Sentencing and parole are turning algorithmic, making risk assessment the new guardian of liberty. But unacknowledged is that life expectancy also regulates time in confinement. In the calculus of guidelines, mortality rates are untabulated consequences. And no punishment can claim proportionality without them.
“Deep learning” can pinpoint the end-of-life for medical planning. George Dvorsky, “New AI System Predicts How Long Patients Will Live with Startling Accuracy,” Gizmodo, Jan. 18, 2018. But there is no computerized guideline to say when incarceration should end life.
Eighth Amendment dignity demands that human beings outlive their term sentences. It is the earned and bargained for expectancy of rehabilitation, reentry and restoration.
Lifespans encapsulated by incarceration cancel the possibility of parole, extinguish life in society, and hasten death in custody. Moreover, misperceptions of mortality’s measures lengthen and intensify sentences beyond their intention. See Eldar Haber, “Meaning of Life in Criminal Law,” 68 Rutgers U.L. Rev. 763 (2015-2016).
Let Us Live
The Supreme Court has categorically exempted juveniles from the death penalty and life without parole on account of their cognitive immaturity, limited moral culpability, and life expectancy. See Kurtis A. Kemper, “Construction and Application of Rule Announced in Miller v. Alabama …,” 16 A.L.R.7th Art. 4 (2016).
Now, in Bostic v. Pash, No. 17-912, the court will answer: “[W]hether States can bypass that rule [in Graham v. Florida] by sentencing a juvenile offender who did not commit homicide to a term-of-years sentence under which he will die in prison, because he will not be eligible for parole until he is 112 years old.”
The sentencing judge in that case reflected: “While I did not technically give him “life without parole,” I placed on his shoulders a prison term of so many years combined that there is no way he will ever be considered for release.” Evelyn Baker, “I Sentenced a Teen to Die in Prison. I Regret It.,” Wash. Post, Feb. 13, 2018.
“Every state and the federal government allow prison sentences that are so long that death in prison is presumed.” Ashley Nellis, “Still Life: America’s Increasing Use of Life and Long-Term Sentences” (Sentencing Project 2017). Life sentences, however arrived at, alchemize rehabilitation into survivability.
In State v. Moore, 149 Ohio St. 3d 557, 575-580 (2016), Ohio’s highest court reckoned that juvenile nonhomicide sentences, even for multiple offenses, should not exceed “life expectancy.”
The Eighth Amendment demands timely parole regardless of sentencing labels. As recently noted: “There does appear to be a growing majority view that term of years sentences that are de facto life sentences should be so treated, and parole rights should be required.” Wright v. United States, 2017 U.S. Dist. LEXIS 28454, at *7 (W.D. Mo. Feb. 22, 2017)).
New York’s parole system is a forge for decisions that overemphasize convictions at the expense of redemption—making it host to the “second-largest population of people serving parole-eligible life sentences in the country.” See Delaying a Second Chance 44 (Sentencing Project 2017).
Indefiniteness of prison terms and unpredictability of parole release undermines the promise of rehabilitation and reentry. While life expectancy, rightly considered, contributes proportionality and humanity to sentencing. See Ken Strutin, “Realignment of Incarcerative Punishment,” 38 Wm. Mitchell L. Rev. 1313 (2012).
Morituri (‘Those About to Die’)
Prison is quicksand that surrounds and suffocates the living. A devastating abruption of life inside and out. See Ted Gest, “Can Better Health Care Help Ex-Inmates Avoid Returning to Jail?,” Crime Rep., March 16, 2018.
A convicted person’s sentence is inflated by laws that ignore or misconstrue the carceral abbreviation of life expectancy. When considered, mortality’s measure must be accurate, current, and attuned to the effects of poverty, race and imprisonment. See Adele Cummings and Stacie Nelson Colling, “There Is No Meaningful Opportunity in Meaningless Data,” 18 U.C. Davis J. Juv. L. & Pol’y 267, 270-273 (2014).
“Prison sentences are accompanied by a reduction in life expectancy and, thus, have a direct relationship with length of stay in prison.” See Evelyn J. Patterson, “Dose–Response of Time Served in Prison on Mortality: New York State, 1989–2003,” 103(3) Am. J. Public Health. 523 (2013). Indeed, life-shortening and life-ending prison conditions strain sentencing credibility, and moral authority, beyond constitutional boundaries.
For many, confinement has become the last station on life’s journey. Its dismal effects entangling guiltless generations. See Jack Duran et al., “Impact of Having an Incarcerated Parent Lasts a Lifetime—And May Shorten It, Study Says,” Think Justice Blog (Vera Institute of Justice), Jan. 23, 2018.
Death in custody is the vanishing point of life expectancy–the sum of accelerated aging, morbidity, and mortality. See Ken Strutin, “Caged Humanity: Conditions of Confinement and Death in Custody,” LLRX, Jan. 25, 2018. It is punishment served up without the salve of human compassion.
So, de facto life sentences are ever the death before dying, dispatching human beings pell-mell into the purgatory of confinement. See Emily Nagisa Keehn and J. Wesley Boyd, “How Mass Incarceration Harms U.S. Health, in 5 Charts,” The Conversation, Jan. 31, 2018.
Like Atropos of Greek mythology, sword wielding justice stands ready to cut the life thread of a million penitential souls. And when human beings face imprisonment laced with infirmity and mortality, justice is found in meaningful parole decisions and compassionate release. See Christie Thompson, “Frail, Old and Dying, but Their Only Way Out of Prison Is a Coffin,” N.Y. Times, March 7, 2018.
Prisons are rooms that daily get smaller until their occupants are crushed out of existence. They stand for an empty stretch of time crowned by the bereavement of hope. Where can moral regeneration be found when the expectation is to die encased in a block of misery?
Death in custody is the last testament to “max and stack” sentencing and unconscionable conditions of confinement. Beyond the ken of mechanized decision-making, sentencing can provide a “meaningful opportunity” at release by recognizing the dignity of the life being judged.
Ken Strutin is director of legal information services at the New York State Defenders Association.