Joshua B. Hoe interviews Ashley Nellis about life sentences.
Full Episode
My Guest; Ashley Nellis
Dr. Ashley Nellis is a Senior Research Analyst at the Sentencing Project and has an academic and professional background in analyzing criminal justice policies and practices, racial disparities, juvenile justice systems, and long-term imprisonment. Her documentation of the prevalence of life imprisonment has served as a national resource for academics, advocates, policymakers, reporters, and incarcerated persons. Dr. Nellis received her Ph.D. in Justice, Law, and Society from American University’s School of Public Affairs.
We discuss her report “No End in Sight: America’s Enduring Reliance on Life Imprisonment”
Notes from Episode 98 Ashley Nellis
The research paper written by Ashley with Ryan King is called “No Exit: The Expanding Use of Life Sentences in America”
Ryan King also was co-author of the Urban Institute Report “A Metter Of Time: The Causes and Consequences of Rising Time Served in America’s Prisons”
Ashley suggested the book “No Visible Bruises: What We Don’t Know About Domestic Violence Can Kill Us” by Rachel Louise Snyder.
Full Transcript
Josh Hoe
Hello and welcome to Episode 98 of the Decarceration Nation podcast, a podcast about radically reimagining America’s criminal justice system.
I’m Josh Hoe, and among other things, I’m formerly incarcerated; a freelance writer; a policy analyst; a criminal justice reform advocate; and the author of the book Writing Your Own Best Story: Addiction and Living Hope.
Today’s episode is my interview with Ashley Nellis about life sentences.
Dr. Ashley Nellis is a Senior Research Analyst at The Sentencing Project and has an academic and professional background in analyzing criminal justice policies, practices, and racial disparities; juvenile justice systems and long-term imprisonment. Her documentation of the prevalence of life imprisonment has served as a national resource for academics, advocates, policymakers, reporters and incarcerated persons. Dr. Nellis received her PhD in Justice, Law & Society from American University’s School of Public Affairs.
Welcome to the Decarceration Nation podcast, Ashley.
Ashley Nellis
Thank you.
Josh Hoe
I always ask the same first question; it’s kind of the comic book origin story question. How did you get from wherever you started out in life, to where you were writing reports and analyzing criminal justice policies and practices?
Ashley Nellis
It was not a linear path. But I think as I do my work today, what guides that a lot is certainly things from my younger years. I grew up in Chicago, in an affluent neighborhood of Chicago called Lincoln Park. And it was an upper-middle-class, mostly white community. But we were about a mile from the start of Cabrini Green, which was the projects of Chicago, and we drove through it frequently, to get from the Gold Coast neighborhood, which is another affluent neighborhood in Chicago, to Lincoln Park where we lived. And it just always struck me that Cabrini Green was right in the middle of these two very rich neighborhoods, and also that it was called “the projects”. And I just wondered what was the project specifically that they were working on, because the communities were so different than the ones that we drove in between. And there was such a stark contrast between those two. And that was completely ignored for the most part. And then, as people probably know, in the early 2000s, these were torn down and replaced with sort of expanding Lincoln Park, in one direction, and the Gold Coast in the other. And so I guess, curiosity about poverty was really my first issue. But it was also the case that, like many of the people in Cabrini Green, members of my family struggled with chronic addiction issues. And when I became an adult and started working in this area, it was clear to me that we went down a different path, one that did not involve the criminal justice system, even though a lot of the behaviors that went along with addiction were illegal. And that’s not to say that we should have, but just that there are avenues for dealing with public health issues, addiction, that are available for people of privilege, but inaccessible to people who aren’t [privileged].
Josh Hoe
And how did you gravitate from working on poverty and things like that; what drew you to working on – because most of the work I’m familiar with that you’ve done – is on life and long sentences.
Ashley Nellis
When I came to the Sentencing Project, that was 2008, it was really just a research project that was dropped in my lap. And I was eager about it. I wrote the first report, which was our second report for the Sentencing Project. But my first report was in 2009, with Ryan King. And together we conducted this census of lifers, and it really opened my eyes at that time, just the sheer number of them. Of course, it’s continued to grow. But shortly after that, the Graham Case was granted cert. And so the Graham case, for people who don’t know, is a Granby, Florida case of a young man who got life without the possibility of parole for a non-homicide crime. It was an armed burglary, and it followed a previous crime for which his life sentence had been suspended. So he was given that life without parole sentence, and the case argued that life without parole for a crime that doesn’t include a homicide was inappropriate for juveniles. And where I was able to contribute to this work was that together with a colleague at Florida State, we counted the number of juveniles who met that category. And it showed that not only was this cruel and unusual – well, unusual and rare – but that most of those sentences were occurring in Florida. So that led to, in part, the win on the Graham case. And then my work sort of deepened on the juveniles, where I was able to interview about 1500 of them about their crime – not about their crime, specifically, not about their crime – but about their life before the crime, and their life in prison. And my interest was really hearing about something other than their crime. And it turned out, there was a lot of similarity for people who ended up with a life sentence. They had lives that were filled with hardship, and seeing community violence was not uncommon. They had endured trauma and addiction and homelessness and neglect. And a childhood that was mostly composed of having to fend for themselves, right. And so, you know, the story we’re told particularly about that group, which is the super-predator era, is that these were remorseless kids, they were incorrigible, they were especially violent. But when you really take a look at that population of kids, that’s not what you see at all; you see kids who are trying to escape a community that is violent, and they have no way out, really, because it’s not an option for them, like it is for many communities, to pick out of a number of choices. So we found that before they became victimizers, that they had been victims themselves. And that it doesn’t excuse their crime at all. But it does help to explain it. And then after that it morphed into well, if juveniles had lives of trauma and addiction and all of this, why would we think that the adults that ended up in the same predicament didn’t have these same childhoods and traumas? So really “jlwop” as it’s commonly known – Juvenile Life without Parole – is just the tip of the iceberg when it comes to these extreme sentences.
