Governors and Prisoners: The Death of Clemency and the Making of Life Sentences without Release in Pennsylvania.

• Author: Seeds, Christopher

OVER THE PAST 45 YEARS, LIFE IMPRISONMENT WITHOUT THE Possibility of parole (often referred to as life without parole or by the acronym LWOP) has emerged as a regular feature of punishment in the United States. Efforts toward death penalty abolition and punitive sentencing laws are usually cited as sources for the growth of life without parole sentencing in the last quarter of the twentieth century. However, those factors together could not have rendered what we understand as LWOP today--a sentence of life imprisonment for which release is not a reasonable expectation by any means. For despite any legislator's, prosecutor's, judge's, or penal administrator's effort to sentence and never release, there has always been another way out of prison.

Throughout most of US history, executive clemency--usually in the form of commutation--was used as a tool to even out sentencing injustices and regulate prison populations. Life sentences in this regard were often assigned to the state governor and a board of pardons to resolve. What is known today as life without parole or LWOP would not exist without the retrenchment of this practice, regardless of tougher sentencing laws and execution alternatives. Over the last quarter of the twentieth century, clemency disappeared as a dependable avenue for prisoners serving life. Recognizing the atrophy, and in some cases the active restructuring, of this age-old practice is essential to understanding LWOP.

This article presents a particularly important chapter of that history, from Pennsylvania, which now holds more people serving life without parole than any state other than Florida. Relying on governors' papers preserved at the Pennsylvania State Library and Archives as well as historical legislative materials, case law, and public media, I unpack a phenomenon that was a transformation as much in meaning and practice as in law, and which often occurred through rather furtive changes that took even penal state actors and people serving the sentence by surprise. The history brings into view a past way of thinking about and practicing life sentencing that must be distinguished from the present, and shows the contingent happenings, arrangements, and processes by which that earlier form changed.

As LWOP is a substantial penal phenomenon of the late twentieth century and a fixture of the present, a history of the punishment's emergence, which complicates and deepens our understanding, in itself is significant. The Pennsylvania history is also significant, however, because it brings into focus something else that is hard to envision from the present--namely, the deterioration of a social relationship, a discarded fine of conversation that once existed between governors and prisoners. In this dialogue, lifers had a voice in their own future and governors learned from some of their most alienated constituents. Part of the work of this article is to return a memory of that relationship between governors and prisoners and why it mattered.

The following history of life sentencing in Pennsylvania, then, recounts two transformations. First, it shows how LWOP, more than a product of express lawmaking, emerged in Pennsylvania in significant part through processes of change to executive clemency. Second, it shows how alterations to commutation laws and practices redefined how people sentenced to life envisioned themselves, their relationship to the state, and their possibilities for action. In doing so, the history illuminates the possibility of a relationship by which governors keep in touch with the humanity of incarcerated people as well as the purpose and end of punishing--a way of knowing prisoners that, at least for a time in Pennsylvania, was as key to the meaning of governing as it was to the meaning of life sentences.

Life Without Parole before LWOP

To legal scholars and practitioners, life without parole is first and foremost a sanction. Most straightforward, it is a punishment formally authorized by statute for the commission of a specific crime or for a status achieved by a history of criminal acts. This is what scholars often refer to when speaking of "LWOP laws" (Tonry 2016, 83). In this form, LWOP grew from a sanction available in a minority of states and rarely used, to one routinely available in death penalty cases and, in certain circumstances, to a broad range of violent and nonviolent drug, habitual, and other offenses (Harvard Law Review Association 2006, Steiker & Steiker 2014,Tonry 2016).

