Groups tell Expert Mechanism on Racial Justice and Equality in Law Enforcement: Life imprisonment violates human rights, including bans on torture and racial discrimination
April 28, 2023 – Amid the historic visit of the U.N. Expert Mechanism to Advance Racial Justice and Equality in Law Enforcement, a coalition of civil rights, legal, and prisoners’ rights groups working on the issue of life imprisonment, also known as Death by Incarceration, released the following statement:
We welcome the EMLER experts and the light they are shining on racial injustice in the U.S. criminal legal system and its roots in slavery and colonialism. Our groups work in coalition with other organizations participating in the visit on many interconnected issues – from policing and immigration enforcement to incarceration, political prisoners, and the death penalty – and we welcome EMLER’s examination of all aspects of the U.S. criminal legal system. We hope EMLER’s areas of focus during its visit include life imprisonment, which we call Death by Incarceration (DBI). This is the term people serving these sentences and their loved ones use to emphasize the reality of their impact: premature death in prison.
We urge EMLER to call for an end of DBI sentences in the U.S. They harm not only individuals but entire communities, rupturing family ties and perpetuating intergenerational cycles of poverty and pain. As we wrote in a submission to EMLER – which supplements a complaint sent to U.N experts in September 2022 – DBI sentences are the devastating consequence of a cruel and racially discriminatory criminal legal system that begins with violent policing and ends with the permanent abandonment of people in prisons, where lives – particularly Black lives – are cut short. While in 2020 only 12.4 percent of the U.S. population was Black, 46 percent of all of those serving DBI sentences nationwide were Black.
Though hardly confined to this country, DBI sentences are more prevalent here than anywhere else: a 2019 study found that more people are serving them in the United States than in the other 113 surveyed countries combined, and that people serving life without parole in the United States make up more than 80 percent of those serving it worldwide. The number of people sentenced to DBI in the United States has grown exponentially since the 1970s, helping to drive mass incarceration. In 2020, 203,865 people were serving DBI sentences. Compounding this rise is the large decrease in grants of clemency and the increasing uncertainty of parole.
DBI sentences are a form of torture. Any sentence that deprives incarcerated people of a meaningful opportunity for release is cruel and inhuman, in violation of the international prohibition on torture. People sentenced to life without parole have no meaningful prospect of release. While people sentenced to other forms of DBI may be technically eligible for parole, parole processes across the United States fail to meet basic human rights standards and cannot be considered meaningful opportunities for release.
Though billed as a crime-fighting tactic, DBI sentences do not, in fact, make communities safer; rather, they divert resources away from systems and approaches that do. Rooted in the legacy of slavery and racial hierarchy, these sentences are common in the United States precisely because they disproportionately harm Black people and Black communities. We have seen the U.N. influence the debate and policy in the United States on crucial human rights issues. It was U.N. leadership that, for example, contributed to the momentum for change on long-term solitary confinement. We believe EMLER has the capacity and the mandate to do the same on Death by Incarceration.
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Contact:
Kris Henderson, Amistad Law Project, (215) 310-0424, kris@amistadlaw.org Bret Grote, Abolitionist Law Center, (412) 654-9070, bretgrote@abolitionistlawcenter.org Courtney Hanson, California Coalition for Women Prisoners & DROP LWOP, (916) 316-0625, courtney@womenprisoners.org TeAna Taylor, Release Aging People in Prison, (518) 847-5497 Jen Nessel, Center for Constitutional Rights, (212) 614-6449, jnessel@ccrjustice.org
“I exited prison with a singular determination and commitment to fight against mass incarceration just as relentlessly and boldly as its proponents fought to keep me behind bars, and to prioritize the leadership of currently and formerly incarcerated people and their families.”
– Robert Saleem Holbrook, ALC executive director
Five years ago today, I was released from SCI-Greene after serving 27 years of a life without parole sentence that was imposed on me for an offense I was convicted of as a child. Initially sentenced to die in prison, my release was the result of an international campaign to end the practice of sentencing children to life without parole. That effort culminated in the United States Supreme Court ruling in Miller v. Alabama in 2012, which held that sentencing children to mandatory life without parole sentences is unconstitutional. It took four more years of work by activists on the ground in Pennsylvania, and across the country, to make that ruling retroactive so that it applied to me and others like me.
I am proud to have been a part of that campaign and even prouder that my sister, Anita Colon, was one of the activists at the forefront of ending mandatory life without parole sentences for children. However, I was never in this fight for personal freedom alone, nor was my sister. It was always about the movement and justice.