Josh Hoe
I feel like I’ve kind of gone full circle, because earlier today, Ryan was on one of my panels for the Day of Empathy.
We came here to discuss your new report, No End in Sight: America’s Enduring Reliance on Life Imprisonment. What does the evidence tell us about the need for, or about the effectiveness of life sentences?
Ashley Nellis
What we try to focus on in the report, and also in our campaign to end life imprisonment, is that life sentences do not provide us any of the safety that we think that they provide us. So when we ask, do they work? What we really have to ask first before we tackle that is, what does it look like for something to work? How do we know when it’s working? Does it work when everybody is locked up? You know, for public safety reasons we know that life sentences are not an effective deterrent for crime. Most people who commit crime don’t believe they’ll be caught in the first place. And so, packing on more and more years to a punishment that they don’t believe they’ll receive in the first place, is not an effective crime control strategy. And the fact is that in many cases, they’re right. If we look at the clearance rate for murder, for instance, we see a third or more are never even cleared. So that means no arrest was made. And so they’re placing their bets. And these are obviously high-risk people if they’re considering killing someone in the first place. So add this to the fact that even if they think they’ll be caught, they don’t know the range of sentences, and they’re likely to underestimate it. So even if it’s 20 years, or 50 years, neither one is a good option for that person. So what we found out from the research is that what really matters in terms of getting a person to make a different decision, among other things, but in that moment, getting them to make a different decision is certainty. So certainty of the apprehension makes a much bigger difference than the scale of the punishment. For instance, one analogy I often make to people is to think about speed cameras, right? So, you know, when you’re driving, for me, I live in Virginia, and there aren’t a ton of speed cameras here. But if I go to Maryland, Northern Bethesda, all that area, there are a lot of speed cameras. And I don’t know what the penalty is. But I know where they are, because I’ve driven there enough. And so I’m going to slow down when I hit that speed camera, because the camera doesn’t have any discretion, right? If you go past it, and you’re going 40 miles an hour, 50 miles an hour, and the limit is 20, you’re going to get a ticket, and I don’t want any ticket. So it’s not like, oh, if it’s only $20, I’ll take the ticket, because I could just slow down. And so that’s how it goes with many crimes, in fact; not all crimes, but many crimes, where it’s the certainty that you will get caught, that makes you not conduct that criminal behavior. And so for those reasons we try to make the point that life imprisonment really doesn’t work. And then finally, we make the point in our literature – and there’s 10s of hundreds of studies that show that people who commit crime do so at a certain point in their life, for the most part. When they commit violent crime – they tend to do it in their younger years. With murder and robbery, for instance, this reaches a peak at around 20 years, 20 to 24 years, and then it tapers off precipitously, so that by the time someone gets to their 30s – or even maybe their early 40s, for someone who might have some chronic offending patterns – the punishment reaction of a life in prison doesn’t really serve, because they’re not likely to commit another crime. So for a public safety reason, extending punishments decades past what’s necessary to achieve any public safety doesn’t make any sense – common sense or cost-saving sense. And certainly not any sense when it comes to the social science.
Josh Hoe
One of the things I really liked in this report is that you foreground each section with pictures and content from people who did long sentences. Why was this important to you? And what was the process of including them? How did it all work in the final report?
