Yet, the public believes LOWP is a mercy compared to an execution, as if decades on death row or decades in the regular prison population are much different. Neither changes the fact you will never again be a part of society. Tough-on-crime platforms tout “a life for a life” as the best brand of justice, drawing from Talmudic laws of the Old Testament as if this is how modern criminal justice efforts should shape America. That kind of mentality, paired with mandatory minimums and a lack of judicial discretion, is a large part of why there are 2.3 million people incarcerated in the U.S., the highest rate of imprisonment, per capita, in the world. Though there has been a slow shift with the realization this cannot continue, the system’s policies regarding LWOP remain stagnant.
Death penalty opponents are counting on the end of executions as LWOP become the cheaper, more efficient, morally acceptable punishment. It prevents extensive appeals, is more “humane” and spares innocents from being put to death. As of early 2017, 31 states maintained a death penalty, but barely a third use it with any regularity as a dwindling supply of lethal chemicals and waning public support make carrying out executions a difficult prospect. In a system that has never functioned equitably or justly, defense attorneys are more able to sway juries away from the death penalty at trial because there is more information about its many problems. As capital punishment declines, these benefits are pushed to the fore and LWOP becomes the silent execution, as cruel and unusual as it predecessor (1). Between 2008 and 2013, as death sentences reached an all-time low, LWOP sentences jumped by 18.3%, raising the total to approximately 49, 081 (2).
Life without parole is a conceit held by those who dislike the idea of executing anyone for any reason, yet believe it is okay to warehouse and forget those same prisoners. For others it is their last best hope for rendering an ultimate punishment that forever incapacitates killers. Both groups would rather wash their hands of an ignore the deeper societal problems rooted in crime – racism, poverty and mental illness – maintaining that there are some prisoners who deserve no mercy. At best this is a slippery slope that ignores evidence in favor of emotion. Crime is neither simplistic nor can it be addressed with one-size-fits-all mandatory sentences. In accepting heavy-handed justice that ignores important elements of crime and punishment one supports institutionalized racism, classism, mass incarceration and a prison industrial complex that feeds on human beings.
Prison is not supposed to be a pit into which all of society’s ills are dumped and buried. It should not be a place intended to inflict suffering, but a blueprint for a new beginning bred from the American ideal of a second chance. Like capital punishment, LWOP smothers such ideals. Prosecutors use it as a bargaining tool in potential death penalty cases with great effect, scaring defendants into plea deals that eliminate further appeals. Defense attorneys settle on LWOP as the best chance their client has of avoiding execution, even though the “lesser” of the justice system’s most punitive sentences is the difference between suffering 50 years as an exception to the 13th Amendment, or for 50 minutes as an exception to the 8th.
A Lack of Legal Aid
LWOP obscures the more insidious issues of prosecutorial, judicial, jury and police misconduct, as well as ineffective counsel. Beyond a cursory direct appeal, there is no indigent defense attorney assigned to noncapital cases. Without the in-depth case analyses made by appellate defenders as they are in capital cases, many appealable issues are never discovered or developed, including innocence (3).
The U.S. Supreme Court’s reinstatement of the death penalty in Gregg v. Georgia (1976) (4), significantly increased the cost of capital punishment by requiring a bifurcated trial, legal counsel at every stage of the appellate process, and greater judicial scrutiny. This does not mean an equal amount of resources are spent in defense of the capital suspect, only that death penalty legislation, litigation, prosecution, incarceration, and maybe execution, are very costly. It is the most expensive and ineffective brand of justice in America. If the death penalty as a product was subject to consumer protection laws, “it would be recognized as a lemon” suggests David McCord. “So few of those sentenced to the death penalty actually end up being executed.” (5)
The lack of legal aid in noncapital appeals makes it easy to see why a lower percentage of sentences and convictions are overturned than in capital cases. Where capital appeals seem to go on until the prisoner is put to death, the “legal window” for those serving LWOP is much more limited and time sensitive. Despite the relative “safety” of being alive and in prison for the rest of your life, once that window closes all legal claims die. Between 1973 and 2013, of the 8466 prisoners who were sentenced to death, 42% (3619) had their sentence or conviction reversed. In North Carolina, since 1977, there have been 8 exonerations and 71% of all death sentences were reversed on appeal (6). How much appealable information would have been developed in these capital cases without the aid of a legal team and the “immediate” threat of execution? How many people will die in prison because that same legal scrutiny is not provided in noncapital LWOP cases?
