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Depraved Indifference and Second Look Sentencing


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(photo: Michael Appleton/Mayor's Office)


Valerie Gaiter died in Bedford Hills Correctional Facility last week. She had been in prison longer than any woman in New York State.  She had cancer. She was 61 and had served 40 years of a 50-years-to-life sentence for her conviction of the murder of two elderly people in Brooklyn in 1979. She was eligible to see the Parole Board in 2029 when she would have been 71.

Edgardo Gonzalez is in Fishkill Correctional Facility. He is 75. He has chronic liver failure, hepatitis, and other ailments. He has lost almost 40 pounds in the last four months. He has served 36 years of a 50-years-to-life sentence for his conviction of the murder of two people in a Brooklyn social club in 1983. He will be eligible to see the Parole Board in 2034 when he would be 90 years old.  

To be perfectly clear, Ms. Gaiter and Mr. Gonzalez were convicted of brutal crimes. Lives were taken. Families were devastated. The harm caused is incalculable. 

And yet, how much time must someone serve for a violent crime? This question must be confronted to redress the crisis of mass incarceration, since the vast majority of the 2.3 million people in United States jails and prisons were not convicted of so-called low-level, non-violent offenses. 

As long as people are defined as “violent criminals” it becomes easy to banish them forever and talk about the crisis of mass incarceration but do nothing to end it. Those serving life sentences are more than the crimes they committed. It is time to interrogate whether those who promoted get tough on crime policies continue to perpetrate their own violence by ensuring that older, reformed offenders die in prison.

Mr. Gonzalez has a stellar institutional record and extensive family support. He presents no threat to public safety. He’s received only one disciplinary ticket in 36 years and that was for having an untidy cell (a photograph of his mother taped to the wall). My students submitted a clemency application on his behalf two years ago but have yet to receive any response.  

I met with Mr. Gonzalez last week at the Regional Medical Unit at Fishkill prison. Not that long ago, he was a robust former boxer in excellent health. He once fought future Olympic gold medalist Howard Davis in Madison Square Garden. Pictures of that match showing a chiseled athlete in the prime of his career were part of his clemency application. Now his health is in rapid decline. He is confined to a wheelchair and struggles to breathe. His voice is barely a whisper.

Mr. Gonzalez asked what the law meant by “depraved indifference.” In 1983, he was inside a social club when a melee broke out. Mr. Gonzalez was shot through the stomach, but also shot and killed his assailant. For that, he was convicted of intentional murder. Another shot fired by Mr. Gonzalez killed a woman standing nearby. For that, he was convicted of what the law calls depraved indifference murder. 

As we discussed the law regarding depraved indifference murder, it was impossible not to think about how the state treated Valerie Gaiter, Edgardo Gonzalez, and the thousands of others serving death by incarceration sentences. 

The law says you are guilty of depraved indifference murder if you engage in conduct that creates a grave risk of death and are aware of and consciously disregard that risk. We know the grave risk, indeed the likelihood, of death in prison for people serving life sentences. According to a report by New York’s Department of Corrections, the average age of death for those who died in state prison of natural causes was 57. And yet, that risk is regularly disregarded as sentences like those imposed on Valerie Gaiter and Edgardo Gonzalez are often sought by prosecutors and imposed by judges.

The courts further define a depraved indifference state of mind as exhibiting an utter disregard for the value of human life; simply not caring whether grievous harm will result. Depraved indifference is said to reflect conduct that is wanton, deficient in a moral sense of concern, devoid of regard for the lives of others. 

It is wanton, morally deficient and utterly devoid of regard for the value of human life to preclude the potential for redemption; to ignore all those who have long since aged out of any threat of future crime, especially those who are living out their final days in prison medical units. 

We must take steps to ensure that the state no longer acts with depravity toward those in prison.  

Sentencing laws must be reformed to bring the United States in line with other industrialized nations where a 20-year maximum is the norm. Prosecutors and judges must stop the common practice of seeking and imposing maximum sentences on those who exercise their constitutional right to a trial.

But the most far-reaching fix is the one proposed by the American Law Institute’s revisions to the venerable Model Penal Code – second look sentencing. 

The Code urges state legislatures to enact a “second look” provision; to create a mechanism to reexamine a person’s sentence after 15 years no matter the crime of conviction or the original sentence. It is not a “get out of jail free” card. Release must be earned. It must be evident that the person is not a threat to public safety and there must be evidence of rehabilitation; proof that the person has changed, come to grips with, accepts and acknowledges their actions and the harm they caused. 

The Code recognizes that a sentence once imposed is not just, fair, and appropriate in perpetuity. Second-look mechanisms are meant to recognize the possibility of transformation and allow for mid-course correction if warranted by changed circumstances -- major changes in the offender, the crime victim, or the community. It is consistent with the growth of restorative justice that eschews punishment paradigm of the last several decades and is also a way to confront the systemic racism revealed in arrest and sentencing disparities.

Such a bill was introduced in the last New York legislative session regarding parole eligibility for people who are least 55-years-old and have served at least 15 years. There will be costs associated with establishing such second-look processes, but money will ultimately be saved as more people are sent home from prison. Most importantly, basic human decency should compel a different result for Valerie Gaiter and the many others facing the prospect of dying behind bars.  

In the meantime, we must use the limited procedures available to ensure a measure of dignity to those at risk of perishing in prison. New York does have a mechanism in place for compassionate release for those with terminal illness. However, according to a study by the Vera Institute of Justice, there were 476 requests for compassionate release from 2013-17, but only 72 people were ultimately released. On the other hand, 143 of those medical parole applicants died in custody, demonstrating why other, more comprehensive, solutions are necessary.

Edgardo Gonzalez was recently certified by corrections medical personnel as one of the few people eligible for medical parole. He had his medical parole interview before the Parole Board last week. To deny him parole would be the height of depraved indifference.

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Steven Zeidman is a professor of law at CUNY School of Law and a former Public Defender. On Twitter @SteveZeidman.

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