I was released from prison on Tuesday, February 20th. On Wednesday, the 21st, the first thing I did was go to a general meeting of the Coalition to Abolish Death By Incarceration. I still vividly remember walking into the old, dank recreation center at 7th & Diamond Street, and being embraced by dozens of family members and comrades.
My long-awaited reunion with comrades and family members of those still inside, at CADBI meeting the day after my release.
I remember being overwhelmed with emotion thinking about my mother, who did not live to see my release, but had fought for her son like every mother in that room. I remember telling them that they should never for a moment believe that what they were doing wasn’t making a difference, because 20 years prior, my mom was just like them, going to meetings to advocate and agitate for her child’s release. And my mother sitting in those Fight For Lifers meetings in 1992 helped build a movement that led to my release in 2018.
On March 1st, 2018, a week after that CADBI meeting, I started working as an organizer and paralegal at the Abolitionist Law Center, an organization I helped create while still incarcerated. Along with my comrades from the Amistad Law Project, I hit the ground running in Philadelphia. Since then we’ve been striving relentlessly to bring abolition to the masses by prioritizing releasing people from extreme sentences and dismantling the carceral state. We do this not just by advocating, lobbying, or litigating but also by building the political power of families of the incarcerated, formerly incarcerated, and marginalized communities.
Building with Amistad Law Project, on my first day on the job for ALC.
While we celebrate this announcement and acknowledge how far we have come as a movement, to have reached this place where we are influencing the governor’s criminal justice reform priorities, we are not satisfied. The abolishment of capital punishment in Pennsylvania would be for us, another milestone on the road to decarceration and abolition.
I exited prison with a singular determination and commitment to fight against mass incarceration just as relentlessly and boldly as its proponents fought to keep me behind bars, and to prioritize the leadership of currently and formerly incarcerated people and their families. When I walked out of those gates, I left men who I spent more time on this earth with than my own mother or father – men who helped raise and protect me when I was a juvenile thrown into a state prison system. I left mentors, I left friends, and I left comrades who stood with me, back against the wall, fighting for our lives in prison yards and cell blocks.
I didn’t learn about abolition in the abstract. I wake up every morning with my mind on those people still inside and their families. Never for a moment will I forget that the Abolitionist Law Center and Straight Ahead owe our power to these families. They are our constituents, and as executive director it is to them I am answerable. And having recently become a father myself – something the state tried to deprive me of – I now feel even more driven to raise a son in a society free of racism, sexism, homophobia, capitalism, oppression, and incarceration.
My lived experience compels me to this fight. I’m immensely proud of having become the executive director of the Abolitionist Law Center in 2020, and establishing its 501(c)(4) legislative arm, Straight Ahead, in 2021. And as long as I hold these roles, I’ll approach them with the unwavering commitment to boldly and unapologetically fight to dismantle the carceral state, win abolition, and reunify the families of our movement.
It’s been a HUGE three months at ALC. We’ve come hard at Death By Incarceration, solitary confinement, abusive and discriminatory judges and court practices, and the torturous conditions inside Pennsylvania’s largest county jails. We’ve collaborated and built power with individuals and groups directly impacted by mass incarceration and other forms of state violence in communities around the state. And our movement, clients, work, and staff members have made media headlines, been part of high profile events, and garnered impressive recognition.
“Death-Making Institutions”
In early July, ALC topped the news across Pittsburgh press and in legal outlets, after lodging 62 misconduct complaints against Allegheny County Judge Anthony Mariani with the Judicial Conduct Board of Pennsylvania, in conjunction with releasing a scathing new report, ‘Death-Making Institutions’: How Police, Probation and the Judiciary Caused Gerald Thomas to Die in Jail. (All 62 complaints against Mariani are outlined in the report’s Appendix A.)
This 48-page report authored by ALC Staff Attorney Dolly Prabhu connects the March 2022 death of 26-year-old Gerald Thomas in Allegheny County Jail to the racialized violence of other Allegheny County institutions and state actors. The report examines how practices of policing and punishment such as traffic stops, pretrial detention, probation detainers, and solitary confinement, support the maintenance of local “death-making institutions,” a term coined by abolitionist Mariame Kaba. It also highlights the fact that Thomas died in the jail 17 days after Judge Mariani chose to continue his incarceration, despite all of the charges against Thomas being dropped.
The report’s publication coincided with ALC’s Court Watch program’s filing against Judge Mariani. From March 2021 to March 2022, Prabhu and Court Watch volunteers observed his court proceedings and recorded countless instances of Judge Mariani verbally abusing defendants, attorneys, and his own staff, while also demonstrating a lack of understanding of relevant legal standards, and making racist comments about Black defendants.
