Americans are still serving unconstitutional sentences. A mercy doctrine could help.

The U.S. is one of a small number of countries who force prisoners to serve sentences that no longer fit the crime.

Americans are still serving unconstitutional sentences. A mercy doctrine could help.

The U.S. is one of a small number of countries who force prisoners to serve sentences that no longer fit the crime.

On September 16, 1988, Abdul Lateef was given what is now considered an unconstitutional sentence of mandatory life in prison without the possibility of parole for second-degree murder. When he was 17 years old, Lateef, then known as Aaron Phillips, and his 22-year-old friend, Dennis Gibbs, robbed an 87-year-old man named Edward McEvoy in Pottstown, Pennsylvania, pushing him to the ground.

Eighteen days and two surgeries later, McEvoy died from complications related to a fractured hip. Lateef told his attorney he would accept a plea bargain, but his father was livid when the carbon copy of the agreement arrived and forbade him from accepting it. Lateef’s attorney withdrew from the case. While Gibbs pleaded guilty and was released from prison in 1994, Lateef, as a juvenile, was sentenced to spend the rest of his life in prison. “I never even heard of a life sentence,” he told me recently.

Abdul Lateef and his wife, Shekinah, upon his release from prison in October 2017.

Abdul Lateef and his wife, Shekinah, upon his release from prison in October 2017.

Lateef’s situation is not exceptional. The United States routinely forces people to serve sentences that are no longer possible to receive or have even been ruled unconstitutional. Most often these sentences are related to drug offenses, juvenile life without parole, and the death penalty. This is because the U.S. has failed to adopt a so-called mercy doctrine, also known as lex mitior, which would automatically give people the benefit of lesser sentences when they become available, most commonly because the legislative branch changed the punishment or the judicial system made it illegal.

The U.S. had a chance to adopt a mercy doctrine in 1992 when it ratified the International Covenant on Civil and Political Rights (ICCPR), one of the core United Nations human-rights treaties. But the George H.W. Bush administration in its final months refused to sign the part that would create a mercy doctrine: “If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.”

In doing so, the U.S. again proved its cruel exceptionalism in criminal justice. “The U.S. was one of only 22 countries that we could find that withhold this right from their citizens,” said Amanda Solter, co-author of the report, Cruel and Unusual: US Sentencing Practices in a Global Context.

Unconstitutional sentences are most often related to drug offenses, juvenile life without parole, and the death penalty.

We have the logical flipside of lex mitior in the Constitution: ex post facto laws cannot be passed. That is, you can't be convicted of a crime without a pre-existing law in force. nor can you be given a sentence more severe than when the crime was committed.

But without a mercy doctrine, people are often forced to serve sentences the justice system decides no longer fit the crime.

Even though the U.S. has become the world leader in mass incarceration over the last 50 years (Louisiana alone out-jails Iran by a factor of five), the concept of a mercy doctrine harkens back to the nation’s founding, if sometimes forgotten, aspirational principles. “There’s certainly no more substantive right than the right of liberty, not to be incarcerated for something you didn’t do, not to be incarcerated for longer than you have to be,” said Mark Plaisance, a Louisiana appellate attorney.

The strongest case against a mercy doctrine isn’t about what justice is supposed to be, but how justice is supposed to work in the U.S. To pass a mercy doctrine might violate the way the government is constructed; only the executive branch is to have pardon power.

In April 2014, President Barack Obama created a clemency initiative to identify federal prisoners serving harsher sentences than they would receive if convicted today; the initiative also encouraged such prisoners to petition for a commutation. By the end of the Obama administration, he had commuted the sentences of 1,715 people, including many who did not benefit from the Fair Sentencing Act of 2010 (the FSA).

To pass a mercy doctrine might violate the way the government is constructed; only the executive branch is to have pardon power.

Before the FSA, there was a 100:1 sentencing disparity between powder cocaine and crack — a person would receive a mandatory five years in prison for slightly more than a pound of powder cocaine or a couple of sugar packets worth of crack. But, just as the Supreme Court in the case of juvenile mandatory life without parole and some state legislatures for the death penalty, Congress did not make the law retroactive.

