58 International The Economist July 10th 2021
the south; that money spent locking peo
ple up for decades is wasted; and that re
demption is possible. In the group’s first
video Billy Ebarb, a white man, recalls that
in 1985 his brother was killed trying to
break up a fight. The killer was Charles Ma
nuel, a black man who had committed no
other crimes. With Mr Ebarb’s support he
was freed after 35 years. Mr Manuel appears
on screen and places his hand on his vic
tim’s brother’s shoulder.
Some campaigners focus on the extra
ordinary number of elderly prisoners in
America. In 2019 federal and state prisons
housed 180,000 people aged 55 and older:
13% of the total, up from 3% in 1999. Keep
ing old people locked up is expensive. Tina
Maschi of Fordham University in New York
calculates that they cost $68,000 a year,
three times as much as young inmates.
And they would pose little risk if freed.
Of 199 prisoners aged 51 to 85 released from
jails in Maryland since 2012 just five had re
turned by 2020 for committing a crime or
violating parole conditions. Among the
general population of freed prisoners, 40%
were back in the pen within three years.
Politicians and courts across America
are chipping away at life sentences. Legis
lators in 25 states have introduced “sec
ondlook” bills to reconsider long sentenc
es. Washington’s legislature, inspired by
the George Floyd protests, passed a law in
April to resentence more than 100 people
jailed under the state’s threestrikes law.
Nearly 40% of those sentenced under the
law are black, ten times their share of the
state’s population. That same month Mary
land banned life sentences for juveniles.
Since 2012 the number of lifers in America
jailed for crimes they committed as chil
dren has dropped by 45%, to around 1,500.
John Fetterman, Pennsylvania’s lieu
tenantgovernor, has made reducing incar
ceration a centrepiece of his campaign to
win a seat in the United States Senate. He
wants an end to mandatory life sentences
without parole for seconddegree murder,
one reason why Pennsylvania has Ame
rica’s secondlargest population of lifers.
He is taking a risk. “With every person I try
to get released, I’m writing my next attack
ad,” he says.World war free
Some campaigners use the courts to curb
life sentences. A clutch of treaties prohibit
governments from inflicting degrading
treatment on anyone, including prisoners.
In 2013 the European Court of Human
Rights (echr) ruled that offenders have at
the outset of their sentences a right to hope
for eventual release. The International
Criminal Court says after 25 years sentenc
es must be reviewed. “Twentyfive years is
increasingly established in international
law as the maximum minimum,” says Dirk
van Zyl Smit, Ms Appleton’s coauthor.Scepticism about life sentences is
spreading. In 2016 Zimbabwe’s constitu
tional court ruled that life sentences with
out parole are cruel, citing the echr’s deci
sion. Belize’s court of appeal ruled uncon
stitutional such sentences for murder in
the same year. Canada’s Supreme Court is
due to decide whether a court in Quebec
was right to reduce the amount of time that
Alexandre Bissonnette, sentenced to life
for killing six people at an Islamic cultural
centre in 2017, will have to wait for parole
from 40 years to 25.
Malawi may become a model for coun
tries seeking to avoid simply replacing
capital punishment with life sentences.
After its High Court struck down the death
penalty as mandatory for murder in 2007,
the top appeal court ordered that more
than 150 condemned prisoners be resen
tenced. (In practice, all were serving life,
since Malawi has executed no one since
1992.) It directed judges to consider the cir
cumstances of each to determine whether
the death penalty should be upheld, con
verted to life or to a shorter sentence.
That kickstarted the Kafantayeni Pro
ject, named for the case that overturned
the punishment. Starting in February 2015,
the High Court held hearings in Zomba,
near the country’s only maximumsecurity
jail. In cases where documents had gone
missing or been eaten by termites, para
legals, law students and volunteers inter
viewed witnesses in search of mitigation.
Of the prisoners who have been resen
tenced, one was handed a life sentence but
more than 140 have been released after
completing shorter prison terms. To pre
pare the way, workers on the project
fanned out to villages to explain what the
excons had endured and to find out
whether they would be welcomed back.
One freed prisoner was Francisco
James, who in 1995 was condemned to
death for killing a man who was brawling
with Mr James’s brother. Immured for 20years in Zomba prison, built to hold 800 in
mates but stuffed with 2,000, he wondered
whether disease would carry out the sen
tence that the hangman would not. He had
“given up on ever getting out of prison
alive,” he says. The judges decided that the
murder charge was inappropriate, in part
because the victim was in poor health, and
freed Mr James in October 2015.
He returned to Mkwinya village in cen
tral Malawi to find that his father and
brother had died, his wife had remarried
and his daughter was a mother. The village
chief gave Mr James a plot of land, where
he grows maize, soyabeans and ground
nuts. By Malawian standards he is prosper
ous, with a motorcycle, an oxcart and two
houses roofed with iron sheeting. He has
fathered three more children. In April this
year Malawi’s top court ruled the death
penalty itself unconstitutional.
Its model is being watched in Kenya,
where far more prisoners—some 4,800—
may be entitled to resentencing under a
Supreme Court finding in 2017 that the
mandatory death penalty is unconstitu
tional. (In practice Kenya stopped carrying
out executions in 1987.) Most of the con
demned prisoners were in for “robbery
with violence”. In 2019 a governmentap
pointed taskforce recommended investi
gations like those undertaken in Malawi.
To speed things up, it proposed negotia
tions on new sentences between prosecu
tors and lawyers akin to plea bargains.
It is unclear how many have so far been
resentenced. On July 6th this year the pro
cess hit a snag. The Supreme Court said
that the mandatorydeathpenalty ruling
applied only to murderers, not to the ma
jority convicted of lesser crimes. It is now
uncertain if and when condemned Kenyan
robbers will follow Malawians’ path to
freedom, says Virginia Nelder, a member
of the taskforce.
When liberated lifers are reformed
muggers or smalltime drugdealers, few
will object. “History is moving towards less
incarceration,” concedes Mr Lampert. Set
ting free those who have committed the
worst crimes is harder to justify. Kenya’s
reforming taskforce recommended keep
ing life sentences without parole for them.
After his daughter Tijana was murdered
Igor Juric attended trials of other abusers
and came to the conclusion that, “We, as a
society, have to do something to remove
killers from our social circles, and keep
them far away from children.” “Protection
of our children” matters more than “con
ventions and laws of countries that I don't
even live in,” he continues.
That view is understandable. But any
one who meets Mr Clemons will find it
hard to fear all ageing lifers or fail to con
sider their humanity. He reckonshecan
succeed as a baker “in the free world”.At62,
he says, “I’m gonna work my way up.”n