Winning “Compassionate” Release from Decades of Confinement
In September, ALC clients Frank Lowery and Vernon Bess were released from prison after 45 and 47 years of incarceration, respectively. These two men were the latest of the seven people serving excessively long sentences for whom ALC’s legal team has won release since the summer of 2021. Most of them had more than 30 years behind bars (one had been inside for 51!), and several spent decades of their imprisonment in solitary confinement. Five of these individuals were freed by so-called “compassionate release,” for which they qualified because of severe incapacitation from terminal medical conditions.
Compassionate release cases are labor-intensive and extremely urgent; one qualification for applicants is that they must have a documented medical prognosis of having less than a year to live. Along with our exploding caseload, we’re supervising the Compassionate Release Pro Bono Project, a newly formed collaboration at the University of Pennsylvania Law School working to increase the number of people who apply for and ultimately are granted “compassionate” release.
In August, ALC’s 501(c)(4) arm Straight Ahead, produced a deeply moving video featuring Bradford Gamble, one of our recent clients who was forced to make the agonizing choice of foregoing treatment in prison for late stage cancer, in order to meet eligibility guidelines for consideration for release.
Take a watch as Mr. Gamble, who passed away soon after the video was made, and ALC staff attorney Rupalee Rashatwar talk about why no one should ever face such a decision, and no one should die behind bars.
Together We’ll End Death by Incarceration!
In mid-September, ALC, Straight Ahead, formations of our movement family members led by formerly incarcerated people and their loved ones, and a coalition of partner organizations from around the country made huge strides in our shared campaign to end Death by Incarceration. (Death by Incarceration is the inhumane sentencing of a person to life without the possibility of parole.) Over the course of just one week we took the fight to the United Nations, a PASuperior Courtroom in Pittsburgh, and the PA state capitol in Harrisburg.
On September 15th (as part of a group that included the Center for Constitutional Rights, the California Coalition for Women Prisoners, Drexel University Community Lawyering Clinic, the Drop LWOP Coalition, Release Aging People in Prisons, and others), ALC made national headlines when we submitted a 31-page letter to the United Nations stating that the United States is committing torture and other gross human rights violations by condemning people to Death by Incarceration.
The coalition is urging the U.N. Special Rapporteurs to call for the nationwide abolition of life imprisonment, which is more prevalent in the U.S. than in any other country in the world. Our initiative received high profile press coverage in The Nation, The Guardian, Truthout, LA Progressive, and other outlets.
On September 20th, ALC’s legal team argued persuasively in the Pennsylvania Superior Court in Pittsburgh that life without parole sentences for felony murder is cruel punishment that is prohibited by the Pennsylvania state and federal constitutions. In Commonwealth v. Derek Lee, ALC’s client Mr. Lee is challenging the lifetime ban on parole for those convicted of felony murder (i.e. people who did not take a life or intend to take a life). A win in this case would be a huge, precedent-setting victory not just for Mr. Lee, but for the approximately 1100 other people who are currently languishing under DBI sentences for felony murder in PA.
The legal team’s compelling argument, which appeared to be received favorably by the judges, highlighted the fact that while only 11 percent of Pennsylvania’s population is Black, about 70 percent of people serving Death By Incarceration sentences for felony murder in the state are Black. Read more details in excellent press coverage here and here
Also on September 20th, formerly incarcerated leaders including “juvenile lifers” who served decades of DBI sentences before winning release, hundreds of our movement family members from across the state, elected officials, and staff from ALC and Straight Ahead, joined forces at a rally organized by our comrades from CADBI (Coalition to Abolish Death by Incarceration), on the steps of the PA capitol in Harrisburg.
With powerful personal testimony, participants called on the Pennsylvania General Assembly to pass legislation to end Death By Incarceration and instead embrace policies that heal communities. In the face of a new wave of gun violence and homicide, community members impacted both by violence and mass incarceration urged legislators to divest from mass incarceration, and address violence with real solutions such as community-based violence prevention efforts, fully funding schools and social services, and providing accessible mental health and addiction treatment.
Banning Solitary & Other Extreme Conditions of Confinement
ALC has worked toward the abolition of solitary confinement since our first case in 2013, when we led the successful legal battle to release Russell Maroon Shoatz from 22 years of that torture. Our executive director Robert Saleem Holbrook, and ALC community organizer John Thompson, each spent ten years or more in solitary during their decades of incarceration and regularly speak out against the inhumane practice in high profile public events and in the press.
