The Next Step
Ending Excessive Punishment
for Violent Crimes

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This report was written by Nazgol Ghandnoosh, Ph.D., Senior Research
Analyst at The Sentencing Project. Joshua Rovner, Senior Advocacy
Associate, and Breanna Bishop, Communications Associate, made
substantial contributions.
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2 The Sentencing Project

Table of Contents
Executive Summary		

5

I. Introduction	

8

II. Rejecting Death and Torture	

10

A. The Nationwide Decline of the Death Penalty	
B. Colorado Limits Solitary Confindment to 15 Days	

10
11

III. Legislative Reforms Reducing Excessive Sentences	

14

A. Louisiana Ends Non-Unamious Jury Verdicts and Begins Medical Furlough Program	
B. Mississippi Reduces Truth-in-Sentencing Requirement for Violent Crimes	
IV. Using Discretion to Reduce Extreme Sentences	

14
15
17

A. California Governor Eases Life Sentences through Parole and Commutation	
B. Philadelphia District Attorney Reduces Reliance on Life Sentences	
V. Recognizing the Rehabilitative Potential of Youth and Young Adults	
A. Supreme Court and States Limit Life-Without-Parole Sentences for Youth	
B. States Reduce Transfers of Youth to Adult Courts	
C. Connecticut Creates Young Adult Prison Units to Focus on Rehabilitation	
D. California Grants Youth and Young Adults More Meaningful Parole Hearings	

17
20
24
24
25
27
28

VI. Depoliticizing Parole Decisions: New York State	

30

VII. Correcting Overly Broad Definitions of Violent Crime	

33

A. Supreme Court Narrows the Federal Armed Career Criminal Act	
B. California Limits Scope of Felony Murder Rule	
VIII. Scaling Back Collateral Consequences 	

36

A. Congress Largely Upholds Food Stamps Access for People with Violent Convictions	
B. Virginia Governor’s Restoration of Voting Rights Includes Violent Convictions	
IX. Conclusion	

33
34

36
37
39

The Next Step: Ending Excessive Punishment for Violent Crimes 3

4 The Sentencing Project

Executive Summary
While the First Step Act and other criminal justice reforms have limited the
number of people imprisoned for drug crimes, they have yet to meaningfully
reduce excessive penalties for violent crimes. Nearly half of the U.S. prison
population is now serving time for a violent offense, including assault and robbery.1
Although the violent crime rate has plummeted to half
of its early-1990s level, the number of people imprisoned
for a violent offense grew until 2009, and has since
declined by just 3%.2 This trend stems from increased
prison admissions and sentence lengths, despite
evidence that excessive penalties are counterproductive.3
Long sentences incapacitate older people who pose
little public safety threat, produce limited deterrent
effect since most people do not expect to be caught,
and detract from more effective investments in public
safety.4
For those who seek to end mass incarceration, there are
signs of hope. In the past two decades, local, state, and
federal lawmakers, governors, judges, and practitioners
have rejected the death penalty, shortened excessive
prison terms for violent convictions, scaled back
collateral consequences, narrowed broad definitions of
violence, and ended long term solitary confinement. The
15 reforms featured in this report, implemented in over
19 states, represent more effective, fiscally sound, and
morally just responses to violence.5 While exceptions in
a punitive era, these reforms serve as models for the
future. For example:
Rejecting torture in prison
In 2017, Colorado Department of Corrections’
executive director Rick Raemisch restricted solitary
confinement to only serious violations in prisons
and set a maximum duration of 15 days.
Using discretion to reduce extreme sentences
Philadelphia District Attorney Larry Krasner seeks
to end the city’s heavy reliance on life without parole
(LWOP) sentences.6 He has made case-by-case
evaluations when making resentencing offers to

individuals convicted as juveniles, shown restraint
in charging decisions and plea offers in homicide
cases, and endorsed legislation to allow people
serving LWOP to be evaluated for parole after 15
years of incarceration.7
Legislators reducing excessive sentences
Mississippi legislators reformed the state’s truth-insentencing requirement for violent crimes in 2014,
reducing the proportion of a sentence that individuals
with certain violent convictions have to serve before
becoming eligible for parole from 85% to 50%.
Recognizing the rehabilitative potential of youth and
young adults
In 2010, the Supreme Court ruled that LWOP
sentences were unconstitutional for non-homicide
crimes committed by juveniles. The Court also later
ruled that mandatory LWOP sentences for homicide
failed to recognize young people’s “diminished
culpability and greater prospects for reform.”8 In
2018, California built on this precedent by directing
individuals convicted under age 26 to “Youth Offender
Parole Hearings.”9
Scaling back collateral consequences
Floridians voted in 2018 to re-enfranchise people
with felony convictions, including those convicted
of most violent crimes.
The reforms identified in this report demonstrate that it
is possible to undo excessive penalties for violent crimes
while also promoting public safety. They are the next
step of criminal justice reform and offer blueprints for
policies that will better enable an end to mass
incarceration within our lifetime.

The Next Step: Ending Excessive Punishment for Violent Crimes 5

Table 1. Featured Reforms Scaling Back Excessive Punishment for Violent Crimes, 1999-2019
Arkansas

•	

Governor commuted a number of sentences for violent crimes

California

•	

Governor commuted a number of life sentences and supported broader reforms

•	

Legislature required that people serving life sentences for crimes committed under age 26
receive specialized parole hearings giving greater weight to the diminished culpability of youth
and young adults

•	

Legislature limited felony murder rule to those with intent to kill or who participated in the killing

•	

Head of corrections limited use of solitary confinement to 15 days and only for serious
disciplinary violations in prison

•	

Governor commuted sentences of 12 individuals who were convicted of murder at young age

Connecticut

•	

Governor and corrections department developed a more rehabilitative venue of incarceration for
group of 18-to-25 year olds

Florida

•	

Voters approved Amendment 4, re-enfranchising up to 1.4 million citizens who have completed all
terms of their sentence, excluding only those convicted of murder or sex crimes

Illinois

•	

Legislature raised the minimum age for transferring juveniles to adult courts from 15 to 16
(allowing transfers of 15-year-olds with a hearing)

Iowa

•	

State Supreme Court ruled that all mandatory sentences for juveniles are unconstitutional

Louisiana

•	

Bipartisan legislative support and voter approval ended non-unanimous jury verdicts

•	

Legislature enacted medical treatment furlough program

Maine

•	

Halved prison population held in solitary confinement

Maryland

•	

Court decision led to release of nearly 200 elderly people serving parole-eligible life sentences

Mississippi

•	

Legislature reduced from 85% to 50% the proportion of a sentence that individuals with certain
violent convictions have to serve before becoming eligible for parole

New York

•	

Brooklyn and Bronx prosecutors allowing certain cases of serious and violent felonies to be
diverted from incarceration to restorative justice program

•	

Governor’s executive order reinstated voting rights to 35,000 people on parole supervision

•	

Courts and governor have pressured the parole board to follow the legislature’s requirement that
it give greater weight to risk assessments in parole decisions, rather than focusing on original
crime and criminal history

•	

Philadelphia District Attorney (DA) has offered below-guideline resentencing to people sentenced
to life without parole as juveniles

•	

Philadelphia DA has encouraged his staff to select the appropriate, rather than maximum,
charge in all homicide cases, and requires them to receive approval for any plea offer proposing
a long prison term

•	

Philadelphia DA has endorsed bill that would allow people serving LWOP to be evaluated for
parole after 15 years of incarceration

Tennessee

•	

Governor commuted a handful of homicide sentences

Virginia

•	

Governor re-enfranchised over 173,000 people, including those convicted of violent offenses

Nationwide

•	

Four Supreme Court rulings have sharply limited the most severe punishments for people under
age 18: death and life without parole

•	

Supreme Court limited the reach of the federal Armed Career Criminal Act

•	

Congress considered but ultimately rejected attempts to broadly expand collateral
consequences for violent convictions as part of the Farm Bill

•	

Supreme Court, legislative, gubernatorial, and international actions have made death sentences
and executions uncommon in the United States, now imposed and carried out in only a small
number of primarily Southern states

Colorado

Pennsylvania

6 The Sentencing Project

1	 People with violent convictions comprised 55% of the 1.3 million people
in state prisons in 2015 and 8% of the 173,000 people in federal prisons
in 2016. Carson, E. A. (2018). Prisoners in 2016. Bureau of Justice
Statistics. Available at: https://www.bjs.gov/content/pub/pdf/p16.pdf
2	 FBI Uniform Crime Reports; Bureau of Justice Statistics Prisoners Series.
3	 Travis, J., Western, B., & Redburn, S. (Eds.) (2014). The growth of
incarceration in the United States: Exploring causes and consequences.
National Research Council. Washington, DC: National Academies Press.
4	 Mauer, M., & Nellis, A. (2018). The meaning of life: The case for abolishing
life sentences. New York: The New Press.
5	 In addition to the states listed in Table 1, this count also includes Delaware,
New Jersey, New Mexico, and Washington, which outlawed the death
penalty within the past two decades and were not otherwise counted.
The report also references several other states that have reformed their
juvenile life-without-parole sentencing policies or limited the transfer of
youth into adult courts.
6	 Philadelphia District Attorney’s Office (2018, September 20). Action Alert:
Supporting #SB942 Empowers PA Parole Board to Make Right Decisions.
Available at: https://medium.com/philadelphia-justice/action-alertsupporting-sb942-empowers-pa-parole-board-to-make-right-decisions32d617773983
7	 Palmer, C. (2018, April 4). Philly DA Larry Krasner is changing the way his
office prosecutes killers. Not everyone agrees. Philadelphia Inquirer.
Retrieved from http://www.philly.com
8	 Miller v. Alabama, 567 U.S. 460 (2012).
9	 Gingrich, N. (2015, April 13). A second chance for young offenders. HuffPost.
Retrieved from http://www.huffingtonpost.com

The Next Step: Ending Excessive Punishment for Violent Crimes 7

I. Introduction
A bipartisan consensus produced the main drivers of
mass incarceration: The War on Drugs, longer prison
sentences, and increased likelihood of imprisonment
upon an arrest.1 As a result the U.S. prison population
grew from 315,000 people in 1980 to a peak of 1.6 million
in 2009.2 An emerging bipartisan consensus is now
seeking to correct this counterproductive response to
crime and substance use disorders. Hard-won reforms in
drug sentencing have reduced the number of people
imprisoned for a drug offense by 22% between 2007
and 2015.3 Reforms have also helped to reduce the
disparity in black-white imprisonment rates: African
Americans experienced imprisonment at 7.3 times the
rate of whites in 2000 versus 5.6 times in 2016.4

Despite this progress, most policymakers and
practitioners have yet to meaningfully scale back
sentences for serious and violent crimes. The number
of people imprisoned for a violent crime increased by
over 300% between 1980 and 2009, when it reached its
peak level of 740,000 people.5 By 2016, one quarter of
people imprisoned for a violent crime were serving a life
sentence.6 Prison terms have grown longer for this
population despite evidence that long sentences: 1)
incapacitate people in old age when they no longer pose
a public safety threat, 2) have limited deterrent value
since people who commit crimes do not expect to be
caught, and 3) detract from more effective investments
in public safety.7 These investments include expanding

U.S. Prison Population by Offense, 1980-2015
800,000

Violent: 3% reduction since 2009

700,000
600,000
500,000
400,000
300,000

Drug: 22% reduction since 2007

200,000
100,000
0
1980

1984

1988

1992

1996

2000

2004

2008

2012

2015

Note: Sentenced population in state and federal prisons. Reductions for each offense type are since peak year. The number of people imprisoned for a
property crime has fallen by 11% since 2007.
Source: Bureau of Justice Statistics Prisoners Series (1994-2016).

8 The Sentencing Project

health insurance coverage to prevent and treat substance
use disorder, expanding enrollment in high-quality early
education to improve young people’s educational
prospects, and promoting residential mobility programs
to reduce neighborhood segregation.8 Given that long
sentences for violent crimes place upward pressure on
the entire sentencing structure, scaling back the most
excessive penalties is key to ending mass incarceration.9
The number of people imprisoned for a violent offense
has declined by just 3% since reaching its peak level in
2009, even though violent crime rates have plummeted
to half of their early-1990s level.10 The number of people
in prison serving a life sentence has yet to cease
expanding.11 In fact, some U.S. efforts to scale back
prison sentences for lower level offenses have been
coupled with measures to increase penalties for serious
and violent crimes.12 Lawmakers and practitioners have
continued to impose long prison sentences for violent
crimes even as 25 countries have experienced comparable
crime drops to the United States, many without expanding
levels of imprisonment.13

1	 Travis, J., Western, B., & Redburn, S. (Eds.) (2014). The growth of
incarceration in the United States: Exploring causes and consequences.
National Research Council. Washington, DC: National Academies Press.
2	 Bureau of Justice Statistics Prisoners Series (1994-2016).
3	 The number of people imprisoned for a property crime has fallen by 11%
since 2007. Bureau of Justice Statistics Prisoners Series.
4	 Based on data provided by Ashley Nellis. For state data, see Nellis, A.
(2016). The color of justice: Racial and ethnic disparity in state prisons.
Washington, DC: The Sentencing Project. Available at: https://www.
sentencingproject.org/publications/color-of-justice-racial-and-ethnicdisparity-in-state-prisons/
5	 Bureau of Justice Statistics Prisoners Series.
6	 This includes life with and without the possibility of parole as well as a
“virtual life” sentence of 50 years or longer. Nellis, A. (2017). Still life:
America’s increasing use of life and long-term sentences. Washington,
DC: The Sentencing Project. Available at: https://www.sentencingproject.
org/publications/still-life-americas-increasing-use-life-long-termsentences/; Bureau of Justice Statistics Prisoners Series.
7	 Mauer, M., & Nellis, A. (2018). The meaning of life: The case for abolishing
life sentences. New York: The New Press
8	 Ghandnoosh, N. (2017). Minimizing the maximum: The case for shortening
all prison sentences. In C. Pettus-Davis & M. Epperson (Eds.), Smart
decarceration: Achieving criminal justice transformation in the 21st
century (pp. 137-159). New York: Oxford University Press.
9	 See also Mauer, M., & Cole, D. (2015, May 23). How to lock up fewer people.
The New York Times. Retrieved from http://www.nytimes.com; Pfaff, J.
(2015, July 26). For true penal reform, focus on the violent offenders. The
Washington Post. Retrieved from https://www.washingtonpost.com; The
Economist. (2015, July 20). The moral failures of America’s prison-industrial
complex. Retrieved from http://www.economist.com; King, R., Peterson,
B., Elderbroom, B., & Pelletier, E. (2015). Reducing mass incarceration
requires far-reaching reforms. Washington, DC: Urban Institute. Available
at: http://webapp.urban.org/reducing-mass-incarceration/

This report profiles reforms around the country that are
paving the way toward more effective and humane
policies for violent crimes. The champions of these
reforms can be found in various branches of government,
both sides of the political aisle, and in red and blue states.
Driven by fiscal, moral, and evidence-based policymaking
goals, they have overcome vehement opposition, shown
that it is possible to undo excessive penalties for violent
crimes while promoting public safety, and inspired others
to follow suit. But their efforts remain too few. The
Sentencing Project has estimated that at the existing
pace of decarceration, it would take almost 75 years—
until 2093—to cut the U.S. prison population in half.14 To
end mass incarceration within our lifetime, criminal
justice leaders and policymakers must expand and
accelerate the pace of reforms like these.

