Portside

“My life is either going to be a testimony or a warning,” said Derek Lee.

Lee was speaking on a video chat from behind the walls of SCI Smithfield in central Pennsylvania. Now 35 years old, Lee has been imprisoned since he was 29. If nothing changes, he will grow old and die in prison.

In 2016, a Pennsylvania court sentenced Lee to life without parole for a burglary two years earlier that ended with his accomplice fatally shooting the homeowner. Lee was not involved in the killing, but he was convicted of second-degree or felony murder—an unintentional death that happens when the defendant is committing a felony. In Pennsylvania, that means an automatic sentence of life without parole (LWOP).

That sentence, which advocates call “death by incarceration,” means that, no matter how much time has passed or what a person does to transform their life, they have virtually no chance of leaving prison alive. Nearly 80 percent of those sentenced to life without parole in Pennsylvania were, like Lee, under 30 when they were sent to prison—53 percent were between ages 18 and 25

Lee has chosen not to accept this fate. He doesn’t want to die in prison, and he doesn’t want others to die in prison either. Now, he is waging a battle to overturn LWOP for himself and, potentially, over a thousand others sentenced to live and die behind bars in Pennsylvania.

He wants, as he put it, his life to be a testimony, not a warning.

“I can warn people what not to do, but I’d rather be somebody that you could look to and say, ‘This is what I can do. If I do change, if I do put in the work, if I am sincere,’” he said.

Amovement to end life without parole has been gaining traction in Pennsylvania and across the nation. Family members and those who had previously faced the probability of dying in prison formed campaigns. They rallied at capitols, filed lawsuits, and pushed legislators to change the laws—and to apply them retroactively. They even took their complaint to the United Nations. In May 2023, formerly incarcerated New Yorkers testified before a three-person UN committee set up to examine systemic racism against Black people; four months later, the committee stated that it was “deeply alarmed” by the high rate of death by incarceration sentences and recommended that all prison sentences include parole eligibility within a reasonable number of years. This past November, it recommended a moratorium on LWOP.

Lee knew none of this when he met Bret Grote and Quinn Cozens, attorneys with the Abolitionist Law Center who visited the prison for a 2019 legal seminar. In November 2020, the court reinstated his right to appeal on the grounds that he had been deprived of a lawyer during his initial appeal. The reinstatement came at an opportune time—the Abolitionist Law Center had been searching for a plaintiff whose appeal rights had not expired for their next legal challenge.

With their help, Lee appealed his sentence. A three-judge panel of the state superior court denied his appeal in June 2023, ruling in part that the panel was bound by prior rulings. In a separate memorandum, one of those judges urged the full court to revisit whether a mandatory life without parole sentence for all second-degree murder convictions violates the state’s Constitution. In July, the Abolitionist Law Center, Amistad Law Project, and Center for Constitutional Rights appealed the decision to the Pennsylvania State Supreme Court arguing that life without parole for felony murder violates both the Eighth Amendment ban on cruel and unusual punishment and the state’s Constitution prohibiting “cruel” punishment. They argued that imposing life without parole for those who never intended to take a life is unduly harsh, violating the state Constitution. Pointing to the US Supreme Court decisions, which addressed children’s diminished culpability, they argued that people who did not kill or intend to kill comprise another category of diminished culpability.

The court’s decision could extend far beyond Lee. If his sentence is ruled unconstitutional, it could open the door so that over one thousand Pennsylvanians don’t die in prison.

Lee is keenly aware of how high the stakes are and how any misstep he makes could impact not just him, but people across the state. “There are days when COs and other [men] get on your nerves and you want to react a certain way,” he said. “I remind myself that that’s not the person I am anymore. What I do affects other people—I hold a responsibility not just to myself, but to others. Guys on this block—some of them are second-degree [or felony murder]—are looking at my case, saying, ‘What happens for you is going to affect everybody.’ I try to live up to that responsibility by how I live my life.”

Pennsylvania has the nation’s second-highest number of people (5,100 people) serving life without parole. Over one-fifth have been convicted of felony murder. Seventy percent, like Lee, are Black. Nationwide, nearly 56,000 people have been sentenced to death by incarceration although national data on the percentage condemned for felony murder does not exist.