Ashley Nellis
I think for us, for me, it’s very important to ground this work in their voices, because the lifers themselves really are the soul of this work. They are the ones who are living these experiences of extreme sentences. And they are luckier than most, of the ones that I probably profiled for the most part, because they’ve been released. One lifer that I profiled I had known for a couple of years, and then he died this past November from COVID. And I had already decided some time ago that I was going to be putting him in the report, because he’s really just so sort of emblematic of the worst case scenario in a life sentence. He had like a 110-years sentence, I believe, and he was there for a nonviolent drug offense. And he was in Wisconsin. And, you know, I had come to know him over the years. And I got to know him because I was looking through the Wisconsin lifer data that have the individual data there, and trying to find what’s the most sympathetic case, right? So maybe, let’s put the people who have killed several people for later in our advocacy movement, right? And let’s find somebody who’s sort of the most sympathetic case. And that was Clarence, he was one of only two people in the Wisconsin system who’s there for a drug offense and serving a life term. And I reached out to him for that reason. And then over the years, I got to know him and his family. And, you know, I think in my juvenile work, what came across to me so much is that, you know, these are lives that we as a society discarded so early on; I know they did a terrible thing, but we have not even acknowledged what they came from. And so even the experience of this, having been discarded, many of them had overcome great obstacles and challenges while incarcerated, to become men and women who act with integrity and dignity, and they were doing this without any hope of release. The men and women I met in 2012 – this was before the Supreme Court ruling, before Miller, I think Miller had been granted cert – which was the case that invalidated life imprisonment for homicide for juveniles if it was imposed in a mandatory scheme. But the vast majority of these people, they never thought they would get out. And yet they were still sort of making the best of it. And I don’t know that I would be able to do that, to be honest. So to me, that really speaks volumes. And I think those voices and those lives really have to be front and center, certainly in my own work. But also in the writing that I do.
Josh Hoe
Your report starts out by saying that more people are sentenced to life sentences now than there were people entirely in prison in 1970. This is going to take a bit to unpack, but what do you think started us down this horrific path?
Ashley Nellis
Right, so in 1970, there were just under 200,000 people in our prison system, there were 197,000. And that was right before mass incarceration took hold, which is usually given its birthdate around 1972. And today, we have 200,000 people serving life sentences alone; one in seven people in prison now has a life sentence, which might include LWOP, which is life without the possibility of parole; life with parole, which is the majority of these individuals, and that’s life with only the possibility of parole; and then virtual life, people who have 50 years or more, and they are unlikely to outlive that sentence. So we’ve seen this 500% increase in the past 40 years in our prison population. And life sentences are five times their number as they were when we first started to see them documented, which was in the mid-1980s. And, you know, there’s wide agreement among scholars, among legal analysts, among the research and advocacy community, that it’s policies, not crime, that drove this rise. And we can say this because other nations have dealt with crime in a non-incarcerative way, and also witnessed dramatic declines in crime. So the United States is really the only nation that dealt with an uptick in crime by building and building and incarcerating our way through it. And now we’re in a position where we have over 2 million people incarcerated. And we are sort of the laughingstock, from a human rights perspective, in terms of our criminal justice policies, internationally. So in particular, we see that the United States was really the only country to declare this war on drugs, which had a huge impact, particularly in the federal system; we created a wide system of mandatory minimum sentences that removed discretion from the judicial process and took out this neutral arbiter, who could take a look at all of the facts of a case; we created three strikes in our habitual offender laws, which snatched up many people who didn’t need to serve that life sentence. And then we also embraced juvenile transfer, which is the idea that juveniles, people under the age of 18, as young as 10 or 11, could be moved into the adult criminal court system and processed there, where they might encounter mandatory minimums, which was another bad idea of ours. And so they’re twice-affected, the juveniles being transferred and then subjected to these mandatories. And then finally, the abolition of parole itself, which occurred in about a dozen states and the federal government, of course, and that closed the door on many people’s opportunities for release.
Josh Hoe
You also – I think this is really important – say that long sentences are the lifeblood of mass incarceration; I’ve said a different version of the same thing for many years. And so if you could – I think many people think that the lifeblood of mass incarceration is like low-level and nonviolent crimes, or marijuana, or things like that – could you unpack this, and explain a little bit more why it’s actually long sentences and serious crimes that are what really keep the heartbeat of mass incarceration going?