In Philadelphia we’re embedded in the push for the City Council to establish a jail oversight board that would address the county jails’ egregious use of solitary, as well as the many other highly abusive and harmful control measures occuring in Philadelphia jails.
As part of our overall campaign to raise awareness and public support for ending solitary, in August ALC and Straight Ahead co-sponsored the End of Isolation Tour’s performance at Eastern Penitentiary of “The Box.” This immersive production by playwright Sarah Shour (who spent 410 days in solitary confinement in an Iranian prison where she was physically and mentally tortured, and suffered depression and anxiety) “brings to light the fallacies of solitary confinement.”
Also earlier this summer,ALC and Straight Ahead joined forces with partner groups PA Stands Up, Lehigh Valley Stands Up, and NEPA Stands Up, to end solitary confinement in the jails in Lehigh and Lackawanna Counties by placing voter referendums on the November 2022 ballot. This effort is modeled after the successful referendum that ended solitary in Allegheny County Jail in 2021 – to our knowledge, the first such voter-led effort in the nation.
Though we fell short of the signatures needed to get the question on the ballot in Lehigh County, in Lackawanna County, our coalition met the threshold by garnering more than 13,000 signatures! When officials illegally tried to thwart our effort by refusing to put the question on the ballot in mid-September, ALC staff attorney Jaclyn Kurin sued the election board, and our Campaigns Manager John Rowland helped local activists raise a ruckus with a focused, public pressure campaign that brought visibility and a media spotlight to the issue.
This is another extremely pressing fight for ALC’s legal and organizing teams, who are racing against the deadline to ensure that the will of the people of Lackawanna County is honored as they demand a say in deciding whether or not the jail will continue to torture people with solitary confinement.
Free Our Youth!
We’d like to take a moment to uplift the creative work of our partners at Care, Not Control, a coalition of youth and youth advocates working to end juvenile incarceration in Pennsylvania.
Care, Not Control has released their first track from their upcoming project Care, Not Control: The Album. The track is titled Untold Story, and it features Care, Not Control youth organizer Bre Stoves, 19. Bre also works with Juvenile Law Center and The Village of Arts and Humanities and has been making music since the age of 12.
Bre began the process of working on “Untold Story” while she was incarcerated and hopes the track sends a message of solidarity and camaraderie to her fellow youth. “I want people, especially incarcerated young people, to know they’re not alone. There are people out there fighting for them.”
Care, Not Control: The Album showcases the talents, hopes, and dreams of young people directly impacted by the criminal legal system. The album seeks to shift the narrative surrounding youth incarceration and promote investing in community-based alternatives. Care, Not Control plans to release an educational toolkit to accompany the music that will delve into the album’s themes and promote critical discussions about youth incarceration, violence, and power.
As usual, we’ve been out there with our movement family, making noise and making news the last few months.
Each year, Pittsburgh Magazine and PUMP recognize 40 outstanding individuals under the age of 40 whose creativity, vision, and passion enrich the Pittsburgh region. This year’s 40 Under 40 honorees include ALC Community Organizer Tanisha Long (pictured, left, with fellow 40 Under 40 honoree, Miracle Jones, the Director of Policy and Advocacy at 1Hood Media and former ALC staffer, right).
ALC Executive Director Robert Saleem Holbrook has been constantly on the go, speaking at conferences and events like Netroots Nation and Socialism 2022, while also continuing to share his story for initiatives like the #ExceptForMe#EndtheException campaign to abolish the prison slavery currently allowed in the 13th amendment.
Help ALC sustain the fight to free people from incarceration and other forms of racist state violence by making a tax-deductible donation to the Abolitionist Law Center today. Your gift fuels our collective liberation struggle and powers the transformative change we’re fighting for in the courts, in the streets, behind bars, and on the outside.
We need your partnership to keep the pressure on, and we appreciate your contribution of any amount. There’s so much more for us to do together!
Contributions to the Abolitionist Law Center, a 501(c)(3) organization, are tax-deductible to the full extent of the law.
Last week the Pennsylvania Supreme Court denied our Petition for Allowance of Appeal in the case of Commonwealth v. Avis Lee. The Appeal would have allowed people given life without parole sentences while young and with their judgment/impulse control still developing (but were over 17 years at the time of their offense) to apply for resentencing, like many juvenile lifers who were given that chance and are now thriving outside prison walls in our state.
Despite the scientific consensus on brain development indisputably supporting our argument, the Court denied the Appeal without explanation or justification; we’re disappointed since we believe that an honest, science-based review of Avis’ death by incarceration sentence would’ve found it unconstitutional and void, but we also have no illusions that the Superior and Supreme Courts serve the interest of justice.