10	 FBI Uniform Crime Reports; Bureau of Justice Statistics Prisoners Series.
11	 Nellis, 2017.
12	 Gottshalk, M. (2015). Caught: The prison state and the lockdown of
American politics. Princeton, NJ:​​Princeton University Press; Seeds, C.
(2017). Bifurcation nation: American penal policy in late mass incarceration.
Punishment & Society, 19(5), 590-610.
13	 Beckett, K., Beach, L., Knaphus, E., & Reosti, A. (2018). US criminal justice
policy and practice in the twenty-first century: Toward the end of mass
incarceration. Law & Policy, 40(4), 321-345; Doob, A., & Webster, C. (2006).
Countering punitiveness: Understanding stability in Canada’s imprisonment.
Law & Society Review, 40(2), 325–367; Tseloni, A., Mailley, J., & Garrell,
G. (2010). Exploring the international decline in crime rates. European
Journal of Criminology, 7(5), 375–394; Tonry, M., & Farrington, D. P. (2005).
Punishment and crime across space and time. Crime and Justice, 33,
1–39.
14	 Ghandnoosh, N. (2018). Can we wait 75 years to cut the prison population
in half? Washington, DC: The Sentencing Project. Available at: https://
www.sentencingproject.org/publications/can-wait-75-years-cut-prisonpopulation-half/

The Next Step: Ending Excessive Punishment for Violent Crimes 9

II. Rejecting Death and Torture
The Nationwide Decline of the Death
Penalty
Death sentences and executions have become
uncommon in the United States, now imposed and
carried out in only a small number of primarily Southern
states. In fact, just 2% of U.S. counties have been
responsible for the majority of executions since 1976.1
The number of executions plummeted from an average
of 167 annually during the 1930s to none in 1968 and
for 10 of the next 12 years.2 The United States seemed
poised to be at the “vanguard of abolition” of the death
penalty in the late 1960s and a legal campaign by the
NAACP Legal Defense Fund persuaded the Supreme

Number of People Executed by U.S. State or Federal
Authorities, 1930-2016
200

150

100

50

0
1930

1940

1950

1960

1970

1980

1990

2000

2016

Note: Excludes 160 executions carried out by military authorities from 1930
to 1961.
Source: Davis, E., & Snell, T. L. (2018). Capital punishment, 2016. Bureau of
Justice Statistics. Retrieved from https://www.bjs.gov/content/pub/pdf/
cp16sb.pdf.

10 The Sentencing Project

Court to invalidate existing death penalty statutes in
1972, due to their discriminatory and capricious nature.3
But the Court reinstated the death penalty in 1976 in
response to revised state statutes. The number of
executions then expanded and contracted again under
growing constitutional regulations, reaching neither the
highs nor lows of the earlier period. Executions peaked
at 98 in 1999, then fell to 25 in 2018.4 Twenty states and
the District of Columbia now outlaw the death penalty
and while a majority of states and the federal government
still authorize the practice, only 11 states have executed
anyone in the past two years.5
As crime rates rose between the 1970s and 1990s,
policymakers responded to and stoked growing punitive
sentiment, raising incarceration rates to unprecedented
levels and reviving the death penalty. But both crime
rates and executions have fallen since the late 1990s,
though imprisonment levels kept expanding for another
decade. Public support for the death penalty for people
convicted of murder increased from a low of 42% in
1966 to a high of 80% in 1994, and gradually fell to 56%
in 2018.6 When given a choice between a death sentence
or life in prison without parole for someone convicted
of murder, a minority of Americans now support the
death sentence.7
The Supreme Court’s constitutional regulatory structure
around capital punishment has responded to and helped
to shape public sentiment, while changing international
and corporate norms have reduced access to lethal
injection drugs. Growing constitutional protections have
also dramatically increased the cost of carrying out
executions and have enabled the exoneration of 164
innocent people on death row between 1973 and 2018—
facts that have propelled many governors, courts, and
legislatures to reject the death penalty as an inhumane,
ineffective, and unfair form of punishment.8

After reinstating the death penalty in 1976 (Gregg v.
Georgia), the Supreme Court erected additional
procedural safeguards and required individualized
sentencing.9 In addition, in a series of cases responding
to the “evolving standards of decency”—which were
based on state statues, jury verdicts, professional
opinion, international norms, and polling data—the
Supreme Court gradually narrowed the crimes and
people for whom death could be sought.10 This included
prohibiting capital punishment for certain crimes such
as for raping an adult woman (Coker v. Georgia, 1997)
and later for crimes other than homicide (Kennedy v.
Louisiana, 2008). This narrowing also included barring
capital punishment for individuals who are intellectually
disabled (Atkins v. Virginia, 2002) or under the age of
18 (Roper v. Simmons, 2005).11 Yet legal scholars Carol
and Jordan Steiker caution that because of the
undemanding standard of enforcement in constitutional
regulation of the death penalty, “the last four decades
have produced a complicated regulatory apparatus
that achieves extremely modest goals while maximizing
political and legal discomfort.”12
While 2018’s level of executions was one-quarter of
that in 1999, three problems remain. First, the United
States remains the only Western democracy still using
the death penalty, with 2,738 people on death row in
2018.13 This continued practice runs counter to the
position of faith organizations including the Catholic
Church—which now works towards the worldwide
abolition of a practice that is “an attack on the
inviolability and dignity of the person”—and is against
the recommendation of legal experts including the
American Law Institute—which in 2009 removed the
death penalty from its set of permissible forms of
punishment for murder.14
Second, the death penalty continues to be applied in
a racially biased manner. Black defendants are more
likely than their white counterparts to be charged with
crimes eligible for capital punishment, to be convicted,
and to be sentenced to death. Racial disparities in
death case are most prevalent when the defendant is
black and the victim is white.15 The Supreme Court’s
narrowed definition of unconstitutional racial bias in
capital sentencing, to that which can be proven to be
intentional (McCleskey v. Kemp, 1987), has prolonged
this problem.

Lastly, the movement to abolish the death penalty has
contributed to a dramatic expansion of life-withoutparole sentences, as statutes and charging practices
have “enhanced use of such sentences well beyond
the numbers that would be generated if it were only an
‘alternative’ to the death penalty.”16 Over 50,000 people
were serving parole-ineligible life sentences in 2016,
over four times the number in 1992.17 The dramatic
growth in the number of people sentenced to die in
prison underscores the need for recognizing, as Pope
Francis told Congress in 2016, “that a just and necessary
punishment must never exclude the dimension of hope
and the goal of rehabilitation.”18

Colorado Limits Solitary Confinement
to 15 Days
“[L]ong-term isolation manufactures and aggravates
mental illness. It has not solved any problems; at best
it has maintained them,” wrote Rick Raemisch, executive
director of Colorado’s Department of Corrections (DOC),
explaining why in 2017 he limited the state’s use of
solitary confinement to 15 days and only for serious
disciplinary violations in prisons, such as assault.19 He
built on the work of his predecessor, Tom Clements,
who was killed in 2013 by a man released directly into
the community after spending nearly six years in solitary
confinement.20 During Clements’s two-year term, the
state closed a newly built supermax prison dedicated
to solitary confinement and halved the total solitary
prison population from 1,500 to 700.21 Raemisch cut
this figure down to 18 by 2017.22 In addition to being
more humane and less costly, Raemisch has credited
these reforms for helping to reduce violence against
prison staff and for promoting safer returns to
communities.
In 2014, Colorado’s legislature restricted the use of
solitary confinement for individuals with serious mental
illness, solidifying the DOC’s previously developed
policy.23 That year, Raemisch received national attention
for subjecting himself to 20 hours of solitary confinement,
known in the state as Administrative Segregation, and
described himself as troubled even by this relatively
short stint.24 He later concluded that long-term solitary
confinement (longer than 15 days) in “a cell the size of
a parking space” is counterproductive and a form of
torture—a view shared by the United Nations’ Special

The Next Step: Ending Excessive Punishment for Violent Crimes 11

“Ending long-term

solitary confinement
and instituting
programmatic reforms
can be accomplished
in prison systems
across the country.”
— Rick Raemisch
CO Dept. of Corrections

Rick Raemisch, while executive director of Colorado’s Department of Corrections, spent
20 hours in solitary confinement and described himself as troubled by the experience.
Photograph by David Kidd, 2018.

Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, the New York State
Bar Association, and the National Commission on
Correctional Health Care.25
The DOC’s 2017 reforms set 15 days as the upper limit
for solitary confinement and required that those held in
solitary receive at least four hours per day outside their
cell for recreation or group classes. The state also bans
solitary confinement in its two prisons dedicated to
treating mentally ill individuals—allowing them to visit
“de-escalation rooms” that offer various resources for
calming down.26
“I am convinced that ending long-term solitary
confinement and instituting programmatic reforms can
be accomplished in prison systems across the country,”
Raemisch has written.27 He has worked to realize his
vision by helping to modernize international standards
for the treatment of people in prison, now known as
the Nelson Mandela Rules, and by helping to develop
standards for the American Correctional Association.28
He has also served on the advisory board of the Vera
Institute of Justice to develop the Safe Alternatives to
Segregation (SAFE) Initiative, which advances

12 The Sentencing Project

alternatives to segregated housing in prisons.29
According to SAFE’s website:30
These alternatives can include implementing a
structured sanctions grid to ensure appropriate and
proportionate responses are utilized and using
alternative responses to less serious rule violations,
such as mediation or anger management classes,
withholding access to the commissary, removing
TV privileges, restricting visitation rights, making
the incarcerated person responsible for the costs
of damaged property, and assigning the person to
an undesirable work shift.
Colorado leads a group of states implementing
significant reforms in solitary confinement policies.31
Maine, for example, has cut its solitary confinement
population in half,32 Mississippi has downsized and
eventually closed the solitary confinement unit at one
prison,33 and California has dramatically reduced its
reliance on long-term solitary confinement following a
hunger strike and as part of a legal settlement.34

1	 The same counties also hold the majority of today’s death row population
and have imposed the majority of recent death sentences. Death Penalty
Information Center (2013, October). The 2% death penalty: How a minority
of counties produce most death cases at enormous costs to all.
Washington, DC. Available at: https://deathpenaltyinfo.org/twopercent
2	 Davis, E., & Snell, T.L. (2018, April). Capital Punishment, 2016. Bureau of
Justice Statistics. Available at: https://www.bjs.gov/content/pub/pdf/
cp16sb.pdf
3	 Steiker, C.S., & Steiker, J.M. (2016). Courting death: The Supreme Court
and capital punishment. Cambridge, MA: Harvard University Press, p. 77.
4	 Similarly, new death sentences peaked at 315 in 1996 and fell to 42 in
2018. Death Penalty Information Center (2018a, January 30). Facts about
the death penalty. Washington, DC. Available at: https://deathpenaltyinfo.
org/documents/FactSheet.pdf; Davis & Snell, 2018; Death Penalty
Information Center (2018b). The death penalty in 2018: Year end report.
Washington, DC. Available at: https://deathpenaltyinfo.org/
documents/2018YrEnd.pdf
5	 In addition, nearly all American Indian tribes have rejected the option of
pursuing the death penalty against their citizens for federal crimes
committed on their land. Fonseca, F. (2017, August 21). Most American
Indian tribes opt out of federal death penalty. The Associated Press.
Retrieved from http://www.apnews.com; Death Penalty Information Center,
2013; Death Penalty Information Center, 2018b.
6	 A 2016 Pew survey found that support for the death penalty had fallen
below 50%. Oliphant, B. (2016, September 29). Support for death penalty
lowest in more than four decades. Pew Research Center. Available at:
http://www.pewresearch.org/fact-tank/2016/09/29/support-for-deathpenalty-lowest-in-more-than-four-decades/; McCarthy, J. (2018, October
22). New low of 49% in U.S. say death penalty applied fairly. Gallup.
Available at: https://news.gallup.com/poll/243794/new-low-say-deathpenalty-applied-fairly.aspx
7	 Note also vast racial disparities in support for the death penalty:
Ghandnoosh, N. (2014). Race and punishment: Racial perceptions of
crime and support for punitive policies. Washington, DC: The Sentencing
Project. Available at: https://sentencingproject.org/wp-content/
uploads/2015/11/Race-and-Punishment.pdf; Berman, M. (2018, June
11). American support for the death penalty inches up, poll finds. The
Washington Post. Retrieved from https://www.washingtonpost.com/;
Ergun, D. (2014, June 5). New Low in Preference for the Death Penalty.
ABC News. Retrieved from https://abcnews.go.com
8	 Death Penalty Information Center. (n.d.). Last exoneration November 5,
2018 (#164). Washington, DC. Available at: https://deathpenaltyinfo.org/
innocence-list-those-freed-death-row
9	 Steiker & Steiker, 2016.
10	 Steiker, C. S., & Steiker, J. M. (2011, September 27). Why death penalty
opponents are closer to their goal than they realize. The New Republic.
Retrieved from https://newrepublic.com
11	 Key professional associations including the American Psychiatric
Association, the American Psychological Association, the National Alliance
for the Mentally Ill, and the American Bar Association have called for also
exempting the severely mentally ill from executions. Death Penalty
Information Center, 2018a.
12	 Steiker & Steiker, 2016, p. 176.
13	 Death Penalty Information Center, 2018b.
14	 Steiker, C. S., & Steiker, J. M. (2010). No more tinkering: The American
Law Institute and the death penalty provisions of the Model Penal Code.
Texas Law Review, 89(353); Holy See Press Office (2018, February 2).
New revision of number 2267 of the Catechism of the Catholic Church
on the death penalty – Rescriptum “ex Audentia SS.mi”. Available at:
https://press.vatican.va/content/salastampa/en/bollettino/
pubblico/2018/08/02/180802a.html.
15	 Fagan, F., & Geller, A. (in progress). Police, race, and the production of
capital homicides. June 25 2018 draft. Available at: https://papers.ssrn.
com/sol3/papers.cfm?abstract_id=3202470
16	 Mauer & Nellis, 2018, p. 161 (emphasis in original); see also Steiker &
Steiker, 2016.
17	 In 2016, an additional 44,000 people were serving “virtual life” sentences,
of 50 years or longer, and nearly 109,000 were serving parole-eligible life
sentences. Nellis, A. (2017). Still life: America’s increasing use of life and
long-term sentences. Washington, DC: The Sentencing Project. Available
at: https://www.sentencingproject.org/publications/still-life-americasincreasing-use-life-long-term-sentences/; The Sentencing Project (2018).
The facts of life imprisonment: 1 in 7 people in prison is serving a life
sentence. Retrieved from https://www.sentencingproject.org/wp-content/
uploads/2018/12/Facts-of-Life.pdf
18	 Pope Francis (2016). Congressional address. Address presented at Joint
Session of U.S. Congress, Washington, DC.
19	 Raemisch, R. (2017, October 12). Why we ended long-term solitary
confinement in Colorado. The New York Times. Retrieved from http://
www.nytimes.com
20	 In 2012, the year before Clements was killed, Colorado prisons released
140 people directly from Administrative Segregation. Raemisch ended
this practice. Raemisch, R. (2014, February 20). My night in solitary. The
New York Times. Retrieved from http://www.nytimes.com; Goode, E., &
Frosch, D. (2013, April 4). Mysteries multiply in prison chief’s killing. The
New York Times. Retrieved from http://www.nytimes.com

21	 Alexander, R. (2012, March 21). DOC explains closing CSP II. Canon City
Daily Record. Retrieved from http://www.canoncitydailyrecord.com;
Raemisch, 2014.
22	 Raemisch, 2017.
23	 ACLU Colorado. (2014, March 25). CDOC takes momentous step toward
providing better treatment to prisoners with serious mental illness.
Available at: https://aclu-co.org/cdoc-takes-momentous-step-towardproviding-better-treatment-prisoners-serious-mental-illness/; ACLU
Colorado. (n.d.). Senate passes ban on long-term solitary confinement
of inmates with serious mental illness. Retrieved from https://aclu-co.
org/statement-aclu-colorado-unanimous-senate-approval-sb14-64restricting-use-long-term-solitary-confinement-inmates-serious-mentalillness/
24	 Raemisch, 2017.
25	 Raemisch, R. (2018, December 5). Why I ended the horror of long-term
solitary in Colorado’s prisons. New York: ACLU. Retrieved from http://
www.ACLU.org; Raemisch, 2017; Haney, C. (2018). Restricting the use of
solitary confinement. Annual Review of Criminology (1): 285-310.
26	 Charles, J.B. (2018). Public officials of the year. Governing. Retrieved
from http://www.governing.com; Lantigua-Williams, J. (2016, December
1). More prisons are phasing out the ‘box.’ The Atlantic. Retrieved from
http://www.TheAtlantic.com.
27	 Raemisch, 2018.
28	 Raemisch, 2017; Boghani, P. (2017, April 18). Reducing solitary confinement,
one cell at a time. Frontline. Retrieved from http://www.PBS.org
29	 Center on Sentencing and Corrections. (n.d.). About. Vera Institute of
Justice. Retrieved from https://www.safealternativestosegregation.org/
about/
30	 Center on Sentencing and Corrections. (n.d.). FAQ. Vera Institute of Justice.
Retrieved from https://www.safealternativestosegregation.org/faq/
31	 Obama, B. (2016, January 25). Barack Obama: Why we must rethink
solitary confinement. The Washington Post. Retrieved from http://www.
washingtonpost.com; Hager, E., & Rich, G. (2014, December 23). Shifting
away from solitary. The Marshall Project. Retrieved from http://www.
themarshallproject.org.
32	 Heiden, Z. (2013 March). Change is possible: A case study of solitary
confinement reform in Maine. Portland, ME: ACLU Maine. Available at:
https://www.aclu.org/sites/default/files/field_document/aclu_solitary_
report_webversion.pdf
33	 ACLU. (n.d.). State reforms to limit the use of solitary confinement.
Available at: https://www.aclu.org/files/assets/state_reforms_to_limit_
the_use_of_solitary_confinement.pdf
34	 Egelko, B. (2016, October 24). Solitary confinement for California inmates
cut sharply. The San Francisco Chronicle. Retrieved from http://www.
SFGate.com.

