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Life without parole has been shown to be unjust

Last week I wrote about the plight of Pamela Smart, who in 1991, at the age of 22, was found guilty of conspiracy to murder her husband. Gregg Smart was shot dead by his wife’s 16-year-old lover and another teenager. Smart was sentenced to life in prison with no possibility of parole.

To this day Smart, now 51, expresses deep remorse for her affair with Billy Flynn but steadfastly maintains she did not plot with him to murder her newlywed husband.

Over the last three decades advances in both neuroscience and sentencing reform underscore what a life term with no parole means for a young person – what the U.S. Supreme Court called “cruel and unusual punishment.” Because science has proven that those under 25 don’t have fully developed brains, especially the part that guides rational thinking, you don’t often see life without parole (LWOP) sentences handed out to that age group these days. And there is a trend in prosecutor’s and governor’s offices to take a second look at these older LWOP cases with an eye toward granting parole to truly rehabilitated convicts.

Back in the early 1990s Smart worked as a media liaison for the public schools. She was described as accomplished in academics but socially immature. At trial the prosecution painted her as a master manipulator who convinced not only her teenage lover but several of his friends to kill for her.

Despite massive pretrial publicity, Judge Douglas Gray denied a change of venue motion. He refused to sequester the jury from the obvious and negative All-Smart-All-The-Time media atmosphere. He seemed to pooh-pooh allegations of juror misconduct, including a report that during trial a juror told bar patrons the jury would definitely find Smart guilty. And when the killer Flynn’s incriminating jailhouse letters surfaced during the trial, Judge Gray would not let the defense attorney re-call him to the stand to question him. What did Flynn mean when he wrote about his controversial plea agreement with the prosecutor: “There (sic) afraid I will get on the stand and say she is innocent. I dread that day more than anything. I hate myself for having to do this.”

Pamela Smart answers questions from the defense Monday, March 18, 1991, in her murder conspiracy trial in Rockingham County Superior Court in Exeter, N.H. (AP Photo/Jon Pierre Lasseigne)

Had he and his bad-boy friends made up Smart’s involvement to get a reduced sentence and avoid the death penalty?

Many jurors said they voted guilty after hearing police surveillance tapes of Smart and her 15-year-old intern, Cecelia Pierce. Smart was heard on the scratchy and poorly recorded tapes making incriminating statements and urging Pierce to lie to police.

Smart testified at trial – and repeated to me during prison interviews – that she was only pretending to know about the murder plot so Pierce would reveal what she knew since the teen was friendly with both Flynn and his main accomplice, Pete Randall. Pierce also seemed to have information about the crime no one else had. A defense witness and his girlfriend both backed up Smart’s claim that she was only play-acting during conversations with Pierce.

The prosecution did not take the usual step of authenticating the wiretap tapes to prove police hadn’t selectively edited them. They sent the recordings to a former Watergate tapes expert to enhance the sound, but he was not asked to create the transcript the jury was given to help them follow along with the tapes. Just who typed up those words from the oh-so-hard-to-hear tapes has remained a mystery until recently.

Prosecutor Paul Maggiotto now admits it was “some secretary in the office” and not a certified transcriber. Team Smart maintains the transcripts were not accurate and tainted by confusion over who was speaking at any given time. They ask, how could someone put words on a page while listening to an oftentimes inaudible tape recording?

There were other problems at trial that I believe were unfair to Smart, but I recount this much here because by today’s enlightened judicial standards her many appeals might very well have been heard instead of routinely rejected.

Our judicial system is certainly not infallible, but justice and fairness must always be its foundation. As the system has played out in this case the confessed murderers, Flynn and Randall, were released from prison in 2015. Smart has served 28 years and is set to die at the Bedford, N.Y., maximum-security prison where she is held.

Smart has been an exemplary prisoner. She has earned two master’s degrees and is working on her doctorate in divinity. Over the years she has consistently taught and ministered to her fellow inmates. Her dream is to work for the United Nations as an ambassador for either HIV/AIDS education or prison reform since the United States is the only country in the world that condemns its young people to die in prison.

Smart’s best hope for freedom lies in her recently filed petition to the governor of New Hampshire. She’s asking for the chance to go before a parole board some day or for commutation to time served. Governors in at least nine states have given such reprieves. Smart is hoping Gov. Chris Sununu does the same for her.; e-mail to


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