Ashley Nellis
I think Marie Gottschalk says it best, and others say it fairly well, that if we were to release all the marijuana offenders tomorrow, we would still have mass incarceration. And that is not to say that people who are convicted of low-level drug offenses, low-level offenses of any type, should be incarcerated, we need to find, we need to use – we’ve found them – but we need to use tools other than prison and jail to deal with what are essentially public health problems. But that alone will not fully address mass incarceration. And the reason that it won’t address it is that the reality is that half of the people in our state prisons are there for a violent crime. And there has been this sort of separation between people who are there for a violent crime and people who are there for nonviolent crime. Unfortunately, in our advocacy, that presents this picture that people convicted of violence are unable to change. And that is simply not true; for lifers, the vast majority of people who were convicted of violence, it sounds illogical to say this, but people who commit serious crimes will not necessarily do it, if given the chance. And in fact, the recidivism rates of people who are released on a life sentence hover below 5%, which is lower than many other crimes, particularly non-violent crimes. And the reality is that the people – we hear this from Bryan Stevenson and many others – people are more than the worst decision of their lives; simply because they committed a serious crime in their past, does not make them forever a serious criminal. It’s hard to accept, but it’s true. And a serious attempt at ending the prison boom requires an acknowledgement of the human potential. And so, you know, the crimes that dominate the work that I focus on, which is to end life imprisonment, are murder. And that’s not an easy pill for many people to swallow. It’s not an easy pill for me to swallow. I have young children, I have a family who I love; I don’t want to see anyone in my life being murdered. But the people who are serving these sentences are also, in many cases, doing deep internal work on why they made those choices. And they’re doing that work, in spite of a prison environment which is very difficult to live in. And it may be necessary for them to live there for a little bit of time. I don’t think that you should just get a slap on the wrist if you kill someone. But I also don’t think that a 20-year sentence is a slap on the wrist. And I think that people do difficult internal work about the choices that led them to commit that crime. And that deserves a second look at some point. It’s also true that – when I say most people are there for murder, that is true – [but] there are different categories of murder, and there’s different involvement in murder. And some of the problem of the expansion in life imprisonment comes as a result of the fact that more people are being convicted of a single homicide than we used to see in the past. So it’s difficult to explain, but it’s called law of parties or accessories, or a felony murder is the most common, where a person is involved in a felony, is there for the felony and but does not know and does not anticipate that a murder will happen. So the sort of classic example is a getaway driver in a gas station robbery. The person may not even know that a robbery is happening, but let’s assume they also know that the robbery is happening. And they’re just waiting in the car, they’re going to be the getaway, and then the person gets in and says drive away. And also I killed someone. And both of those people go away for life; in Pennsylvania and in Louisiana it’s mandatory. Any involvement in that homicide is a mandatory life without parole sentence and that’s why those states really lead the nation in LWOP. There’s a gradation in murder, and they aren’t all the same, right? I noticed this more and more with the women, women under the force of a man or somebody else to commit a crime in order to save their own life; under coercive control type situations, they’re getting life sentences just like anyone else. And the statutes today allow for all of those people to get that same punishment. And that continues to expand the lifer population for murder, even though we’re seeing generally – with the exception of last year, which is problematic – we’re seeing violent crime continue to go down.
Josh Hoe
My understanding is that violent crime is still going down. But homicides have gone up since the onset of COVID, pretty substantially in cities specifically. The felony murder story that I always remember the most is there were two kids, young men, who broke into a house. They’re thinking that the person who lived there wasn’t home, [but] the person who lived there ends up shooting one of them and killing him, and the other person got charged; the other burglar got charged with the murder.
Ashley Nellis
I think that’s a Pennsylvania case. There are multiple instances like that, but I’m familiar with that scenario, for sure. And you know, they both get, that guy gets life.
Josh Hoe
We’ve seen this massive increase in, at least since the 70s, of people getting charged long sentences to life sentences. Have there been racial components? Is there a racial component? I already know the answer to this, but is there a racial component to this?
Ashley Nellis
No, race is never left out of any step of the criminal justice system, unfortunately.
Josh Hoe
I always say that you would have to be willfully blind to walk into a prison or jail in the United States and not see the racial disparity.
Ashley Nellis
Oh I know, I know. I have a colleague who says if we made every American just spend an hour in a prison, we’d have a lot fewer people in prison. If they’re so far removed from the general day-to-day that we can say these things and really disconnect from the fact that these are human beings and their lives, and that they have rippling effects for us as a society. And I think it does, it works well with this question about race. Because there is this belief in our society that black lives are worth less than white lives. And the racial over-representation that we see everywhere in the criminal justice system, we see even more pronounced among people who are serving life. So black men account for one in six men in prison. And two-thirds of the lifer population is comprised of people of color. There is a greater incidence of black people committing violence. But this has been greatly exacerbated by the tough-on-crime laws that were put into place in the 80s and 90s.
Josh Hoe
What about gender as a component for these increases?
Ashley Nellis
Yeah, so here we are, seeing that the rate of women serving life imprisonment is rising more quickly than it is among men, I mean, men still dominate the lifer population; 3% of lifers are women. But the number of women serving life is rising more quickly. And I don’t really know empirically why this is, but I have a hunch. I have a few hunches. I think some of it is this course of control issue, and the expansion of life imprisonment for people who are accessories in a murder. And I think some of it is the ineptitude of the justice system to respond to domestic violence, and then women taking matters into their own hands for their own protection or that of their children. That, I suspect, is why it’s rising more quickly. But I will say, I know there’s terrific work being done out of Stanford on this issue, trying to unpack that a bit more. And there’s also work that I’m going to be focusing on, particularly in the coming year, about trying to better understand why the women’s lifer population continues to rise. I will say women are rising more quickly in the general prison population as well. So it’s a theme throughout.
Josh Hoe
And has this rise in life and long sentences been particularly even worse for people sentenced for life without parole? Is that increasing as well?
