Renna Ayyash
Seeking to continue the success of last session’s Criminal Justice Reform Act, St. 2018, c. 69, a number of currently proposed legislative bills aim to reprioritize rehabilitation, rather than punishment, in the Massachusetts’s prison system. The specific focus of this entry will be on An Act to Reduce Mass Incarceration, S.D. 533/H.D. 154, which would abolish the sentence of life without parole (LWOP), a sentence more than one in ten Massachusetts’ prisoners are serving. Ashley Nellis, Still Life: America’s Increasing Use of Life and Long-Term Sentences, The Sentencing Project (May 3, 2017). As this article hopes to illustrate, this proposed bill should be seriously considered for both pecuniary and financial reasons.
Pecuniary Reasons to Oppose LWOP
The four traditional justifications for imprisonment are deterrence, incapacitation, rehabilitation, and retribution. See Ewing v. California, 538 U.S. 11, 25 (2003). None of these theories, however, justify the use of LWOP.
Deterrence
The general theory of deterrence is that threats of punishment will avert at least some would-be offenders. See Valerie Wright, Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment, The Sentencing Project (Nov. 2010). Understanding why a theory of deterrence does not support LWOP requires an understanding of how deterrence works. First, studies suggest the certainty of punishment, not severity, is what deters crime. Id. Second, for deterrence to work, three pre-requisites must be met: the intended target must be aware of the rule, the target must have the capacity and inclination to rationally calculate what is in their best interest, and, having made such a calculation, the target must determine that the punishment for committing the offense exceeds the anticipated benefits. See Paul H. Robinson, Life without Parole under Modern Theories of Punishment, in Life Without Parole: America’s New Death Penalty? 138, 140 (Charles Ogletree, Jr. & Austin Sarat eds., 2012). With regard to the first element, it is unclear whether potential offenders are aware of LWOP as a punishment. Studies do suggest, however, that most people assume criminal law tracks their intuitions of justice. See Paul H. Robinson, Distributive Principles of Criminal Law: Who Should Be Punished How Much? 25-26 (2008). Thus, a person might not be deterred by LWOP if they do not think their crime would entail such a harsh punishment. With regard to the second element, it is often the case that offenders are incapable of making a rational calculation, be it because they are young, have a mental illness, or are under the influence of drugs. With regard to the third requirement, even those who are capable of a rational calculation might rationally determine that the crime’s benefits outweigh the risk that comes with getting caught.
Incapacitation
The theory of incapacitation provides that crimes are reduced because would-be offenders are detained, thereby eliminating their ability to commit crimes. See Robinson, supra, at 142. The most efficient form of incapacitation is to lock away offenders only for the amount of time that they exhibit criminal tendencies. See id. LWOP sentences are inconsistent with this because they mandate, from the first day of sentencing, that a defendant stay detained in prison until they die. While there may be prisoners who will forever remain a threat to society, this cannot be true for all defendants sentenced to LWOP, particularly those who are sentenced at a young age. On the contrary, studies that have looked at prisoners serving life with parole have found that they are “uniquely situated to desist from crime upon release because of the duration of their imprisonment.” See Ashley Nellis, Throwing Away the Key: The Expansion of Life Without Parole Sentences in the United States, 23 Fed. Sentencing Rep. 27, 28 (Oct. 2010). Further, “[r]esearchers have persistently found that age is one of the most important predictors of criminality.” Marie Gottschalk, No Way Out? Life Sentences and the Politics of Penal Reform, in Life Without Parole: America’s New Death Penalty? 227, 235 (Charles Ogletree, Jr. & Austin Sarat eds., 2012). Clearly, the determination of whether someone requires lifelong incarceration cannot be determined at the time of sentencing because people change over time. See Sharon Dolovich, Creating the Permanent Prisoner, in Life Without Parole: America’s New Death Penalty? 96, 120 (Charles Ogletree, Jr. & Austin Sarat eds., 2012).
Rehabilitation
Next, the theory of rehabilitation is incompatible with LWOP sentences. The goal of rehabilitation is to make once-offenders capable of reentering society by modifying their behavior and mental processes. Francis T. Cullen & Paul Gendreau, Assessing Correctional Rehabilitation: Policy, Practice, and Prospects, 3 Policies, Processes, and Decisions of the Criminal Justice System 109, 112 (2000). If prisoners sentenced to LWOP are never allowed a chance to even make a case for why they should be allowed to re-enter society, it cannot be said that rehabilitation is a goal of our punishment system.