“I feel deeply that this is the time for this,” Lee told The Nation. “There’s so much positive energy around this issue. It’s the next logical step to correct something that should have been corrected a long time ago.”

“This fight to end life without parole (and second degree murder) is not just a matter of Justice, Reform and Redemption,” Lee wrote in a press statement. “It’s a matter of affording those men and women who have truly done the work to repurpose their lives an opportunity to effect real change in their families and communities; and have a personal impact in the lives of youths who are in desperate need of mentorship and guidance.”

Lee is one of a broad group of people trying to change the system—from other incarcerated people to victims of crime to people who spent their working lives making the carceral system run. They come from very different places, but they have coalesced around the same basic idea: that it is wrong to let so many people die in prison without ever having a chance to prove that they’ve changed.

Lee is fighting 229 years of Pennsylvania law. In 1794, the state legislature created different degrees of murder based on intent. First-degree murder, or intentionally killing someone, could result in either life without parole or execution. Second-degree murder triggered an automatic life without parole sentence.

Now, many of those sentenced to life without parole during previous decades are growing older, causing an aging boom behind bars. At the end of 2021, people over age 50 made up nearly 27 percent (or 10,000 of 37,303 people) in Pennsylvania’s prisons. By 2030, experts estimate that, nationwide, one in three imprisoned people will be over 50.

Outside of prison, 50-year-olds are not considered elderly. But years of poor nutrition, inadequate medical care, chronic stress, and the constant chaos of incarceration accelerate the physiological aging process and can shorten life expectancy by as much as two years for every year spent behind bars.

Lee’s is not the first legal challenge to Pennsylvania’s automatic life without parole for felony murder. The three organizations have filed six previous challenges on behalf of Pennsylvanians sentenced to life without parole. In five cases, they sought to overturn life without parole for people who had been 18 years old when they committed their offense. In the sixth, they challenged the constitutionality of a sentence that excluded parole. Each time, the courts ruled that these challenges could only be filed on direct appeal—and each time the plaintiffs’ timeline for direct appeal had long since expired.

Derek Lee’s, however, has not.

“If this sentence is found unconstitutional, anybody serving this sentence would be able to go back to the Court of Common Pleas and demand a new sentence,” Bret Grote, the lead attorney on Lee’s challenge, told The Nation. Or, he added, such a ruling might push lawmakers to a more effective and efficient solution—provide parole eligibility for all 1,100 people convicted of felony murder.

The decision to never release a person from prison freezes them in the worst decision they ever made and never allows them to move past it, no matter what they do or how much they change. That was the fate handed to Marie Scott half a century ago.

In 1973, Scott participated in a Philadelphia gas station robbery in which her codefendant fatally shot the attendant. She was 19; her codefendant was 16. Both teenagers were sentenced to life without parole.

In its 2012 Miller v Alabama ruling, the US Supreme Court held that it is unconstitutional to impose mandatory life sentences on juveniles. In 2016, the court made its decision retroactive, allowing thousands to apply for resentencing. The trial court resentenced Scott’s codefendant, by then 60, to 43 years to life, making him eligible for parole. He was paroled in 2020. Scott, however, did not have that option.

While neuroscience now acknowledges that brains are not fully formed until a person’s mid-20s, the Supreme Court decisions apply only to those who committed their crimes before they were 18.

It didn’t matter that Scott had turned her life around, transforming herself from an angry young woman who frequently landed in solitary to a leader and mentor for others. “I’m no longer that scared insecure scarred codependent teenager,” she told The Nation.

Over five decades, she completed paralegal training and an associates’ degree, created a program and newsletter for children with incarcerated parents, and served as the facilitator for several self-help programs. She now facilitates courses on co-dependency and addiction and tries to guide younger women away from repeating her mistakes.

Nonetheless, because she was 19 years old during that fatal robbery, she remains in prison. Scott is now 70 years old and has been behind bars for 51 years.