The Next Step: Ending Excessive Punishment for Violent Crimes 13

III. Legislative Reforms
Reducing Excessive Sentences
Louisiana Ends Non-Unanimous Jury
Verdicts and Begins Medical Furlough
Program

Oregon as the only remaining state allowing nonunanimous jury convictions. Lawmakers there have
begun reform efforts as well.7

Louisiana, the state with the nation’s highest
imprisonment rate, has taken modest steps to reform
its criminal justice system, including for those accused
or convicted of violent crimes.1 Voters passed
Amendment 2 in 2018, ending a Jim Crow-era law that
allowed non-unanimous jury verdicts in felony trials.2 In
addition, the state has begun a new medical furlough
program to release ill, imprisoned people with limited
mobility to off-site medical care under parole supervision.

Louisiana also began a new medical treatment furlough
program in 2017 as part of its package of Justice
Reinvestment reforms.8 Part of Act 280, the reform
allows for the temporary release of imprisoned people
who do not pose a public safety risk and whose serious
or chronic health condition limits their mobility, allowing
them to receive care in a non-prison facility. The policy
targets individuals who are “unable to perform activities
of daily living without help or [are] bedbound” but who
are expected to live longer than 60 days and are
therefore excluded from the compassionate release
program.9 Their release requires approval from the
Louisiana Board of Pardons and Parole and they are
monitored by a probation or parole officer and returned
to prison if they recover. While the original law excluded
people on death row, in 2018 the legislature also
excluded people convicted of first-degree murder from
the program (Act 573).10

After the U.S. Constitution allowed African Americans
to serve on juries, Louisiana adopted a policy of requiring
just 9 out of 12 jurors to agree on a verdict (later
increased to a minimum of 10) as a way to limit the
power of African American jurors.3 An investigation by
The Advocate revealed that in recent years, 40% of
Louisiana jury convictions came over the objections of
one or two holdout jurors.4 The newspaper found that
black defendants—who make up nearly two-thirds of
imprisoned people in the state—were 30% percent more
likely than whites to be convicted by split jury verdicts.
The new law went into effect at the beginning of 2019
but is not retroactive. Introduced by State Senator J.P.
Morrell and led in the House by Sherman Mack, the
measure won bipartisan support to be put on the ballot
and was approved by 64% of voters.5 Both the Koch
network and George Soros’s Open Society Foundations
supported the reform, which the American Civil Liberties
Union and the Southern Poverty Law Center had sought
for years, and the Louisiana District Attorneys
Association assumed a neutral position after initial
opposition.6 The passage of Amendment 2 leaves
14 The Sentencing Project

In a state where nearly one in three imprisoned people
is serving a life sentence, reformers noted that medical
furlough would reduce prison healthcare costs since
released individuals can receive treatment through
federally-funded Medicare. In 2017, the Louisiana
Department of Corrections spent approximately $75
million on healthcare costs for people in prison.11 Some
lawmakers had hoped to extend their medical furlough
program by also offering geriatric parole, which would
have allowed people over age 50 who had served at least
30 years of their life sentence and met specific
requirements to be eligible for a parole hearing, excluding
those convicted of first-degree murder.12 This bill failed
to pass, but was being reconsidered.13

Mississippi Reduces Truth-inSentencing Requirement for Certain
Violent Crimes
Mississippi Governor Phil Bryant reduced the state’s
truth-in-sentencing requirement for certain violent
crimes by signing House Bill 585 in 2014. Among several
reforms, this law reduced from 85% to 50% the proportion
of a sentence that individuals with certain violent
convictions have to serve before becoming eligible for
parole.
Mississippi created its 85% truth-in-sentencing threshold
after the federal Violent Crime Control and Law
Enforcement Act of 1994 created federal grants for
states implementing this measure.14 This sentencing
change, supported by Governor Bryant when he was a
State House member, helped to double the state’s prison
population between 1995 and 2008 and resulted in
Mississippi having the country’s second-highest
imprisonment rate, after Louisiana.15 The state reduced
the truth-in-sentencing threshold for non-violent crimes

in 2008 and applied this reform retroactively. Based on
recommendations from the Corrections and Criminal
Justice Task Force—comprised of stakeholders
including judges, prosecutors, law enforcement, and
victim advocates—legislators in 2014 reduced the truthin-sentencing threshold for certain violent crimes as
well, from 85% to 50%.16 “House Bill 585 will save tax
dollars without compromising public safety,” Governor
Bryant wrote in support of the legislation.17
In the course of passing these reforms, legislators
partially offset their decarceration goals by designating
some additional crimes as “violent” and thereby
subjecting them to longer time-served requirements.18
While this tradeoff may “weaken or even reverse the
anticipated impact of reforms,” thus far the truth-insentencing reforms appear to have contributed to
reducing the prison population by 14% between 2008
and 2016.19 During this time, the state’s reported violent
crime rate declined by 8% and the reported property
crime rate fell by 5%.20

Pursuing Truth-in-Sentencing Reforms in Missouri, Oklahoma, and South Carolina
Policymakers in other states hope to
follow in Mississippi’s footsteps.21
Missouri lawmakers have advanced
legislation to reduce mandatory time
served from 85% to 50% for offenses
classified as dangerous, including robbery
and assault.22 Oklahoma Department of
Corrections Director Joe Allbaugh has
called for his state to reduce the
requirement that people convicted of
violent crimes serve 85% of their
sentences before being released, as are
advocates in South Carolina.23 Louisiana
has already made modest reductions in
how long people with violent convictions
must serve before becoming eligible for
parole and “good time” release.24
. 

Hearts for Inmates, a South Carolina-based group founded by Erica Fielder (center), advocates
for lowering the state’s truth-in-sentencing law from 85% to 65% for all offenses. Photograph
courtesy of Hearts for Inmates.

The Next Step: Ending Excessive Punishment for Violent Crimes 15

1	 Carson, E. A. (2018). Prisoners in 2016. Bureau of Justice Statistics.
Available at: https://www.bjs.gov/content/pub/pdf/p16.pdf
2	 Unanimity was already required in capital trials and those for lesser
felonies. O’Donoghue, J., & Nolan, H. (2018, November 7). Louisiana
approves unanimous jury requirement, scrapping Jim Crow-era law. NOLA.
com. Retrieved from https://www.nola.com; Simerman, J., & Russell, G.
(2018, November 7). Louisiana voters scrap Jim Crow-era split jury law;
unanimous verdicts to be required. The Advocate. Retrieved from https://
www.theadvocate.com
3	 Adelson, J., Russell, G., & Simerman, J. (2018, April 1). How an abnormal
Louisiana law deprives, discriminates and drives incarceration: Tilting the
scales. The Advocate. Retrieved from https://www.theadvocate.com
4	 Adelson, Russell, & Simerman, 2018.
5	 O’Donoghue, J. (2018, July 30). Louisiana unanimous juries: How advocates
plan to get out the vote. NOLA.com. Retrieved from; Louisiana Secretary
of State. (2018 November). Statewide Election Results. Louisiana
Department of State. Retrieved from https://voterportal.sos.la.gov/
Graphical
6	 DeBerry, J. (2018, November 2). A consensus on unanimity: Louisiana’s
Amendment 2 brings political adversaries together. NOLA.com. Retrieved
from https://www.nola.com; Simerman & Russell, 2018.
7	 McGill, K., & Santana, R. (2018, November 6). Louisiana Votes to End
Non-Unanimous Jury Verdicts. U.S. News & World Report. Retrieved from
https://www.usnews.com
8	 O’Donoghue, J. (2018, April 3). Louisiana changed a law to release more
sick, old prisoners. Now, there’s an effort to undo that. NOLA.com. Retrieved
from https://www.nola.com; The Pew Charitable Trusts. (2018 March).
Louisiana’s 2017 Criminal Justice Reforms. Retrieved from https://www.
pewtrusts.org/en/research-and-analysis/issue-briefs/2018/03/louisianas2017-criminal-justice-reforms
9	 O’Donoghue, 2018; Louisiana State Legislature. (2017). Senate Bill No.
139. Retrieved from https://www.legis.la.gov/legis/ViewDocument.
aspx?d=1051859
10	 Louisiana State Legislature. (2018). Senate Bill No. 458. Retrieved from
http://www.legis.la.gov/legis/ViewDocument.aspx?d=1102934
11	 Nellis, A. (2017). Still life: America’s increasing use of life and long-term
sentences. Washington, DC: The Sentencing Project. Available at: https://
www.sentencingproject.org/publications/still-life-americas-increasinguse-life-long-term-sentences/; O’Donoghue, J. (2017, March 22). How
long should Louisiana keep old, ill criminals in prison? NOLA.com. Retrieved
from https://www.nola.com
12	 Ballard, M. (2018, April 18). Louisiana legislators refuse to loosen
sentencing and parole rules. The Advocate. Retrieved from https://www.
theadvocate.com
13	 LegiScan. (2018). Louisiana Senate Bill 269. Retrieved from https://
legiscan.com/LA/bill/SB269/2018
14	 Mississippi went beyond the truth-in-sentencing provisions required for
the new U.S. Department of Justice funding by imposing the 85% threshold
for all crimes. Schrantz, D., DeBor, S.T., & Mauer, M. (2018). Decarceration
strategies: How 5 states achieved substantial prison population
reductions. Washington, DC: The Sentencing Project. Available at: https://
www.sentencingproject.org/wp-content/uploads/2018/08/DecarcerationStrategies.pdf
15	 Sabol, W. J., West, H. C. & Cooper, M. (2009). Prisoners in 2008. Bureau
of Justice Statistics. Retrieved from https://www.bjs.gov/content/pub/
pdf/p08.pdf; Schrantz, DeBor, & Mauer, 2018.
16	 The Pew Charitable Trusts. (2014). Mississippi’s 2014 Corrections and
Criminal Justice Reform. Retrieved from https://www.pewtrusts.org/~/
media/assets/2014/09/pspp_mississippi_2014_corrections_justice_
reform.pdf.
17	 Gates, J.E. (2017, March 17). Sweeping corrections reform bill passes.
The Clarion-Ledger. Retrieved from http://www.clarionledger.com
18	 Schrantz, DeBor, & Mauer, 2018.
19	 Schrantz, DeBor, & Mauer, 2018, p. 31; Ghandnoosh, N. (2018). Can we
wait 75 years to cut the prison population in half? Washington, DC: The
Sentencing Project. Available at: https://www.sentencingproject.org/
publications/can-wait-75-years-cut-prison-population-half/
20	 During this period, the nationwide reported violent crime rate fell by 16%
and the reported property crime rate fell by 24%. FBI Uniform Crime
Reports.
21	 On how Florida and Colorado have repealed mandatory sentencing
requirements for certain violent crimes, see pp. 26-27 in Justice Policy
Institute. (2016). Defining violence: Reducing incarceration by rethinking
America’s approach to violence. Washington, DC. Available at: http://
www.justicepolicy.org/uploads/justicepolicy/documents/jpi_
definingviolence_final_report_9.7.2016.pdf
22	 Missouri House of Representatives. (n.d.). HB 657 – Sentencing. Retrieved
from https://house.mo.gov/billtracking/bills151/sumpdf/HB0657I.pdf
23	 Chandler, Q. (2018, September 13). Can Oklahoma learn from Louisiana’s
criminal justice reform? StateImpact Oklahoma. Retrieved from http://
www.stateimpact.npr.org
24	 The Pew Charitable Trusts, 2018.

16 The Sentencing Project

IV. Using Discretion to Reduce
Extreme Sentences
California Governor Eases Life
Sentences through Parole and
Commutation

“Many people in today’s society

Recent California governors have had an unusual amount
of authority in determining prison terms for serious
violent crimes. Jerry Brown was the first to extensively
use this power to alleviate excessive sentences. In a
state that leads the nation in the size of its parole-eligible
lifer population—with over 34,000 individuals in 2016—
governors have since the 1980s been able to reverse or
modify the parole board’s decisions regarding this
population.1 While his predecessors reversed over half
(54%) of all parole grants for lifers between 1991 and
2010, Brown reversed only 12% by 2018.2 The governor
also appointed parole board commissioners who
dramatically increased the state’s low parole grant rate,
commuted a number of parole-ineligible life sentences,
and helped to pass laws that would give convicted youth
a more meaningful chance at parole and narrow the
imposition of life sentences (see Sections 5 and 7 in
this report).3
A former Jesuit seminarian, Brown’s approach was driven
by moral conviction and concerns about the
counterproductive effects of excessive prison terms as
well as their cost. Although during his first tenure as
California governor beginning in the 1970s he approved
legislation that contributed to mass incarceration, and
he later defended prison overcrowding as Attorney
General in the 2000s, in his second gubernatorial term
he led the state to become a leader in decarceration.4
Brown outpaced his recent predecessors and peers in
commuting excessive prison sentences for violent
crimes. During his last year in office, Brown commuted
the sentences of 284 people, most of whom had received
lengthy sentences for murder or attempted murder.5 The
commutations were often limited to extending parole

do not believe in either
forgiveness or redemption…
They believe that what you do
is who you are. That philosophy
is not something that I share.”
— Jerry Brown
Former Governor of California

eligibility to people sentenced to life without the possibility
of parole (who total over 5,000 in the state) or expediting
parole eligibility dates. Some commutations shortened
the length of a prison term and led to immediate release.
“Many people in today’s society do not believe in either
forgiveness or redemption,” said Brown. “They believe
that what you do is who you are. That philosophy is not
something that I share. I don’t think it’s Christian ... and
it does not comport with historical notions of justice.”6
The state Supreme Court intervened in some of Brown’s
commutations, rejecting 10 sentence adjustments for
individuals who had multiple felony convictions.7
But Brown’s mercy had limits. Despite his own opposition
to the death penalty and encouragement from groups
including six former U.S. governors, faith leaders, and
the Los Angeles Times editorial board, Brown did not
grant a blanket commutation for the 740 people on
California’s death row.8 Such an act would have echoed
that of Illinois Governor George Ryan’s, who in 2003
commuted all of the state’s 167 death sentences to
prison terms of life or less.9

The Next Step: Ending Excessive Punishment for Violent Crimes 17

The Scope of Gubernatorial Clemency

Tennessee

During the era of mass incarceration, most governors
have strayed from the tradition of using executive
clemency powers to correct injustices. But some have
shown mercy, even to people convicted of serious violent
crimes. These include:

Before leaving office in 2019, Tennessee Governor Bill
Haslam commuted Cyntoia Brown’s sentence from life
with parole consideration after 51 years to a sentence
of 15 years, and showed mercy in at least two other
homicide cases.17 

Arkansas
During his decade as governor of Arkansas beginning
in 1996, Mike Huckabee granted 1,058 pardons and
commutations—including to people with violent
convictions. A former Baptist minister, Huckabee sought
to honor redemption and correct unfairness. He defended
these decisions when they came under scrutiny during
his presidential bids. Preceding the 2008 Republican
primaries, Mitt Romney criticized Huckabee’s clemency
record. 10 Huckabee countered that Romney’s
unwillingness to use his clemency powers as governor
amounted to “playing politics with people’s lives,”11 while
boasting of his own record of overseeing executions.12
In 2009, Huckabee again defended his clemency record
after someone whose sentence he commuted allegedly
killed four police officers. He explained that he could
not have made a better decision at the time of the
commutation given the information that he had. The
man’s crime of robbery and burglary at age 16 would
typically result in a sentence of a few years, “but because
he was a young black kid, he got 108 years!” Huckabee
explained.13

