The American Civil Liberties Union last fall released a comprehensive report about life sentences that must be served without the benefit of parole. The report, titled “A Living Death: Life without Parole for Nonviolent Offenses (Report),” offers a disturbing view into the state of lifers in the nation’s criminal justice system.
Life without parole (LWOP) was an extremely rare sentencing phenomenon in the 1960s. But several significant events changed the public view about sentencing an offender to the rest of his natural life in prison.
In the mid to late 1960s an unofficial “moratorium” was in effect across the country due to public opinion turning against executions.  In 1972, the Supreme Court declared the penalty unconstitutional because death penalty laws were arbitrary and capricious and were being applied in a racially discriminatory manner. At the time, life sentences in this country enjoyed some kind of mechanism for release, most often through parole. 
By 1992, the Report said there were just 12,453 inmates in the nation’s prison systems serving LWOP sentences but that number tripled to 41,095 by 2008. Today there are more than 49,000 inmates serving LWOP—an increase of 22.2 percent since 2008. Most of the LWOP sentences in 1992 were imposed for violent offenses; a fact not necessarily so today.
Several events occurred that led to a greater social acceptance of LWOP: the “Willie Horton” ads in the 1988 presidential election and the “three strikes law” first passed in Washington in 1993 followed by California in 1994. Willie Horton, an African-American, was serving a LWOP for the 1974 murder of a teenaged gas station attendant in a Massachusetts prison before being granted a temporary release through a “weekend furlough program.” He brutally raped a woman and assaulted her companion while on furlough. Political operatives for the George H. Bush, Sr. presidential campaign seized on the Horton case as a way to portray Democratic presidential candidate Michael Dukakis as a “bleeding heart liberal who was soft on crime.”
Willie Horton became the poster boy for a national movement to “get tough” on not only violent but all repeat criminal offenders. California led the way with its infamous “three strikes law,” which opened the floodgates for imposing LWOP on “nonviolent offenders” throughout the country. The Report found that today there are 37 states and the Federal government which have LWOP sentences for non-homicide offenses. As of 2012, the Report found 3,278 offenders serving LWOP for “drug, property, and other nonviolent crimes.” In fact, 79 percent of these non-violent offenders were convicted for drug offenses; many of whom are first time offenders.
Why is this so? Because nearly two-thirds of the 3278 LWOP offenders were convicted in the Federal system; 95% of whom were convicted of drug offenses—18% of whom were first time offenders. The Report cited the following kinds of drug crimes that resulted in LWOP sentences:
• Possession of a crack pipe;
• Possession of a bottle cap containing a trace, unweighable amount of heroin;
• Having a trace amount of cocaine in clothes pockets that was so minute it was invisible to the naked eye and detected only in lab tests;
• Having a single, small crack rock at home;
• Possession of 32 grams of marijuana with intent to distribute;
• Acting as a go-between in the sale of $10 of marijuana to an undercover officer;
• Selling a single crack rock;
• Verbally negotiating another man’s sale of two small pieces of fake crack to an undercover agent;
• Serving as a middleman in the sale of $20 of crack to an undercover agent;
• Sharing several grams of LSD with Grateful Dead concertgoers; and
• Having a stash of over-the-counter decongestant pills that could be manufactured into methamphetamine.
None of the Report’s LWOP drug offenders fit the Willie Horton profile, nor do any of the ”property crime offenders?”  The Report lists some of these crimes that warranted LWOP sentences:
• Attempting to cash a stolen check;
• A junk-dealer’s possession of stolen junk metal (10 valves and one elbow pipe);
• Possession of stolen wrenches;
• Siphoning gasoline from a truck;
• Stealing tools from a tool shed and a welding machine from a yard;
• Shoplifting three belts from a department store;
• Shoplifting several digital cameras;
• Shoplifting two jerseys from an athletic store;
• Taking a television, circular saw, and a power converter from a vacant house; and
• Breaking into a closed liquor store in the middle of the night.