There is another manner, however, in which states historically precluded release over the course of a prisoners lifetime: laws situated in parole codes restricting the parole board's authority. Those laws are vestiges of a traditional system of release by which a state governor (with or without an advisory executive body) was expected, if not legally required, to exercise discretion to release prisoners through the clemency power. As Marie Gottschalk (2015, 186) recounts, commutations were "vital features of the US criminal justice system throughout the nineteenth century and much of the twentieth century." Among its critical functions, clemency "was a key mechanism to manage the prison population, correct miscarriages of justice, restore the rights of former offenders, and make far-reaching public statements about the criminal justice system" (ibid., 186). With hundreds of sentences commuted every year, clemency practice was expected to keep prison populations at a manageable level, and despite criticisms of cronyism or arbitrariness in its exercise, to a large extent, in many state systems, it did so. Even after parole took hold as an instrument for prison release (see Messinger et al. 1985), commutation at times served as the more reliable and efficient means (see Kolakoski 1937).

At the turn of the 1970s, laws precluding parole either generally or specifically for life-sentenced prisoners were far more common than the few statutes that authorized natural life sanctions for particular crimes (Powers 1972). (1) Louisiana provides one notable example of a state that precluded parole for all life-sentenced prisoners (Foster 1988, Gottschalk 2015), Pennsylvania another (Gottschalk 2015, Rowan & Kane 1992). States that precluded parole for all or some lifers followed a variety of arrangements according to which the governor and an advisory executive agency (usually a board of pardons) reviewed applications, sometimes on recommendation from prison administrators, with varying degrees of formality (Powers 1972; see also Foster 1988, Gottschalk 2015, Wikberg 1979). According to these methods, many states granted release for lifers with regularity (Powers 1972). The average sentence served in Pennsylvania by life-sentenced prisoners (all without parole) between the 1930s and the mid-1960s, for example, was between 15 and 20 years (ibid., 35). As one researcher put it after reviewing all state practices, "governors play an important role in the parole of 'lifers'" (ibid., 12).

During the last quarter of the twentieth century, however, clemency practices dried up (Gottschalk 2015, 188; see Horowitz & Uggen 2019), and procedures for the release of lifers that relied on clemency became muddled. On paper, statutes in parole codes precluding parole for lifers did not change much if at all. If the letter of parole law remained the same, however, the reality of how the sentence played out in practice was distinctly different. As clemency retrenched and commutations withered, those entering prison with a life sentence in the 1980s did so under a punishment of distinctively different quality than those who had entered a decade earlier (Gill 2010). This was especially fateful in states that relied solely on clemency throughout the twentieth century for deciding the length of life terms, where prisoners' expectations of certain commutation practices were deeply ingrained and played significantly in decisions about whether to go to trial or accept a plea (Foster 1988).

As old statutes took on new meanings, prisoners challenged changes in the nature of clemency practice, arguing their right to release had been detrimentally adjusted ex post facto. Across jurisdictions, a disingenuousness characterized this transition: courts reinterpreting language sometimes nearly a century old applied a contemporary understanding of back-end release practices that was far different from what historical documents referred to and from what prisoners in states such as Louisiana (Foster 1988, Wikberg 1979), Pennsylvania (Rowan & Kane 1992), and South Dakota had long understood. (2,3) Suddenly, lifers who thought they had a channel out of prison, a reliable review for release, realized they did not.

There is, then, a mechanism other than the death penalty, one that existed prior to the tough-on-crime policy of the 1990s--and one far less talked about--that has been integral to LWOP's development. Rather than a legislative increase in the scope and prevalence of a sanction, it involves a shift in executive practices.

Clemency and Punishment

Clemency as a tool of governing is multifaceted. On the one hand, many of its functions are political: a check for erratic judicial sentencing practices; a mechanism for relieving prison overcrowding; a vehicle for public statements about the values and power of the state; a tool for political deal making; and a signal for needed law reform (Kobil 1990, Love 2010, Salkin 1976). On the other hand, clemency involves an exercise of mercy that is personal and cultural, "informal and idiosyncratic" (Love 2010, 1176), guided by "widely shared understandings of excuse, mitigation, and blameworthiness" (Strange 2010; see also Miller 2000). The pardon power, as such, sits on "the border of sovereignty and law" (Sarat 2005), straddling "our culture's desire for rule-governed conduct and the ungovernability of mercy" (Sarat & Hussain 2006, 218).

During the twentieth century, efforts...