Bryan Stevenson, Second Looks, and Lasting Reverberations

A few years ago, I had the great pleasure of attending Haverford College’s commencement exercises at which Bryan Stevenson, one of the most renowned civil rights litigators and leaders of our time, received an honorary degree.  Stevenson is the founder and Executive Director of the Equal Justice Initiative in Montgomery, Alabama.  He led the litigation that eliminated mandatory life imprisonment for those under 18 years old, created the National Memorial for Peace and Justice to commemorate those who were lynched in the South between 1877 and 1950, and is the author of the acclaimed book, Just Mercy: A Story of Justice and Redemption.

In his litigation and in his speeches, including his commencement speeches, Stevenson is like a preacher, telling moving stories of the humanity of victim and perpetrator alike, of his own youth, and of his work for justice.  In a subtle cadence, just a bit less pronounced than an actual preacher, he pushes all of us towards mercy and forgiveness for those who have wronged us and others, and towards remorse, responsibility, reconciliation, and redemption for the wrongs we and others have committed.  His is a call to our better angels.  And he reminds us often that “[e]ach of us is more than the worst thing we’ve ever done.”

Like many, many others, I have been moved by Stevenson’s message.  It’s hard not to be.  And while Stevenson is surely right that we are, indeed, each of us, more that the worst thing we’ve ever done, we – and those we’ve harmed – still always carry in our souls that worst thing.

For those involved in the sentencing process, Stevenson’s work and his proclamation on worst things beg many important sentencing questions, like: whether the sentence for those who are convicted of committing a horrific crime should be driven – partially, mostly, or only – by the harms caused by that crime?  Should such a sentence ever get a “second look?”  If so, when and how much should the original crime and all the harms it gave rise to drive that later decision, and how much should the person’s post-sentence conduct, good works or otherwise, drive any decision to reduce the original sentence?  In other words, in our criminal justice system, how much should that worst thing ever done by someone drive society’s response to it and our search for justice, at an initial sentencing and then later. 

I’ve thought of Stevenson, his teachings, and these questions a lot in the last few months.  Three cases brought all of it starkly and uncomfortably to mind.  They involved brutal and merciless murders.  Each resulted in convictions before federal courts that were upheld repeatedly on appeal.  In each, the convicted person was sentenced to life imprisonment.  And in each, the sentences were given a “second look.”  That’s where the stories diverge.  And that’s where it gets really uncomfortable.

William Calley, Jr.

The New York Times and the Washington Post reported late last month that William Calley, Jr., died on April 28^th in Gainesville, Florida.  Calley was born on June 8, 1943, in South Florida, the only son and fourth child of a Miami businessman.  When he was young, his family moved often, and he attended several different high schools.  Calley later dropped out of junior college and worked odd jobs until he joined the Army in 1966.

Calley graduated from Officers’ Candidate School at Fort Benning, Georgia, where he would later be tried for murder.  He was a 24-year-old Army lieutenant in Vietnam in 1968, when he led his platoon into My Lai, a small village on the east coast of South Vietnam.  There, the American forces, who expected to confront the Vietcong enemy, met no resistance, just unarmed civilians.  Calley and the other soldiers killed hundreds of these civilians, raped girls and women, and burned the village to the ground.  Some of the victims were bayoneted to death.  Families were herded into bomb shelters and killed with hand grenades.  Other civilians were slaughtered in a drainage ditch.  The incident is considered one of the most dreadful atrocities of the Vietnam War.  As the New York Times noted, it “still reverberates as one of the worst outrages of a brutal and divisive war.”

In 1969, Calley was charged in a military tribunal with personally killing 102 civilians.  At trial in 1971, he expressed no remorse, insisting that he was following orders to kill all the villagers.  While some of Calley’s men refused to testify, others described the horrific events in gruesome detail.  Calley was convicted by a jury of premeditated murder of “not less than” 22 Vietnamese.  The jury then reconvened and sentenced him to life imprisonment “at hard labor.”  No one else – in the platoon or in the command structure above it – was ever convicted for the crimes.

Leonard Peltier

Leonard Peltier was born on September 12, 1944, on the Turtle Mountain Indian Reservation in North Dakota.  He attended an Indian boarding school run by the United States Government’s Bureau of National Affairs that was designed to assimilate Indian children into non-native American culture.  In the 1960s, Peltier moved to Seattle, where he became active in Native American rights and later joined the American Indian Movement (AIM).  He has now been in federal prison for almost 50 years.