For centuries, the higher courts have given legal cover to our country’s and state’s most appalling class- and race-based oppression, and only on rare occasions (and under intense public pressure) have they set aside the interests of money and power and ruled in the interests of justice. We have always seen legal strategy as one part of a larger movement of people most impacted by the justice system to challenge power, and we know that meaningful changes in the justice system will come from people organizing and resisting—and not from the morality and reason of judges or legislators.
While we will keep the legal fight up with three other litigation plans that challenge DBI sentences for those 18 as well as those serving DBI for second degree murder, we urge everyone to continue to organize, gather, lift up voices, and commit to dismantling this system brick by brick. We look forward to working with Avis on her commutation packet and know that she will be home one day.
At this time we are also reminded that our comrades at the Coalition to Abolish Death by Incarceration (CADBI) are convening in Harrisburg this Wednesday, the 23rd, in support of SB942. We stand in solidarity with CADBI and echo the call of the Superior Court for the legislature to end death by incarceration. No one is free until we all are.
On Tuesday, October 22nd at 10:00 a.m. in The Albert Branson Maris Courtroom, (19th Floor, U.S. Courthouse, 6th & Market Sts., Philadelphia, PA), a panel of the Third Circuit Court of Appeals Federal Court will hear argument in Ernest Porter v. Pennsylvania DOC, a case challenging 33 years of solitary confinement on death row as violating the 8th and 14th Amendment to the U.S. Constitution.
Porter has been held in solitary confinement since 1986 despite having a perfect disciplinary record in DOC custody. His death sentence was overturned in 2003, but he has yet to be resentenced due to ongoing appeals by the Commonwealth and himself regarding his death sentence and guilt-phase claims in his criminal case. The PA DOC is arguing that his ongoing appeals require his being buried in conditions that U.S. Supreme Court Justice Sonia Sotomayor referred to as a “penal tomb.”
In 2017, the Third Circuit held in Williams v. Secretary, that incarcerated people whose death sentences have been vacated had a liberty interest in removal from solitary confinement that entitled them to due process rights to challenge their isolation and be released to the general population of the prison. Despite that ruling, Porter remains in the capital case unit.
Porter filed suit in 2017 arguing that his indefinite solitary confinement which began in 1986 constituted cruel and unusual punishment under the 8th Amendment, and that the Third Circuit’s 2017 ruling entitled him to due process protections under the 14th Amendment. The Federal District Court for the Western District of Pennsylvania granted defendants summary judgment, throwing out Porter’s suit and leading to his appeal to the Third Circuit.
The Abolitionist Law Center is proud to announce our Board President, Jamelia Morgan has published a journal article calling for the abolition of ableism while fighting back against mass incarceration. REFLECTIONS ON REPRESENTING INCARCERATED PEOPLE WITH DISABILITIES: ABLEISM IN PRISON REFORM LITIGATION explores the intersections of disabilities and abolition while tasking legal advocates to combat ableism with holistic representation of clients and a raising of a multidimensional consciousness. While the conditions in prisons and jails are often discussed, what is often overlooked is how these inhumane facilities often target and mistreat those living with mental and physical disabilities. Disability Justice is important part of the abolition framework as those with disabilities are overrepresented in the criminal system as a result of failed health policies and systematic disparities. Due to the fact prisons and jails are not inherently designed to treat people in humane ways, those who enter into incarceration with a disability or develop a disability while incarcerated, face a lack of services and programming which leads to debilitation and trauma. What is even worse is that many lawyers lack the requisite training and understanding to represent clients who have disabilities and often perpetuate ableism.
lawyers representing people with disabilities are forced to represent their clients as physically, mentally, and emotionally damaged. In the typical, wellpleaded Section 1983 complaint brought on behalf of incarcerated people with disabilities, the weaknesses and challenges of disability are on full display, not because of any individual plaintiff’s inability to overcome obstacles or challenges in carceral settings (as is often the nature of ableism reflected in rhetoric about people with disabilities in free society) but, rather, because prisons inherently were not built to meet the needs of people with physical or mental disabilities.
In combating ableism and amplifying disability justice as a practice, lawyers and advocates must not simply create an awareness of the issues impacting those living with disabilities but must also change the culture of the abolition framework to recognize the negative and often violent implications that arise as the result of ableist legal practices. As such, abolitionist may move to using better language in fighting for freedom and can use court filings to highlight the inherent structural injustices in the designs of prisons and jails.
