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November 13, 2013

New ACLU report spotlights thousands of nonviolent prisoners serving LWOP terms

Lwop-marquee-230x230-v01The ACLU has released a huge new report giving focused attention to the thousands of prisoners serving life without parole sentences in the United States for nonviolent drug and property crimes. This massive new report, which can be accessed at this link, is titled "A Living Death: Life without Parole for Nonviolent Offenses." This related webpage highlights some specific defendants and cases with this introduction:

For 3,278 people, it was nonviolent offenses like stealing a $159 jacket or serving as a middleman in the sale of $10 of marijuana. An estimated 65% of them are Black. Many of them were struggling with mental illness, drug dependency or financial desperation when they committed their crimes. None of them will ever come home to their parents and children. And taxpayers are spending billions to keep them behind bars.

Here is an excerpt from the 200+ page report's executive summary:

Using data obtained from the Bureau of Prisons and state Departments of Corrections, the ACLU calculates that as of 2012, there were 3,278 prisoners serving LWOP for nonviolent drug and property crimes in the federal system and in nine states that provided such statistics (there may well be more such prisoners in other states).  About 79 percent of these 3,278 prisoners are serving LWOP for nonviolent drug crimes.  Nearly two-thirds of prisoners serving LWOP for nonviolent offenses nationwide are in the federal system; of these, 96 percent are serving LWOP for drug crimes.  More than 18 percent of federal prisoners surveyed by the ACLU are serving LWOP for their first offenses.  Of the states that sentence nonviolent offenders to LWOP, Louisiana, Florida, Alabama, Mississippi, South Carolina, and Oklahoma have the highest numbers of prisoners serving LWOP for nonviolent crimes, largely due to three-strikes and other kinds of habitual offender laws that mandate an LWOP sentence for the commission of a nonviolent crime. The overwhelming majority (83.4 percent) of the LWOP sentences for nonviolent crimes surveyed by the ACLU were mandatory.  In these cases, the sentencing judges had no choice in sentencing due to laws requiring mandatory minimum periods of imprisonment, habitual offender laws, statutory penalty enhancements, or other sentencing rules that mandated LWOP.  Prosecutors, on the other hand, have immense power over defendants’ fates: whether or not to charge a defendant with a sentencing enhancement triggering an LWOP sentence is within their discretion.  In case after case reviewed by the ACLU, the sentencing judge said on the record that he or she opposed the mandatory LWOP sentence as too severe but had no discretion to take individual circumstances into account or override the prosecutor’s charging decision.

As striking as they are, the numbers documented in this report underrepresent the true number of people who will die in prison after being convicted of a nonviolent crime in this country.  The thousands of people noted above do not include the substantial number of prisoners who will die behind bars after being convicted of a crime classified as “violent” (such as a conviction for assault after a bar fight), nor do the numbers include “de facto” LWOP sentences that exceed the convicted person’s natural lifespan, such as a sentence of 350 years for a series of nonviolent drug sales.  Although less-violent and de facto LWOP cases fall outside of the scope of this report, they remain a troubling manifestation of extreme sentencing policies in this country.

November 13, 2013 at 08:56 AM | Permalink


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I guess I should no longer be surprised that the ACLU keeps trying tacitly to sell the idea that "von-violent" actually means "non-harmful." The idea is just so much nonsense, and contrived nonsense at that.

As I noted in my discussion with Doug about mandatory minimums, Eric Holder unsuccessfully tried the same maneuver in his speech in August to the ABA. Mr. Holder said he would limit his plan to "non-violent" offenses, apparently wanting us to think that "non-violent" means "non-harmful," and that's clever but it's false. Non-violent offenses can be extremely harmful if not fatal. A heroin addict's sliding the needle in his arm is non-violent, but he can be dead by nightfall. Trafficking PCP or methamphetamine to a high school kid is non-violent, but has started him down the path to ruin. The degenerate who, with the promise of a pretty dress, entices an eight year-old to pose for pornographic pictures has done no violence, but has defiled a little girl.

None of this is to mention the major source of "non-violent" crime, to wit, swindles and other sorts of property crime that wipe out the savings of older, more trusting or less savvy people.