Ashley Nellis
Right. As I mentioned earlier, there’s these three different types of life that we define as life: life with parole, life without, and virtual life of 50 years and more. And we’re noticing with women, that the sentences of life without the possibility of parole are where they’re really rising the most quickly. That’s also true with the race issue, right? So there’s the greatest disparity for black-white ratios when it comes to LWOP than for the other two.
Josh Hoe
And what about people sentenced to life as juveniles? I think you mentioned in the report that there are still over 10,000 people serving life sentences for crimes committed as juveniles; is that correct?
Ashley Nellis
Yeah, so that is, you know, as a direct result of this “super-predator” era type policy where, you know, “old enough to do the crime, old enough to do the time” type of rhetoric, that didn’t take account of the fact that adolescent development is clear, that young people have a different set of life skills. I mean, we all know this, we were all young, some of us still are. And, you know, and we have young people in our lives. Young people respond to life differently, right, and more reactively, and more are greater risk-takers, and aren’t able to fully see the consequences of their actions, and don’t have the level of remorse that we get as we age; these are all factors that are critical when it comes to the decision to commit violence. And so that body of science has really propelled the Supreme Court forward in the ending of the death penalty in 2005 for juveniles, all the way to 2017, with Montgomery v. Louisiana, that they are a different set of characteristics. And so those cases, they deal with the juveniles who have life without the possibility of parole, and that accounts for about 2500 at the peak, but there are another 8000 or so who are there serving life with the possibility of parole or virtual life. And those sentences have been virtually untouched by the Supreme Court rulings unless a state takes it upon itself to cap a sentence at certain years for juveniles. 1
Josh Hoe
What do you think the disconnect is between the logic of the Supreme Court cases, which talks about brain science, and the impact of the Supreme Court decisions only being on people who were sentenced to JLWOP?
Ashley Nellis
I think it’s just states are very . . . they drag their feet, they do not want to get into the mess of reversing that policy. I mean, people who work in policy, advocacy – and I am not one of them, but I work with them at The Sentencing Project – they are the first to say that it’s so much easier to pass a bad law, than to reverse it down the road. And so that’s why a lot of our work ends up trying to get people to not pass bad laws. But, you know, there was a colossal failure of that because of the rhetoric of the 80s and 90s. And the narrative that was reinforced from the right and the left. So I think states are just reluctant to really adopt what the science tells us about young people wholesale, so they’re doing it in these fits and starts. And it’s not really justice.
Josh Hoe
It sounded like you still said there’s about 2000 who are doing JLWOP? You’d think that the Supreme Court cases would have touched them. That still seems like a fairly large number. Am I crazy here?
Ashley Nellis
No, it’s about 1400 that are still serving JLWOP. It is large!
Josh Hoe
Considering there are two cases that say it’s unconstitutional!
Ashley Nellis
Yes, I know. But the Supreme Court was only asked about the mandatory nature of the sentence. So for the majority of them, let’s say there are 2500 total, at the beginning of it, less than 1000 of them were there under a discretionary sentence. So those people are also excluded from the Supreme Court ruling. So getting it from 2500 to 1465, it’s a good start. Let’s just say that. But there are, like you’re suggesting, there are people there who are serving sentences that are unconstitutional. And, I don’t know how the prisoners live with that. I mean, I know they’re outraged. But I just think I would be beyond outraged. I’m here on an unconstitutional sentence. But states also, they just delay and delay and they’ll say, Oh, well, we need to do a study about how to do this, or we need to pass a law, and then that gets all messed up for a year or two. So people are very reluctant to make these changes, which are clearly what the science suggests should be done.
Josh Hoe
And how, in terms of the larger question of life, the increasing of life sentences, is this a problem that’s consistent across all states? I know, in Michigan, we’re one of the few states that still require incarcerated people to serve 100% of their minimum sentences. So are there a lot of states like Michigan, where long sentences are the norm? Are there some that stand out as better than others? What are we learning from the engine of innovation that is known as our state system?
Ashley Nellis
Yeah, I mean, the states are kind of doing different things in terms of their lifers. So if you take a state like New York, they have had a tremendous decline in their lifer with parole population, about 17%, I think they’ve declined their life with parole population by 17% since 2016, which is tremendous, because they have 10,000, people serving life with the possibility of parole. So that’s terrific. But at the same time, they have this increase happening, somewhat under the radar, of people serving life without the possibility of parole. And that happens in a range of states where we see a good decline, which we are proud to see, and happy to see, but we also see this rise in the other lifer category. So in Florida, for instance, Florida is a state that passed the 10,000-person mark in terms of people serving life without the possibility of parole in that state, during this census that we did. So to me, that just boggles my mind that they would consider 10,000 people in their state to be ineligible for any other review. And they have, you can get life without parole for a fairly minor crime there; you can get it for armed burglary; you can get it for a lot of crimes other than murder, so that’s how they get to this number. But at the same time, there are states that also have declined their life with parole population. So it’s kind of a mixed bag. In this analysis – this is the fourth time I’ve done this study – this one I really needed to parse out juveniles and adults for one thing, and then also those three types of life sentences because it’s sort of a range of things that are occurring, that are keeping that life sentence engine going.