In 2018, Scott and dozens of others saw a glimmer of hope when the state’s appeals court agreed to hear oral arguments for Avis Lee (no relation to Derek), who challenged her own sentence of life without parole.

Avis Lee’s story is similar to Scott’s: In 1979, Lee, then 18, served as a lookout while her older brother and a friend committed a robbery. During the robbery, her brother fatally shot the man whom they were robbing. Both men fled while Lee flagged down a bus driver for help. All were arrested and sentenced to life without parole. She spent the next four decades in prison. After the Supreme Court decisions, Lee, by then 57, challenged her sentence in state court, arguing that the same lack of maturity and impulsivity also applies to 18-year-olds.

Ultimately, the state’s superior court dismissed her complaint. In February 2021, Governor Tom Wolf granted Lee clemency. At age 59, she was released from prison.

That’s the happy ending that Scott seeks. After more than half a century in prison, she has asthma, COPD, high blood pressure, and type two diabetes, needs a wheelchair to get around, and takes 24 different pills each day.

In 2020, at age 67, she became the lead plaintiff in a six-person lawsuit filed by the Abolitionist Law Center, the Amistad Law Project, and the Center for Constitutional Rights arguing that Pennsylvania’s mandatory life sentences for felony murder were unconstitutional. The court dismissed the suit, ruling that the plaintiffs could only challenge their extreme sentences through a direct appeal or a post-conviction relief petition, both of which must be filed within a short window of time. But given that the six had collectively served 199 years in prison, they had long passed those deadlines. Now, they are watching Derek Lee’s challenge to see what their own futures might hold.

“We are being put to death because we die here,” Scott wrote.

The push to end LWOP for felony murder has, surprisingly, found support from those within the heart of Pennsylvania’s carceral system. Two of those are John Wetzel and George Little—both former heads of the Pennsylvania prison system. Wetzel and Little spent decades overseeing a steadily aging population behind bars. But both now believe that life without parole, at least when it comes to felony murder, defies logic and have filed a 25-page amicus brief supporting Lee’s appeal.

Wetzel started his three-decade prison career as a correctional officer, moving on to higher positions including treatment counselor, jail warden, and corrections expert for the pardon board. In 2011, he was appointed secretary of the Pennsylvania prison system. That year, nearly 40 percent of the state’s 51,638 prisoners were 40 and older.

That percentage continued to rise even as the total number of prisoners declined. By the time Wetzel retired in 2021, people ages 40 and older comprised 50 percent of the 37,303 state prisoners.

As the population grayed, the cost of incarceration ballooned. The annual average medication cost for one person under age 50 is roughly $1500. For those over age 50, however, that cost nearly doubles to $2800 per person. Medication for the nearly 10,000 aging prisoners costs $32 million a year. That figure does not include the costs of treating chronic diseases and increasing hospitalizations as people age.

“Everything I thought about life without parole evolved over 32, 34 years of my corrections career,” Wetzel told The Nation. He noted that lawmakers created the category of felony murder, which does not require execution, to acknowledge that the act is less serious than intentional murder. But the mandatory life sentence fails to reflect that recognition, he said.

Now the founder and CEO of the prison consulting firm Phronema Justice Strategies, Wetzel is not given to personal anecdotes about his time walking the cellblocks. Instead, he directed The Nation to facts, figures, and astronomical costs to illustrate his points.

For instance, in 2021 alone, the medium-security Somerset prison spent $53,707 per person, or more than $100 million, for its 1,895 prisoners.

Five miles away, Laurel Highlands, which Wetzel described as “a freaking nursing home,” spent $93,136 per person. With 1,061 prisoners, the state spent nearly $99 million to incarcerate 834 (or 44 percent) fewer people.

“That’s the cost of elderly people in prisons,” he pronounced. He noted that jails and prisons across the country have long complained about staffing shortages, some of which have resulted in escapes.

“There’s too much demand on the system and we are still having people serve life without parole,” Wetzel stated.