The ACLU used to care about people like that. Now it cares about the ones who prey on them. And make no mistake -- predation is what it is.

Posted by: Bill Otis | Nov 13, 2013 9:21:50 AM

|"people who will die in prison after being convicted of a nonviolent crime"|

Al Capone's terminal sentence was for tax evasion, I believe?
[Not violent, but a legitimate rap which his expensive lawyers could not beat.]
Capone's myriad other crimes, attested to by many, included hands-on murders and
multiple arranged murders.

Somewhat analogously, one finds these ACLU "victims" of life terms received sentences connected to previous violent
or unstoppable repeated offenses.

Thusly, ACLU attacks are launched toward “Three-Strikes and Other Habitual Offender Laws” &
“Limited Judicial Review of Death -in-Prison Sentences”.

Considering the best of their examples of “injustice”, this makes sense.

According to Winslow, at trial, the 10 white jurors found him guilty of marijuana
.. He was sentenced to mandatory life without parole as a fourthstrike
offender. His prior convictions were for a simple burglary committed in 1984 ..
simple burglary in 1994 .. and possession of cocaine in 2000 .. Winslow is now 46 years old ..
He spends time in the law library daily, “try[ing] to learn how to get out””... -- "A Living Death"

Posted by: Adamakis | Nov 13, 2013 9:51:41 AM

Bill, do you generally think that activities that are "non-harmful" should be crimes at all, let alone felonies subject to significant terms of incarceration?

I share your interest --- but not quite your concern --- with how the terms non-violent gets used in legal and policy discourse. But I have long had the same concern(s) with the use of "serious offense" and "repeat offender" and even "violent." Indeed, it is largely because prosecutors and politicians kept expanding these terms to sometimes include, inter alia, very low-level drug offenses and theft offenses that we now have this counter-narrative developing.

I do not think anyone uses the term "non-violent" to mean "non-harmful," but I do think the use is designed to connote "much less serious that what we think of as violent offenses." If you have a better term that non-violent to capture this group of felony offenders accurately, I am eager to hear it. But to me saying something like "non-harmful felon" should be a contradiction in terms because I think to be a felony, it should have to be harmful in some way. (Perhaps you think Scooter Libby, who should still be thanking you for helping him avoid any prison term, qualifies as a non-harmful felon. But I do not, even though I certainly think he merits the label non-violent felon.)

That all said, and as we are trying to define terms, I am prepared to suggest that one who distributes marijuana to willing buyers may also deserve the label non-harmful felon as well as the label non-violent felon. After all, thousands of persons are about to get into the quasi-legal marijuana industry in two states, and I surmise the voters of those states think those folks (who will be committing federal felonies) are going to be helping, not harming, the citizens of that state. Of course, if the feds take an interest in these folks, and they might be otherwise lawful gun owners, then their (non-harmful) federal felony becomes serious, violent and subject to decades of mandatory federal prison time that you are eager to defend.

In sum, Bill, I share your concern about the mis-use of legal terms, but aren't there are lots of other terms with lots of more pernicious consequences from their mis-use, that you should focus your attention on? Of course, you know there are. But, unlike folks who believe in limited government and individual freedoms, it seems that only terms that might undermine prosecutorial political power bother you to the point of making a comment...

Posted by: Doug B. | Nov 13, 2013 12:58:05 PM


Except that I support the right of adults to harm themselves (including lethally harming themselves) for any or no reason. It is entirely a

normative judgement whether such self-harm is actually something society should care about.

Posted by: Soronel Haetir | Nov 13, 2013 12:58:21 PM

Using Bill's flair for gaudy reasoning one could surmise that those convicted of Illegal Entry are harmful miscreants deserving of LWOP as well. I mean, at that point, why not just draw and quarter them? As Bill will point out, no judge has ever found drawing and quartering to violate the 8th.

Posted by: Doug Ashby | Nov 13, 2013 1:15:31 PM

Doug Ashby --

"As Bill will point out, no judge has ever found drawing and quartering to violate the 8th."

When I authorize you to alert the board to what I "will point out," I'll let you know.