Josh Hoe
We talked a lot about the problem . . . as we move towards solutions, one thing I wanted to ask about is psychology. It seems over the last 20 years that one of the big barriers to any reform in this area is an alignment between prosecuting attorneys and victims’ rights advocates. It used to be that the prosecutors represented the state; now, they talk quite a bit about how they represent victims and a sentence they see as a contract between – and they present it this way in the public – as a contract between the victim, the judge and the prosecutor. So what is your take to addressing this publicity, and other barriers to sentencing reforms?
Ashle Nellis
Right, the victims’ rights movement is a strong and powerful voice in criminal justice reform and the progress that is able to be made there. And there is this alignment that’s instigated by the prosecutors in order to secure a sentence, but they make this promise to victims that we’re going to get you justice, don’t worry, we’re going to get you justice. And what they end up getting is, they get the victim’s family on the stand to re-experience the entire crime from their view, to re-experience the trauma. And they say that when you do that, you will be getting justice. But there isn’t any evidence that for the vast majority of victims, not the most vocal victims, but for the majority of victims, that they find the closure that they’re seeking – and that they deserve – from their engagement with the criminal justice system. So they end up being, in my view, sort of used by the prosecutor, and used by the system, and then discarded, because there aren’t a lot of services and compensation, and therapies, and all of this that are provided to the victim. Instead they’re used as these characters to secure a tough sentence that the prosecutor then gets, and then, certainly benefits politically from that. And that is heartbreaking to me, on behalf of the victims, because they’ve already been through a very serious trauma. And then they’re being used after that. And why that is allowed to go on, is because the victims’ rights movement is so loud, but it is not representative of most victims. You know, Danielle Sered is one of many people, but probably the most clear on this, and certainly the most vocal, that the victim’s voice is not really heard in the victims’ rights movement. It’s represented by middle-class white women, but that’s not the majority of people who are victimized by violence.
Josh Hoe
Yeah, the most popular episode we’ve ever done on the podcast still, by far and away, was the Danielle Sered episode.
Ashley Nellis
With good reason, with good reason.
Josh Hoe
In my own personal experience, I never felt like the justice system was a very good stand-in for accountability or justice. And yet, we use it that way. One of your solutions that you suggest in the report is a re-orientation towards true healing. How do we get past this idea that it is only the justice system that creates accountability and healing and justice to something different?
Ashley Nellis
It’s a cultural shift that’s necessary. We are encouraged that some states and policymakers are beginning to look at other countries, because other countries are doing it way better than we are doing it. And to them, it’s natural that you would view somebody who committed a serious crime as being very broken. Because, I know if I committed a serious crime, there would be something that I really needed to address at the root of me, and the criminal justice system does not do that. I mean, if anything, it creates more violence, because the way that the system is, it’s sort of a violence incubator.
Josh Hoe
It’s a trauma-generating machine, is what it really is.
Ashley Nellis
It really is. And then we wonder why we have recidivism rates for a lot of crimes. That they’re troubling, and they’re cycling through the system. So I think reorienting toward healing is acknowledging that we can heal from the crime. And it is not, you know, it is not serving the crime and the experience of the crime, to hold on to it through this angry stance that insists that the perpetrator serve out the rest of their days in prison. When I meet people who have been victimized by harm, by violent harm, they, the ones that are truly inspiring, that have a real light around them, are those that have forgiven, and that have helped the person that harmed them move past their bad decisions. I mean, victims have no obligation to do that, of course. But to go to the criminal justice system – I think it’s Danielle Sered who says this – and expect that somebody who burned your house down . . . all the system will provide is that they can burn their house down, but they don’t help you to rebuild your house. They don’t help you to rebuild your life and to find that healing from having been a victim of crime. And in other countries, when somebody comes to the prison on a serious crime – and serious crime does happen in other countries – from day one, that prison, their job is to get the person ready for release. And then the point of the period of incarceration is to prepare them for release, however that looks. And in our system, it’s so much the opposite, right? We make it much worse for somebody, once they get to prison; we create all these obstacles, particularly for lifers. You know, in some states, lifers are not allowed to participate in education programs or rehabilitation programs. In some sense, in some states, they’re put in segregation for the first couple years of their sentence. I mean it’s the exact opposite of what other countries are doing in terms of turning the lives around of the people who committed the crime.
Josh Hoe
Another of your solutions is to cap sentences at 20 years. Why did you pick 20 years as a cap?