Time and Punishment
One reason a death sentence is cruel and unusual is that it creates an effect known as “death row syndrome”. The length of time, close confinement and threat of death cause extreme mental distress, depression, psychosis, and delusions. It is a form of punishment so torturous it “violates the basic guarantees of fundamental human rights.” (7)
In Soering v. United Kingdom (1989) “the European Court of Human Rights . . . denied extradition of a prisoner from the U.K. to the U.S. because of the likelihood that he man sought would suffer the “death row phenomenon” in the prolonged uncertain wait for his execution, which would violate the European Convention of Human Rights.” (8)
In a more recent case, Federal District Court Judge Cormac Carney held that California’s inability to carry out executions “has rendered the state’s death penalty unconstitutional”, referring to the punishment as “life in prison, with the remote possibility of death.” (9) If the threat of death while in an isolated setting for decades at a time—regardless of whether the execution is carried out – creates debilitating psychosis and is said to be inhumane, how much worse is the oppressive nature of LWOP?
Time in prison is punishing, and should be to an extent, but when that sentence is not balanced by at least a small chance to engage in and demonstrate rehabilitation it is as cruel and unusual as a death sentence. LWOP is already where hope for legal aid dies, but so too is any real incentive to improve. Educational programs, work release and vocational training are barred to prisoners who have no release dates. No parole board will revisit these cases and gubernatorial clemency is unlikely. Nationwide, governors “have denied virtually all clemency requests over the last three decades.” (10)
There is not much help for the prisoner serving LWOP because many of the nonprofits who strive to end the death penalty fully support LWOP as an alternative. For first-degree murder, LWOP has become a forgone conclusion. Even among those who have parole-eligible life sentences for violent and non-violent offenses, parole boards are unwilling to grant parole even when it has been earned through rehabilitative efforts (11). As of 2012, the total number of prisoners serving life and LWOP was 159,520 (12).
Mandatory LWOP, prosecutors, jurors and the public never see defendants for who they might be after 25 or 30 years of incarceration. Instead, THE CRIME becomes this monolithic entity that overshadows and devalues the humanity of the prisoner. No longer the same person who may have committed THE CRIME, the life is cast off and forgotten. Whoever they used to be or struggled to become is lost in an existence identified by a number in a prison file with a description of THE CRIME. There are no incentives or any hope of freedom beyond death. It’s a small wonder the suicide rate among lifers isn’t much higher.
Life without parole is death and must be abolished with capital punishment. A life sentence with parole eligibility after 25 years is certainly harsh, but it gives the offender something to hope for and work toward. In those cases where it is not, parole boards have consistently denied release without the help of public sentiment, political pressure or mandatory sentencing. Release must be a possibility for the person society wants the offender to be, one who can return to the community and contribute in a valuable and redeeming way. This is especially imperative for the nearly 3300 prisoners serving LWOP for nonviolent drug offenses (13), and the nearly 2300 offenders sentenced to LWOP as juveniles (14). Even though the U.S. Supreme Court abolished mandatory LWOP for offenders who were juveniles at the time of the crime, many states are resistant to their potential for release.
There is a seemingly legitimate fear associated with convicted killers receiving parole eligibility on a life sentence. However, even without rehabilitative programs the very nature of confinement, while punitive, induces change. Maybe because of this, parole-eligible lifers who found release after 15-20 years, have the lowest recidivism rate of any reentering citizen.