As prisoners’ rights advocates, we must strategically and consciously resist ableist discourses and ideologies that present our clients as deserving of constitutional protection only where physical or psychological damage is readily apparent or diagnosable. Advocates must acknowledge structural disablement within carceral spaces and use language that affirms the humanity of people with disabilities locked up behind bars or steel doors.
Due to current systems, those living with disability while incarcerated are often from marginalized populations. In order to effectively advocate for this population of individuals, intersectionality dicates that abolitionists examine their complicity in ableist behaviors and ensure they are including impacted peoples in developing strategies and policies for transformative change.
The Abolitionist Law Center and the People’s Law Office are proud to share that Janet Holloway Africa and Janine Phillips Africa of the MOVE 9 have been released from state custody after more than forty years of incarceration. Earlier this morning, the MOVE sisters were finally released on parole from SCI Cambridge Springs and are now with family and friends. The sisters have been battling for their freedom after being consistently denied parole for a decade despite an impeccable disciplinary record and extensive record of mentorship and community service during their time in prison.
Following their 2018 parole denial, attorneys from Abolitionist Law Center and People’s Law Office filed petitions for habeas corpus seeking their release from prison. The habeas petitions challenged their parole denials on the grounds that the decisions were arbitrary and lacking in any evidence that janet or Janine presented a risk to public safety. Under pressure from litigation and with a court date for May 28 looming, the Pennsylvania Board of Probation and Parole (board) granted Janet and Janine parole on May 14, 2019, just one day after the anniversary of the notorious May 13, 1985 bombing of the MOVE home.
“The release of Janet and Janine is a victory not only for them and their loved ones, but also for the MOVE Organization and the movement to free all political prisoners,” said attorney Brad Thomson of People’s Law Office. “Janet and Janine were excellent candidates for parole. They have been described by DOC staff as model prisoners and neither of them has had a single disciplinary incident in over twenty years. While in prison, they have participated in community fundraisers, and social programs, including training service dogs. They are remarkable women to deserve to be free.”
Like Debbie and Mike Africa, who were released last year, Janet and Janine are now able to experience holding their loved ones outside of prison walls for the first time in decades. The release of Janet and Janine after forty years is the culmination of the MOVE organization, public support, legal action, and policy changes.
Three other members of the MOVE 9 remain incarcerated (Chuck, Delbert and Eddie Africa), while two others (Merle Africa and Phil Africa) died in custody. Abolitionist Law Center and People’s Law Office represent Chuck, Delbert and Eddie in the struggle for their freedom. To support the fight, you may donate to the MOVE9 Legal Fund.
Friday, March 1, 2019: The Pennsylvania Superior Court issued a unanimous en banc decision today disallowing Avis Lee the opportunity to challenge the constitutionality of her life without parole sentence, which was imposed for her role as a lookout in armed robbery 39 years ago that resulted in a homicide. The Superior Court held that it was “constrained to affirm” the lower court’s dismissal of Ms. Lee’s Post-Conviction Relief Act (PCRA) Petition on the basis that only the Pennsylvania or United States Supreme Court could permit a consideration of the constitutionality of Ms. Lee’s sentence. In reaching this conclusion the Superior Court wrote: “We would urge our Supreme Court to review this issue in light of the research [on adolescent social and neuro-development] available even since Batts II was decided in 2017.”
Ms. Lee brought this challenge to her decision in March 2016 after the U.S. Supreme Court’s decision in Montgomery v. Louisiana, which held that the right established in the 2012 decision of Miller v. Alabama that prohibited mandatory life- without-parole sentences for children younger than 18 years of age applied retroactively to older cases. In Montgomery, the Supreme Court found that the right in Miller was substantive, not merely procedural, and that it prohibited a sentence of life-without-parole – commonly referred to as “Death by Incarceration” – upon any defendant whose crime “reflected the transient immaturity of youth.”
In the Superior Court, Avis was arguing for the right to make an argument, to be heard on the merits on this issue for the first time, as she has never had the chance to argue that her sentence is unconstitutional under the new constitutional standards of Miller and Montgomery. On October 23, 2018, counsel for Avis argued in front of a 9-judge en banc panel that she deserves at least that one opportunity to challenge her sentence under current law, and there is nothing in state or federal law to prohibit that. The Philadelphia courthouse was packed to overflowing with the family members of those serving DBI sentences.
The offense Ms. Lee is currently serving a death-by-incarceration sentence for occurred in November 1979, when she agreed to serve as a lookout in an armed robbery. When the victim attempted to resist her co-defendant and older brother shot him, resulting in his death. Ms. Lee was convicted of 2nd degree felony murder, which in Pennsylvania is defined as a homicide that occurs in the course of another felony. The offense does not require any intent to kill on the part of the defendant, and it carries one penalty – death by incarceration.