Ashley Nellis
That’s a good question. And we get that question quite a bit. It’s hard to talk about how we’re going to reorient the criminal justice system without being specific about where we’re gonna draw the line, right? And so, in our view – and we wrote about this, Mark Mauer and I, in our book, The Meaning of Life in more detail – it should not take the correction system more than 20 years to enable a person with the skills and resources necessary to live a crime-free life. And if it does take more than 20 years, the burden of that should really be on the system, not on the person, unless you have somebody on your hands who is just totally unwilling to engage in rehabilitation, who’s totally unwilling to change their ways, and who wants to continue to commit crime as soon as they leave. So that’s not the kind of person that most of the people are; most of the people, when they come to prison, it’s a cry for help. And so there’s also the reason that the average lifespan of a criminal career is somewhere around 10 years. That’s what criminologists tell us, right? So that if you’re engaging in multiple crimes, you’re probably going to do that for about 10 years. And then you outgrow past conduct, and you work through your thinking that led you to these choices. And so this sort of gives room on either end, for somebody who maybe arrives at prison before they have lived out the lifespan of their criminal career.
Josh Hoe
I think you talk to an abolitionist and they say, there should be no prison time; you talk to someone like me, I’ll probably say at maximum, maybe 10 years; you all say like 20 years; but then you’ll talk to people who hear any of those solutions and say, What are you talking about? What about, for instance, Hannibal Lecter? I call it the Hannibal Lecter question; they’ll come up with the most extreme possible example. I personally don’t believe in governing by the worst possible case scenario. But do you believe that there are people who have serious anti-social orientation? And that there is at least a percentage of people for which the 20-year cap would not work? What would you say to those people?
Ashley Nellis
Yeah, there are definitely people out there with serious anti-social orientations. And I think that it is a much smaller percentage of the people in our prisons than we have been led to believe by the media and by some of the rhetoric. So I agree with you that we should not be governing by the worst possible case scenario. But the reality is, they’re rare, considering how often we hear about these very bizarre crime stories, and then contrasting that with the sheer number of people who are in our prisons. You know, it’s just evidence to the fact that the majority of people in prison have had a lot of obstacles; they’ve made bad choices; they’ve caused violent harm, and they are available for a reformed way of living and thinking and have remorse. And I think there’s a good percentage of the American public that believes in that; I know that the loudest voice is always the one that says what about the worst-case scenario? But polling shows that Americans believe in redemption, they believe in second chances. You know some of that certainly fades when we’re talking about violent crime. But the idea that we can do something other than just throw a life away in prison for the rest of their lives is intriguing to a lot of Americans, certainly if they’re going to be paying the bill. If there’s something better we can be doing, let’s try to find it.
Josh Hoe
Another one of your suggestions or recommendations is that we push for more releases. Over the last year, a very large number of us on the advocacy side have been frantically pushing for commutations and releases as a result of COVID. When these have happened, they’ve been largely limited to very few folks, and usually people with low, so-called low-level crimes, but most of the people really most vulnerable to dying from COVID are people serving long sentences. So we get to sort of the same area we’ve been talking about. If we couldn’t get releases in a pandemic, when people are really at risk, how are we going to get more releases after COVID?
Ashley Nellis
I know it doesn’t bode well. But now really is the time to focus in on the people who have been there a while; they’re elderly, they’re the most vulnerable. And in our research for this year’s census, we’ve identified that 30% of the people serving life sentences are elderly. And you know, beyond the current crisis, if these clemencies don’t work, there are other avenues that we can do. You know, we can engage in real parole reform, shorten the wait times for parole, open up the process, so that it’s available for people to participate in, not just the victim’s family, but others; and that there be a legal representative for the person who is asking for release; allow in-person reviews, instead of . . . you know, in North Carolina, for instance, when you go up for parole review, you don’t even see the parole board, and they don’t see each other, you just send a letter, and they all review it independently and let you know; I mean, this is the rest of somebody’s life. They may have been there for 25-30 years, and you get somebody on the wrong day, and they’ll just say no. So I think there’s so much we can do. I’m optimistic because the system is broken in so many places. And there’s too many people coming in, they’re serving too long, and they’re not getting out in time to live a life that is, contributing to the community, which is what they want to do for the most part. So I think we can do front-end reforms and also back-end reforms. But certainly in this moment, with COVID still raging in prisons, the most urgent thing is to release people who have demonstrated that they are not a risk; they have low disciplinaries over the course of their incarceration; they have a place to go; they have a plan, and they’re not going to be a danger in terms of COVID, or anything else when they are released.
Josh Hoe
Usually, this is the point in the interview when I ask a question about Willie Horton politics, but we’ve talked about that a lot throughout the discussion. I think I’d rather ask if you’ve thought of any new ways – I know we’ve both talked to legislators – what would you say or try differently on this issue, to convince a legislator that these laws are wrong, and that it’s time to try something different?