Little succeeded Wetzel as the acting secretary of the prison system. He now works as the senior vice president at Phrenoma, and has come to the same conclusion. As acting secretary, he reviewed clemency applications and saw, firsthand, how many would benefit from a second chance. But clemency in Pennsylvania is an arduous process. Of the hundreds who apply each year, only a fraction are approved. People serving life in prison represent just two percent of those granted clemency.

“If the goal is public safety, what is gained by continuing to incarcerate individuals beyond a certain point in life?” Little asked.

Both Wetzel and Little pointed to the juvenile lifers resentenced after the Supreme Court’s Miller and Montgomery rulings. As of 2023, 492 of the 520 Pennsylvanians sentenced to life without parole for crimes that they committed as juveniles had been resentenced. Three hundred and two were released while others were given decades-long sentences with parole eligibility. And, by and large, once free, they do not return to prison. One study found a recidivism rate of only 1.14 percent (or two of the 174 people who returned to Philadelphia). Those two people were arrested for low-level, non-serious offenses.

Furthermore, Wetzel and Little argued, creating the possibility of parole doesn’t guarantee release. Parole boards grill applicants about their crimes—and how they have changed in prison. Between July 2022 and July 2023, the parole board denied more than 50 percent of applicants.

Other studies confirm that mass releases, particularly of those imprisoned for decades, don’t spike crime rates. In 2012, the Maryland Court of Appeals ruled that people who were convicted and sentenced before 1981 under jury instructions that were found to be invalid were entitled to new trials. Of the 237 people affected, the average age was 64 and their average incarceration was 35 years. All had been convicted of violent crimes—84 percent had murder convictions; 13 percent had rape convictions. Over six years, 200 were released on probation. Only five (or less than 3 percent) were returned to prison for a new charge or probation violation. And the mass releases saved the state and taxpayers approximately $185 million.

Both Little and Wetzel emphasized their belief in a person’s capacity to change. And both repeatedly underscored that continuing to imprison people with increasingly lower likelihoods of recidivism squanders resources.

“If you’re an alleged fiscal conservative who complains about fraud, waste and abuse in human services, what I described is the essence of fraud, waste and abuse if we’re not going to see an increase in crime,” Wetzel said. “Shifting that spending to proactive stuff like addressing criminogenic needs for people who are younger, are going to get back out and are more likely to recidivate, it would be nice to have those resources, like the hundreds of millions of dollars that we spend on what’s essentially a nursing home.”

For Little, the question of resource allocation extends beyond prisons. “Every dollar that goes into corrections is a dollar that we can’t spend on education [or] early childhood programs,” he reflected, noting that these resources were crucial to preventing incarceration in the first place.

Perhaps if those programs had been available, Derek Lee might not be imprisoned today.

In 2006, when he was 18 years old, Lee and several friends attended a party at a local university. By then, Lee had already been shot at several times and had taken to carrying a gun. He and his friends were not planning on an altercation. They simply wanted to party and have a good time. But during a drunken dispute with several university basketball players, Lee and his friends shot at them. Lee’s shots did not hit anyone and, while all five men survived, two were permanently injured. Lee pleaded guilty and was sentenced to seven to 14 years. He spent seven years in SCI Forest, a 2,300-bed maximum-security prison.

“Those years did me no favors,” he told The Nation. His late teens and early 20s were shaped by prison culture and, he said, solidified his self-image as a “hustler and a thug.” He completed a 12-month heating, ventilation, and air conditioning (HVAC) course and three rehabilitative courses.

Course instructors often lacked the experience or understanding of the communities and cultures of their students, he explained. He and others went through the motions to complete the courses, which were required by the parole board. But they gained nothing from these programs.

What influenced him instead was prison culture. “At that time, SCI Forest was what we refer to as a ‘Gladiator Camp.’ It was a rough and violent facility and unfortunately that had an effect on my mentality and identity even upon reentering society,” he said.

Lee came home to a family, including a girlfriend and stepson, who loved him. But the prison’s HVAC course was inadequate for outside jobs. Instead, Lee washed dishes and worked for a cleaning service. The inability to work a meaningful and well-paying job reinforced his belief that he wasn’t the man that his family deserved and, soon, his interests turned to making money and running the streets.