Ms. Lee’s 2016 PCRA petition argued that a sentencing court should be required to consider the factors identified by the U.S. Supreme Court in Miller and Montgomery in order to determine if her sentence amounted to disproportionate punishment under the Eighth Amendment to the U.S. Constitution. The petition contained extensive discussion of the poverty, trauma, and violence that Ms. Lee had been exposed and subjected to since she the very first years of her life. The petition also included copious examples of her exemplary prison record, including going without any prison misconduct for more than a quarter of a century, and her involvement in numerous volunteer and service projects.
Ms. Lee is also widely known and admired for her irrepressible optimism, which she maintains in spite of her circumstances. When informed of today’s opinion, she said: “Thank you for standing by me and continuing to stay strong, because I will [too]. Eventually we will prevail.”
The Abolitionist Law Center represents Ms. Lee, along with Duquesne Law School Professor Tiffany Sizemore and University of Pittsburgh Law Professor Jules Lobel. ALC legal director, Bret Grote, said
We are not surprised by this outcome and have always recognized that ultimately it is the Pennsylvania Supreme Court that will determine whether the PCRA statute should be read consistent with its text and purpose and permit Ms. Lee the mere opportunity to argue this issue on the merits. It is beyond dispute that Avis, beloved and respected by all who know her, is serving a sentence that lacks any social or penological purpose. To read the law in such as a way as to keep the courthouse doors forever closed to meritorious claims against permanent punishment is to enshrine a tortured and incorrect formalism over substantive justice. We intend to appeal.
Abolitionist Law Center Communications Director, Miracle Jones, added:
When it comes to fighting against Death-by-Incarceration at the ALC defeat is not an option. We are part of a powerful and growing movement that will not rest until every person sentenced to DBI has the opportunity to return to their families and communities, until the right to redemption becomes the North Star of the justice system.
#FREEAVISLEE
Press Contact:
Miracle Jones
(She/Her/Hers)
412-346-6537 (google voice)
Director of Communications
Abolitionist Law Center
communications@alcenter.org
On Tuesday, October 23, at 9:30 a.m. the Abolitionist Law Center will argue at an En Banc hearing in front of the Pennsylvania Superior Court in the case is the Commonwealth v Lee, where the petitioner, Avis Lee, is arguing that the right established in the U.S. Supreme Court’s Miller v. Alabama and Montgomery v. Louisiana decisions applies to all adolescents and not just strictly to those who were under the age of 18 at the time of the crime. This groundbreaking case has the potential to alter the way the Commonwealth treats mandatory life without the possibility of parole (LWOP).
The petitioner in this case, Avis Lee, has served over thirty-eight years in prison. Like many people in Pennsylvania, Avis received a mandatory life sentence under a felony-murder charge. At the age of 18, Avis served as a lookout while her brother and his friend attempted a robbery. After a brief struggle, the victim was shot by Avis’s brother and collapsed in a parking lot. Avis flagged down a bus driver in order to get the victim help, but despite her efforts, he still passed away. Avis was convicted and sentenced to mandatory life in prison without the possibility of parole. Since her incarceration, Avis has completed extensive rehabilitative programming and performed countless hours serving others through her work in the prison and with community groups, including being a mentor and assisting in braille translations.
As described in ALC’s recently published report, A Way Out: Abolishing Death by Incarceration in Pennsylvania, as people mature, they are less likely to engage in criminal conduct. Of the more than 5,300 people serving life-without-parole in Pennsylvania, approximately half committed the offense resulting in their LWOP sentence before the age of 25.
This case therefore is representative of hundreds of individuals who were sentenced to mandatory life without parole in their youth but who are currently ineligible to be resentenced due solely to an arbitrary age cut-off.
Petitioner has argued to the Superior Court that the same scientific and legal reasoning behind Miller and Montgomery apply with equal force to those who were younger than 18 and those like Avis, who were adolescents and possessed the same characteristics of youth. The Court has decided to take the rare step of hearing the case en banc, meaning that 9 judges will hear the matter and will possess the power to overrule the Court’s earlier cases that upheld a cutoff at 18 years of age.
Allegheny County is the place where the crime occurred. The Allegheny County District Attorney’s office, headed by DA Zappala, is opposing the petition and has not shown a willingness to reconsider the pursuit of LWOP sentences. By contrast, Philadelphia District Attorney Larry Krasner came out in support of Pennsylvania Senate Bill 942 this month, legislation introduced by Senator Street that would allow parole consideration for all serving life sentences after 15 years.
