By Connor Bailey
The life without parole system is broken and destructive. At this moment, over 3,200 of those serving sentences of life without parole (LWOP), are doing so because of non-violent crimes (Throwing). Of these, 79% are drug related offenses, and 21% are theft related (NAACP). Some choice stories of those sentenced to LWOP include: a man who stole the company car for a personal trip to his out-of-state family, a twenty-something who stole a jacket worth $157 from a department store, and a woman coerced by her partner into being a drug mule after he threatened her children. These are only some examples; there are many, many more. The ACLU has done a great service in surveying US prisoners and compiling the stories of LWOP prisoners. They are simultaneously disheartening and instructive.
As the support for the death penalty has eroded, jurisdictions have increasingly turned to LWOP. Now, of the 1.6 million people in US prisons, over 41,000 are serving sentences of LWOP (Throwing). Between 1990 and 2013 general sentence lengths have increased by 40% and between 1992 and 2009 there was a 300% increase in the number of LWOP prisoners (Burns). Often lauded as a just alternative to the death penalty, the dramatically increased use of LWOP in recent years means that we need to take a harder look at this penultimate punishment. Traditionally, the four major criteria for the effectiveness of a penal system are: general deterrence, punishment, specific deterrence, and rehabilitation (Tutro, Roberson). LWOP fails on all four of these criteria.
For as long as there have been calls for the end of the death penalty there have been very well-intentioned people arguing for LWOP as an appropriate alternative. And even though many anti-death penalty organizations see LWOP as a deeply flawed practice, they withhold their critiques. Lily Hughes, national director for the Campaign to End the Death Penalty, critiques other organizations working to end the death penalty, “We don’t view it as a just alternative. Anti-death penalty campaigners need to do more to address the way that the whole criminal justice system operates.“(Burns). Though both punishments are equally ineffective, and both constitute complete disavowals of the prisoner’s freedom, the assumption that one is better than the other continues. The NAACP has referred to LWOP as “death in prison” (NAACP) and the ACLU has called it “a living death” (More). The moral abhorrence elicited by the spectacle of a public execution is the only major difference between LWOP and the death penalty. Under almost all criteria for an effective punishment, LWOP and the death penalty are virtually identical.
Another problem with “life is better than death”: though we provide a number of legal protections to those on death row to avoid (as much as possible) a miscarriage in justice, those serving LWOP terms do not get the same special attention (Tennessee, Simmons). Because of greater legal protection, a small but significant number of death row prisoners are released after challenging their initial convictions. While technically it is possible for a prisoner serving an LWOP sentence to obtain a retrial or appeal, LWOP prisoners are simply not a priority and do not receive the necessary attention or resources to make that a true possibility (Burns, Simon). The bizarre result is that LWOP prisoners are more likely to die in prison than people actually sentenced to a state-sanctioned execution. For this reason, when death row inmates are surveyed, they almost wholly oppose bans on the death penalty (Tutro, Burns). When even the people who are awaiting our most severe punishment do not want to be sentenced to LWOP, something is terribly, terribly wrong.
Ideally, general deterrence is a very efficient social control mechanism; by detaining a relatively small population, a society can stop would-be-criminals from committing crimes. Unfortunately, the ideal is hardly achieved. For general deterrence to occur, three different things must be true. First, potential criminals must be aware of the law. Second, they must rationally calculate the consequences. And third, they must decide that this cost outweighs the potential benefit (Roberson). It is very hard to satisfy all three of these requirements, and LWOP is largely a failure at the very first hurdle. Because the administration of LWOP differs greatly between jurisdictions, most people do not know when a particular crime will carry the consequence of LWOP. When would-be offenders are informed of the potential consequences, it is usually because they have already committed a crime and are informed of habitual offender or “three-strikes” style laws. This population largely fails to jump the final two hurdles because most repeat criminal offenses are directly related to drugs, alcohol, or mental illness (Roberson), all of which deny the presence of clear rational thought. So, though general deterrence is not completely impossible, when it comes to LWOP, the reality is so far removed from the ideal that its power is minimal. Thus, on general deterrence, the first of four criteria, LWOP is almost entirely ineffective and unjustifiable.
