Photo by Matthew Ansley
Walter Bourque, Jr., has been incarcerated in New Hampshire for 68 years for the murder of a 4-year-old girl in December 1955. Kenneth Nicely has been incarcerated in Arkansas for 65 years for killing a police officer. And Francis “Frank” Smith served 72 years in a Connecticut facility for his part in the killing of a night watchman until 2022 when, at 97 years of age, was released under “supervised parole” to a nursing home.
In the early ’70s, the number of individuals in prison in the U.S. was less than 200,000; as of December 31, 2022, there were 1,230,100 in prison. The “modern” era of prison executions dates from the execution of Gary Gilmore by firing squad in January 1977; as of November 30, 2023, 1,582 people have been executed.
A 2022 U.S. Senate report found the Dept of Justice failed to meet the requirements of Death in Custody Reporting Act (2000) and its reauthorization (2014) by failing to identify more than 900 deaths in prisons and local jails in 2021. The report said the DOJ’s poor data collection and reporting “undermined transparency and congressional oversight of deaths in custody.”
The Sentencing Project estimated that in 2020, 203,865 people were serving life sentences — either life without parole (LWOP), life with parole (LWP) or virtual life (50 years or more). On average, such prisoners serve 12 years between the imposition of a death sentence and execution.
It notes that 30 percent of lifers are 55 years old or more, amounting to more than 61,417 people. In addition,3,972 people serving life sentences have been convicted for a drug-related offense and 38 percent of these are in the federal prison system. And, not surprisingly, more than two-thirds of those serving life sentences are people of color.
LWOP is a sentencing alternative in all 27 states that practice the death penalty, in addition to the federal government and U.S. Military. Of the 23 states that do not practice the death penalty, Alaska is the only state that does not permit LWOP as a possible sentence.
Earlier this year, the Abolitionist Law Center, Amistad Law Project and Center for Constitutional Rights filed a complaint with the Pennsylvania Supreme Court to assess the constitutionality of the life sentence of Derek Lee. Lee is a 36-year-old African American man serving LWOP for murder is challenging the constitutionality of his sentence. “It is my prayer that the Pennsylvania Supreme Court approaches this brief with an open and sympathetic perspective,” Lee said.
Lee’s defenders argued that he did not kill or intend to kill anyone in a robber he participated in and, therefore, “his sentence is disproportionate and cruel under both the U.S. and Pennsylvania constitutions.” It also noted that 70 percent of the more than 1,100 people in Pennsylvania serving death-by-incarceration sentences for felony murder are Black
Most surprisingly, Governor Josh Shapiro filed a friend-of-the-court brief in support of Lee’s appeal, acknowledging that the sentence was unconstitutional and urged the legislature to create a remedy for people currently serving an LWOP sentence.
The Pennsylvania case builds on a September 2022 effort by a coalition of civil and human rights groups that petitioned the United Nations’ special rapporteur to declare the U.S.’s practice of LWOP a form of “cruel, racial discriminatory” policy, an “arbitrary deprivation of liberty.” It argued:
“Death by incarceration is the devastating consequence of a cruel and racially discriminatory criminal legal system that is designed not to address harm, violence, and its root causes, but to satisfy the political pressure to be tough on crime.”
As The Guardian noted, “The US is the only country that sentences children under 18 to life without parole.”
Making matters worse, as the ACLU acknowledges,
“Yet across the country, thousands of people are serving life sentences without the possibility of parole for nonviolent crimes as petty as siphoning gasoline from an 18-wheeler, shoplifting three belts, breaking into a parked car and stealing a woman’s bagged lunch…”
Going further, it argues: “In their cruelty and harshness, these sentences defy common sense. They are grotesquely out of proportion to the conduct they seek to punish. They offend the principle that all people have the right to be treated with humanity and respect for their inherent dignity.”
As can be expected given the racist structure of American society, LWOP prison are predominately African American. ACLU data reveals the following:
“Black prisoners comprise 91.4 percent of the nonviolent LWOP prison population in Louisiana, 78.5 percent in Mississippi, 70 percent in Illinois, 68.2 percent in South Carolina, 60.4 percent in Florida, 57.1 percent in Oklahoma, and 60 percent in the federal system.”
It points out, “In the federal system, Blacks were sentenced to LWOP for nonviolent crimes at 20 times the rate of whites.”
Sadly, as long as life without parole (LWOP), life with parole (LWP) or virtual life (50 years or more) prison sentences persist, death by incarceration will also persist.
