Should all people convicted of first degree murder be sentenced to life without parole? I think not and I have filed legislation to give judges more flexibility in sentencing murderers.
Not all murders are the same. Some heinous murders reveal a sociopathic disregard for human life and even a joy in torturing others.
Those who commit the most heinous murders should be sentenced to life with no possibility of parole because of the gravity of the offense and out of respect for the families of the victims. The bereaved families will never recover from the loss of their loved one and never be able to dispel from their minds the traumatic images of the final moments of their loved one’s life.
The families of the victims should know that justice was done to the fullest extent and they should not have to fearfully anticipate the eventual release of the convict.
At the other end of the spectrum are young people who engaged in a joint venture to commit a felony like a robbery and never sought to kill anyone, but who were convicted of first degree murder because someone else in the group killed someone in the course of the crime.
Somewhere in the middle of the spectrum lie many gang-involved young men who are not stone cold sociopaths, but who are caught up in a subculture of retribution and violence and do intentionally kill other young men with whom they have conflicts. Many of them can, with some support, grow out of their gang thought patterns and contribute socially.
Under today’s law, once a jury finds someone guilty of first degree murder a judge has no choice but to sentence them to life without parole. This single charge accounts for roughly 13% percent of the sentenced state prison population.
My legislative proposal would continue to allow judges to sentence those convicted of first degree murder to life without parole. It would give them the additional option of sentencing prisoners to a life term with eligibility for parole after 35 or more years. Those who have committed less heinous murders and have served thirty-five years should have the opportunity to persuade the parole board that they are ready to rejoin society.
My legislative proposal, unlike some other proposals, applies only to future sentencing decisions. It would not retroactively grant parole eligibility to those already serving sentences without parole. Passing blanket legislation to make all of those currently serving life without parole eligible to see the parole board would, in many cases, unnecessarily open old wounds for the families of victims.
In many less-heinous murder cases, defendants are allowed to plead to second degree murder and avoid life without parole. Retroactive application would effectively overturn the considered decisions of prosecutors not to offer lesser charges in over 1000 first-degree murder cases that were settled years ago when all decision-makers had relatively complete evidence about the crime, the defendant, the victim and the victim’s family.
While we have made significant progress on criminal justice reform, Massachusetts incarceration rates are still high by international standards. Much of the gap is due to our heavier sentencing for violent crimes, including murder. Recognizing that not all murders are the same would be an important step forward in our sentencing policy.
I’d welcome your comments below.
After initially publishing this post, I sent a survey to registered voters on my email news list. In addition, I posted the survey to several community lists and on facebook. I sent it without any background explanation, offering a link to this post only after people completed the survey. My goal was to get some insight into initial reactions among people who follow me, not to define my position, which was already defined and published.
The survey went out on Friday evening, August 16 and closed on Tuesday morning, August 20. 533 people responded to the survey of which 428 came from my newslist, 51 from community lists and 52 from facebook. My mailing included no tracking beacons and I did not collect IP addresses, so responses were entirely anonymous. However, I did use different URLs for the three sources, allowing the responses to be classified by source. I also asked a source question and the responses were very consistent with the URL.
The single main question appears below with responses added. The responses did not vary significantly by source URL :
If someone is convicted of first degree murder, they should . . .
- . . . be executed themselves (8%)
- . . . serve life in prison with no possibility of parole (11%)
- . . . depending on the specifics of their crime be sentenced to life without parole or to life with parole after many years (57%)
- . . . be sentenced to serve a number of years, but should always have the chance to be paroled. (25%)
Those who selected one of the latter two options that are more lenient than current policy were asked an additional question:
If the rules are changed to allow some or all convicted murderers to have a chance of parole . . .
- . . . the new rules should only apply to new cases (12%)
- . . . all people now serving life without parole should have their cases reviewed for the possibility of parole. (86%)
- Other/not sure (2%)
Comments on Survey Results
First, I alarmed a few people by including a death penalty option. I am adamantly opposed to the death penalty and there is no movement to restore the death penalty in Massachusetts. I included it only to give people who believe in it the option to say so. I was relieved that only 8% (in my response universe) had that view.
Second, I was pleased that the majority of respondents favored the general policy position that I had adopted — that judges should have the option in first degree murder cases to sentence to life without parole or to life with parole eligibility after some term of years.
Third, I was surprised to see how many favored retroactive application of the new rules — 86% among those advocating for new rules. While I understand and share the motivation for retroactive application — to do justice to those unjustly incarcerated — I feel that retroactive application does an injustice to victims and witnesses. Let me elaborate.
In the piece above I only partially explained my discomfort with retroactivity. I touched on the fact that prosecutors frequently offer second degree murder charges (which carries a life sentence but with parole eligibility) in plea bargains in less serious cases. While plea bargaining has a bad reputation and is subject to bias, it so universal that it does operate as a crude filter — actual first degree murder convictions tend to involve more heinous murders. So, the expectation would be that retroactive review of first degree murder cases would only rarely lead to release. This does not diminish the possibility that some injustices would be corrected.
An additional reason to be concerned about retroactively making parole hearings available to those currently serving life without parole is that it is violates what is effectively a promise to witnesses in the cases. When witnesses come forward to testify against a murderer, it takes real courage. If the defendant ends up back on the street, the witness may have good reason to be in fear. They sometimes took the stand on the premise that their testimony would put the defendant away for life. Changing the rules is unfair to them.
Finally, and most deeply, changing the rules is very hard on the families of victims. Knowledge that the murderer has been sentenced for their natural life does help families put the tragedy behind them. Introducing a prospect of release forces them to go backward into the tragedy, especially if they have to testify at a parole hearing. I do believe that some people who have committed murder are capable of remorse, growth and healing. Restorative conversations between murderers and families can sometimes help everyone. But in some cases that is just too much to ask.
It is important to recognize that any retroactive application would have to create a process by which all cases would be reviewed somehow — by a court, the parole board, or some special panel — to determine whether they fit criteria for consideration. Even if most sentences are ultimately unchanged, some assessment will need to occur for all and that will introduce the uncertainty that is harmful to families.
Considering issues like retroactive application involves weighing different stories: The youth who did something awful but is a good person 30 years later . . . the brother who testified against the man who brutally murdered his sister . . . the bystander who came forward to identify the gang killer.
Look out across a room of life sentenced prisoners, as I have on prison visits, and you are looking out at a great diversity of complex stories. It is next to impossible to gain intellectually honest confidence how policy changes will really play out across all those stories — on balance for justice or on balance for injustice.
Definition of First Degree Murder
In Massachusetts Law, there are three different kinds of first degree murder:
- murder with deliberate premeditation
- murder with extreme atrocity or cruelty
- murder in the commission or attempted commission of a felony punishable by a maximum sentence of life
A conviction under any of these theories of first degree murder results in life without parole. For an authoritative exposition of what constitutes murder in the first degree, please see the official Model Jury Instructions on Homicide.