Mississippi parole legislation update March 2020

Greg Malone and Carly Rheilan, March 2020

Greg and Carly summarise the position for bills seeking parole reform, midway through the 2020 legislative session, as they relate to Life prisoners.

Link to the bills as currently amended and passed by Senate and by House of Representatives – now awaiting further legislative steps before they could become law.

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Background

The core focus of Kids With 47 Years is “Mississippi Lifers not subject to Life Without Parole*”, especially those convicted when they were very young adults.  Under current legislation Lifers have to serve at least until they are 65 when they become eligible for release on age grounds (this is not technically parole, although similar).  For a person sentenced to life at 18, this means a minimum of 47 years incarcerated, hence our name.

Legislation has been put forward  in the 2020 Mississippi legislative session which would, if passed, reform parole arrangements, affecting vast numbers of prisoners. This article is an update on progress with this, and how it would or might impact on Lifers.

 (*Note – we are not unconcerned about prisoners subject to Life Without Parole – an inhumane sentence – but we have next to no resources, and can only take on one thing at a time. And realistically, before an improvement to their circumstances can conceivably be won, there has to be an improvement for other lifers.)

Story so far

3 pieces of parole reform legislation were put forward which appeared potentially useful for Lifers.

• HB 960 would have given access to parole after 10 years to Lifers convicted for crimes committed when they were under age 26. 
• SB 2123 (as originally put forward) would have given access to parole after 20 years for all lifers other than those with Life Without Parole.
• HB 1377 (as originally put forward) includes a number of other criminal justice issues, but in relation to parole was the same as SB 2123

Committee Stage

Kids With 47 Years lobbied all House and Senate committee members to support all three pieces of legislation.

• HB960 “died in committee”, so did not get past the first stage and is out of the running.
• SB2123 and HB 1377 both got amended in committee to remove the “after 20 years” provision for Lifers, leaving the position for Lifers unclear – see detailed discussion below.
• They were both ALSO amended to include a “reverse repealer”: this is an apparent “wrecking clause”, which forces the bill to go through additional legislative processes before it could take effect. 
• SB 2123 and HB 1377 were then both passed by committee as amended, so went on to the next stage, ie debate on the floor of the house (HB 1377) and floor of the Senate (SB 2123).

Debate on Floor

Kids With 47 Years lobbied all Representatives and Senators support the remaining two pieces of legislation, and to amend to reverse the changes made in committee.

12 March : HB 1377 was debated in the House of Representatives. Amendments passed from the floor during the debate

• put BACK the provision for Lifers to have parole after 20 years as an alternative to the 50% calculation
• inserted provision for any prisoner who committed their crime under age 18 to have parole after 20 years, if not parole eligible sooner.

12 March : SB 2123 was debated by the Senate.  Amendments were made to benefit habitual offenders, but no further amendments relating to Life prisoners were made.

The Bill was then passed by the Senate (20/32)

To have got this far is a momentous achievement but not the end of the story. 

Kids With 47 Years thanks the (heroic!) Senators and Representatives who have supported these bills and allowed them to get to this point in the legislative cycle. This includes all the Democrat Senators and Representatives and a momentous number of Republican ones also.

How would this legislation impact on Lifers, if passed as it currently stands?

We have several times been asked whether this legislation, if passed, would benefit lifers. The easy answer is “it’s not very clear”.  The remainder of this article sets out our reading of the bills as currently amended.

Key points applying to both Bills

1. The opening clause of the legislation includes an “in principle” provision for Lifers to have parole after 10 years.  Don’t get too excited about this – this provision is already present in the first clause of the current legislation; it doesn’t mean diddly squat in the current legislation, because later clauses go on to remove all lifers from this provision (see our previous article on this subject).
2. Neither bill allows parole for ‘HABITUAL’ offenders sentenced for violent crimes (either fixed term or for life)
3. However, most of the other current provisions which remove lifers (and others) from parole have been DELETED in the new bill, as amended, making the parole position generally more positive. 
4. The “Geriatric Parole” provision in the bill would give all lifers parole access at 60 if they have served 10 years by then – 5 years better than at current when they can apply for release on age grounds (not technically parole) at 65.

HB 1377

If HB 1377 were to pass into legislation, Lifers (other than those subject to Life Without Parole) would be eligible to seek parole after 20 years.

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SB 2123

If SB 2123 were passed as it stands, then the position of Lifers is left much more unclear. SB 2123 as currently drafted leaves no specific arrangement or timescale for Lifers to get parole. What is left is that violent offenders can apply for parole after serving 50 % of their sentence and non-violent offenders after 25%. Some commentators argue that this means that Lifers would be excluded, since 50% of a Life sentence cannot be calculated. We do not believe this is correct, although the issue might need to be tested in Court. The following are significant.

1. The Bill includes a list of exclusions (1a-1d); lifers, (other than Life without Parole ) are NOT in the excluded list – if the intention were to exclude them, we would have expected them to be listed along with the others.
2. We believe that it would be possible for the court to set a precedent for calculating 50% of a Life Sentence, after which Lifers could seek parole. One approach would be to base a 50% of sentence calculation on average life expectancy, (which in Mississippi is a shameful 71 years – lowest in the USA and the same as Bangladesh!)  Calculating on this basis the sum would be “71 minus age at conviction” divided by 2 . For someone convicted at 18, this would mean they were eligible after 26.5 years, ie when they were 44.5 years old. For an offender convicted at 18, This would result in a 20 year improvement on the current situation.  (This advantage would only impact on those convicted when younger than 48 years old – those convicted when older would hit the geriatric parole provisions sooner than this.)
3. A much more optimistic reading of the Bill, which some have favoured, (given that 1e cannot be calculated for lifers so maybe can just be discounted for them(?)), would be to revert the entire situation back just to Clause 1, which would give them parole access after 10 years. Although we would certainly welcome this (!) we doubt that a court would uphold this, not least because it would mean that someone with, say, life for murder, would be parole eligible in half the time that it took for someone who got 40 years for some non-fatal violent offense.  It is difficult to believe that a court would interpret that as being the intention of the legislation.

Kids With 47 Years has lobbied the sponsors of SB 2123 to continue working to achieve a more definitively positive outcome for Lifers, if that this can be done without jeopardising the entire bill. 

If SB 2123 as currently drafted were to be passed, (with HB 1377 not passed) we will welcome its general impact on the parole situation, and continue our work to achieve parole access for lifers. This could include

• crowdfunding or working with other organisations to to take appropriate as cases through Court
• lobbying MDOC for the most favorable interpretation of the legislation in operation.

What happens next?

For either Bill to pass into law, it would now also need to be passed in the other chamber.

In addition, the insertion of Reverse Repealers mean that the bills would need to go through a further “conference” stage during which the bill would be further discussed. The Reverse Repealer might then be removed by amendment, and the legislation might need to go back to committees/the floor for debate; either bill would then need Governor’s approval.

We will be updating this post as things develop.

Not this year?

If the current legislation is not passed into law, we will continue to campaign.  These proposals have already got further than any similar proposals in the last 25 years – indicating an incredible sea change in relation to criminal justice reform, and we can build on this next year, and if necessary in years beyond that.