Colorado
Before leaving office in January 2019, Colorado
Governor John Hickenlooper used his clemency
power for the first time to commute sentences. He
granted parole eligibility or expedited parole for 18
individuals, including 12 who were convicted of
murder as young men or teens, most of whom were
sentenced to life without parole.14 One of the men,
Curtis A. Brooks, was convicted of felony murder at
age 15 and will be released after serving 24 years in
prison.15 “Their crimes were severe,” Hickenlooper
said in a statement, but added: “It’s our belief that
young offenders who have grown into exemplary
individuals, and who have clearly learned from their
mistakes, should be considered for a second
chance.”16

18 The Sentencing Project

“The Ungers” Bypass Maryland’s
Broken Parole Process
Maryland is among a handful of states that like California
allows its governor to reject the Parole Commission’s
decisions to parole people serving eligible life sentences.18
Since the mid-1990s, Maryland governors have used
this authority to practically eliminate the possibility of
parole for lifers, and the Commission has been reluctant
to make parole recommendations.19 In 2011, the General
Assembly passed legislation requiring governors to act
within 180 days of the Commission’s parole
recommendations for lifers who had served at least 25
years.20 In 2017, a bill to end gubernatorial review of
parole decisions (House Bill 723) passed the House but
its companion bill (Senate Bill 694) stalled in committee
amidst Governor Larry Hogan’s veto threats.21 The
governor’s office restated its opposition to this reform
in 2019.22 Former Governor Parris Glendening, who
initiated the policy of uniformly denying all lifer parole
grants, has since disavowed the policy for its erosion of
hope and financial burdens.23
“The Ungers” are a subset of Maryland’s lifer population
who bypassed these roadblocks and gained their release
through the courts. In 2012, the Maryland Court of
Appeals found in Unger v. State that a jury instruction
used by Maryland courts until 1981 had denied defendants
due process, leading to retrials for nearly 250 people
given life sentences during the 1970s and 1980s.24 Since
then, 188 elderly lifers have been released.25 Recidivism
rates for this group have been extremely low: only five
have returned to prison for a violation of parole or for a
new crime, well below the state’s overall recidivism rate.26

“The Ungers” are a group of nearly 188 Maryland lifers who gained their freedom through the courts. Their extremely low recidivism rate underscores the
need for the state to eliminate roadblocks to parole. Photograph by Michael Millemann, 2017.

The Next Step: Ending Excessive Punishment for Violent Crimes 19

Philadelphia District Attorney
Reduces Reliance on Life Sentences
A civil rights lawyer and former public defender who
campaigned against mass incarceration, its racial
disparities, and unfairness to the poor, Larry Krasner
was elected the District Attorney of Philadelphia in
November 2017.27 During his first year in office,
Krasner’s reforms included directing the city’s
prosecutors to not require cash bail for a number of
low-level offenses, not press charges for marijuana
possession and initial prostitution arrests, increase
accountability for police officers and prosecutors, and
seek shorter probation terms for most crimes.28
Recognizing that mass incarceration would not end
without reforming sentences for violent crimes, Krasner
is using his office’s discretion and political weight to
end the state’s ignoble status as a leader in life-withoutparole (LWOP) sentences.29 “It is simply not normal
to be in a state with so many people doing life without
parole and to be unwilling to look at alternatives,”
Krasner has said, adding, “What I am proposing here
is using a scalpel instead of a chainsaw.”30
In 2016, Pennsylvania had the country’s second largest
population of people serving parole-ineligible life
sentences: 5,398 individuals who comprised 11% of
the state’s prison population.31 Nearly two-thirds of
this population was African American.32 Moreover, the
subset of individuals serving life-without-parole
sentences for crimes committed as juveniles, 479,
was the largest in the country.33 Because life sentences
divert public safety resources to incarcerate people
long after they have aged out of their crime-prone
years, Krasner sees the move away from life sentences
as an opportunity to free up resources for policing,
public education, drug treatment, job training, and
economic development.34 He explained to staff:
Pennsylvania and Philadelphia have been
incarcerating at an even higher rate than comparable
U.S. states and cities for decades.… Yet
Pennsylvania and Philadelphia are not safer as a
result, due to wasting resources in corrections
rather than investing in other measures that reduce
crime.35

20 The Sentencing Project

“It is simply not normal to be in a state with so many people doing life
without parole and to be unwilling to look at alternatives,” says Philadelphia
District Attorney Larry Krasner. Photograph courtesy of Jared Piper/
Philadelphia City Council, 2018.

Pennsylvania mandates LWOP sentences for adults
convicted of first- and second-degree murder and
required the same for juveniles until the Supreme
Court’s rulings in Miller v. Alabama and Montgomery
v. Louisiana invalidated mandatory juvenile life-withoutparole (JLWOP) sentences. In response, the
Pennsylvania General Assembly set juvenile sentencing
guidelines to a minimum of 25-35 years to life for firstdegree murder and 20-30 years to life for second-degree
murder, depending on age, and left life without parole
as a discretionary option.36 Krasner’s office has navigated
these mandatory sentencing laws and sentencing
guidelines to seek less extreme sentences for violent
crimes:
•	

Since the Supreme Court has declared many JLWOP
sentences to be unconstitutional, Krasner’s caseby-case evaluations of those awaiting resentencing
has offered shorter prison terms than the previous
district attorney who largely adhered to the
sentencing guidelines.37

•	

Krasner has directed assistant district attorneys
to explicitly quantify and justify the fiscal costs of
recommended terms of imprisonment. He has

•	

State Senator Sharif Street introduced legislation to allow people serving life
without the possibility of parole to be evaluated for parole after 15 years of
incarceration. Photograph courtesy of the office of Sen. Street, 2018.

encouraged his staff to select the appropriate, rather
than maximum, charge in homicide cases (choosing
from a spectrum which ranges from involuntary
manslaughter to first-degree murder) and requires
them to receive approval for any plea offer
proposing a prison term greater than 15 to 30
years.38 “We are not going to overcharge. We are
not going to try to coerce defendants,” said Krasner,
adding: “We are going to proceed on charges that
are supported by the facts in the case, period.”39

His office has endorsed legislation to allow people
serving LWOP to be evaluated for parole after 15
years of incarceration, a reform that is in line with
the recommendation of national sentencing and
parole experts.40 Introduced in 2017 by State
Senator Sharif Street and State Representative
Jason Dawkins, Senate Bill 942 (HB 135) created
“no right to parole” but would end the unnecessary
imprisonment of people who are unlikely to
reoffend because they are reformed, ill, or elderly.41

While seeking to address the lasting effects of mass
incarceration on communities through sentencing
reforms, Krasner’s office is also seeking to improve
public safety by reducing the likelihood of retaliatory
violence. These reforms include assigning nonfatal
shootings to homicide prosecutors, so as to improve
the department’s response, and the development of
a rapid-response program to expedite the staff’s
involvement with victims during pending
investigations.42
Krasner’s efforts have received a range of responses.
Activist groups who supported his election and the
Philadelphia Defender Association praise this progress
but emphasize the need for further reforms.43 Some
judges have resisted his office’s plea offers as too
merciful.44 Some victims have done the same, though
others have joined his team.45 While Krasner faces
opposition from the Fraternal Order of Police, the
Guardians—the association representing AfricanAmerican police officers in Philadelphia—have
supported his office’s reforms.46

Restorative Justice in New York City
In New York prosecutors in Brooklyn and the Bronx have allowed certain cases of serious and violent
felonies, including assault and robbery, to be diverted from incarceration as part of a restorative
justice program. The program is run by Common Justice, a local organization that offers alternativesto-incarceration and victim-services programs. Consenting survivors who participate seek to reach
agreements with the responsible party to address the harm that they experienced and to develop
non-carceral strategies of accountability. This may include restitution, extensive community service,
and commitments to attend school and work, and includes the completion of a 12- to 15-month
intensive violence intervention program. Through this approach, Common Justice aims to “repair
rather than sever communal ties in the aftermath of serious crime.”47

The Next Step: Ending Excessive Punishment for Violent Crimes 21

1	 Nellis, A. (2017). Still life: America’s increasing use of life and long-term
sentences. Washington, DC: The Sentencing Project. Available at: https://
www.sentencingproject.org/publications/still-life-americas-increasinguse-life-long-term-sentences/; Ghandnoosh, N. (2017). Delaying a second
chance: The declining prospects for parole on life sentences. Washington,
DC: The Sentencing Project. Available at: https://www.sentencingproject.
org/publications/delaying-second-chance-declining-prospects-parolelife-sentences/
2	 Due to data limitations, this rate excludes gubernatorial modifications of
the parole board’s decisions and requests for en banc reviews. Office of
Governor Edmund G. Brown Jr. Undated. Executive report on parole review
decisions: Decisions for the period January 1, 2017 through December
31, 2017 (and three prior years); California Board of Parole Hearings.
2014, 2015. Lifer scheduling and tracking system: Lifer prisoner parole
consideration hearing and decision information (for calendar years 20092017); California Board of Parole Hearings. 2013. Suitability hearing
summary: CY 1978 through CY 2012; Data from Office of Governor Edmund
G. Brown Jr. (via Paul Elias of the Associated Press). See more at
Ghandnoosh, 2017.
3	 Ghandnoosh, 2017; Ulloa, J. (2017, July 27). More California inmates are
getting a second chance as parole board enters new era of discretion.
Los Angeles Times. Retrieved from www.latimes.com
4	 Mauer, M., & Ghandnoosh, N. (2014). Fewer prisoners, less crime: A tale
of three states. Washington, DC: The Sentencing Project.; Myers, J., &
Ulloa, J. (2019, January 4). On crime and punishment, Gov. Jerry Brown
leaves behind revised rules and a new focus on redemption. Los Angeles
Times. Retrieved from www.latimes.com
5	 Christopher, B. (2018, December 24). Jerry Brown—most forgiving governor
in modern California history. CALMatters. Retrieved from https://calmatters.
org; Thompson, D. (2019, January 5). Jerry Brown transformed California’s
justice system – twice. The Associated Press. Retrieved from: www.
apnews.com
6	 Egelko, B. (2018, December 24). Gov. Jerry Brown sets record for pardons,
commutations in California. San Francisco Chronicle. Retrieved from
https://www.sfchronicle.com
7	 Koseff, A. (2019, January 10). ‘It was like a ton of bricks crushed me’:
California grapples with historic clemency rejections. The Sacramento
Bee. Retrieved from https://www.sacbee.com. See also Los Angeles
Times Editorial Board. (2018, December 27). The power to pardon is an
important check, but the process needs more transparency. Los Angeles
Times. Retrieved from www.latimes.com
8	 Celeste, R., Kitzhaber, J., O’Malley, M., Richardson, B., Quinn, P., & Anaya,
T. (2018, December 13). Jerry Brown has the power to save 740 lives. He
should use it. The New York Times. Retrieved from https://www.nytimes.
com; Pullella, P. (2018, November 28). Group close to pope urges California’s
Brown to commute all death sentences. Reuters. Retrieved from https://
www.reuters.com; Los Angeles Times Editorial Board. (2018, November
23). Brown and Newsom know the death penalty is wrong. They should
work together to do something about it. Los Angeles Times. Retrieved
from www.latimes.com
9	 Wilgoren, J. (2003, January 12). Citing issue of fairness, governor clears
out death row in Illinois. The New York Times. Retrieved from https://
www.nytimes.com. For similar actions, see Death Penalty Information
Center (n.d.). Clemency. Washington, DC. Available at: https://
deathpenaltyinfo.org/clemency.
10	 Adair, B. (2007, December 28). Yes, Huckabee pardoned many. Politifact.
Retrieved from https://www.politifact.com
11	 Adair, 2007.
12	 Cleveland 19 News. (2007, December 18). Huckabee defends himself
from Romney, says Arkansas executions prove he’s tough on crime.
Retrieved from http://www.cleveland19.com/
13	 Bacon, P. Jr., & Franke-Ruta, G. (2009, December 1). After police killings,
Huckabee defends clemency for suspect. The Washington Post. Retrieved
from http://www.washingtonpost.com; Huckabee, M. (2009, December
7). Why I commuted Maurice Clemmons’s sentence. The Washington
Post. Retrieved from http://www.washingtonpost.com.
14	 Paul, J. (2018, December 14). Hickenlooper commutes life sentences of
6 men convicted of murder, including in high-profile Curtis Brooks case.
The Colorado Sun. Retrieved from https://coloradosun.com; Nicholson,
K. (2018, December 21). Hickenlooper orders clemency for 33 Colorado
offenders, including 7 men convicted of murder Kieran Nicholson. The
Denver Post. Retrieved from www.denverpost.com
15	 Dukakis, A. (2018, December 14). Hickenlooper grants clemency for Curtis
Brooks and five others sentenced to life without parole. Colorado Public
Radio. Retrieved from https://www.cpr.org
16	 Dukakis, 2018.
17	 Schmidt, S. (2019, January 7). Cyntoia Brown, sentenced to life for murder
as teen, is granted clemency. The Washington Post. Retrieved from https://
www.washingtonpost.com; Boucher, D. (2018, July 26). Gov. Bill Haslam
commuted a murder sentence. He agrees the case is similar to Cyntoia
Brown’s. The Tennessean. Retrieved from https://www.tennessean.com;
Mattise, J. (2019, January 18). Tennessee governor grants parole in
murder-for-hire case. The Associated Press. Retrieved from https://www.
apnew.com.
18	 Ghandnoosh, 2017.