According to the U.S. Sentencing Commission, 3,147 people could benefit from the FSA but won’t, only because they were sentenced before the act went into effect. “These were the guys this law was passed for,” said Jeff Lazarus, an assistant federal public defender in Northern Ohio, “but they are stuck.” Soon, Congress may make the FSA retroactive for everyone; that is, if the Sentencing Reform and Corrections Act is signed into law in its current form, something that has become far less certain since Attorney General Jeff Sessions wrote the Senate Judiciary Committee in February to oppose giving judges the ability to “retroactively reduce sentences.”

In 2012, the Supreme Court ruled in Miller v. Alabama that mandatory life in prison for juveniles convicted of murder was cruel and unusual punishment. Children aren’t just small adults, the majority said, and they should have a chance to offer mitigating factors, reasons why they should be spared the terrifying fate of decades in a concrete cell.

Courts may still sentence a child to die in prison, but such an extreme sentence should only be imposed on “the rare juvenile offender whose crime reflects irreparable corruption.” Otherwise, as Associate Justice Ruth Bader Ginsburg said, we turn every child convicted of a serious crime into a “throwaway person.”

But the problem here is what the Supreme Court didn’t say — whether this decision was retroactive. The Court has typically ruled against retroactivity, like when they rejected a woman’s appeal to have the Civil Rights Act of 1991 apply to the past so the coworker who sexually harassed her would face a jury.

The Court has typically ruled against retroactivity.

By not clarifying in the case of juvenile mandatory life without parole, the Supreme Court left the choice up to individual states. “The obvious and just solution would be that anyone who is serving a sentence that has been declared unconstitutional would get an opportunity to be resentenced,” said Emily Keller, one of Abdul Lateef’s attorneys and a former staff attorney at the Juvenile Law Center. “But all states around the country haven’t taken that approach.”

Because the Supreme Court didn’t make its Miller ruling retroactive, 20 states and D.C. said the law applied backwards, seven states said it did not. That left anywhere from 1,200 to 1,500 people across the country serving mandatory sentences that the Supreme Court said were unconstitutional.

“The idea that justice would depend on what state you live in or the arbitrary date that your conviction became final isn't justice,” Keller said. “Justice shouldn't depend on geography or timing. If a sentence is unconstitutional today, someone who received that sentence 10 years ago or 20 years ago shouldn't be forced to serve it.”

On October 30, 2013, the Pennsylvania Supreme Court decided that Lateef and others like him should remain in prison for life and not benefit from the ruling by the nation’s highest court that their sentences were illegal. Think of what it would do to “an orderly criminal justice system,” the court ruled, if it had to go back and reconsider every single human caged under the previous guidelines.

“When you think that you are that close, that you finally can be rescued from your misery,” Lateef said. “To have all of that snatched away from you, not knowing if it would ever come to fruition, it went from this is in the realm of possibility, indeed likelihood, to this may never happen.”

Lateef expected to exit prison on a gurney or in a box for the worst thing he had ever done in his short life on earth — the decision to help Dennis Gibbs with a robbery that escalated into an assault, which led to an innocent man dying. Lateef had seen flashes of his own pain in Gibbs, whom he remembers as being deserted by his parents and laughed at for living in an abandoned car; Lateef had been ruthlessly bullied by kids his own age after a bicycling accident ripped apart his lip.

Soon after, he discovered he could fight. Often suspended from school, he began to hang out with an older crowd that relied on him for stolen cigarettes. Nothing about Lateef’s life mattered when it came to his sentencing; he was a juvenile convicted of murder so he only had one possible future — an imprisoned one.

Lateef became a paralegal in prison and helped provide legal assistance to other inmates, so he knew the odds were slim that his case would make its way to the Supreme Court. Regardless, he continued to work on it with Keller. Their appeal to the Superior Court of Pennsylvania failed; the court wrote that it had “no authority to overrule our Supreme Court.”

“Can you imagine what that says to you as a human being?” Lateef said. “That it's perfectly permissible for me and thousands of others to languish under a cruel sentence?”

Abdul Lateef expected to exit prison on a gurney or in a box for the worst thing he had ever done in his short life on earth.