P.S. It's quite true that no judge in the USA has found drawing and quartering to violate the Eighth Amendment, because drawing and quartering has never been an authorized punishment since the Constitution was ratified, so the issue has not been raised.

Was that supposed to be hard?

Posted by: Bill Otis | Nov 13, 2013 1:36:31 PM

Doug --

"Bill, do you generally think that activities that are 'non-harmful' should be crimes at all[?]"

No I do not.

The caveat is that I am not about to allow each self-serving individual to define for himself what constitutes a harm. If a person wants to live under the rule of law in a civil society, that decision will be made by democratic means. (If he doesn't want to live in civil society, it's fine with me. Find a desert island and I'll leave him be).

Thus, any individual person of sound mind (sort of) could decide for himself that it's fine to torture puppies to death, because he gets off on it, and it harms none of his fellow citizens. But society as a whole has decided that such behavior is sufficiently harmful to the overall fabric of decency and humane life that, if you do it, you're going to jail.

I have no problems with that. If others do, fine, let them take it up with the legislature. But if they want to continue to enjoy the protections and rules that keep us safe from the jungle from which civilization emerged, then they are going to obey even laws they think foolish (or worse), all the while being free to try, by peaceful persuasion, to change them.

If they don't like those rules, as I say, I wish them well on the desert island.

Posted by: Bill Otis | Nov 13, 2013 1:57:42 PM


Just a few examples of people killed and cut up with the authorization, ranging from implicit to active participation, of local authorities-- all within the past 100 years.

Posted by: Doug Ashby | Nov 13, 2013 2:26:09 PM

Seeing as this is a blog devoted to federal sentencing, I should add that the DOJ did not comment on, much less intervene to prevent or prosecute, any of the above incidents. I guess they didn't find lynchings to be, as Bill puts it, "sufficiently harmful to the overall fabric of decency and humane life."

Posted by: Doug Ashby | Nov 13, 2013 2:36:07 PM

Last week I commented on the two-track nature of correction planning and programming. I think we should set aside Track One (Accountability) for the moment and focus on Track Two (Risk Control).

No one, repeat no one can predict with total accuracy who will commit a crime, and what kind of crime. The best that can be done is to estimate within a probability range the answers to these two questions (X chances out of 100 within Y months). Prior crimes have predictive value, some greater then others. Probabilities depend on a whole range of factors, not just prior criminal behavior.

What we need is a body of law and public policy, and a model for Track Two. How much risk is acceptable? What kind of risk? How should the state respond to risk?

I am not suggesting that Track One be ignored, just that it be disconnected from risk control for planning and programming purposes. Both involve the imposition of restraints. The highest level of restraint should control at any given point in time. The less restrictive restraint can be nested within the more restrictive if they are structured generically. In this way both accountability and risk control can be accomplished in each case without contradiction. Our thinking about these problems would be less sloppy.

Doug and Bill, what do you think?

Posted by: Tom McGee | Nov 13, 2013 3:05:24 PM

Doug Ashby --

The most recent of the murders you recount happened 95 years ago. If you honestly think that is relevant to the criminal justice system we have today, have at it. Also write a protest note to Eric Holder.

I might add that the President during the times you note was the leading Progressive politician of his day, Woodrow Wilson. Wilson was also a flagrant segregationist.

Finally, would you have heralded, as "guardians of the Constitution," defense lawyers who tried to get acquittals for those in the lynch mobs, had they been indicted?

Posted by: Bill Otis | Nov 13, 2013 4:30:32 PM

Al Capone. Imprisoned for the non-violent crime of tax evasion. Didn't file the right paper work, in a timely manner.

Not really. He was a mass murderer who dispatched or ordered the dispatch of hundreds if not thousands of people for pecuniary gain, or just to satisfy his blood lust.

That guy in for possession with intent to distribute may have been busier than Al Capone.

The adjudicated charge is fictitious in 95% of the cases. Thus any change in policy should include the reliance on the indictment charges, at least, and on investigations of unknown crime by the defendant.

A study of this subject would involve paying defendant and a certificate of absolute immunity for the answers in a survey of recent criminal activity. Find out how non-violent the the non-violent defendant really is.