Retributivism
This leaves retributivism as the only possible punitive justification for LWOP. The basic argument for retributivism proceeds as follows: because an offender has either committed an especially heinous crime or is a career criminal, they deserve the most severe punishment our society can offer. See J. Scott Dutcher, Comment, From the Boardroom to the Cellblock: The Justifications for Harsher Punishment of White-Collar and Corporate Crime, 37 Ariz. St. L.J. 1295, 1311 (2005). However, it should not be automatically assumed that everyone who has committed murder has the same degree of moral culpability, with no judicial discretion at the front end of the process and also no possibility of review by a parole board regardless of their rehabilitation. Rather, the choice to sentence someone to LWOP should entail an individualized inquiry, informed by moral, circumstantial, and individual factors. This type of inquiry would allow judges to identify which offenders are truly deserving of society’s harshest sentence. This line of reasoning shows that, at the very least, the mandatory sentencing of LWOP is inconsistent with rehabilitation (which Massachusetts uses for murder). Mass. Gen. L. ch. 265, § 2. Further, LWOP seems unjustifiably harsh considering the extreme psychological detriments it entails. In interviews with the ACLU, prisoners reported feelings of unremitting hopelessness, loneliness, anxiety, depression, fear, isolation from family and their community, and suicidal thoughts. American Civil Liberties Union, A Living Death: Life without Parole for Nonviolent Offenses 184 (2013). The report also contained a finding by the Sentencing Project that a higher percentage of LWOP prisoners suffered from mental illness—primarily serious depression—than parole-eligible prisoners with a life sentence. Id. at 186.
Financial Reasons to Oppose LWOP Sentences
People Age Out of Crime
There are two main reasons that render LWOP sentences fiscally irresponsible. First, people age out of crime. See Marc Mauer, Long-Term Sentences: Time to Reconsider The Scale of Punishment, 87 U. Mo. Kan. City L. Rev. 113, 122 (2018). The peak age of crime involvement is in someone’s early to mid-twenties, and then continues to decline continuously as one grows older. See id. This statistic is supported in Massachusetts specifically, as the age group with the highest rate of prison admissions in 2017 was 25-29, while the age group with the lowest age of adult admissions was 60 and older. MA DOC Inmate and Prison Dashboards, MA DOC Admission Trends (Nov. 16, 2018). As of July 2018, the average age of a prisoner in Massachusetts was 42, and the oldest prisoner was 95 years old. Mass.gov, Research Institutional Facts and Counts (July 2018). This means that Massachusetts is spending a vast amount of money on the incarceration of many who are well past their peak crime-committing years.
Healthcare Costs Increase as Prisoners Age
Second, prisoners cost more to the prison system as they age due to the added healthcare costs naturally associated with old age and those which occur as a result of inadequate access to healthcare in prisons. See Mauer, supra, at 122. This is problematic because Medicaid is not provided to prisoners; thus, states become financially responsible for these costs. Tyler Winelman et al., Inmates are Excluded from Medicaid – here’s why it makes sense to change that, The Conversation (Feb. 20, 2017, 8:19 PM); Medicare Coverage During Incarceration. In 2012, the ACLU published a report concluding that it costs about $34,000 to house an average prisoner, but it costs $68,000 to house a prisoner aged 50 or older. American Civil Liberties Union, At America’s Expense: The Mass Incarceration of the Elderly 57 (2012).
The use of financial resources to effectuate longer sentences necessarily means that resources are being diverted from drug treatment programs, preschool programs, scholarships for trade training programs, behavior intervention programs for youth, reentry programs, and other interventions that might produce crime-reducing benefits. See Mauer, supra, at 124. Whether society believes it is more worthwhile to punish people with LWOP or to spend its resources on preventative measures, which would reduce crime and increase community benefits remains a policy question. An informed decision on this question must acknowledge that prisons generally breed criminal behavior, rather than rehabilitate offenders, because prison “clusters together neophytes and experienced recidivists, breeding gangs, criminal networks, and more crime.” Stephanos Bibas, The Truth about Mass Incarceration, National Review (Sept. 16, 2015, 8:00 AM). This suggests that funneling resources into preventative measures that would keep people out of prison in the first place would decrease the occurrence of crimes in Massachusetts.
Conclusion
It should be emphasized that the abolishing of life without parole would not guarantee the release of everyone sentenced to life in prison. Rather, the proposed legislation would guarantee prisoners the ability to present evidence to the parole board that they have rehabilitated, are remorseful for their crime, and are unlikely to reoffend. And this opportunity would only come after they have served 25 years of their sentence. S.D. 533, § 1. Given human capacity for rehabilitation, the psychological detriments incurred due to LWOP sentences, the lack of pecuniary justification for LWOP sentences, and the fiscal irresponsibility of such a sentence, this author believes every prisoner should be guaranteed this right.