In 1975, as part of AIM, Peltier was on the Pine Ridge Indian Reservation in South Dakota.  There, on June 26, 1975, FBI Special Agents Jack Coler and Ronald Williams were searching for a fugitive when they came under fire from a truck carrying several people.  The agents were shot multiple times, including fatal shots at close range after they had been wounded.

Three men were eventually arrested in connection with the shooting: Peltier, Robert Robideau, and Darrelle “Dino” Butler, all AIM members who were on the Pine Ridge Reservation at the time of the shootings.  Peltier denied involvement in the shooting and provided alibis.

Peltier was convicted of the murders of Coler and Williams in a federal court in Fargo, North Dakota.  He was sentenced to two consecutive life terms.  Peltier has maintained his innocence ever since his arrest and has alleged government misconduct in the investigation and trial of the case.  Peltier is now 79 years old, in declining health, suffering from several serious illnesses.

Anthony Senter and Joseph Testa

Anthony Senter and Joseph Testa were both born in 1955 and lived as young men in Brooklyn, New York.  Both became involved in organized crime, and the two were later known as the Gemini Twins because of their closeness to one another and the time they spent at the Gemini Lounge, a Gambino family mob hangout in Brooklyn.

In June 1989, Senter and Testa were convicted, along with five others, of racketeering and committing numerous gruesome murders that sometimes included dismemberment.  During their trial in the Southern District of New York, witnesses described the brutal way the Gambino crime family, and Senter and Testa in particular, killed without hesitation or remorse, over and over again, as part of their widespread criminal enterprise that included narcotics trafficking, loan sharking, extortion, and theft.  

At the conclusion of their trial in federal court, Judge Vincent Broderick, who presided over the case, said “[t]he story of systematic murder that has come before the jury in this case is something that I assume was beyond the ken of any member of the jury, and it certainly was beyond my previous ken.”  At the sentencing, Broderick said, the murders committed were “so horrendous and so inhumane and so unbelievable” that “the only sane course” was to send the two men to prison for life.

Second and Subsequent Looks at the Sentences

Senter, Testa, and Peltier became eligible for so-called “mandatory” parole after serving 30 years of their sentences.  While federal parole was abolished in 1987, it still applies to those who committed crimes before then.  The law provides that a person who has served thirty years of a life sentence “shall” be released absent a finding by the Parole Commission that he has either “seriously or frequently violated institutional rules and regulations or that there is a reasonable probability that he will commit any Federal, State, or local crime.”  18 U.S.C. § 4206(d).  While the original crimes can be considered in the parole decision, by statute, they cannot be the basis for denial.

Earlier this year, Senter and Testa were released on parole.  When Senter was granted parole, a Department of Justice spokeswoman told the New York Post that “[t]he [Parole] Commission determined that he had substantially observed the rules of the institution and that his release in June 2024 would not jeopardize the public welfare.”  As you might imagine, family members of their victims and some of those who prosecuted the men were appalled. 

Last month, the same Parole Commission that released Senter and Testa, denied Peltier parole despite Peltier’s age and failing health and a campaign for his release that has over the years included pleas from Members of Congress, Nelson Mandela, the Pope, and many others.  Before the parole hearing, FBI Director Christopher Wray submitted a statement to the Commission calling Peltier a “remorseless killer.”  And after it, Natalie Bara, president of the FBI Agents Association, said in a statement, “[w]e believe this decision upholds justice for our fallen colleagues and their families.”

Calley’s case got its second look quickly after his conviction and sentence.  There was immediate and widespread public outcry over Calley’s conviction and treatment, including from then-Georgia Governor Jimmy Carter, the governors of other states, and from citizens and public officials across the country.  Just days after the sentencing, responding to the outcry, President Nixon ordered Calley released from prison and into home detention pending his appeals.  In subsequent second and third looks, the Fort Benning commanding officer reduced Calley’s sentence to 20 years, and the Secretary of the Army later reduced it further to ten.  The Secretary found that Calley “may have sincerely believed that he was acting in accordance with the orders he had received and that he was not aware of his responsibility to refuse an illegal order.” 