Ashley Nellis
I think it’s difficult. You know this of course because you work in the movement. I think what seems to catch people’s attention these days is to shape them as outdated and misguided, a lot of the policies that we are relying on today, that we need to modernize our criminal justice system and bring it up to speed with what we know. And we know a lot more now than we did 30 years ago, 40 years ago, when we started this mass incarceration exercise. And, you know, the biggest thing we know is that it costs a fortune and lives are thrown away. There’s collateral consequences in every direction. And it’s a system that’s inhumane. I think that’s a message that sometimes works with legislators; it doesn’t work as well as it does in other countries, unfortunately. But that it’s a real human rights violation to keep people in these jails and prisons, when they aren’t a risk to public safety. Because there’s other tools in the criminal justice toolbox other than prison, and we should be using more of them so that we don’t rely so heavily on the prison. But the Willie Horton politics are always there; they’re not as obvious sometimes, but we certainly saw those in the last four years, coming out of the White House, with just a straight out of the Willie Horton politics playbook. And I think we’re in a new moment now, and we can sort of pick up where the movement left off in 2016. And really advocate for significant change.
Josh Hoe
This year, I’m asking people if there are any criminal justice-related books that they might recommend to others; do you have any favorites?
Ashley Nellis
I’m reading a few books about domestic violence. And one of the books I’m really interested in right now and reading is Rachel Louise Snyder’s book; it’s called No Visible Bruises; it was a bestseller. I’m just getting to it now. But it’s a terrific expose about how intimate partner violence, which is so pervasive in the US, is not really considered a crime, for one thing; and that the criminal legal responses to intimate partner violence are really in need of another look. And so I’m very intrigued by that. I don’t know where I’ll end up with it. But I think it’s been a refreshing look for me about how people engage with the criminal justice system.
Josh Hoe
I always ask the same last question, what did I mess up? What questions should I have asked but did not?
Ashley Nellis
I think you’ve covered a lot of territory; I hope listeners will be interested in this issue. I mean, lifers are a substantial part of our prison population now – 15%. And I think the more that we can expose that feature of our prisons, the better off we’ll be in terms of a movement, in terms of advocacy, and just in terms of a society that has a criminal justice system that’s really effective.
Josh Hoe
And how can people find your new report? I’ll link it in the show notes too.
Ashley Nellis
Yeah, so going to our website, it’s actually on the landing page of our website right now, so your people are welcome to go there. Also, please visit our campaign website, which is the Campaign to End Life Imprisonment, and that is www.endlifeimprisonment.org.
Josh Hoe
Well, thanks so much for doing this. I really appreciate you taking the time.
Ashley Nellis
You bet. All right, have a good rest of your day. Thanks so much.
Josh Hoe
Okay, thank you so much.
And now my take.
So often I hear people talking about creating relief for people with low-level crimes, or for people who are in prison for say marijuana, or for people with, you know, so-called non-violent crimes. And of course, we should find relief for those people, we absolutely should. But the truth is that you cannot meaningfully reduce mass incarceration in the United States without creating meaningful relief for people with sentences for violent crimes, with life sentences, with virtual life sentences, and with life without parole sentences. If you got rid of all the low-level folks in our prisons, if you got rid of them today, we would still have mass incarceration; we would still have the largest system of incarceration on planet Earth. To create meaningful change we will have to really interrogate our own thinking about punishment; we will have to redefine everything we’re doing with our laws; we’ll have to find common cause with our brothers and sisters serving long and indeterminate sentences. And we’ll have to rediscover that place in our hearts that has been turned cold by 50 years of tough-on crime, the war on drugs, and racial disparity. We will have to reverse our commitment to brutality; refuse to govern based on the worst possible case scenarios and only by our fears; and start to believe in true healing, in forgiveness, and in restorative justice. We have to start believing in a world where everyone is capable of change, we have to do this, we cannot continue to just throw people away in black boxes for decade after decade after decade. It is time for a true societal commitment to systemic and meaningful change.
As always, you can find the show notes and/or leave us a comment at DecarcerationNation.com.
If you want to support the podcast directly, you can do so at patreon.com/decarcerationnation; all proceeds will go to supporting the podcast directly. For those of you who prefer to make a one-time donation, you can now go to our website and make your donation there. Thanks to all of you who have joined us from Patreon or made a donation.
You can also support us in non-monetary ways by leaving a five-star review on iTunes or by liking us on Stitcher or Spotify. Please be sure to add us on Instagram, Facebook and Twitter and share our posts across your network.
Special thanks to Andrew Stein who does the podcast editing and post-production for me; to Ann Espo, who’s helping out with transcript editing and graphics for our website and Twitter; and to Alex Mayer, who helps with our website.
Thanks also to my employer, Safe & Just Michigan, for helping to support the DecarcerationNation podcast.
Thanks so much for listening; see you next time!
Decarceration Nation is a podcast about radically re-imagining America’s criminal justice system. If you enjoy the podcast we hope you will subscribe and leave a rating or review on iTunes. We will try to answer all honest questions or comments that are left on this site. We hope fans will help support Decarceration Nation by supporting us from Patreon.