22 The Sentencing Project

19	 While twenty-six Marylanders with life sentences were paroled between
1990 and 1995, the state did not parole any such individuals between
1996 and 2014. Between January 2015 and February 2018, Governor
Larry Hogan approved two out of nine lifer parole recommendations and
commuted the sentences of seven individuals. See Ghandnoosh, 2017;
The Baltimore Sun Editorial Board. (2017, February 20). Get governors
out of parole decisions. The Baltimore Sun. Retrieved from https://www.
baltimoresun.com; Cohen, R.M. (2018, December 10). A GOP Governor
has a chance to fix a blue state’s draconian approach to paroling juvenile
offenders. The Intercept. Retrieved from https://theintercept.com.
20	 Bykowicz, J. (2011, May 18). Lifer parole to take effect without O’Malley
signature. The Baltimore Sun. Retrieved from https://www.baltimoresun.
com.
21	 Murillo, M. (2017, Marcy 12). Md. Senate to vote on bill stripping Gov. of
parole vote. WTOP. Retrieved from https://wtop.com; Chason, R., & Wiggins,
O. (2018, March 7). Glendening, former Md. governor, says he was wrong
to deny ‘lifers’ early release. The Washington Post. Retrieved from https://
www.washingtonpost.com.
22	 Rydell, J. (2019, February 5). MD legislators divided over bill to reform
parole policies. Fox 5 News. Retrieved from https://foxbaltimore.com
23	 Dresser, M. (2018, March 6). Former Maryland governors Glendening,
Ehrlich join to support ‘smart’ approaches to crime. The Baltimore Sun.
Retrieved from https://www.baltimoresun.com; Chason & Wiggins, 2018.
24	 Unger v. State, 427 Md. 383 (2012).	
25	 CBS News. (2017, November 12). The Ungers: Righting a miscarriage of
justice. Retrieved from https://www.cbsnews.com/news/the-ungersrighting-a-miscarriage-of-justice/
26	 Justice Policy Institute. (2018). The Ungers, 5 years and counting.
Washington, DC. Available at: http://www.justicepolicy.org/uploads/
justicepolicy/documents/The_Ungers_5_Years_and_Counting.pdf
27	 Allyn, B. (2017, November 7). Krasner routs Grossman, coasting to victory
in Philly DA race. WHYY. Retrieved from https://whyy.org
28	 Philadelphia District Attorney’s Office (2018a, February 21). Larry Krasner
announces end to cash bail in Philadelphia for low-level offenses.
Available at: https://phillyda.wordpress.com/2018/02/21/larry-krasnerannounces-end-to-cash-bail-in-philadelphia-for-low-level-offenses/; Marin,
M. (2018, October 4). Philly DA Larry Krasner is going after police officers
for illegal stop-and-frisks. BillyPenn. Retrieved from https://billypenn.com;
Fazlollah, M., & Palmer, C. (2018, June 4). Philly DA Larry Krasner seeking
to develop comprehensive list of tainted cops. Philadelphia Inquirer.
Retrieved from http://www2.philly.com; Gonnerman, J. (2018, October
29). Larry Krasner’s campaign to end mass incarceration. The New Yorker.
Retrieved from https://www.newyorker.com; Philadelphia District Attorney’s
Office (2018b, March 13). New Policies Announced February 15, 2018.
Available at: https://www.scribd.com/document/373860422/FinalizedMemo-Mar-13-2018#fr5X05d2968a3fff9a4ebff880f22b8078b1&keywo
rd=660149026&source=hp_affiliate&medium=affiliate
29	 Schwartz, E. (2018, July 11). Re-think sentencing for violent offenders:
Philly DA Larry Krasner. The Crime Report. Retrieved from https://
thecrimereport.org.
30	 Palmer, C. (2018, April 4). Philly DA Larry Krasner is changing the way his
office prosecutes killers. Not everyone agrees. Philadelphia Inquirer.
Retrieved from http://www.philly.com
31	 Florida ranked first in the size of its LWOP population. Nellis, A. (2017).
Still life: America’s increasing use of life and long-term sentences.
Washington, DC: The Sentencing Project. Available at: https://www.
sentencingproject.org/publications/still-life-americas-increasing-use-lifelong-term-sentences/.
32	 Nine percent were Hispanic. Data provided by Ashley Nellis.
33	 Data provided by Ashley Nellis.
34	 Philadelphia District Attorney’s Office (2018c, September 20). Action Alert:
Supporting #SB942 Empowers PA Parole Board to Make Right Decisions.
Available at: https://medium.com/philadelphia-justice/action-alertsupporting-sb942-empowers-pa-parole-board-to-make-right-decisions32d617773983
35	 Philadelphia District Attorney’s Office, 2018b.
36	 Pennsylvania board of probation and parole. (2018). “Juvenile lifers”:
From re-sentencing to reentry. Available at: https://www.pbpp.pa.gov/
Information/publications/Documents/Juvenile%20Lifers%20Fact%20
Sheet%20FINAL%20with%20quotes.pdf.
37	 Melamed, M. (2018, Feburary 22). Why Philly DA Krasner could let 180+
juvenile lifers out of prison early. Philadelphia Inquirer. Retrieved from
http://www2.philly.com; Melamed, M. (2018, April 6). Philly judges block
DA Krasner’s deals for juvenile lifers. Philadelphia Inquirer. Retrieved from
http://www2.philly.com.
38	 Palmer, 2018; Melamed, M., & Palmer, C. (2018, November 14). When is
killing ‘murder’? Philly DA Larry Krasner rethinks homicide prosecutions.
Philadelphia Inquirer. Retrieved from http://www2.philly.com; Ewing, M.
(2018, December 4). America’s leading reform-minded District Attorney
has taken his most radical step yet. Slate. Retrieved from https://slate.
com
39	 Ewing, 2018.

40	 The Model Penal Code recommends a “second look provision” involving
a judicial consideration of sentencing modifications for anyone who has
served 15 years in prison, “rooted in the belief that governments should
be especially cautious in the use of their powers when imposing penalties
that deprive offenders of their liberty for a substantial portion of their
adult lives.” See The American Law Institute (2017, April 10). Model penal
code: Sentencing, proposed final draft, p. 568; Rhine, E. E., Petersilia, J.,
& Reitz, R. (2016). The future of parole release. Crime and Justice, 46(1);
Philadelphia District Attorney’s Office, 2018c; Senate Bill 942, Regular
Session 2017-2018. Retrieved from https://www.legis.state.pa.us/cfdocs/
billinfo/billinfo.cfm?syear=2017&sind=0&body=S&type=B&bn=942;
Ghandnoosh, N. (2019). Policy Proposal: Instate 15-year maximum wait
for parole eligibility. Scholars Strategy Network. Available at: https://
scholars.org/brief/policy-proposal-instate-15-year-maximum-wait-paroleeligibility
41	 Senate Bill 942, Regular Session 2017-2018; Philadelphia District Attorney’s
Office, 2018b.
42	 Volk, S. (2018, September 18). Krasner Announces Big Shakeup in Homicide
Unit of DA’s Office. Philadelphia Magazine. Retrieved from https://www.
phillymag.com/; Austen, B. (2018, October 30). In Philadelphia, a
progressive D.A. tests the power—and learns the limits—of his office. The
New York Times Magazine. Retrieved from https://www.nytimes.com
43	 Austen, 2018.
44	 Melamed, S. (2018, April 6). Philly judges block DA Krasner’s deals for
juvenile lifers. Philadelphia Inquirer. Retrieved from http://www2.philly.
com
45	 Gonnerman, 2018; Tanenbaum, M. (2018, June 25). Krasner defends
decision not to pursue death penalty in murder of Philly cop. PhillyVoice.
Retrieved from https://www.phillyvoice.com
46	 See Schwartz, 2018.
47	 Common Justice. (n.d.). Common Justice Model. Retrieved from https://
www.commonjustice.org/common_justice_model; see also Sered, D.
2019. Until we reckon: Violence, mass incarceration, and a road to repair.
New York: The New Press.

The Next Step: Ending Excessive Punishment for Violent Crimes 23

V. Recognizing the
Rehabilitative Potential of
Youth and Young Adults
Supreme Court and States Limit
Life-Without-Parole Sentences for
Youth
Four U.S. Supreme Court rulings from the past
fifteen years have sharply limited the most severe
punishments for people under age 18. Under Roper
v. Simmons (2005), youth cannot be sentenced
to death.1 At the time, 12 states banned the death
penalty in all instances and 18 others banned it
for juveniles.2 Roper left life without parole as the
harshest punishment for youth (including for those
previously sentenced to death). Five years later,
Graham v. Florida limited juvenile life without
parole to homicide convictions (requiring a new
sentence for youth sentenced to life without parole
for non-homicide offenses).3 Graham did not
require states to guarantee eventual freedom for
young people convicted of non-homicide crimes,
but it did entitle them to a “meaningful opportunity
to obtain release based on demonstrated maturity
and rehabilitation.”4
As of 2012, more than 2,500 people were serving
life without parole for crimes committed before
turning 18. Disproportionately people of color,
roughly two-thirds of these individuals were
convicted in just five states: Pennsylvania,
Michigan, Florida, California, and Louisiana.5 In
Miller v. Alabama (2012), the Court ruled that the
mandatory imposition of a life-without-parole
sentence for homicide is a cruel and unusual

24 The Sentencing Project

Bryan Stevenson, founder and executive director of Equal Justice Initiative,
successfully argued Miller v. Alabama (2012), in which the Supreme Court
ruled that the mandatory imposition of a life-without-parole sentence for
homicide is a cruel and unusual sentence for youth under age 18. Photograph
courtesy of the Equal Justice Initiative.

sentence for a juvenile.6 The discretionary imposition of
the sentence is still constitutional, wherein trial courts
consider mitigating factors of youth prior to issuing it.
This mandatory/discretionary distinction is important
because courts have been reticent to impose life without
parole to juveniles when given an alternative: more than
three-quarters of juveniles received the sentence as a
mandatory minimum.7

Prior to Miller, only a handful of states had banned
juvenile life without parole (“JLWOP”), though several
others rarely or never used it. Sixteen additional states
and the District of Columbia have banned JLWOP
since the ruling, either through legislation or state
Supreme Court rulings, bringing the total to 21 states
and DC that have banned its use.
Miller set in motion many resentencings, though
some states were slow in ensuring parole eligibility
to say nothing of granting parole. A key question
remained as to the retroactivity of Miller, made more
pressing by negative state supreme court decisions
in those states most prone to impose life without
parole sentences on youth. In Montgomery v.
Louisiana (2016), the Court found Miller applied
retroactively, meaning that any person who had
received life without parole as a mandatory sentence
while a juvenile was entitled to reconsideration of his
or her sentence.8
Twenty-nine states have passed reforms to amend
their juvenile sentences for homicide since the Miller
rulings and some state Supreme Courts have
interpreted the new strictures on youth sentencing
broadly.9 The Iowa Supreme Court ruled that all
mandatory sentences for youth are unconstitutional.10
The new laws specify the ways that a young person’s
personal history should be used to mitigate their
sentence, such as under Missouri’s SB 590 (2016)
and West Virginia’s HB 4210 (2014). States including
California and New York require their parole boards
to weigh the significance of youth in parole hearings
(see Sections 5 and 6). The other key feature is shorter
time periods prior to parole eligibility. In Nevada and
West Virginia juveniles convicted of homicide can be
eligible for parole after serving 15 years.11 South
Dakota law offers no guidance for juveniles convicted
of homicide, leaving the sentence to judicial
discretion.12 The limits of these reforms are highlighted
by the case of Henry Montgomery himself, the named
plaintiff in the Supreme Court’s landmark decision.
Though eligible, he was denied parole by the Louisiana
parole board in February 2018, even after spending
over 50 years in prison.13
The Campaign for the Fair Sentencing of Youth
reported 1,100 people are still serving life without

parole for offenses committed under age18 following
the legislation that passed in Miller’s wake and the
resentencings that followed.14 The Sentencing Project
has estimated that about 7,000 others are serving
parole-eligible life sentences for crimes committed
before age 18 and 2,000 more are serving virtual life
sentences, defined as 50 years or longer.15 In 2016,
over three-quarters of people serving a life sentence
(including virtual life) for a juvenile offense were
people of color.16

States Reduce Transfers of Youth to
Adult Courts
While most states handle offenses committed by
youth under age 18 in juvenile courts, all allow serious
youth offenses to be transferred to adult courts. This
occurs either through laws requiring certain offenses
be tried in adult courts or through the discretion
granted to juvenile court judges or prosecutors to
select those youth, within certain parameters, who
will be tried in adult courts. Juvenile transfer laws
are so wide-ranging that, as of 2016, all but four states
allowed even drug charges to be tried in adult courts.17
However, recent legislative reforms, in nearly a dozen
states including Connecticut, Illinois, Utah, and
Vermont, have limited transfers by raising the
minimum transfer age and by limiting the offenses
for which youth can be charged as if they were adults.
These reforms, along with declines in youth offending,
have sharply decreased the number of youth charged
as if they were adults. By 2015, approximately 9,200
youth under age 18 were prosecuted as adults through
transfer laws, judicial waivers, or prosecutorial
discretion.18
Transferring youth to the adult criminal justice system
has proven to neither broadly deter youth offending
nor to reduce reoffending among those convicted.19
In fact, a systematic review of scientific studies found
increased reoffending among those youth who had
been tried as adults compared to those tried as
juveniles for similar offenses.20
Transferring youth to the adult system exposes them
to an array of well-documented damaging
consequences. An adult conviction carries harsher
punishment and imposes an array of collateral

The Next Step: Ending Excessive Punishment for Violent Crimes 25

consequences since it is more difficult to expunge
adult records than juvenile records. If incarcerated in
an adult prison, youth receive inferior rehabilitative
programming and poorer education than in juvenile
facilities. Youth in adult facilities are also at greater
risk of harm from themselves or other imprisoned
individuals and guards than youth in juvenile facilities.21
Youth of color are especially likely to experience the
negative consequences of being transferred to adult
courts, although data on juvenile transfers and their
racial composition are incomplete, particularly for
non-judicial waivers. The federal Office of Juvenile
Justice and Delinquency Prevention estimates that
among the small subset of transfers that followed a
hearing in juvenile court, youth of color comprise 66%
of such transfers despite comprising 57% of
delinquency cases.22 The Burns Institute’s review of
prosecutorial waivers in California showed even worse
disparities when the decision to prosecute in adult
courts was made by District Attorneys, research that
helped end the practice in that state.23
States have limited the transfer of young people into
adult courts through two key types of reforms, to
which the Campaign for Youth Justice has been
instrumental.24 One approach has been to raise the
minimum age at which a transfer is permitted. Vermont
raised its minimum transfer age from 10 to 12, Kansas
from 12 to 14, and Connecticut and New Jersey from
14 to 15.25 Fourteen-year olds in those states can still
be transferred, but only after a hearing in juvenile
court. Illinois raised its minimum automatic transfer
age from 15 to 16.26 As in Connecticut, adult trials are
still an option for Illinois’s 15-year olds, but a transfer
hearing must take place. California, Delaware, and
Texas passed procedural reforms that have the
potential to send more youth cases to juvenile courts
despite starting in adult criminal courts.
A second set of reforms has limited the offenses for
which youth can be charged as adults. Illinois no
longer automatically charges youth as adults on
certain gun-related theft charges and Utah sharply
limited the list of charges that are automatically sent
to criminal courts.27 Indiana now allows for reverse
waivers to return youth to the juvenile courts.28 Voters

26 The Sentencing Project

passed procedural reforms in California to limit the
power of prosecutors to send youth to adult courts,
as did Vermont’s legislature.29
Another avenue for reform has been allowing a second
look at lengthy sentences imposed on juveniles. In
Louisiana and Connecticut people given lengthy terms
as youth are entitled to a sentencing review.30 Following
passage of the law, Rachel Gassert of the Louisiana
Center for Children’s Rights noted, “Keeping
rehabilitated kids locked up serves no purpose other
than to punish them, which is not what the juvenile
system is meant to do.”31

Raise the Age
Nationwide, arrested adolescents under age 18
are typically charged in juvenile courts and those
18 years and older are charged as adults. But
states that are exceptions to this rule have
generated the bulk of criminal prosecutions of
youth under age 18: 66,700 cases in 2015.32 Two
decades ago, there was more variety in these
age boundaries: thirteen states routinely charged
17-year olds as if they were adults, including
three that did so for 16-year old arrestees.33 More
recently, these states have passed legislation to
raise the age of juvenile court jurisdiction to 18,
though the implementation of these laws means
the reforms are still underway. Between 2007
and 2014, these reforms helped to cut in half the
number of youth under age 18 excluded from
the juvenile justice system because of their
state’s low cutoff age for juvenile jurisdiction.34
By the end of 2018, only Georgia, Michigan, Texas
and Wisconsin had yet to pass laws to keep most
adolescents under age 18 in juvenile courts. In
2018, Vermont became the first state to add
18- and 19-year-olds into the juvenile system,
excluding those charged with serious violent
crimes.35

Connecticut Creates Young Adult
Prison Units to Focus on
Rehabilitation
Research on adolescent brains proves that development
continues through one’s mid-20s. These findings
suggest that the age of juvenile court jurisdiction,
generally ending at 18, is outdated. Columbia University’s
Vincent Schiraldi and Bruce Western note that the
current age of adulthood was an arbitrary choice made
over 100 years ago.36 Political barriers, even in
progressive states, have thus far prevented raising the
age of juvenile court jurisdiction further into adolescence.
For much of his second term, Connecticut Governor
Dannel Malloy attempted to convince the legislature
to include older adolescents (those under age 21) in
the juvenile courts.37 These proposals did not pass the
legislature or even attain a vote in committee. But
working with the Vera Institute of Justice, Governor
Malloy and Department of Correction Commissioner

Scott Semple undertook reforms to provide a more
rehabilitative venue of incarceration for 18-to-25 year
olds. In 2017 the state opened the TRUE Program (an
acronym for Truthfulness, Respectfulness,
Understanding, and Elevating) at the Cheshire
Correctional Institution, with capacity for 90 young men
and plans for expansion.38 A parallel program named
WORTH (Women Overcoming Recidivism Through Hard
Work) opened for young women opened in 2018 at the
York Correctional Institution, with capacity for 50.39 The
two programs, which do not exclude those with violent
convictions, enroll a small slice of the total imprisoned
population in this age group.40
The young adult units were inspired by Malloy and
Semple’s visit to Germany with Vera, where they saw
institutions that emphasize human dignity, rehabilitation,
and reentry. They also align with experts’
recommendations to “consider creating special
correctional facilities for young adult offenders.”41

John Pittman (left) is mentoring Davon Eldemire (right) as part of Connecitcut’s TRUE program. Pittman, who is serving 60 years for murder, says:
“Some of us have taken lives, so it’s only fair that we try to save lives.” Photograph by Karsten Moran, 2018.