Posted by: Supremacy Claus | Nov 13, 2013 9:17:23 PM

Tom: The KKK was a judge and lawyer founded and managed fraternal organization. Here is a site displaying tourist post cards of lynchings, as you might send from the Shore. There are hundreds of witnesses to this extra-judicial ethnic genocide.


The KKK was the terror arm of the Democratic Party, the party of the lawyer.

Did you know that the victims were rich? Then their assets were seized. Who could do that and get away with it? Only the judges and prosecutors of the local county. Black, left wing, Ivy indoctrinated, America hating lawyer dumbasses are going after corporations for reparations. I have a question for those geniuses. Can an after acquired title acquired after the murder of the owner ever get quieted? The people they should be suing for reparations on behalf of the estates of the victims are the county government, not immunized by the Eleventh Amendment.

Posted by: Supremacy Claus | Nov 13, 2013 9:29:19 PM

That's OK Doug and Bill. I didn't expect an answer to my question anyway. As a practical matter, correctional people have already disconnected track two from track one. The courts are not in a position to make reliable risk determinations.

Posted by: Tom McGee | Nov 15, 2013 12:49:36 PM

"No one, repeat no one can predict with total accuracy who will commit a crime, and what kind of crime.

Not that hard.

Take the risk tolerance in someone totally selfish and fearless to the extreme.

Divide by the risk of punishment, close to nil, in the USA, thanks to the criminal lover lawyer.

Multiply by the tremendous benefits of crime to the criminal.

You now have reliable predictions of the massive criminality of the nation.

Imagine a nation with a low crime rate. Could be very poor (the prior state of Egypt), or very rich (Japan)The criminal does not have to worry about the police. He has to worry about everyone in the public around him. Every person around him is an enforcer, will pursue him, beat him at the scene, maybe to death, maybe not. Then turn him over to a police force. Public self help is the sole path to a low crime rate.

Posted by: Supremacy Claus | Nov 16, 2013 7:53:44 AM

Incarceration is lethal to any human being. Whatever your definition of non harmful vs.non violent, leaving someone to die in prison for a less serious crime than Trey Radel should be allowed to leave prison with government supervision. At a million $ per prisoner annually, you can buy school supplies and nutrition for hundreds of schools. that would go far to keep men out of jail

Posted by: Duck Holland | Nov 22, 2013 9:36:49 PM

And older post, but the 2nd in recent posts, although there are serious non-violent crimes, the vast majority have sentencing disparities.

Violent criminals often receive lesser sentences than non-violent ones even if there is death, injury to limbs, and permanent suffering, of course
there are violent criminals who receive great sentences, and there can be serious non-violent crimes such as drunk driving, madoff,etc but considering a high percentage of defendants are drug offenders in federal prisons, that alone would qualify for concern.

Posted by: Alex | Aug 9, 2014 6:48:54 AM

Former Marine, former Navy Medic, former Airport security, disabled and retired Firefighter, OSU graduate and Dr. of Divinity recipient. Father worked law enforcement for 3 different departments and i have also worked closely with police throughout my careers.

I agree with nearly all of the mandatory sentencing guidelines. Drug sales ARE violent, and cause destruction in the lives of countless people. They also often fund terrorism. Drug users should be incarcerated for life after multiple convictions, so obviously this should absolutely apply to dealers. B&E offenders violates curing and peace of mind. I have had my home broken into on multiple occasions, and you are left feeling violated. It is akin to rape. I am affected for life and have had difficulty sleeping because of this. Mandatory life sentences is only a start, imo. As for bar fights, I think it depends on the aggressor. I learned in martial arts that even a single blow to the body can cause death, even if delivered from a small person. People need to be held responsible for their actions. When their action can potentially cause death, it should be treated with that same weight, and especially so when said action is deliberate. Societyy should never have to suffer the actions of individuals as described above. It definitely should not be exposed to recurrent offenders!

Posted by: Michael | Aug 27, 2014 5:02:41 AM

Please pardon the above grammatical errors. My disability causes tremors, and the small screen makes them hard to catch. There is no edit feature.

Posted by: Michael | Aug 27, 2014 5:07:32 AM

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