The most commonly cited reason for why we need LWOP is the punishment or “just dessert” criterion. The American Law Institute has amended its Model Penal Code to make it the primary reason for sentencing, and in Spaziano v. Florida the Supreme Court identified “retributionism” as the “primary justification” for extreme punishments like LWOP and the death penalty (Roberson). The reality is that many LWOP sentences are grossly disproportionate to the crimes they are meant to be punishing. According to The Sentencing Project, 58% of all LWOP prisoners are held in five states: Florida, Pennsylvania, Louisiana, California and Michigan (Reuters). This is the result of habitual offender laws that mandate the use of LWOP. It is mainly for this reason that injustices continue to be commonplace. Some of the most convincing critics of the increasingly long terms and mandatory sentencing are the judges who are forced to administer them. Mark Bennett is a federal judge in Iowa, writing in Nation Magazine, he says, “Northwest Iowa is one of the most conservative regions in the country, and these are people who, for the most part, think judges are too soft on crime. Yet, for all the times I’ve asked jurors after a drug conviction what they think a fair sentence would be, never has one given a figure even close to the mandatory minimum. It is always far lower” (Bennett). Mandatory minimums and similar laws bind the hands of these judges and deprive them of the discretion for which they are paid (Roberson, Gleissen). Fueled by the thought that the system was not sufficiently punishing, the demand to be “tough on crime” has deprived us of the judgment of our judges and has unfairly made thousands of offenders permanent prisoners.
The question of punishment is very closely linked to the question of specific deterrence. “Specific deterrence”—a.k.a. incapacitation, detention, or separation—means stopping the specific individual who is detained from committing further crimes (Burns). Under this criterion the justification for LWOP is that the risk a released offender will commit a dangerous offense is great enough to justify permanent detention. The problem is that a determinate sentence, one decided at conviction, is extraordinarily fraught. It is generally very hard to know if someone will commit another crime, and it is even harder to know how serious of a crime that person is likely to commit (Roberson, Gleissner, Tutro). An indeterminate sentence that allows a parole board to look at the behavioral history of an inmate to determine if they still constitute a danger to society is much more effective. Generally, LWOP is extraordinarily excessive because “offending rates drop dramatically after the age of twenty” (Robinson). For who commit the most heinous acts, only 1% of those convicted of murder ever commit another murder (Tutro). Though LWOP is guaranteed 100% effective in terms of specific deterrence, there is only a tiny marginal benefit to a LWOP sentence. And that benefit comes with huge costs.
The final criterion for evaluating punishment is rehabilitation. Does the administration of a punishment resocialize the offender? Does it make him spurn the set of society’s disallowed behaviors and become a contributing member of society? In this regard, LWOP and the death penalty are indistinguishable. Because they mandate no release, both punishments reject any possibility that offenders could possibly become contributing members of society. As shown above, the increasing prevalence of LWOP has meant that even relatively mild deviance may elicit extreme punishment. For many, an LWOP sentence to a thief is reprehensible. Does the person who stole a jacket or car really deserve the same punishment as the murderer? Most criminals have a career that spans their teens and twenties, but become more law-abiding as they continue to age (Robinson). Knowing this, LWOP seems to be a dramatically overzealous and callous punishment. A relatively short amount of time and aging will do the work of rehabilitation for many offenders. But, it cannot do all of the work. Many of the crimes of those that receive LWOP, especially in the case of habitual offenders, are connected to problems with drugs, alcohol or mental illness. These kinds of offenders need access to intensive psychological and drug abuse services (Bennett, Burns). They do not need to be detained indefinitely. Speaking of these kinds of offenders, drug addicts and the mentally ill, Judge Bennett, says, “very few need more than two or three years behind bars” (Bennett). This not an insignificant amount of time, but is far from the unending detention prescribed by LWOP.
Beyond the individual injustices, LWOP shifts the entire emphasis of corrections. In 2012, the California prison system’s inmate population was 20% LWOP (More). As the proportion of LWOP prisoners increases, the system necessarily shifts resources away from rehabilitation and into detention (Craig). Prison overcrowding, a chronic problem in many states, is a direct result of the shift from rehabilitation to detention that accompanied the war on drugs (Tutro, Roberson). This shift dramatically changed the prison environment, and made it much more dangerous for both prisoners and guards. The increasing reliance on punishment increases the overcrowding and associated problems, which in turn thwart the possibility of effective rehabilitation efforts and necessitate continued investment in punishment as a control mechanism (Craig). This cycle, which only causes increasing damage to the justice system, sustains itself on the lives and bodies of excessively punished prisoners. All of this has the effect of depriving the remaining prisoners—those who will eventually be released into our communities—of programs that would more effectively facilitate their rehabilitation.