The Next Step: Ending Excessive Punishment for Violent Crimes 27

Young people housed at TRUE and WORTH are paired
with older imprisoned adults who serve as mentors.
Current Governor Ned Lamont has visited the TRUE
Unit with new Correction Commissioner Rollin Cook,
who Lamont chose in part because of his willingness
to expand on therapeutic prison programming.42

California Grants Youth and Young
Adults More Meaningful Parole
Hearings
Based on scientific evidence showing that adolescent
brains are not fully mature until people reach their midto-late 20s, the California Legislature has created “Youth
Offender Parole Hearings” to give greater weight to the
diminished culpability of youth and young adults serving
lengthy sentences and to emphasize their potential for
growth and maturity. Senate Bill 260, which went into
effect in 2014, applied this reform to youth under the
age of 18 who were convicted as adults.43 Senate Bill
261, implemented in 2016, extended it to those convicted
under age 23—corresponding to the Department of
Juvenile Justice’s jurisdiction.44 Assembly Bill 1308,
which took effect in 2018, expanded these specialized
hearings to young adults convicted under age 26, to
incentivize efforts towards rehabilitation.
“If you’re a 15-year-old when you’re convicted of even
a very serious crime, by the time you’re 35 you’re going
to be a different person,” State Senator Loni Hancock,
SB 260’s sponsor, said in a press interview about the
bill.45 “Those who don’t significantly change in prison,”
she added, “are not going to be eligible for … this
opportunity.”46 Newt Gingrich praised SB 260 as “a
significant achievement,” and described SB 261 as
“compassionate, fair, and backed up by the latest
scientific understanding of brain development.”47
Assemblymember Mark Stone, who introduced
Assembly Bill 1308, explained that the policy should
extend to those up to age 25 because people “are much
more likely to enroll in school, drop out of a gang, or
participate in positive programs if they can sit before
a parole board sooner, if at all, and have a chance of
being released.”48 Organizations including Human Rights
Watch, #cut 50, the Anti-Recidivism Coalition, National
Center for Youth Law, and Youth Justice Coalition cosponsored these bills.49

28 The Sentencing Project

The San Francisco Chronicle reported that by December
2017, 900 people had been paroled under the first two
reforms, while 2,600 who had sought release had been
denied.50 Southwestern Law School professor Beth
Caldwell’s study of SB 260 found that at first the new
policy “created at least marginally more meaningful
opportunities for release.”51 The 109 individuals who
had such hearings in the first six months of 2014 had
served an average of 24.7 years in prison. But in the
first four months of 2015, the parole board granted
parole to youth offenders at a lower rate than it did to
their adult-convicted counterparts. This disparity may
have occurred because some individuals convicted as
youth had not yet sufficiently participated in programming
to demonstrate their rehabilitation prior to their
expedited parole hearings.52

“ If you’re a 15-year-old

when you’re convicted
of even a very serious
crime, by the time you’re
35 you’re going to be a
different person.”
— Loni Hancock
Former California State Senator

1	
2	
3	
4	
5	
6	
7	

Roper v. Simmons, 543 U.S. 551 (2005).
Roper at 559-560.
Graham v. Florida, 130 S. Ct. 2011 (2010).
Graham at 2030.
Data on file.
Miller v. Alabama and Jackson v. Hobbs, 132 S. Ct. 2455 (2012)
Ford, M. (2017, July 14). The reckoning over young prisoners serving life
without parole. The Atlantic. Retrieved from https://www.theatlantic.com
8	 Montgomery v. Louisiana, 136 S. Ct. 718 (2016).
9	 Rovner, J. (2018). Juvenile life without parole: An overview. Washington,
DC: The Sentencing Project. Available at: https://www.sentencingproject.
org/publications/juvenile-life-without-parole/
10	 State v. Lyle, 854 N.W.2d 378 (Iowa 2014).
11	 AB 218 (2017).
12	 SB 140 (2016).
13	 Toohey, G. (2018, February 19). Board denies parole to man who served
more than 50 years after killing deputy when he was juvenile. The Advocate.
Retrieved from https://www.theadvocate.com
14	 Campaign for the Fair Sentencing of Youth (2018). Tipping point: A
majority of states abandon life-without-parole sentences for children.
Washington, DC. Available at: https://www.fairsentencingofyouth.org/
wp-content/uploads/Tipping-Point.pdf
15	 Nellis, A. (2017). Still life: America’s increasing use of life and long-term
sentences. Washington, DC: The Sentencing Project. Washington, DC:
The Sentencing Project. Available at: https://www.sentencingproject.org/
publications/still-life-americas-increasing-use-life-long-term-sentences/
16	 Nellis, 2017.
17	 Rovner, J. (2016). How tough on crime became tough on kids: Prosecuting
teenage drug charges in adult courts. Washington, DC: Sentencing Project.
Available at: https://www.sentencingproject.org/publications/tough-crimebecame-tough-kids-prosecuting-teenage-drug-charges-adult-courts/
18	 An additional 66,700 youth cases were prosecuted in adult criminal courts
based on the lower juvenile jurisdiction cutoff age in nine states.
Puzzanchera, C., Sickmund, M., & Sladky, A. (2018). Youth younger than
18 prosecuted in criminal court: National estimate, 2015 cases. Pittsburgh:
National Center for Juvenile Justice. Available at: http://www.
campaignforyouthjustice.org/images/Transfer-estimate.pdf
19	 Zimring, F., & Rushin, S. (2013). Did changes in juvenile sanctions reduce
juvenile crime rates? A natural experiment. Ohio State Journal of Criminal
Law, 11, 57-69.
20	 Hahn, R., McGowan, A., Liberman, A., et al. (2007). Effects on violence of
laws and policies facilitating the transfer of juveniles from the juvenile
justice system to the adult justice system: A systematic review. American
Journal of Preventive Medicine, 32(4), 7-28.
21	 Hartney, C. (2006). Youth under age 18 in the adult criminal justice
system. National Council on Crime and Delinquency. Available at: https://
rhyclearinghouse.acf.hhs.gov/sites/default/files/docs/15516-Youth_
Under_Age_18.pdf
22	 Puzzanchera, C., & Hockenberry, S. (2018). National disproportionate
minority contact databook. The National Center for Juvenile Justice for
the Office of Juvenile Justice and Delinquency Prevention.
23	 Ridolfi, L., Washburn, M., & Guzman, F. (2016). The prosecution of youth
as adults. Center on Juvenile & Criminal Justice, National Center for Youth
Law and W. Haywood Burns Institute. Available at: https://www.
burnsinstitute.org/wp-content/uploads/2016/06/Ending-AdultProsecution_FINAL.pdf
24	 This section relies heavily on the Campaign for Youth Justice’s research,
specifically: Thomas, J. (2018). Raising the bar: State trends in keeping
youth out of adult courts, 2015-2017. Available at: http://www.
campaignforyouthjustice.org/research/cfyj-reports/item/raising-the-barstate-trends-in-keeping-youth-out-of-adult-courts-2015-19
25	 See respectively: H95 (2016), SB 267 (2015), HB 7050 (2015), and S2003
(2015).
26	 HB 3718 (2015).
27	 See respectively: HB 3718 (2015) and SB 167 (2015).
28	 SB 160 (2016).
29	 See respectively: Proportion 57 (2016) and H95 (2016).
30	 See respectively: Act 467 (2018) and Public Act 15-84 (2015).
31	 Louisiana Center for Children’s Rights. (2018). Victory! Governor signs
bill to limit mandatory sentences for youth. Available at: http://www.laccr.
org/news/victory-governor-signs-bill-to-limit-mandatory-sentences-foryouth/
32	 Puzzanchera, Sickmund, & Sladky, 2018.
33	 National Center for Juvenile Justice. Jurisdictional boundaries. Accessed
Jan. 16, 2019. Available at: http://www.jjgps.org/jurisdictionalboundaries#delinquency-age-boundaries
34	 Justice Policy Institute. (2017). Raising the Age: Shifting to a safer and
more effective juvenile justice system. Washington, DC. Available at:
http://www.justicepolicy.org/uploads/justicepolicy/documents/
raisetheage.fullreport.pdf
35	 Act 201. Prior to 1993, Wyoming charged 18-year olds in juvenile court.
See: Butts, J., & Roman, J. (2014). Line drawing: Raising the minimum
age of criminal court jurisdiction in New York. New York: John Jay College
of Criminal Justice. Available at: https://pdfs.semanticscholar.org/ee71/
ad0a8621039d9f6837d095e78cf54c89ce8a.pdf
36	 Schiraldi, V., & Western, B. (2015, October 2). Why 21 year-old offenders
should be tried in family court. The Washington Post. Retrieved from
https://www.washingtonpost.com/
37	 Malloy, D. (2018, March 18). Press release. Gov. Malloy introduces juvenile

justice reform legislation: Legislative proposal raises the age of juvenile
justice jurisdiction; expands opportunity for youthful offenders to lead
productive lives. Available at: https://portal.ct.gov/Malloy-Archive/PressRoom/Press-Releases/2018/03-2018/Gov-Malloy-Introduces-JuvenileJustice-Reform-Legislation
38	 Interview with Mike Lawlor, former Under Secretary for Criminal Justice
Policy and Planning, State of Connecticut. Conducted Jan. 17, 2019.
39	 Malloy, D. (2018, July 19). Press release. Gov. Malloy announces opening
of new corrections unit preparing young female inmates to become
productive members of society. Available at: https://portal.ct.gov/MalloyArchive/Press-Room/Press-Releases/2018/07-2018/Gov-MalloyAnnounces-Opening-of-New-Corrections-Unit-Preparing-Young-FemaleInmates
40	 Chammah, M. (2018, May 8). The Connecticut experiment. The Marshall
Project. Retrieved from https://www.themarshallproject.org
41	 Howell, J., Feld, B., Mears, D., et al. (2013). Bulletin 5: Young offenders
and an effective response in the juvenile and adult justice systems: What
happens, what should happen, and what we need to know. Research
report submitted to the U.S. Department of Justice. NCJ 242935.
42	 Stuart, C. (2019, February 5). Lamont goes to prison and leaves ready to
recruit more employers. CT News Junkie. Retrieved from https://www.
ctnewsjunkie.com
43	 This law does not apply to certain cases including those sentenced under
the “Three Strikes” law or to life without the possibility of parole. State of
California Board of Parole Hearings. (n.d.). Youth Offender Hearings.
Available at: https://www.cdcr.ca.gov/BOPH/youth_offender_hearings_
overview.html
44	 California State Senate. (2015, May 28). SB 261 (Hancock): Parole Review
for Young Adults with Lengthy or Life Sentences. Available at: http://www.
fairsentencingforyouth.org/wp/wp-content/uploads/2009/04/SB-261Young-Adult-Parole-Hearings-Fact-Sheet1.pdf
45	 The Associated Press (2013, August 18). Bill gives California youths
convicted of murder second chance. The Associated Press. Retrieved from
https://www.mercurynews.com/2013/08/18/bill-gives-california-youthsconvicted-of-murder-second-chance/
46	 The Associated Press, 2013.
47	 Gingrich, N. (2015, April 13). A second chance for young offenders. HuffPost.
Retrieved from http://www.huffingtonpost.com
48	 Assemblymember Mark Stone. (2017, October 16). Governor Signs Stone
Legislation. Available at: https://a29.asmdc.org/press-release/governorsigns-stone-legislation
49	 Youth Law Center. (2016). Overview of S.B. 260/261 (Hancock): Sentencing
Review for Juveniles Tried as Adults in California. San Francisco, CA.
Available at: https://ylc.org/wp-content/uploads/2018/11/SB-260-2261Fact-Sheet-2016.pdf; #Cut50. (n.d.). #cut50 just made historic progress
on criminal justice in California! Oakland, CA. Available at: http://www.
cut50.org/huge_victory_in_california.
50	 Gutierrez, M. (2017, December 15). 37 years after brutal SF crime, inmate
paroled under state youth-offender law. San Francisco Chronicle. Retrieved
from https://www.sfchronicle.com
51	 Caldwell, B. (2016). Creating meaningful opportunities for release: Graham,
Miller, and California’s youth offender parole hearings. N.Y.U Review of
Law & Social Change, 40, 245-304, p. 272.
52	 Caldwell, 2016, p. 273.

The Next Step: Ending Excessive Punishment for Violent Crimes 29

VI. Depoliticizing Parole
Decisions: New York STate
“Broken, terribly broken,” is how former New York Board
of Parole commissioner Thomas Grant described the
state’s parole process in 2012, noting that commissioners
have an incentive to limit parole grants to improve odds
of their reappointment, especially in cases that will
attract media attention.1 Robert Dennison, a former
chairman and commissioner of the New York Board of
Parole, echoed this point in 2014, explaining: “If you let
someone out and it’s going to draw media attention,
you’re not going to be re-appointed.”2 State courts have
repeatedly chastised the parole board for failing to
follow the law in its decisions. With pressure from the
courts, advocates, and the Governor, the board finally
proposed new regulations in 2016 to comply with the
2011 statutory requirements. This change, coupled
with the appointment of several new parole board
members, helped to increase the parole grant rate for
people serving life sentences from 27% to 37% during
comparable periods between 2017 and 2018.3
The Legislature’s 2011 parole statute requires the board
to:4
establish written procedures for its use in making
parole decisions as required by law. Such written
procedures shall incorporate risk and needs
principles to measure the rehabilitation of persons
appearing before the board, the likelihood of
success of such persons upon release, and assist
members of the state board of parole in determining
which inmates may be released to parole
supervision.
According to Philip Genty, professor at Columbia Law
School, these changes sought to “shift the primary
focus of Parole Board decisionmaking away from the

30 The Sentencing Project

static factors of criminal history and seriousness of
the crime, to a more dynamic and nuanced set of riskassessment ‘procedures.’”5 But the board resisted
implementing these reforms. In testimony before the
Assembly’s Corrections Committee in 2013, the
Correctional Association of New York stated that the
board “denies parole release, often repeatedly to far
too many people, frequently based on the nature of
applicants’ crimes of conviction or past criminal history
while failing to consider people’s accomplishments,
readiness for reentry, or objective risk.”6 State courts
have chastised the board for failing to follow laws
guiding parole decisionmaking, and the board has twice
been held in contempt of court for ignoring directives
to give greater weight to factors other than the
underlying offense and to provide its reasoning behind
parole denials.7
In 2011, the Legislature directed the parole board to
develop and implement a risk assessment instrument.8
After some delay, the board adopted the COMPAS
Reentry Risk Assessment Instrument tool but it did not
consistently use the instrument or apply its results to
guide its decisions.9
Finally in 2016, in response to pressure from the courts,
advocates, and Governor Andrew Cuomo, the board
proposed new regulations to comply with the 2011
statutory requirements.10 The proposed regulation
requires that the board’s decision be guided by the
parole applicant’s risk and needs score and that the
board provide an explanation when it departs from the
risk assessment to deny parole. The regulation would
also require the board to consider the reduced culpability
and demonstrated growth in maturity of lifers who
committed their crimes under age 18.11 In 2017,

Governor Cuomo also appointed six new parole board
commissioners, “many of whom more closely reflect
the identities and experiences of people in prison, and
come from a broader range of professional backgrounds,”
according to The Release Aging People in Prison (RAPP)
Campaign.12
These changes came too late for John MacKenzie. He
was sentenced to 25 years to life for killing police officer
Matthew Giglio during a robbery attempt in 1975. By
age 70, he had served over 40 years in prison, having
been denied parole 10 times. Despite becoming a model
person in prison with many supporting his release—
including the New York Times editorial board, the bishop
of the Roman Catholic Diocese of Albany, and a state
judge who held the board in contempt for its
unwillingness to evaluate MacKenzie’s rehabilitation—
the parole board issued its 10th parole denial in 2016.13
A week later, MacKenzie hanged and killed himself in
Fishkill Correctional Facility in Beacon, NY.