Because he is still in the appeals process, Lee declined to talk about the events at Butler’s house. But he did say that sitting in the jail cell afterward was what motivated him to change his life. That determination didn’t change even after he was sentenced.

In 2017, Lee joined the Lifers Association, a group of men serving lengthy sentences that offers seminars and workshops. Such a group hadn’t been available at SCI Forest, but at Smithfield, Lee welcomed the opportunity to give back to others. It was also how he eventually met attorneys from the Abolitionist Law Center and became the latest challenger to Pennsylvania’s centuries-old law.

Nancy Leichter also seems an unlikely advocate for ending life without parole for felony murder. In 1980, her father died shortly after three teenagers carjacked him at gunpoint. When he told them that he had a heart condition, they dropped him off at a payphone where he called for help. Police rushed him to the hospital. He died of a heart attack three hours later.

Marc Blackwell, the 18-year-old who wielded the gun, was convicted of third-degree murder, or killing without intending to kill, and sentenced to 37.5 to 75 years in prison. Demonstrating the capriciousness of the legal system, his unarmed c-defendants, brothers Wyatt and Reid Evans, ages 18 and 19, were convicted of second-degree murder and sentenced to life without parole.

Initially, Leichter and her family felt that her father had received justice.

But, she told The Nation, “As the years ticked by, I began to think about who these young men were.”

In 2018, shortly after Blackwell had been granted parole, Leichter was contacted by a reporter asking for comment. She began to wonder what had happened to the brothers. That was when she learned that life without parole literally meant life—and death—behind bars. She also learned that the brothers had applied for clemency the previous year and had been turned down.

Leichter herself had been a wild child and admits to stupid impulsive acts as an 18-year-old.

“But, as an 18-year-old, middle-class white young woman, I never would have gotten a sentence of life in prison without parole,” she reflected. She knew that her whiteness protected her from the same severity that the law meted out against Black teenagers and young adults, such as the Evans.

Leichter wrote to the state’s pardon board urging them to reconsider the Evans’ applications. In September 2020, the brothers were granted a second hearing where Leichter, on behalf of her and her older brother, spoke in support of their release. This time, the brothers were granted clemency and, in February 2022, were released from prison.

Leichter knows that the Evans brothers are not the only two condemned to die in prison for felony murder—and she’s determined to change that. She plans to continue advocating—writing op-eds, talking to press, and lobbying legislators—for changes that allow a second chance.

Lee has thought deeply about the life he wants to lead outside prison.

“I stumbled across a quote, when I first came to this prison, by Nelson Mandela,” he said. “He says freedom is not only about casting off restraints; freedom is about enhancing the lives of those around you. For me, that’s the purpose of me getting another chance. It’s not just me walking out of these doors, and living any type of life. It’s about me making a change and making a difference. For all those people who are on the road that I was on as a young man that lead into these types of situations, and the people who are coming out and trying to live a better life, I need to be there [for them].”

For now, he is waiting to see if he gets that chance. And others are waiting too. Derek Lee and Marie Scott and Nancy Leichter and John Wetzel might never find themselves in the same room. Their paths might never cross. But they are all part of a movement in which an individual victory could ripple out to become a win for many, many others. If Derek Lee wins his fight, Marie Scott’s life might change forever. If John Wetzel’s and Nancy Leichter’s advocacy succeed, Derek Lee might see the outside world again. If any of their efforts prevail, then hundreds, if not thousands, might have a different future. That ripple effect could extend not just legally but culturally—another step toward redirecting the nation away from its decades-long love affair with permanent punishment that has condemned tens of thousands to die behind bars.

Victoria Law is a freelance journalist who focuses on the intersections of incarceration, gender, and resistance. Her books include Resistance Behind Bars: The Struggles of Incarcerated Women, Prison by Any Other Name: The Harmful Consequences of Popular Reforms (coauthored with Maya Schenwar), and the forthcoming “Prisons Make Us Safer” and 20 Other Myths About Mass Incarceration.

Copyright c 2024 The Nation. Reprinted with permission. May not be reprinted without permission. Distributed by PARS International Corp. 

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