LWOP fails all four of the traditional criterion on which we judge the effectiveness of our punishments. It is time that we realize this punishment is ineffective. We must open our eyes to the unnecessary destruction it brings to the lives of those who receive it, and the system that apportions it. The first option is to read the calls for change, maybe even read more stories of people who are currently serving excessive LWOP sentences, but still do nothing. It’s so easy to do your due diligence and then succumb to the numbing effects of these kinds of injustices. “There are so many things to be upset about” is a rationalization as common as it is insidious. But these are people’s lives. These are men and women who will never again be able to take a free breath of air. These are families broken forever. Siblings, sons, daughters, fathers and mothers, never again eating dinner together. And then there’s the second option. The second option is to get angry. No matter their mistakes, these people are part of our society. They went to our schools, prayed at our churches, and saw movies at our theatres. They walked our streets and voted in our elections. They are being locked away forever with no chance at redemption. This is happening in our name. We should be angry about that.
Bennett, Mark W., Judge. “How Mandatory Minimums Forced Me to Send More Than 1,000 Nonviolent Drug Offenders to Federal Prison.” Editorial. TheNation.com. The Nation Magazine, 25 Oct. 2012. Web. 27 Mar. 2015. http://www.thenation.com/article/170815/how-mandatory-minimums-forced-me-send-more-1000-nonviolent-drug-offenders-federal-pri
Burns, Rebecca. “Is Life Without Parole Any Better Than The Death Penalty.” InTheseTimes. InTheseTimes.com, 22 Mar. 2013. Web. 12 Mar. 2015. http://inthesetimes.com/article/14773/death_penalty_abolition_life_without_parole.
“Craig Haney: Solitary Confinement is a ‘Tried-and-True’ Torture Device.” PBS.org. Frontline, 22 Apr. 2014. Web. 7 Mar. 2015. http://www.pbs.org/wgbh/pages/frontline/criminal-justice/locked-up-in-america/craig-haney-solitary-confinement-is-a-tried-and-true-torture-device/.
Gleissner, John Dewar, Dr. “Some Reasons Why Incarceration Does Not Work Very Well.” Corrections.com. Correcttions.com, 28 Feb. 2011. Web. 12 Mar. 2015. http://www.corrections.com/news/article/27870-some-reasons-why-incarceration-does-not-work-very-well.
“More Than 3,200 Serving Life Without Parole for Nonviolent Offenses, Finds ACLU.” ACLU.com. American Civil Liberties Union, 13 Nov. 2013. Web. 11 Mar. 2015. https://www.aclu.org/criminal-law-reform/more-3200-serving-life-without-parole-nonviolent-offenses-finds-aclu.
“NAACP Statement on Supreme Court Ruling on Life Without Parole for Juvenile Offenders.” NAACP.org. NAACP, 25 June 2012. Web. 12 Mar. 2015. http://www.naacp.org/press/entry/naacp-statement-on-supreme-court-ruling-on-life-without-parole-for-juvenile
Reutors. “Number of US Prisoners in for Life Climbs to a New High.” Newsmax.com. Newsmax, 18 Sept. 2013. Web. 12 Mar. 2015. http://www.newsmax.com/US/prison-life-terms/2013/09/18/id/526457/.
Robinson, Paul H., ‘Life Without Parole’ Under Modern Theories of Punishment (2012). Life Without Parole: America’s New Death Penalty? (Charles J. Ogletree, Jr. & Austin Sarat eds. New York University Press 2012).; U of Penn Law School, Public Law Research Paper No. 10-34. Available at SSRN: http://ssrn.com/abstract=1695542
Simon, Jonathan. “Why death-row inmates oppose life without parole.” TheBerkeleyBlog. UC Berkeley Regants, 25 September,2012. Web. 12 Mar. 2015. http://blogs.berkeley.edu/2012/09/25/why-death-row-inmates-oppose-life-without-parole/
“Throwing Away the Key: The Expansion of Life Without Parole Sentences in the United States.” Federal Sentencing Reporter 23.10 (2010). SetencingProject.org. The Sentencing Project. Web. 12 Mar. 2015. http://sentencingproject.org/doc/publications/inc_federalsentencingreporter.pdf
Tutro, Joseph. “Eliminating the effective death sentence of life without parole.” The Forum 1.1 (2014): 11-27. Eliminating the effective death sentence of life without parole. Web. 10 Mar. 2015. http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1001&context=forum.