Although recent reforms have helped to modestly
improve parole grant rates, problems persist. RAPP
and other advocates are urging the Governor to fully
staff the parole board and to appoint more individuals
“from a broad range of professional backgrounds who
believe strongly in the principles of rehabilitation, mercy,
and redemption.”14 Advocates and the press are also
awaiting the Governor’s response to findings that racial
bias among correctional officers is driving racial
disparities in parole hearing outcomes.15 The future of
people sentenced to life with the possibility of parole,
of whom there are over 9,000 in the state, hangs in the
balance.16

John MacKenzie killed himself in a New York prison after being denied parole for the tenth time in 2016. Photograph by Nathaniel
Brooks/New York Times, 2016.

The Next Step: Ending Excessive Punishment for Violent Crimes 31

1	 Caher, J. (2014, December 5). Advocates recite shortcomings of N.Y.
parole review process. New York Law Journal. Retrieved from http://www.
correctionalassociation.org/press/advocates-recite-shortcomings-of-ny-parole-review-process; Schwartzapfel, B. (2015, July 11). How parole
boards keep prisoners in the dark and behind bars. The Washington Post.
Retrieved from https://www.washingtonpost.com; Re-thinking Reentry.
(2010). “The ones with life after their name”: An interview with former
New York State Parole Board member, Tom Grant [Blog post]. Retrieved
from http://rethinkingreentry.blogspot.com/2010/10/ones-with-life-aftertheir-name.html
2	 Hughes, B. (2014, September 17). Even model NYS inmates face step
barriers to parole [Newsgroup post]. Retrieved from http://citylimits.org.
See also the history of Kathy Boudin’s release as well as Earl Eichelberger
and Henri C. Raffalli’s remarks: Caher, J. (2016, January 31). Dismantling
parole: Parole release rates plunge under Pataki’s tough policy. New York
Law Journal. Retrieved from http://prisonaction.blogspot.com/2006/03/
dismantling-parole-john-caher-01-31.html.
3	 The time periods for this comparison were from September 2016 to
January 2017 and the same months in in 2017 and 2018. The Parole
Preparation Project & The Release Aging People in Prison Campaign
(2018). New York State Parole Board: Failures in Staffing and Performance.
New York; D’Almeida, K. (2018). Hard-Won Parole Board Reforms Under
Attack in New York (Updated). Rewire.News. Retrieved from https://
rewire.news.
4	 N.Y. Executive Law § 259-c(4)
5	 Hearings before the N.Y.S. Assembly’s Standing Committee on Correction,
2013 Leg. (N.Y.) (testimony of Philip M. Genty, Professor, Columbia Law
School.)
6	 Hearings before the N.Y.S. Assembly’s Standing Committee on Correction,
2013 Leg. (N.Y.) (testimony of Scott Paltrowitz, Prison Vision Project.)
Retrieved from http://www.correctionalassociation.org/wp-content/
uploads/2013/12/CA-Parole-Testimony-12-4-13-Hearing-FINAL.pdf
7	 Bedell, B. (2015, June 1). Parole board held in contempt for failure to
explain denial. New York Law Journal. Retrieved from http://www.
newyorklawjournal.com/id=1202727884570/Parole-Board-Held-inContempt-for-Failure-to-Explain-Denial?slreturn=20160820120842;
Stashenko, J. (2016, June 1). Judge finds parole board in contempt for
ignoring order. New York Law Journal. Retrieved from http://www.
newyorklawjournal.com
8	 N. Y. Correction Law § 112(4).
9	 Correspondence with Alan Rosenthal; Benjamin, J. (2016, October 21).
Newly Proposed Parole Regulations. New York State Bar Association.
Available at: http://communities.nysba.org/blogs/jeremybenjamin/2016/10/21/newly-proposed-parole-regulations
10	 Department of Corrections and Community Supervision. (2016, September).
Rule making activities: Parole board decision making (I.D. No. CCS-3916-00004-P) (NYS Register). Retrieved from http://docs.dos.ny.gov/info/
register/2016/sept28/pdf/rulemaking.pdf
11	 Governor Cuomo announces proposal of new regulations to ensure
consideration of risk and rehabilitation during parole decisions [Newsgroup
post]. (2016, October 18). Retrieved from New York Office of the Governor
website: https://www.governor.ny.gov/news/governor-cuomo-announcesproposal-new-regulations-ensure-consideration-risk-and-rehabilitation.
For the case motivating this reform, see Hawkins v. DOCCS 140 A.D.3d
34 (3rd Dept. 2016).
12	 The Parole Preparation Project & The Release Aging People in Prison
Campaign (2018). New York State parole board: Failures in staffing and
performance. New York. Available at: http://rappcampaign.com/wpcontent/uploads/AAA-Parole-Board-Report-Final-3.pdf; Blau, R. & Brown,
S. R. (2018, August 14). Cuomo’s parole board is woefully short-staffed
and includes two political hacks, advocates say. New York Daily News.
Retrieved from http://www.nydailynews.com
13	 New York Times Editorial Board. (2016, June 13). A challenge to New
York’s broken parole board. The New York Times. Retrieved from https://
www.nytimes.com; Goldstein, J. (2016, October 28). Merciless end for a
Long Island cop killer. The New York Times. Retrieved from https://www.
nytimes.com.
14	 The Parole Preparation Project & The Release Aging People in Prison
Campaign, 2018; Blau, & Brown, 2018.
15	 As revealed by a New York Times investigation on New York prisons,
comparable in-prison conduct—a major determinant of parole decisions—
may result in divergent prison disciplinary records for blacks and Latinos
versus whites. Schwirtz, M., Winerip, M., & Gebeloff, R. (2016, December
3). The scourge of racial bias in New York State’s prisons. The New York
Times. Retrieved from https://www.nytimes.com; Pager, T. (2018,
September 4). Cuomo ordered an investigation of racial bias in prisons.
Nearly 2 years later, it’s not done. The New York Times. Retrieved from
https://www.nytimes.com
16	 Nellis, A. (2017). Still life: America’s increasing use of life and long-term
sentences. Washington, DC: The Sentencing Project. Available at: https://
www.sentencingproject.org/publications/still-life-americas-increasinguse-life-long-term-sentences/

32 The Sentencing Project

VII. Correcting Overly Broad
Definitions of Violent Crime
Supreme Court Narrows the Federal
Armed Career Criminal Act
In 2015, the Supreme Court limited the reach of The
Armed Career Criminal Act (ACCA). The law imposed
a mandatory 15-year sentence on anyone convicted
of possessing a gun or ammunition who has three
prior convictions for a “violent felony” or a “serious
drug offense.”1 The ACCA defined a violent felony to
include burglary, arson, and extortion as well as a
residual category including any crime that “involves
conduct that presents a serious potential risk of
physical injury to another” and could be punishable by
a one-year prison term. In an 8-1 decision in Johnson
v. United States, the Court struck down the ACCA’s
residual clause for being unconstitutionally vague. In
2016, the Supreme Court held that this decision would
apply retroactively to individuals seeking reviews of
previously imposed sentences.2
Reflecting on the residual clause after the Supreme
Court decision, Ohio State University law professor
Douglas A. Berman explained: “If a prosecutor really
wants to slam a guy with a long record, they have an
interest in portraying any and every part of that history
as qualifying.” 3 The United States Sentencing
Commission had previously underscored the lack of
clarity in the ACCA, noting in particular that the ACCA
“can apply to offenders who served no or minimal
terms of imprisonment for their predicate offenses,
further increasing the potential for inconsistent
application insofar as the penalty may be viewed as
excessively severe in those cases.”4 The Commission
estimated that between 2013 and 2016, the Johnson
decision and reforms in federal charging practices
contributed to reducing the number of people convicted
under the ACCA from 582 to 304.5

In addition to calling for more clarity on the statutory
definitions in the ACCA, the Sentencing Commission
has recommended that Congress reduce the severity
of the mandatory sentence.6 The Commission
estimated that reducing the ACCA’s mandatory penalty
from 15 to 10 years, as the Sentencing Reform Act of
2015 (H.R. 3713) would have done, would reduce the
sentences of 277 people per year and if applied
retroactively, could reduce the sentences of up to 2,317
people in federal prisons.7 In a recent report, the
Commission also noted that 70% of individuals
convicted of offenses carrying a mandatory penalty
under the ACCA in 2016 were African American.8
Despite these facts, Attorney General Jeff Sessions
criticized the Court’s ruling while then-Senator Orrin
Hatch of Utah and Senator Tom Cotton of Arkansas
proposed legislation to undo it.9

The Immigration and Nationality Act
In Sessions v. Dimaya in 2018, the Supreme Court
struck down a provision of the Immigration and
Nationality Act that led to the deportation of
immigrants convicted of an “aggravated felony,”
including “a crime of violence,” for being
unconstitutionally vague.10 Justice Elena Kagan,
writing for the majority, compared the definition
of “crime of violence” to the unconstitutionally
vague definition of “violent felony” in the ACCA
and struck down this provision.

The Next Step: Ending Excessive Punishment for Violent Crimes 33

California Limits Scope of Felony
Murder Rule
Among the significant bills that California Governor Jerry
Brown signed to reshape the state’s criminal justice
landscape was one scaling back the “felony murder rule.”
Similar to other states, California law had stated that
individuals could be held liable for first-degree murder
for a killing that occurred during the commission of
felonies such as burglary and robbery, even if they were
not the actual killer or present when the murder took
place.11 The resulting penalty would be death, life without
parole, or life with the possibility of parole after 25 years.
In September 2018, Governor Brown signed Senate Bill
(SB) 1437 into law, limiting felony murder prosecutions
to those who intended to kill, had a direct role in a murder,
intentionally assisted the killer, or played a major role in
the underlying felony and “acted with reckless indifference
to human life.”12 The law is retroactive, allowing those
previously convicted to petition for resentencing.
California’s new felony murder bill was a bipartisan effort
by Democratic State Senator Nancy Skinner and
Republican State Senator Joel Anderson. Lawmakers

in support of the bill said the previous law was outdated
and unfairly applied lengthy sentences to people who
did not kill anyone.13 Proponents also stressed that the
previous felony murder rule unfairly punished women,
young people, and people of color. Approximately threequarters of women imprisoned under California’s felony
murder were not the killers and the average age of people
sentenced under the law is 20 years old.14 Almost 40%
of those convicted under the law are black and about
27% are Hispanic.15 According to Senator Skinner:16
The law is not fairly applied. If it were universally
applied to any and every person that was in or around
a crime that resulted in a homicide, then many more
people would have been charged with felony murder
and the statute would have been changed a long
time ago.
The new law allows between 400 to 800 people who
were previously convicted of felony murder to apply for
resentencing.17 California is one of several states—
including Hawaii, Arkansas, Massachusetts, Kentucky,
and Michigan—that have narrowed how the felony murder
rule can be applied.18

Jacque Wilson (left) testified at the State Capitol about SB 1437 with his father Mack Wilson (right) on behalf of his brother, Neko
Wilson, who was awaiting trial under the felony murder rule. Photograph by Max Whittaker/New York Times, 2018.

34 The Sentencing Project

1	 Under previous law, 10 years was the statutory maximum sentence for
this offense. Johnson v. United States, 576 U.S. (2015).
2	 Welch v. United States, 578 U.S. (2016).
3	 Marimow, A. E. (2016, June 24). One of Scalia’s final opinions will shorten
some federal prison sentences. The Washington Post. Retrieved from
https://www.washingtonpost.com
4	 United States Sentencing Commission. (2011). 2011 report to the
Congress: Mandatory minimum penalties in the federal criminal justice
system. Available at: https://www.ussc.gov/research/congressionalreports/2011-report-congress-mandatory-minimum-penalties-federalcriminal-justice-system. P. 363.
5	 United States Sentencing Commission. (2018). Mandatory minimum
penalties for firearm offenses in the federal criminal justice system.
Available at: https://www.ussc.gov/sites/default/files/pdf/research-andpublications/research-publications/2018/20180315_Firearms-Mand-Min.
pdf
6	 Saris, P.B. (2015). Statement of Judge Patti B. Saris. Chair, United States
Sentencing Commission for the Hearing on “H.R. 3713, Sentencing Reform
Act of 2015” Before the U.S. House of Representatives Judiciary
Committee. Available at: https://www.ussc.gov/sites/default/files/pdf/
news/congressional-testimony-and-reports/submissions/20151117_
HR3713.pdf
7	 Contrary to the Sentencing Commission’s assessment, Senator Tom
Cotton (R-Arkansas) and then-Senator Orrin Hatch (R-Utah) introduced
legislation to expand the reach of the ACCA by replacing the concepts of
“violent felony” and “serious drug offense” in the law with “serious felony,”
which would be defined as any crime punishable by 10 years or more.
Cotton, T. (2018, August 1). Cotton, Hatch introduce The Restoring the
Armed Career Criminal Act. Available at: https://www.cotton.senate.
gov/?p=press_release&id=991
8	 United States Sentencing Commission, 2018.
9	 Hamm, A. / SCOTUSblog (2018, September 13). Johnson v. United States:
Three years later. The Crime Report. Retrieved from https://thecrimereport.
org; Cotton, T., & Hatch, O. (2018, August 6). Sens. Cotton, Hatch: Close
the loophole that’s letting violent criminals go free. Retrieved from https://
www.washingtonexaminer.com
10	 Kim, E. (2018, April 27). Summary: Supreme Court decision in Sessions
v. Dimaya. Lawfare. Retrieved from https://www.lawfareblog.com/
summary-supreme-court-decision-sessions-v-dimaya
11	 California Legislative Information. (2017-2018). SB-1437 Accomplice
liability for felony murder. Retrieved from https://leginfo.legislature.ca.gov/
faces/billTextClient.xhtml?bill_id=201720180SB1437
12	 Cases involving the killing of a police office are excluded from the reform.
California Legislative Information, 2017-2018.
13	 Ulloa, J. (2018, September 30). California sets new limits on who can be
charged with felony murder. Los Angeles Times. Retrieved from https://
www.latimes.com
14	 Among surveyed men imprisoned under California’s felony murder law,
55% were not the “trigger person.” Correspondence with Kate Chatfield
at Re:store Justice; Ulloa, 2018.
15	 Felony Murder Elimination Project. (n.d.). Statistics. Felony Murder
Elimination Project. Retrieved from https://www.endfmrnow.org/statistics;
correspondence with Kate Chatfield at Re:store Justice.
16	 Chen, C. (2018, August 3). He’s in jail for a murder he didn’t witness. A
California bill might set him free. The Sacramento Bee. Retrieved from
https://www.sacbee.com
17	 VanSickle, A. (2018, June 27). You didn’t kill anyone. So why are you
charged with murder? The Marshall Project. Retrieved from https://www.
themarshallproject.org
18	 Ulloa, 2018.

The Next Step: Ending Excessive Punishment for Violent Crimes 35

VIII. Scaling Back Collateral
Consequences
Congress Largely Upholds Food
Stamps Access for People with
Violent Convictions

food stamps are not just ineffective, they are also
harmful: they impede re-entry and disproportionately
impact people of color who are caring for children.3

As part of 1996’s “Welfare Reform,” Congress required
states to ban people with felony drug convictions
from accessing federal cash assistance and food
stamps. Over a dozen states have used the bill’s
provision to fully opt out of both of these bans, and
30 others and the District of Columbia have chosen
to at least partly opt out of one ban.1 Despite statelevel reforms to scale back collateral consequences
and the federal government’s support for re-entry
through the Second Chance Act in 2007 and its
reauthorization in 2018, Congress has repeatedly
considered excluding people with certain violent
convictions from food stamps eligibility.

Although the Senate passed the Vitter Amendment
with little debate and one of the House versions of
the Farm Bill included the amendment, advocates
persuaded lawmakers to limit its impact when
merging the bills.4 The final version of the restriction
applied only to individuals who are not in compliance
with the terms of their sentence, and it was not
applied retroactively.

