RISON OCIETY. Pennsylvania. The JUVENILE LIFE WITHOUT PAROLE. PREPARED FOR THE PENNSYLVANIA SENATE JUDICIARY COMMiTTEE

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1 The Pennsylvania RISON OCIETY JUSTICE AND COMPASSION SINCE 1787 JUVENILE LIFE WITHOUT PAROLE PREPARED FOR THE PENNSYLVANIA SENATE JUDICIARY COMMiTTEE TESTIMONY OF WILLIAM DIMASCIO EXECUTIVE DIRECTOR THE PENNSYLVANiA PRISON SOCIETY July 12, 2012

2 behalf of the Pennsylvania Prison Society, thank you for the Jopportunity to present testimony today relative to the U.S. Supreme Court's recent decision affecting the issue of life without parole sentencing of juveniles. I speak for a statewide membership of men and women who recognize the complexities of justice and appreciate your thoughtfulness in considering changes that must be made to comply with the high court's ruling and that will improve the quality of Pennsylvania's jurisprudence. The Commonwealth has used the sentence of life without parole in more cases than any other state. The sentence here has been mandatory in cases of 1st or 2nd degree murder. And it is the mandatory imposition of this penalty which the Supreme Court objected to. Justice, according to the court, requires that the person passing sentence must consider the circumstances of the crime and the developmental stage of the offender. No matter how well-meaning lawmakers may be, they can never provide appropriate consideration of the circumstances of the crime or the developmental stage of the offender when they - removed in time and distance from the actual cases -- adopt mandatory sentences. Our current sentencing scheme violates the Eight Amendment, the court said, because it fails to honor "the basic precept of justice that punishment for crime should be graduated and proportioned to both the offender and the offense." With that foundation, this committee is confronted with two important questions: one has to do with rectifying the sentences of hundreds of youthful offenders, many of whom have already served long stretches in prisons and one who has been incarcerated for 60 years. The other issue before the committee is providing a legal mechanism for dealing with future cases. In the first instance, past adjudications, a number of options may be suitable. These might include negotiated plea agreements, resentericing under some new statute, a reduction in the charges, etc. For instance, it is estimated that one-quarter to one-third of these cases - perhaps as many as 150 or so - are felony homicide cases; these might be disposed of expeditiously by reducing the conviction to 3rd degree homicide. Justice Breyer pointed out that even discretionary life without parole sentences would violate the Eight Amendment unless there was a proven determination that the offender actually killed or intended to kill the victim. The Pennsylvsnia Prison Society 2

3 Other cases will be more difficult, of course. The final determination in these instances will be based no doubt on the crime itself and on a determination of the culpability of the individual at that time. The trial record provides all the needed information about the crime; there is no need to prolong these proceedings by rehashing the details. Another, new factor should be considered, however. That new item is the individual's record while incarcerated. Has the offender shown a sense of maturity, engaged in positive pursuits, developed socially in a way that suggests he or she could fit into free society? Part of the rationale for extreme sentences has been the so-called "irredeemability" factor, the question of whether these youthful offenders are capable of being rehabilitated, so this should be an important consideration. And it needs to be assessed with the awareness that the Department of Corrections routinely puts lifers on the bottom of its lists for programs so that others who are getting out can benefit; this DOC policy makes it doubly difficult for life sentenced individuals to show positive accomplishments. Still, having worked with many of these individuals for many years, I know that many have developed impressive records of achievement in religious and academic education, in development of job skills and in socialization. Tr addition to DOC records, the courts should also draw on the extensive risk assessments done by the Board of Probation and Parole. A SAFER APPROACH h-i resentencing cases it is important that the spirit of the high court's decision be observed: specifically, that a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" exists. The justices left open the possibility of lifetime sentences in certain cases, although the majority agreed that the use of this harsh sentence "will be uncommon." At the same time, it would be a mistake to impose extraordinarily long sentences as sometimes happened in Florida after the Graham ruling where judges imposed sentences of 50, 60 and 65 years or more to replace life without parole. The idea that more 'retribution' and longer incarceration teaches a better lesson and makes us safer is not based on fact and serves no positive end for society. A study in 2000 by the U.S. Department of Justice followed up juvenile offenders after their release and found that those who were transferred into the adult criminal court system recidivated faster and more often than those who were maintained in the juvenile system (LTSDOJ, 2000). The Pennsylvania Prison socieiy - 3

4 These results suggest that treating juveniles as adults encourages them to behave as the adults they are modeling. However, this is not to say that a sentence of life without the possibility of parole in order to keep these individuals away from the public is justified as an alternative. Another study in 2004 found that offenders released from a life sentence were one-third less likely to recidivate than other released individuals. For comparison, a 1994 study found that two-thirds of individuals were likely to recidivate, while only one-fifth of released lifers were likely to be re-arrested (Nellis, 2004). RECOMMENDATIONS Legislatively, we ask the committee to consider these specific changes: 1. New Sentence: 10 years to life. A 10-year minimum would take virtually all adjudicated juveniles to a point of full maturity before they could be considered for supervised release. At the same time, an annual review by the Parole Board guarantees only that the offender will get a hearing; it does not say he or she will be released then. This process alone serves as a carrot to engender positive behavior while incarcerated if nothing else. Other states utilize this process successfully for all forms of life sentences and do so without fear of opening a floodgate of ill-advised releases. 2. Effective Counsel. Under PCRA individuals petitioning for appeal pro se are to be appointed counsel once their petitions are filed. The state should ensure that appointed counsel is suitably trained and experienced for the task. These cases involve complex psychological and scientific issues and, to be fair, will require attorneys who can argue convincingly on these matters. Otherwise these proceedings run the risk of becoming shams and the overall quality of justice suffers. 3. Adjusting Pardons Board Procedure. This may seem a bit removed from the need for immediate changes to comply with the Supreme Court ruling, but it is in keeping with a systemic view of our body of laws. We suggest that a constitutional amendment be proposed to provide for a three-vote approval by the Pardons Board in cases where a juvenile is sentenced to life without parole. As is commonly known now, the unanimous vote requirement adopted in the 1998 referendum has made commutations almost an impossibility. By reverting to the majority vote standard in juvenile cases, the Commonwealth will be providing a safety valve for those extraordinary cases where a life without parole sentence was imposed but not needed. The Pennsylvania Prison Society... 4

5 CONCLUSION Pennsylvania once led the nation and the world in the development of criminal justice policy. We have the professional expertise in place to do that again. With the political leadership of members of this committee and other insightful lawmakers, we can meet the requirements of the U.S. Supreme Court and ensure the safety of the public as well as the fair and just treatment of victims and offenders. References Nellis, A. (2010). Throwing away the key: The expansion of life without parole sentences in the United States. Federal Sentencing Reporter, 23 (1), U.S. Department of Justice. (2000). Juvenile iransfers to criminal court in the 1990s: Lessons learned from four studies. Office of Justice Programs. Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention. The Pennsylvania Prison Sociely