise that was kept. Ridge won the election and once in office, he immediately went to work making good on his promise. The first thing that he did was put a halt to all commutations, even the ones that were granted. The next thing he did was put a ballot question before the Pennsylvania voters that would amend the Pennsylvania Constitution’s commutation process. With a low voter turnout, Governor Ridge was successful. The Constitutional Amendment was prepared in 1995 and in 1997 it was voted into law. A special session was called by Governor Ridge, No, 1 section 9. The ballot question stated: 

This amendment would make it virtually impossible for anyone who was condemned to a life sentence to have his/her life sentence commuted. It also magnified a system that made justice expendable. Litigation went on for eleven years, and the condemned lost in the Third Circuit: See PA. Prison Society V. Cortez, 508 F.3d 156 (3rd cir 2007).   The case was sent back to the lower court, and the condemned once again appealed to the Third Circuit and lost on the merits. The court held that the constitutional right of those sentenced to life-without- parole were not violated by the 1997 Amendment.

With the avenue of commutation effectively shut down, the intent of the framers of the Pennsylvania Constitution, to avoid institutionalizing hopelessness, has been negated and as a result thousands of men and women are being held to account for the actions of one man–Reginald Macfadden. Hopelessness has become a contagion infecting the entire Pennsylvania criminal justice system, and in the process, undermining the very ideals of repentance and redemption that the Quakers, the founders of Pennsylvania and the first penitentiary, had in mind.

As a result of this monumental struggle for parole eligibility, two years ago a group of men came together and formed a committee called Right To Redemption. We realized that parole eligibility for people convicted of murder is not a popular issue with the public. After all, we’re talking about people who have caused great loss and pain to the public: i.e., to families and communities. We are not the same individuals we were 20, 30, 40 years ago. Every human being would like the totality of who they are to be more than just their worst act. The sentence of Life Without Parole (LWOP) does not even consider the possibility of change in a person.

As the death penalty continues to lose popularity in this country the sentence of LWOP is being marketed to the public as an increasingly viable alternative. Sadly, many opponents of the death penalty have proven to be the strongest proponents of LWOP. They do not see that this sentence is just as final as the death penalty; it is America’s other death penalty. LWOP is death by incarceration, or according to some more astute minds, it is the “death penalty in sheep’s clothing.”

The Right Tb Redemption believes that to sentence someone to LWOP is to say that he or she is irredeemable. How can anyone but God determine that? We believe this systemic negation of the human capacity for redemption is a crime against humanity. Therefore we call on forces of goodwill everywhere to come together, consolidate and champion the human right to redemption and dignity in any case or circumstance; to advance the idea of forgiveness for those deemed worthy; and to help the criminal justice system and the public see the rightness of embracing the prospect of redemption over unceasing retribution.

Terrell Carter BZ-5409 SCI Graterford P.O. Box 244 Graterford, PA 19426-0244

* * * 

Tony liked math. I saw him send away for math books and teach himself calculus and trigonometry in here. Then, somehow, he got other prisoners interested and he taught them too. He always worked, Even after he lost part of his hand in the license plate factory, he got another job right away. He ran a lot too. If they let us into the yard for three hours, he’d spend every minute running. And he encouraged others to run. He bought candy bars and coffee from the prison store for prizes and sponsored races that he didn’t run in – I think so others would have a chance to win. Because if he had run, they wouldn’t have.

Ever know anybody like that? I can’t help but feel that Tony was worth something. He cared about others and he lifted spirits in here, many times, I knew him for as long as he was in prison – which was 25 years – until he hung himself in his cell earlier this year.

Tony had LWOP. He was one of about 50,000 men and women in this country (1) who have that sentence. In fact, I’m one too – I got it more than 30 years ago, not long after I left the last state boy`s homes I grew up in. Although my face doesn’t accurately represent this sentence. because two-third of those who have LWOP aren’t white people (66.4%) (2). 65% who have this sentence received it for a non-homicide offense (3), which, I’m ashamed to admit, isn’t me either. But I do know this sentence. Because it’s impossible not to know it when it’s been your experience for as long as you can remember. That’s why I want to talk about LWOP – honestly – because inside these walls it doesn’t feel like people outside are doing that.

COURTS

Our legal system defines LWOP as non-capital. In other words, no different than any other prison term. So courts uphold this sentence in ways the US Supreme Court prohibited for capital punishment more than 40 years ago. This means that LWOP can be – and is in Washington State — handed out as a mandatory sentence that neither judge nor jury have any say over. And LWOP cases don’t get the kind of representation as cases the court does recognize as capital. It’s not even close, A well-off shoplifter in this state can get better representation than a poor person facing a LWOP sentence

There’s a lot wrong with that. But the root of the problem is the hypocrisy of a legal system that holds the actions of those it judges to a different standard than it holds its own. Think about it – courts assess culpability, or weigh out the blameworthiness, of an individual by viewing their crime through the lens of intent. Right? Think about it. The intent of an individual committing a crime defines what the crime is, often it’s the difference between 1st degree and 2nd degree or a different charge altogether. It’s a fundamental principle of law. It doesn`t make sense that a sentence issued by a court isn`t viewed through the same lens, When the intent behind a sentence changes from allowing for the possible reform of an individual to his or her death in prison – when that is specifically what you send someone to prison to do, to die here – how is that sentence not fully capital?