At the request of the Criminal Justice Policy Coalition, the Massachusetts Parole Board undertook a study of 151 second degree murder lifers who were released under supervision from 2000-2006. Of these parolees 116 (72%) were not reincarcerated. Their average age was 48. Of the 45 who recidivated, it was for technical parole violations such as failing a drug test or minor felony offenses (15).
The proliferation of LWOP began in 1984 in response to the politics of crime and “War on Drugs” rather than any interest in deterrence or evidence from recidivism rates. In the early 1960s nearly all prisoners were eligible for parole and punishment was built on the idea mandatory sentences served no valid purpose. The life sentence was developed as an “indeterminate sentence”, a term of incarceration “based on the premise that in the face of good conduct and evidence of rehabilitative efforts while incarcerated (counseling, drug programming, education and work skills), offenders can and should be released from prison.” (16)
There has long been evidence that lengthy prison sentences, like the death penalty, are not associated with less crime and enhanced safety. Quite the opposite. Public outrage over sensationalized crimes and politics drive the use of excessively punitive prison terms. They also cut funding to rehabilitative programs and education in prison, restrict the flexibility of parole boards, change laws to limit clemency requests, and scare away any electable public official who might even consider helping prisoners serving LWOP. In a heavy-handed inexpert attempt to hold offenders accountable for their crimes the public and politics prevent the criminal justice system from working as anything other than a hole in the ground. Lost in the retributive push to punish is the reason for that accountability: the victims.
Survivors of violent crimes and their families would likely prefer to forget the offender and move on. In their estimation, suffering in prison is a small price to pay since they too suffer the pain, anger and heartache of loss. While the court recognizes this in allowing for victim impact statements during sentencing, this does not go far enough. The offender needs to recognize that loss, and an effective way of doing this without trading a life for a life is through restorative justice.
Authentic restorative justice seeks to repair relationships within the community and hold offenders accountable by helping them to understand the loss of the victim. It helps to define rehabilitation for the offender, making it proximate to those he or she has caused harm. In the Vera Institute of Justice report, Accounting for Justice, Danielle Sared discusses the powerful results of restorative justice programs at work in other western nations and within the fringes of the U.S. criminal justice system:
“By bringing people who commit harm face-to-face with those affected by their actions and giving survivors a central voice in the process, these programs give those who are responsible a chance to acknowledge the impact of their actions and make things as right as possible. As such they do what prisons typically fail to do: they hold people accountable in a meaningful way.” (17)
Though not all victims’ families or violent crime survivors will be interested in restorative justice, this is the kind of accountability people who commit crimes need. While suffering is an integral aspect of criminal justice for the offender, who should do so with the “difficulty of that reckoning and even the fear and pain it may cause,” he or she also deserves an opportunity to repair the damage for which they are responsible.
LWOP does not provide such an opportunity, no is our adversarial legal system designed for such a thing. Prison does not hold offenders accountable—it merely punishes to the extreme extent of the law. Incarceration has become a bludgeon incapable of attending to the needs of victims and their families, or those of offenders. “LWOP”, suggests Danielle Sared, “denies the chance for those offenders to face those whose lives are drastically changed as a result of their decision, to take responsibility for that decision and “do the extraordinarily hard work of answering that pain and becoming someone who will never commit that harm again.” (18)
Alternatives to LWOP
There are viable alternatives to life without parole that worked well prior to 1984 and the inception of mandatory sentencing. Indeterminate sentences of 25 years to life would grant access to a parole board or judicial review, but not necessarily parole. The life would have to convince a body of trained professionals, or a judge in court, at a public hearing that release is warranted and the community can benefit from his or her return. It is at such a hearing a risk assessment of the offender would be conducted, taking into consideration his or her age, progress in restorative justice programming, and likelihood of success in society. Most of Europe, Britain, China and even Pakistan allow for similar reviews of life sentences; it’s time for the U.S. to return to a sentencing policy that works toward reducing mass incarceration and is more humane than the death or LWOP sentences.