But in 2015, the Supreme Court heard the case of Henry Montgomery, a man with developmental disabilities who was convicted of murder more than 50 years earlier, when he was 17. The Louisiana appellate attorney Mark Plaisance, who represented Montgomery, argued that the Supreme Court must make retroactive their earlier ruling that mandatory life-without-parole sentences for juveniles violated the Eighth Amendment, as condemning a child to a life in prison is not merely a procedural issue — one about how courts should work — but a substantive matter about what rights juveniles have.

This time, the Court seemed far more open to applying their previous decision retroactively. "There were some people in Salem who were imprisoned for being a witch. And lo and behold in 1820, it was held by this Court that that violated the Constitution,” said Associate Justice Stephen Breyer during oral arguments, suggesting that it would be outrageous to keep women in prison for witchcraft that that they were wrongly accused of performing. In January 2016, the Court made their earlier ruling retroactive in Montgomery v. Louisiana, saying that juvenile life without parole was illegal no matter the date of someone’s sentence and that everyone deserves at least a sentencing hearing, something people like Lateef never had.

“None of these children had a sentencing hearing where they could present any particularized information about themselves,” Jill Pasquarella, a supervising attorney at the Louisiana Center for Children’s Rights. “Even their role in the crime could not be taken sufficiently into account at sentencing.”

But a Supreme Court ruling isn’t an on-off switch, and the re-sentencing process is especially slow-moving. Many district attorneys across the country are intent on seeking life without possibility of parole once again for people like Lateef — even though the Supreme Court said such a sentence should be reserved for only “the rare juvenile offender.”

In Louisiana, of the 258 people who were stuck in prison waiting for the ruling to become retroactive, 81 of them face a new life sentence without parole. In Michigan, prosecutors are seeking new life-without-parole sentences for 218 of 363 men and women serving now-illegal mandatory life terms.

Even Montgomery, the man in whose name the landmark case was brought, was denied parole in February 2018, because two committee members felt he had not done enough to deserve it. The 71- year-old Montgomery has only taken two classes, complained Kenneth Loftin of the Louisiana Board of Pardons and Committee on Parole, and is “only doing exactly what [he] can to get by.”

“Engaging in resentencing hearings where the DA is intent on reimposing a life without parole sentence is an arduous and burdensome process,” said Pasquarella. “Everyone needs to go back to court, needs a lawyer.”

In Michigan, prosecutors are seeking new life-without-parole sentences for 218 of 363 men and women serving now-illegal mandatory life terms.

That implementing a mercy doctrine is a very time-consuming and labor-intensive undertaking was at the core of the state of Florida’s unsuccessful argument against retroactivity in 2014.

“You’re going to have to have witnesses. We’re going to have to have facts about the crime scene, how the crime occurred, what happened, medical examiners,” argued Trisha Meggs Pate, a criminal appeals attorney for Florida who works closely with state Attorney General Pam Bondi. Pate reciting a pretty standard list of what is expected in a sentencing hearing to the Florida Supreme Court as though it was, in the words of one judge, a “litany of horribles” did not win over the justices.

“I have no doubt that if it was your child, sibling, parent, who was in prison that you would want them to benefit when the law has been changed, implementation challenges be damned,” said Amanda Solter, the researcher on mercy doctrines in international law. “The idea that it is administratively challenging or logistically difficult sounds like such a cop out when you are talking about people's lives.”

The even more complicated aspect in the argument for a mercy doctrine in the U.S., however, may be the implicit admission that legislators must make: that our definitions of criminal behavior are neither timeless nor flawless. The same way we wonder what they were thinking in Salem or Prohibition or the Jim Crow South, surely the next generation will wonder about drug crimes and juvenile life without parole.

On October 10, 2017, five years after his sentence was ruled unconstitutional, Abdul Lateef walked out of the State Correctional Institution at Frackville in rural Pennsylvania a free man.

“It was like the feeling of drowning,” he said. His wife, Sakinah, was there, as was his stepdaughter, Katina, his half-sister, Denise, and Mike Lyons, a professor with whom he started The Redemption Project, which seeks to collect oral histories of juvenile lifers. The rest of his immediate family had died — his sister, Donna; his father, Charles; and his mother, Diane — while they waited for Miller to become retroactive.

Jason Silverstein is a lecturer and the writer-in-residence at Harvard Medical School in the Department of Global Health and Social Medicine.