Ultimately, Calley’s convictions were upheld on appeal and he served about three years of house arrest and barracks confinement.  He lived out his life in relative obscurity, and in freedom, in Georgia, until he died earlier this year.

The Movement for Second Looks

Beginning in the 1970s with the California Determinate Sentencing Law, signed by then-Governor Jerry Brown, and continuing with the federal Sentencing Reform Act of 1984 and other state sentencing laws across the country, indeterminate sentencing based on a rehabilitative ideal was abolished.  Indeterminate sentences are adjusted after the initial sentencing based on a person’s readiness to peacefully reenter society.  The idea was a 19^th Century progressive reform intended to focus sentencing on rehabilitation and redemption.  It was replaced in the late 20^th Century in many U.S. jurisdictions with determinate sentencing and truth-in-sentencing, where the sentence imposed is the sentence served, less a small amount of good-conduct time.

With these reforms, prison populations soared as long sentences imposed now meant long sentences served.  In addition, at the time, legislatures were enacting new mandatory minimum sentencing statutes, requiring the imposition of long sentences to more and more offenders.  These legal reforms led to the growth of the U.S. prison population from less than 300,000 in 1975 to over 1.6 million in 2010.

Of course, second looks at imposed sentences were not completely abandoned, even in truth-in-sentencing jurisdictions, as executive clemency authority still authorized reductions in sentence or even pardons.  And many remained eligible for parole under older law or in states that maintained parole.  But sentence reductions and early releases became much less common.

Recently, though, reformers and advocates have been pressing for newly expanded second looks based on a belief that robust second-look resentencing mechanisms are essential to fair and just sentencing systems.  The American Law Institute’s (ALI) 2017 revision of its Model Penal Code calls for all jurisdictions to “authorize a judicial panel or other judicial decisionmaker to hear and rule upon applications for modification of sentence” after 15 years of imprisonment.  And some form of second look legislation has now been enacted in over a dozen states.

The Council on Criminal Justice, not long ago, convened a Task Force on Long Sentences, co-chaired by former Deputy Attorney General Sally Yates, and former Congressman and Chair of the House Oversight Committee Trey Gowdy.  The title of its recently released final report asks a provocative question: how long is long enough?  The task force’s guiding principles include helping “all victims and survivors of crime heal and recover from the impact of violence and trauma” and making “our criminal justice system worthy of the respect of all people.”  Its recommendations include “[p]romot[ing] accountability and rehabilitation through selective second look opportunities.” 

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The passage of time can have a real and sometimes almost magical effect on people impacted by trauma.  Psychologists remind us how we humans both habituate from accustomed and unaccustomed experience and can also adjust from trauma and naturally strong reactions to it in its immediate aftermath.  Healing is real, if not inevitable.  And this is true for individuals and societies.  We learn too from new experiences and adjust our thinking.  Where once we were so angry at Jeffrey Skilling for how he used Enron to commit fraud that only a 24-year sentence would do, years later when his sentence was reduced to 14 years, most of us thought nothing of it.  Where once we were so frightened by crack cocaine that we insisted on sentences far longer than those for powder cocaine, now we have reevaluated.  Where once long prison sentences were widely viewed as vital to public safety, now there is a rethink underway.  As the ALI itself noted, “[i]t would be an error of arrogance and ahistoricism to believe that the criminal codes and sentencing laws of our era have been perfected to reflect only timeless values.”

And I think Bryan Stevenson is right too: that redemption is possible; that forgiveness is possible; that grace is possible, even for horrific crimes of murder.  The families of those murdered at the Mother Emanuel African Methodist Episcopal Church in Charleston, South Carolina, are living examples of the grace he implores us to find.  But what does that grace mean for the sentencing and possible second looks for Dylann Roof, who was convicted of those murders?  On this, I’m not so sure.  Roof may be more than the worst thing he ever did, but that worst thing still “reverberates” for the families of the victims and for our country.  And the crimes of Senter, Testa, Peltier, and Calley still reverberate too.  Finding grace – and shaping our sentencing decisions with it – is a real struggle.  And so too, crafting any just second look policy will be a struggle.

In 2009, Calley offered an apology for what he did at My Lai at an address at a Kiwanis Club meeting.  “There is not a day that goes by that I do not feel remorse for what happened that day in My Lai,” he said. “I feel remorse for the Vietnamese who were killed, for their families, for the American soldiers involved and their families.  I am very sorry.”