If the public is to be engaged in this process it should be in a conversation on sensible reforms forwarded by penal experts. Equal and equitable justice that restores balance to crime in society—not just retribution and incapacitation. The criminal justice system can function better than it has in decades and the current national conversation suggests most people agree on this point. However, if there is to be lasting change in the justice system, like the people it imprisons, there must be an opportunity for everyone to do so.
Restoring Justice to Sentencing
- As the new “death penalty”, LWOP should be treated with comprehensive legal scrutiny at every stage of the appellate process, with indigent defendants appointed appropriate defenders.
- The decision to pursue LWOP should be at the discretion of a prosecutor and not a mandatory sentence.
- As a capital sentence, LWOP should only apply to a jury finding of first degree murder, with a sentencing phase at trial that allows for a mitigated sentence.
- Nonviolent offenders, juveniles, the mentally ill and intellectually disabled, and first-time offenders should be barred, retroactively, from receiving LWOP.
- De-facto life sentences – created with consecutive numbered sentences – should be replaced with parole-eligible life sentences or concurrent sentences.
- Every state should be required to have a parole commission and public hearings.
- Expand the use of judicial discretion in sentencing and end mandatory sentences.
- Allow for judicial or gubernatorial review of LWOP after 25 years, with the review to meet standards similar to a parole hearing.
- Make restorative justice programs a mandatory element of rehabilitation and consideration for parole or judicial/gubernatorial review of a life sentence.
- Restore Pell grants to prisoners and make educational post-secondary degree programs available to those serving parole-eligible life sentences.
- Work toward reducing and ultimately abolishing LWOP.
- C.S. Steiker and J.M Steiker, Courting Death: The Supreme Court and Capital Punishment, Cambridge, MA, Harvard University Press (2016), p. 290
- Hood and Hoyle, Death Penalty, p. 481; as cited in Courting Death, p. 297
- Courting Death, p. 294
- Gregg v. Georgia, 428 U.S. 153 (1976)
- D. McCord, Afterward: If Capital Punishment Were Subject to Consumer Protection Laws, Judicature 89 (2005): p. 305; cited in Courting Death, p. 150
- F.R. Baumgartner, et al., A Statistical Portrait of the Death Penalty, UNC Chapel Hill, Oxford University Press(2016), p. 174, 176
- J. Kaplan, Administering Capital Punishment, University of Florida Law Review 36 (1984): p. 183; cited in Courting Death, p. 150
- Soering v.United Kingdom, 161 Eur.Ct. H.R., 44-45 (1989); cited in Courting Death, p. 348
- Jonesv. Chappell, 31 F. Supp. 3d 1050 (C.D. Cal. 2014)
- A. Nellis, Tinkering with Life: A Look at the Inappropriateness of Life Without Parole as an Alternative to the Death Penalty; University of Miami Law Review, Vol 67 (2013) p. 451
- W. Lomax and S. Kumar, Still Blocking the Exit, ACLU, Maryland Restorative Justice Initiative: www.aclu-md.org (2013)
- G. Haas and L. Fillion, Life Without Parole: A Reconsideration, 2ed. Criminal Justice Policy Coalition Norfolk Lifers Group; www.cipc.org/Life-Without-Parole-A-Reconsideration.pdf (2016) p.37
- ACLU, A Living Death: Life Without Parole for Nonviolent Offenses; (2013) ACLU Foundation; www.aclu.org
- M. Cramer, “Two Life Inmates Plead for Parole”, The Boston Globe, Oct. 27, 2014 at AI; cited in Life Without Parole: A Reconsideration, p. 43
- Life Without Parole: A Reconsideration, 2ed (2016)p. 15
- A. Nellis, Life Goes On: The Historic Rise in Life Sentences in America; The Sentencing Project, Washington, DC (2013), www.sentencingproject.org/doc/publications/inc
- D. Sared, Accounting for Violence: How to Increase Safety and Break Our Failed Reliance on Mass Incarceration, Vera Institute of Justice (2017), www.vera.org/accounting-for-violence, p. 18
- Accounting for Violence, p. 18