That Avis Lee, who was 18 at the time of her offense and who had repeated and severe experiences of trauma in her childhood and adolescence, committed her offense during a time of ongoing maturation and development is a historical fact at this point. The question in front of the Court is whether she can proceed to a merits determination as to whether her sentence is excessive in light of Miller and Montgomery.
Contact: Miracle Jones, Abolitionist Law Center, communications@alcenter.org
New Data: Philadelphia and Pennsylvania Lead the Nation and World in Life Without Parole Sentences
Comprehensive Study Shows that Life Without Parole Sentences in Pennsylvania are Imposed on the Young with Alarming Racial Disparities
(Pittsburgh, PA) Philadelphia County has 2,694 people serving life without parole sentences (LWOP), which is more than any other county in the United States and far more than any other country in the world, according to a new data analysis released today by the Abolitionist Law Center. AWay Out: Abolishing Death By Incarceration in Pennsylvania [Full Report] [Abridged Report] found Pennsylvania has 5,346 people serving LWOP, making the state a national leader in the use of the punishment; only Florida, with twice the population, has more people serving LWOP. State Representative Jason Dawkins and State Senator Sharif Street have filed legislation that would allow parole eligibility for all lifers after 15 years of incarceration.
The report refers to life without parole as “Death by Incarceration” (DBI). Key findings include:
Most of the people serving DBI were convicted and sentenced when they were 25 or younger, a period of life when brain development and maturation remains ongoing, according to recent neuroscientific research.
More than 70 percent of those serving DBI are over 40 and nearly half (2,377 people) are over 50. The practice continues even though research shows that criminal activity drops significantly after age 40 and despite the fact that locking up a person over 55 is two to three times more expensive.
Black Pennsylvanians are serving DBI at a rate more than 18 times higher than that of their white counterparts. Out of Philadelphia’s 2,694 people serving DBI, 84 percent are Black. In Allegheny County, 13 percent of the county’s residents are Black, but constitute 76 percent of those serving DBI sentences (409 out of 541 people).
“This report presents a definitive portrait of a punishment that is archaic, cruel, unjustified, and indefensible,” said Bret Grote, Legal Director of the Abolitionist Law Center and co-author of the report. “Death by incarceration sentences do not keep the public safer. The human and economic costs are staggering and growing by the year, as thousands of aging, rehabilitated men and women are locked away needlessly. Fortunately, there is also a rapidly growing movement determined to make parole eligibility for all lifers a reality.”
In all cases involving defendants 18 years of age or older, Pennsylvania law does not allow for individualized consideration of a defendant’s circumstances; instead it mandates automatic DBI sentences to many who never actually killed or intended to kill anyone. As the report states, DBI is “a failed policy predicated upon the fallacy that the trajectory of a person’s life – including their capacity for rehabilitation, transformation, and redemption – can be accurately predicted at the time of sentencing.”
Avis Lee is an example of a person serving a DBI sentence because none of the particulars of her case were taken into consideration at sentencing – and may have made a difference. Ms. Lee has served 38 years of a DBI sentence due to a robbery committed by her brother that tragically went wrong and someone lost his life. Ms. Lee was only 18 years old and had been told by her brother to serve as a look out during a robbery. Ms. Lee had turned to drugs and alcohol after a childhood riddled with sexual abuse, violence, poverty, and the death of her mother. After the shooting, she flagged down a bus and told the driver a man was injured. For more than 25 years, she has had no disciplinary infractions in prison. Earlier this year, the Pennsylvania Superior Court agreed to hear her claim that her mandatory life sentence was disproportionate because of her youth. There is hope for Ms. Lee, though not many others.
The Philadelphia DA’s Office is considering reviewing certain cases of excessive sentences, including mandatory life without parole sentences, and will pursue a lesser sentence when legally viable. The trend toward electing reform-oriented, less punitive district attorneys across the country could lead to similar efforts at sentence review being implemented in DA offices on a national scale.
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The Abolitionist Law Center is a public interest law firm inspired by the struggle of political and politicized prisoners, and organized for the purpose of abolishing class and race based mass incarceration in the United States. https://abolitionistlawcenter.org/
The Abolitionist Law Center is proud to announce our Board President, Jamelia Morgan has 
Friday, March 1, 2019: The
under the Eighth Amendment to the U.S. Constitution. The petition contained extensive discussion of the poverty, trauma, and violence that Ms. Lee had been exposed and subjected to since she the very first years of her life. The petition also included copious examples of her exemplary prison record, including going without any prison misconduct for more than a quarter of a century, and her involvement in numerous volunteer and service projects.
