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Cyntoia Brown and an Effort to End Life Imprisonment

Dismantling mass incarceration requires a new consensus that the hundreds of thousands spending decade after decade in prison should be free.

Cyntoia Brown in 2004 (Daniel H. Birman)

Last week, the Tennessee Supreme Court issued its decision determining that Cyntoia Brown, sentenced to life in 2006 for killing a man when she was 16, will become eligible for release only after serving a minimum of 51 years in prison. Brown has explained how she acted in self-defense, shooting Johnny Allen, the 43-year old man who had picked her up for sex, after he showed her the rifles and guns in his home and when she believed he was about to harm her. Brown’s case, the story of her life and the violence she experienced as a teenager engaged in survival sex work, has attracted national attention in the last year.

The Tennessee Supreme Court’s decision came in response to a question of law from the Sixth Circuit Court of Appeals. The Sixth Circuit is considering Brown’s argument that her mandatory sentence of life is prohibited under the Supreme Court’s ruling in Miller v. Alabama, which deemed a mandatory sentence of life without parole for youth under 18 to be unconstitutional. The Sixth Circuit had sought clarification on Tennessee’s sentencing laws, to understand if and when Brown could be eligible for release. Governor Bill Haslam is also considering Brown’s petition for clemency and has promised to reach a decision before he leaves office in six weeks.

The laws under which Brown was sentenced are some of the harshest in the country. Tennessee’s truth-in-sentencing laws, adopted in 1995, abolished parole for the crimes punished with the longest sentences, and doubled the presumptive minimum time a person must serve before becoming eligible for release. The possible sentences for a conviction of first-degree murder for adults are death, life without the possibility of parole, or life. For those under 18 when they are sentenced, the two options are life without parole and life. A life sentence, as the Tennessee Supreme Court clarified last week, is a determinate sentence of 60 years. Someone sentenced before 1995 could become eligible for release after serving 60 percent of that 60-year sentence, but that changed. Anyone sentenced to life after 1995, like Cyntoia Brown, must serve at least 85 percent of the sentence, or 51 years.

Last year, the Associated Press reported that there are at least 100 other people sentenced as teenagers in Tennessee who must serve half a century before they will become eligible for release. Speaking with the AP, Marsha Levick of the Juvenile Law Center called Tennessee’s sentence of life “the most extreme so-called alternative to [life without parole] that I’ve heard.” Legislative efforts to shorten these sentences have so far been unsuccessful.

But Tennessee is not the only state where people, including those sentenced as teenagers, are serving extremely long prison terms. Extreme sentences, even those that seem to fly in the face of constitutional protections, have largely resisted challenge. In April, the Supreme Court declined to hear the petition of Bobby Bostic, sentenced to 241 years for robbery and other non-homicide offenses committed in Missouri when he was 16. Bostic’s lawyers argued that the sentence, under which Bostic would not be eligible for parole until he was 112, was prohibited under the Supreme Court’s decision in Graham v. Florida, that sentences of life without parole for juveniles who did not commit homicide were unconstitutional. Judge Evelyn Baker, at the time of sentencing, said, “Bobby Bostic, you will die in the Department of Corrections.” Bostic will not be parole eligible until 2201. “Nobody in this room is going to be alive in the year 2201,” the judge continued. In a sign of how much attitudes toward lengthy sentences, particularly for young people, have begun to change, Judge Baker went on to write an op-ed for the Washington Post, expressing regret over the sentence she imposed and support for Bostic’s release. Despite wide-ranging support for Bostic’s petition, the Supreme Court declined to consider the case.

Last week, the Sentencing Project launched its Campaign to End Life Imprisonment. The campaign builds on the organization’s research into the impact of life and “virtual life” sentences and calls for sentences to be capped at 20 years. The United States sends people to prison for life at the same rate that Denmark, Finland, and Sweden send people to prison at all. The Sentencing Project’s focus on “life imprisonment” includes what it terms virtual life sentences, sentences of at least 50 years—like Cyntoia Brown’s and Bobby Bostic’s—that have the effect of incarcerating people for a lifespan. Currently, 206,000 people are serving life sentences, 44,000 of them virtual life sentences, a number that has quadrupled since 1984 and makes up 1 out of every 7 people in prison. And while the rate of life sentences has increased sharply across the board, the number of women and girls—many of them with experiences of sexual assault, trauma, and abuse—serving life sentences has gone up even faster. An end to life imprisonment would also overwhelmingly affect Black and Latinx people, who make up two-thirds of those in prison sentenced to life.

The Sentencing Project’s campaign comes at a time of widening recognition that any meaningful change to the U.S. system of incarceration requires tackling the decades-long sentences handed down for an array of convictions. The sentencing of Cyntoia Brown to life in prison is representative of the worst of the practices that built mass incarceration. Dismantling it requires a new consensus that Brown, and the hundreds of thousands spending decade after decade in prison for no justifiable reason, should be free.
published on Dec. 12, 2018 in the Daily Appeal