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Ashley Nellis, Ph.D. is a Senior Research Analyst at the Washington DC-based NGO, The Sentencing Project, which has been active in the struggle to reform American law and practice on life sentences. Here, Ashley discusses America’s now commonplace use of life sentences and calls for bolder approaches to reform.
In 1996 Clarence Givens was sentenced to 110 years in Wisconsin for selling less than three grams of heroin to an undercover informant. Because of prior nonviolent offenses on his record, the prosecutor was authorized to charge him under the state’s habitual offender law, which allows additional years to be added to a sentence based on prior convictions, regardless of the severity of the present offense. The sentencing judge referred to Givens as a “genocidal merchant of death” and cautioned him and others not to expect “...leniency from the courts if they persist in their vile behavior.” The judge said he wished to send “a message to those struggling to raise their children in neighborhoods ruled by violence and drugs that the courts will deal harshly with those who drain the lifeblood of their neighborhoods.”
Despite such high-blown rhetoric, there is no evidence that sentencing Givens to 110 years in prison was likely to deter others, or keep the community safe. Research conducted well before Givens was sentenced found that as one seller is removed from the community through incarceration, a new one is frequently substituted so long as there is demand for drugs.[i]
Exponential rise in people on life sentences
Before America’s era of mass incarceration took hold in the early 1970s, the number of individuals in prison was less than 200,000. Today, it’s 1.4 million;[ii] and more than 200,000 people are serving life sentences – one out of every seven in prison. More people are sentenced to life in prison in America than there were people in prison serving any sentence in 1970.
Nearly five times more people are now serving life sentences in the United States than in 1984. This rate of growth has outpaced even the sharp expansion of the overall prison population during this period.
The now commonplace use of life imprisonment contradicts research on effective public safety strategies, exacerbates already extreme racial injustices in the criminal justice system, and exemplifies the egregious consequences of mass incarceration.
Keeping us safer?
In 2020, we obtained official corrections data from all states and the federal Bureau of Prisons to produce our 5th national census on life imprisonment. Results revealed a corrections approach deeply entrenched in permanent exclusion rather than supported reintegration of persons who had committed acts of violence.
The unyielding expansion of life imprisonment in recent decades transpired because of changes in law, policy and practice that lengthened sentences and limited parole. The downward trend in violence in America that continues today was already underway when the country adopted its most punitive policies, including the rapid expansion of life sentences. The increase in life imprisonment and the growing extremity of our criminal legal system was largely driven by policies enacted in response to public fears about crime, often rooted in sensationalized media stories rather than the actual prevalence of violent crime in most communities.
Yet debate around the utility of long prison sentences often ends with the mention of violent crime, even though we know that life imprisonment does not make us safer. The vast majority of people “age out” of criminal conduct by adulthood. Lengthy prison terms hold people long after their risk of committing a new offense becomes minimal. In our latest analysis, we find that 30% of the life-sentenced population is 55 or older.
Racial and ethnic disparities
We find, too, that racial and ethnic disparities plague the entire criminal justice system from arrest to conviction and are even more pronounced among those serving life sentences. One in five Black men in prison is serving a life sentence and two thirds of all people serving life are people of color. An abundance of scholarship finds evidence of harsher sentencing outcomes because of race and ethnicity. Elevated rates of Black and Latinx imprisonment are partly caused by these communities’ higher levels of engagement in violent crime but are exacerbated by the racially disparate impacts of heavy-handed sentencing policies initiated during the 1980s and 1990s.
Communities that are under-resourced and over-punished need greater investment in evidence-based solutions that interrupt crime at its root. Public investments for supporting youth, ensuring access to medical and mental health care, expanding living wage employment opportunities and ensuring affordable housing are a better use of public resources than lifelong imprisonment. Lengthening prison sentences produces diminishing returns on public safety and robs struggling communities with necessary resources to fend off violence in the first place.
Being bolder in rooting out sentencing excess
There is a growing awareness that it is the ratcheting up of prison sentences, not crime trends, that fueled mass incarceration. Despite this, many sentencing reform proposals fall short of addressing this head-on. Indeed, changes directed at scaling back punishments for low-level and nonviolent crimes are favored because they are less controversial. This emphasis has had the unintended consequence of further legitimizing the utility of long-term imprisonment.
We offer four specific and bold proposals related to life imprisonment to reverse course on the nation’s 40-year prison buildup. First, we propose the complete elimination of life without the possibility of parole. This sentence is impermissible in many other countries on humanitarian grounds. Yet, here in the U.S., the number of people incarcerated on an LWOP sentence continues to grow. This and other excessive sentences have an anchoring effect on all sentences underneath such that these, too, are excessive. Our second recommendation is to scale back all life sentences to a mandatory maximum of 20 years (with most convictions requiring a far shorter prison stay). Our third recommendation is that parole boards and parole release mechanisms be vastly revised, so they review the cases before them with a primary emphasis on future dangerousness rather than – as now – on crime of conviction. And finally, we call for a reorientation of victim involvement so that it is centered on healing principles for both the perpetrator and the victim.