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IT’S KNOWN AS “DEATH BY INCARCERATION.” THESE PEOPLE WANT TO
END IT.  
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Victoria Law
February 9, 2024
The Nation
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_ More people are serving life sentences without parole in
Pennsylvania than almost anywhere else in America. An increasingly
vocal movement is trying to change that. _

A sign at the Pennsylvania State Capitol in Harrisburg on October 23,
2019., Cory Clark / NurPhoto via Getty Images

 

“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
[[link removed]] 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
[[link removed]].
In May 2023, formerly incarcerated New Yorkers testified
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a three-person UN committee set up to examine systemic racism against
Black people; four months later, the committee stated
[[link removed]] 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
[[link removed]].

Lee knew none of this when he met Bret Grote and Quinn Cozens,
attorneys with the Abolitionist Law Center
[[link removed]] 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
[[link removed]] 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
[[link removed]] 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
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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
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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
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10,000 of 37,303 people) in Pennsylvania’s prisons. By 2030, experts
estimate that, nationwide, one in three
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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
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can shorten life expectancy by as much as two years for every year
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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_
[[link removed]] 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 [[link removed]],
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
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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
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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
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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
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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
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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
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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
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the 37,303 state prisoners.

As the population grayed, the cost of incarceration ballooned. The
annual average medication cost
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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
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“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
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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
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juveniles had been resentenced
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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
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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
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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
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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
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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
[[link removed]].

“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
[[link removed]].
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
[[link removed]], Prison by
Any Other Name: The Harmful Consequences of Popular Reforms
[[link removed]] (coauthored
with Maya Schenwar), and the forthcoming “Prisons Make Us Safer”
and 20 Other Myths About Mass Incarceration
[[link removed]]._

_Copyright c 2024 THE NATION. Reprinted with permission. May not be
reprinted without permission
[[link removed]].
Distributed by PARS International Corp
[[link removed]]. _

_Founded by abolitionists in 1865, The Nation has chronicled the
breadth and depth of political and cultural life, from the debut of
the telegraph to the rise of Twitter, serving as a critical,
independent, and progressive voice in American journalism._

_Please support progressive journalism. Get a digital subscription
[[link removed]] to
The Nation for just $24.95!_

* criminal justice system
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* incarceration
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* Inequality
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* Racism
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