Again, these are not Willie Horton type crimes. The worst possible “nonviolent” crimes the Report found that resulted LWOP sentences were:
• Making a drunken threat to a police officer while handcuffed in the back of a patrol car;
• Possession of a firearm by a convicted felon; and
• Taking an abusive stepfather’s gun from their shared home.
With respect to all life sentences, California far and away leads the nation: 30.1 percent of its roughly 134,000 inmates (40,362) are serving life sentences, according to the D.C.-based Sentencing Project’s September 2013 report. Texas has the fourth leading lifer population with 9,031, trailing Florida (12,549) and New York (10,245). Texas adopted its LWOP in 2005, which has led to a decrease in death sentences and a marked increase in LWOP inmates.
Today America has a roughly $80 billion prison industry. The maintenance costs of this industry are increasing exponentially. A 2012 report by Human Rights Watch examined the costs of maintaining geriatric inmates (most of whom are lifers who have grown old in prison) and found the costs can be as much as 9 times greater than younger inmates. That same year the Vera Institute of Justice found that it cost states an average of $31,000 annually to maintain one inmate. Deficit spending is not an option here. Many corrections experts believe the nation’s prison industry, like so many other outdated industries in this country, is headed towards bankruptcy.
What about Texas?
The Vera Institute reported that in fiscal year 2010 the Texas Department of Criminal Justice had $2.5 billion in prison expenditures. But the State also had an additional $782.9 million for costs outside the prison budget, mostly for prison employee benefits. Thus, in 2010, the State had an average daily prison population of 154,576 at a cost of $3.3 billion—27 percent of which was outside the prison budget. These outside-the-budget costs include: $194.5 million to the state’s Employees Retirement System for health insurance premiums; $83.4 million in pension contributions to the Employment Retirement System; a $63.1 million payment by the State into the system for retiree health care contributions; and $206.7 million paid by the Texas Public Finance Authority for repairs and rehabilitation of TDCJ facilities.
Texas seems committed to dedicating a disproportionate amount of its fiscal resources to maintaining one of the nation’s most expansive, and expensive, prison systems. California Gov. Jerry Brown, on the other hand, has elected to pursue a different course—a reduction of non-dangerous prison inmates, including lifers. The Associated Press reported in February that nearly 1,400 lifers have been released from the California prison system over the past three years under the Brown administration. The number includes murderers serving LWOP.
In California, the governor has the power to approve or veto all parole decisions. Brown has approved the board’s parole decisions at an unprecedented 82% clip. His predecessor, Arnold Schwarzenegger, had a 27 percent approval rate (including 557 lifers) during a six-year term, while former Gov. Greg Davis over a three-year period approved only 2 lifers.
Brown’s decision to release lifers has certainly not been popular with crime victims and their advocates, primarily because more than 80% of the state’s lifers have been convicted of murder. While the Governor’s Office said the releases have nothing to do with prison overcrowding, it did point to a Federal district court decision (upheld recently by the U.S. Supreme Court) ordering a reduction of the prison system by 10,000 inmates and other state court decisions forcing the state’s parole authorities to ease their “stringent parole requirements.”
A study conducted by Stanford University of lifers paroled in California between 1990 and 2010 supports Brown’s lifer release policies. The study found that of the lifers released during this period, only five committed new criminal offenses, and none were convicted of murder. This success rate can be attributed to the mid-50s average age of the lifers released. Repeated studies have consistently shown that older inmates are far less likely to recidivate.
We suggest that the State of Texas follow the lead of California by releasing more of its elderly inmates who have spent years, even decades, behind prison fences. If the State would simply reduce just a fraction of its unnecessary prison industry costs, it would not be in the perpetual posture of having to cut its education budget. Investment in education has enormous positive effects on those living in the state including a more productive work force and a proven reduction in crime rates, which also has the benefit of reducing prison costs. A win-win…