In 2013, the Senate unanimously approved thenSenator David Vitter of Louisiana’s amendment to
the Farm Bill, imposing a lifetime ban on food stamps
eligibility for people with certain violent convictions
(including sexual assault, murder, and particular
crimes against children.) The restriction on the
Supplemental Nutrition Assistance Program, or SNAP,
would have been retroactive, denying nutritional
assistance to people who long ago completed their
sentences. States would not have the option to opt
out of the ban.
While some lawmakers had suggested that the Vitter
Amendment would deter crime, advocates countered
that “if the threat of prison does not keep people
from offending, it’s hard to see how a ban on
assistance following incarceration has a deterrent
effect.”2 Such restrictions on cash assistance and

36 The Sentencing Project

In 2018, Congress again considered and ultimately
rejected a proposal by Representative George Holding
of North Carolina to pass the original Vitter
Amendment.5 “I believe we should not have to wait
before a criminal who has already been convicted
of these acts violates the terms of their sentence
before terminating the benefits,” Holding said of his
amendment.6 A broad coalition of groups opposed
the restriction. Over 100 organizations addressing
poverty and hunger submitted a letter opposing
Holding’s SNAP amendment and other restrictions,
as did over 60 organizations of faith, civil rights, and
human rights.7 Americans for Prosperity and Freedom
Partners, two groups funded by the Koch brothers,
also urged Congress to reject the amendment, writing:
“By rejecting barriers that keep those returning
individuals from being full members of our society,
you show that everyone is worthy of a second chance,
regardless of past mistakes.”8 Although the House
unanimously approved a version of the Farm Bill with
Holding’s amendment, advocates persuaded the
Senate to pass a version without the new restriction.9
The final package that passed Congress excluded
the Holding amendment.

Virginia Governor’s Restoration of
Voting Rights Includes Violent
Convictions
Virginia is one of only four states in the nation—along
with Florida, Iowa, and Kentucky—to disenfranchise
all individuals with felony convictions for life, unless
they can secure a pardon from the governor. As a
result of the state’s restrictive policy, 8% of all adult
Virginians were unable to vote due to a felony
conviction in 2016, as were 22% of voting-age black
Virginians.10 In April 2016, Democratic Governor
Terry McAuliffe issued an executive order to restore
voting rights to an estimated 206,000 people who had
completed their felony prison, probation, or parole
sentence—including those who were convicted of a
violent offense.11 He intended to issue additional
orders to reenfranchise those who completed their
sentence before he left office in 2018. In July 2016,
the state’s Republican leaders successfully persuaded
the state Supreme Court to overturn the executive
order, on the grounds that it exceeded gubernatorial
authority by restoring voting rights en masse instead
of individually. McAuliffe responded with an
individualized process for voting-rights restoration
which withstood further court challenge and
reenfranchised over 173,000 people before he left
office.12
McAuliffe, who had campaigned on this issue, had
previously taken steps to streamline the process for
voting rights restoration, including reducing the waiting
period for applying from five to three years for people
convicted of a violent crime and eliminating the waiting
period for those with a drug conviction.13 His executive
order, he said, rattled those “who desperately hold on
to the last vestiges of the Jim Crow era” and his
administration produced dozens of testimonials of
newly-enfranchised voters.14 The Sentencing Project’s
Marc Mauer described McAuliffe’s action as “the single
most significant action on disenfranchisement that
we’ve ever seen from a governor.”15 The governor,
whose restoration order is depicted in his official
portrait, described this work as his “proudest moment
as governor.”16

For his official portrait, Virginia Governor Terry McAuliffe chose to
be depicted at work in his “proudest moment as governor,” restoring
voting rights to people with felony convictions. Photograph courtesy of
Gavin Glakas, 2018.

The state Democratic party rallied around the policy
“as the premier achievement of his term” according
to the Washington Post, and Ralph Northam, a member
of McAuliffe’s administration and his successor, called
it “one of our greatest feats.”17 Pledging to continue
this work, Northam overcame attack ads criticizing
the former lieutenant governor for helping to institute
the “automatic restoration of rights for violent felons
and sex offenders.”18 Before leaving office, McAuliffe
argued that lasting change would require the state to
amend its Constitution “to create an automatic process
for restoration of rights for all.”19

The Next Step: Ending Excessive Punishment for Violent Crimes 37

The Re-Enfranchisement Movement
Virginia is one of 23 states that have taken steps to
reduce felony disenfranchisement since 1997.20 In 2005,
then Iowa Governor Tom Vilsack’s executive order reenfranchised approximately 100,000 citizens who had
completed their sentences.21 While some recent reforms
have excluded people with violent convictions, some of
the most far-reaching have not. Other recent examples
include:
•	

Amendment 4 in Florida, approved by 64% of voters
in 2018’s election, is expected to reinstate the voting
rights of up to 1.4 million Floridians who have
completed all terms of their sentence—potentially
affecting four-fifths of the population disenfranchised
in that state due to a felony conviction. 22 While the
ballot initiative covered most violent convictions, it
did exclude those convicted of murder or sex
crimes.23

1	 Thompson, D. (2019, January). No more double punishments: Lifting the ban
on SNAP and TANF for people with prior felony drug convictions. Washington,
DC: CLASP. Available at: https://www.clasp.org/sites/default/files/
publications/2019/01/2019_%20nomoredoublepunishments.pdf
2	 Haile, J. (2014, February 4). How Senator Vitter lost his food fight. HuffPost.
Retrieved from https://www.huffingtonpost.com; Joint Explanatory Statement
of the Committee of Conference. (n.d.). Available at: https://docs.house.gov/
billsthisweek/20140127/CRPT-113hrpt-HR2642-SOM.pdf
3	 Mauer, M., & McCalmont, V. (2013). A lifetime of punishment: The impact of
the felony drug ban on welfare benefits. Washington, DC: The Sentencing
Project. Available at: https://sentencingproject.org/wp-content/
uploads/2015/12/A-Lifetime-of-Punishment.pdf; The Sentencing Project.
(2018). Report of The Sentencing Project to the United Nations Special
Rapporteur on Contemporary Forms of Racism, Racial Discrimination,
Xenophobia, and Related Intolerance regarding racial disparities in the United
States criminal justice system. Washington, DC. Available at: https://www.
sentencingproject.org/wp-content/uploads/2018/04/UN-Report-on-RacialDisparities.pdf
4	 All of Us or None, et al. (2013, May 23). Letter opposing lifetime ban on food
assistance. Available at: https://www.sentencingproject.org/publications/
letter-opposing-lifetime-ban-on-food-assistance/
5	 Congressional Record, House (2018, May 17). Available at: https://www.
congress.gov/crec/2018/05/17/CREC-2018-05-17-pt1-PgH4188-2.pdf;
Ferguson, E. (2018, September 5). Another Farm Bill trouble spot: Ex-prisoners
growing hemp. Roll Call. Retrieved from https://www.rollcall.com
6	 Congressional Record. (2018, May 17). Volume 164, Number 81. Available at:
https://www.govinfo.gov/content/pkg/CREC-2018-05-17/html/CREC-201805-17-pt1-PgH4188-2.htm
7	 1,000 Days et al. (2018, September 12). Letter to Farm Bill Conferees. Available
at: http://frac.org/wp-content/uploads/nat-org-snap-farm-bill-conf-sign-onltr-2018.pdf; African American Ministers in Action, et al. (2018, September 6).
Coalition letter opposing Farm Bill provisions that create obstacles to reentry
and threaten public safety. Available at: https://www.hrw.org/news/2018/09/06/
coalition-letter-opposing-farm-bill-provisions-create-obstacles-reentry-andthreaten
8	 Americans for Prosperity & Freedom Partners. (2018, September 6). Letter to
Farm Bill conference committee. Available at: http://freedompartners.org/
wp-content/uploads/2018/09/Coalition-Letter-Farm-Bill-Reentry-Provisions.
pdf
9	 The Sentencing Project. (2018, Fall). Sentencing times. Washington, DC.
Available at: https://www.sentencingproject.org/wp-content/
uploads/2015/10/2018-Fall-Newsletter.pdf?eType=EmailBlastContent&eId=
0531772e-d1a2-414a-8af1-3ea0484fc9fe
10	 Uggen, C., Larson, R., & Shannon, S. (2016). 6 million lost voters: State-level
estimates of felony disenfranchisement, 2016. Washington, DC: The Sentencing
Project. Available at: https://www.sentencingproject.org/publications/6-millionlost-voters-state-level-estimates-felony-disenfranchisement-2016/
11	 The executive order also reinstated these individuals’ right to serve on juries,

38 The Sentencing Project

•	

New York’s Governor Andrew Cuomo issued a 2018
executive order to grant voting rights to 35,000 people
under parole supervision, noting that 71% of this
population are African Americans or Hispanic.24 The
state’s Republican leaders released advertisements
and held hearings denouncing the reform, highlighting
cases of people convicted of murder and sex
crimes.25 Democrats dismissed these reactions as
politically motivated and Governor Cuomo plans to
re-enfranchise people who enter the parole system
on a rolling basis while he is in office.

In addition to these examples, felony re-enfranchisement
reforms in states including Maryland, New Mexico, and
Rhode Island did not carve out people with violent
convictions.26

run for public office, and serve as notaries public. Stolberg, S. G., & Eckholm,
E. (2016, April 22). Virginia governor restores voting rights to felons. The New
York Times. Retrieved from http://www.nytimes.com; Office of the Governor.
(2016, April 22). Governor McAuliffe restores voting and civil rights to over
200,000 Virginians. Retrieved from https://www.governor.virginia.gov/
newsroom/all-releases/2017/mcauliffe-administration/headline-826610-en.
html
12	 Figure received via direct contact with Office of the Governor on September
14th, 2018.
13	 Nolan, J. (2014, December 18). McAuliffe says rights restored for 5,100 exoffenders. Richmond Times-Dispatch. Retrieved from http://www.richmond.
com; Office of the Governor, 2016.
14	 McAuliffe, T. (2017, April 23). Terry McAuliffe: Restoration of voting rights, one
year later. The Virginian-Pilot. Retrieved from http://www.pilotonline.com;
Secretary of the Commonwealth. (n.d.). Testimonials. Retrieved from https://
www.restore.virginia.gov/testimonials/
15	 Stolberg & Eckholm, 2016.
16	 McAuliffe, 2017; Wilson, P. (2018, January 11). Official portrait of Gov. Terry
McAuliffe shows him working on felon rights restoration. The Roanoke Times.
Retrieved from http://www.roanoke.com
17	 Portnoy, J. (2016, July 22). Va. high court invalidates McAuliffe’s order restoring
felon voting rights. The Washington Post. Retrieved from https://www.
washingtonpost.com; Vozzella, L., & Nirappil, F. (2017, October 23). Gillespie
goes after Northam with TV ad on felon rights restoration. The Washington
Post. Retrieved from https://www.washingtonpost.com/
18	 Newkirk, V. R. (2018, January 8). How letting felons votes is changing Virginia.
The Atlantic. Retrieved from https://www.theatlantic.com
19	 McAuliffe, 2017.
20	 McLeod, M. (2018). Expanding the vote: Two decades of felony
disenfranchisement reform. Washington, DC: The Sentencing Project. Available
at: https://www.sentencingproject.org/wp-content/uploads/2018/10/
Expanding-the-Vote-1997-2018.pdf
21	 Porter, N. (2010). Expanding the vote: State felony disenfranchisement reform,
1997-2010. Washington, DC: The Sentencing Project. Available at: https://
www.sentencingproject.org/wp-content/uploads/2016/01/Expanding-theVote-State-Felony-Disenfranchisement-Reform-1997-2010.pdf
22	 Uggen, Larson, & Shannon, 2016.
23	 Nehamas, N. (2018, November 8). More than a million convicted felons in
Florida won their voting rights back. Now what? The Miami Herald. Retrieved
from https://www.miamiherald.com
24	 Governor Andrew M. Cuomo. (2018, April 18). Governor Cuomo signs executive
order to restore voting rights to New Yorkers on parole. New York State.
Retrieved from https://www.governor.ny.gov/news/governor-cuomo-signsexecutive-order-restore-voting-rights-new-yorkers-parole
25	 Vielkind, J. (2018, October 2). Republicans attack Cuomo’s plan to restore
felons’ voting rights. The Wall Street Journal. Retrieved from https://www.wsj.
com
26	 McLeod, 2018.

Ix. Conclusion
“ There comes a point where you really have to ask yourself if we

have achieved the societal end in keeping these people in prison
for so long. Is the societal cost and expenditure worth it to keep
somebody who’s older — higher medical costs and the like — in
prison? This is a conversation this country really needs to have.”
— U.S. Senator Cory Booker, 20161

Excessive penalties for violent crimes are not only
ineffective—incapacitating people who no longer pose
a public safety threat and producing little deterrent
effect—they also divert investment from more effective
public safety programs. These facts have been borne
out by criminological research and criminal justice
practice, including the reforms described in this report.
This is why Rick Raemisch, executive director of
Colorado’s Department of Corrections, credited his
department’s reduced reliance on solitary confinement
with helping to reduce violence against prison staff and
for promoting safer returns to communities. This is
why reductions in executions and restrictions in juvenile
life-without-parole sentences have not stalled the
nationwide decline in violent crime rates. This is why
the Ungers, a subset of Maryland’s lifer population who
gained their release through the courts, have a recidivism
rate that is well below the state’s average. These
successful reforms underscore the need to consider the
human and fiscal costs of excessive punishment and
to rely on evidence, rather than emotion, to invest
effectively in public safety.
Given that nearly half of the U.S. prison population is
serving time for a violent offense, policymakers, criminal

justice practitioners, and courts will need to build on the
models presented here to end mass incarceration. For
some jurisdictions, this requires ending their outlier
status. This was the case, for example, with Louisiana’s
elimination of non-unanimous jury verdicts, Florida’s
restoration of voting rights to people who had completed
their term of prison, jail, or community supervision, and
Mississippi’s reduction of its truth-in-sentencing
requirement for most violent crimes. Potential future
reforms in this vein would include the abolition of the
death penalty in the handful of states that continue to
impose the sentence, the elimination of gubernatorial
review of parole decisions in California and Maryland,
and raising the age of criminal responsibility to 18 in
Texas, Georgia, Wisconsin, and Michigan.
But catching up with other states is insufficient given
that penalties for violent crimes are excessive nationwide.
Leadership on this issue has taken at least three forms.
First, reforms have incrementally carved out certain
crimes and certain people from excessive penalties.
This has been the case with nationwide reforms honoring
the rehabilitative potential of youth and young adults,
promulgated by the Supreme Court and notably advanced
in California. The next step in addressing crimes

The Next Step: Ending Excessive Punishment for Violent Crimes 39

committed by youth is to recognize the difference
between adolescence and adulthood, regardless of the
seriousness of the offense. Young people are more
amenable to rehabilitation and, as such, should not be
burdened with harsh penalties that do not consider their
immaturity. States should eliminate mandatory minimums
for youth, as Iowa has done, and raise the age of criminal
responsibility into later adolescence. 

	

Second, leaders have advanced legislation to scale back
excessive penalties for all. This has been the case with
states that have abolished the death penalty and in New
York State, where the courts and governor have pressured
the parole board to follow the legislature’s requirement
to give greater weight to risk assessments in parole
decisions, rather than focusing on the original crime and
criminal history. The Sentencing Project has called on
policymakers to expand on these efforts and abolish
life imprisonment, setting maximum prison terms to 20
years.2
Third, leaders have used their discretionary authority to
take bold action to end unjust penalties. Examples here
include Philadelphia District Attorney Larry Krasner’s
case-by-case evaluations to make resentencing offers in
juvenile life-without-parole cases and his intention to
not overcharge in homicide cases, California Governor
Jerry Brown’s commutation of a number of paroleineligible life sentences, and Virginia Governor
Terry McAuliffe’s restoration of voting rights to people
regardless of their conviction offense. Prosecutors can
use evidence and experience to scale back the penalties
they seek while governors, and the president, can return
to the tradition of using executive clemency powers to
correct past injustices. Only bold leadership like this will
end mass incarceration within our lifetime.

1	 Lopez, G. (2016, May 17). Cory Booker: Senate bill is “in my lifetime the first reversal of mass incarceration.” Vox. Retrieved from https://www.vox.com;
see also Lustbader, S., & Gullapalli, V. (2019, February 6). “Special Edition: Will Cory Booker continue talking about second chances for people convicted
of violent crimes?” Email from The Appeal.
2	 The Sentencing Project. (n.d.). Campaign to End Life Imprisonment. Washington, DC. Available at: https://endlifeimprisonment.org

40 The Sentencing Project

The Next Step: Ending Excessive Punishment
for Violent Crimes
Nazgol Ghandnoosh
April 2019

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