POLITICS

Lawmakers have a different take on LWOP, In fact, it was politics that created this sentence In 1972, state legislatures across the country enacted LWOP statutes in response to a nationwide moratorium on the death penalty (4). Our state was no exception. Although this sentence was originally enacted only to be used for those who would otherwise have received the death penalty, had it been in place at the time. However, once LWOP was on the books, lawmakers expanded its use through the idea that this sentence is a way to be “tough.”

What’s wrong with this is that sentencing so many people to LWOP, without reviewing them at any point in their sentence, isn’t toughness. That’s not tough. And I don’t say that self-righteously, because I only learned it myself through the crime I committed as a young person. Not having compassion – not caring about any human being, no matter who they are, or how much you feel you’re different than them, or angry at them, or you think you hate them, or whatever – none of that is toughness. It’s ignorance

CAMPAIGN TO ABOLISH THE DEATH PENALTY

Enmeshed in politics is the national campaign to abolish the death penalty, although death penalty opponents seem to derive their understanding of LWOP from the courts because they endorse this sentence as something less than execution. Their campaign promotes LWOP as a “safe and just” alternative (5), a mercy. Maybe death penalty opponents are misled by the term “life.” I assure you, if you shared this experience with us, you would understand that LWOP is not life.  In fact, that`s exactly what it isn’t.

Promoting societal acceptance of LWOP legitimizes death in prison as a social practice and has repercussions far beyond this sentence – it supports all death in prison sentences and, frankly, frames them as a condition that isn’t so bad. Know that this kind of sentence is inhumane – it’s torture — in the eyes of the rest of the world. For that reason, the international campaign to abolish the death penalty doesn’t support it. A campaign that does support it, even in the face of such racial disparity, grates against the history in this country behind the term “abolition.”

ACADEMIA

The academic community comes the closest to understanding LWOP, Academics at least look at it objectively, They’re the ones who coined the term “warehousing” to refer to prison as it is used nowadays: packed full of people with long-term sentences with no serious system of reform or review. They describe LWOP as “exclusion” (6) (albeit. permanent), analogizing it with “banishment” (7) – a punishment from the Old World that predates incarceration. 

But academics don’t quite have it right either. The term “warehouse” isn`t accurate because a warehouse doesn’t harm or destroy what it stores, it doesn’t cause the product inside it to become less useful or compatible with society. This does.

Neither is this mere “exclusion.” Prison in the US isn`t a place where you go and merely “do time.”  There’s nothing passive about it – it’s an active, aggressive form of punishment.  You may not see this outside prison – and maybe that’s what the walls and fences around prison have come to be used for, to keep you from seeing that bad things happen to people in here as a matter of course. In reality, “doing time” is getting used to watching people be harmed and destroyed in from of you. We become hardened to it – I guess because we really don’t have any other choice – we steel ourselves against it as a means of continuing to eke out our own existence, but that doesn`t change what this is. No modern society has prisons as harmful as ours (8). And nothing is worse, or more aggressive, than being in here without hope. This isn’t “banishment.” Let’s be serious – you didn`t stick us on a ship and send us to America – that`s not what this is.

LWOP

So, what is LWOP? Not what institutions or individuals outside the experience say it is, but what is it really?

I can tell you that none of us who have this sentence got it for nothing. And because of that- because of the crime I committed as a young person – I’m not writing to advocate for or against this sentence. My intent is to relate it – to try to convey it to you – so you can decide for yourself whether or not you think a state institution should be doing this, or at least if it should do it to so many people.

The only way to even begin to understand LWOP is to imagine how you would feel if it were happening to you. Think you can do it? For anyone willing to try, let me describe for you what you would experience

LWOP is hopelessness. Every day you wonder how much closer you are to the end of your sentence. You can’t help it, because that’s a human being’s natural reaction to incarceration – to yearn to reach its end, no matter what it is. You learn to survive if you can, to exist, but it`s only a holding on, a dogged refusal to quit. It’s not because there’s a pathway in front of you down which you might walk in order to redeem yourself. In no point in this sentence are you allowed in any way to make up for the crime you committed as a young person — no matter how vast the difference between who you were at the time of the offense, and what you do or make of yourself in the decades after. Nothing is in front of you except the end point of the sentence, all you were really sent to prison to do, to die here. With no point to work toward other than your own physical expiration, your will to live invents, it tums in on itself. You feel as though you’re being crushed, as though you can’t draw in breath, as though you`re only pretending to still be alive.

LWOP is the death penalty. And when it`s happening to you, you realize you don`t have the same luxury as everyone else – the luxury of being able to pretend that that`s not what this is.

Notes

1. Ashley Nellis. “Tinkering with Life: A Look at the Inappropriateness of Life Without

Parole as an Alternative to the Death Penalty” (Washington, DC: Sentencing Project, Jan.2013),

2 Ashley Nellis and Ryan S. King, “No Exit; The Expanding Use of Life Sentences in

America” (Washington, DC: Sentencing Project, July 2009).

3. Ibid.

4. Furman v. Georgia (US Sup. Ct.. 1972).

5. Safe & Just Alternatives website (http://www.sjawa.org/get-the-tacts).

6. Sharon Dolovich, “Creating the Permanent Prisoner”,

7. Ibid.

8. Robert Ferguson. Inferno: An Anatomy of American Punishment, Harvard University

Press. 2014.

To watch Art deliver his essay to a live audience at the Concerned Lifers Organization Conference, please click here