Death Penalty Opponents Should Rethink Their Support for Life Without Parole Sentences

Posted in: Criminal Law

As momentum mounts against the death penalty in the United States, opponents of capital punishment, as well as progressive politicians and political leaders, now need to begin to rethink their embrace of life without parole sentences (LWOP).

They should recognize that it is every bit as problematic and damaging as is America’s death penalty.

Support for LWOP has long been an important part of the strategy that death penalty abolitionists have used to drive down support for capital punishment. For example, in an interview with the New York Times during her campaign for the 2020 Democratic presidential nomination, Elizabeth Warren paired her opposition to capital punishment with support for LWOP as the appropriate punishment for serious criminal offenders. As Warren put it, “I think that people who have committed truly heinous crimes should die in prison. I think that is how we give them the maximum, maximum punishment that we can: keep them in prison for all their days.”

Abolitionists have touted it as a viable death penalty alternative, a way of ensuring that dangerous offenders never are released from prison and addressing the concerns about future dangers that frequently lead jurors to impose death sentences.

Some abolitionists have even gone so far as to argue that not allowing juries to consider LWOP in the sentencing phase of capital trials is unconstitutional. They claim that “the absence of an LWOP option causes the death penalty to be imposed as an expedient rather than as the product of a reasoned judgment that death is the appropriate punishment.” They believe that without an LWOP option, jurors are offered a choice with a bias toward death.

There is evidence that this strategy is succeeding at least among members of the public. For the first time in its three decades of polling on support for LWOP versus the death penalty, a 2019 Gallup poll found that a clear majority of the American public believe that life imprisonment with no possibility of parole is a better punishment for murder than is the death penalty.

LWOP is today an available sentence in every state except Alaska

And today, according to a report from the Sentencing Project, more than 200,000 people in the United States are serving life sentences; 50,000 of them have LWOP sentences. This number includes many who received an LWOP sentence for a crime they committed as a juvenile.

Five states (Florida, Pennsylvania, Louisiana, California, and Michigan) use it most frequently. Combined they account for 57% of LWOP sentences.

LWOP has been an occasional feature of American penal practice for almost a century, with some of its earliest uses being found in habitual criminal statutes, but LWOP has, since the middle of the twentieth century, been used regularly as a sentence in murder cases. Even as crime rates have fallen, the LWOP population has increased by more than 20% over the last decade.

As a result, this country now holds more than 40% of the world’s life-sentenced inmate population.

Yet it is not clear that LWOP actually works the way abolitionists assume. Some research raises questions about the wisdom of the abolitionist embrace of LWOP. It reveals that “the enactment of life-without-parole statutes is correlated with a small decrease in the number of death sentences handed down, but it has not led to a significant reduction in execution.” Additional evidence suggests that “the patterns of death sentences in different states mirror each other, regardless of whether or when those states pass life-without-parole statutes.”

One commentator argues that “instead of saving lives, the sanction toughens the sentences of criminals who would not have received the death penalty under the sentencing structure” beforehand. In fact, the most important result of the adoption of LWOP has been to spur life sentences for non-capital crimes. If this is true, death penalty abolitionists “have a responsibility to consider carefully the effects of such laws on noncapital defendants before they engineer or encourage their passage.”

Moreover, LWOP displays the kind of serious faults that are common in death cases as well.

Wrongful convictions, long recognized as a problem in death cases, are also quite prevalent among those receiving LWOP sentences. But unlike in death cases, much less care and effort is devoted to ferreting out and correcting errors in such cases. The late Supreme Court Justice Antonin Scalia correctly observed that “The reality is that any innocent defendant is infinitely better off appealing a death sentence than a sentence of life imprisonment.”

Racial disparity is also a troubling feature of LWOP.

The Sentencing Project reports that “Racial and ethnic minorities serve a disproportionate share of life sentences. Two-thirds of people with life sentences (66.4%) are nonwhite, reaching as high as 83.7% of the life sentenced population in the state of New York.” In 2008, the United Nations Committee on the Elimination of Racial Discrimination (CERD) expressed concern over “stark racial disparities” in the American criminal justice system, noting further that “young offenders belonging to racial, ethnic and national minorities, including children, constitute a disproportionate number of those sentenced to life imprisonment without parole.”

LWOP, more than any other form of incarceration, imposes a permanent disruption on marginal and minority communities. It hardens the psychological degradation of distressed minority communities by conveying the message that offenders from these communities are distinctly irredeemable: they must be locked up forever because they can never change.

Such racial disparities are hardly surprising: discriminatory sentencing drives the demographics of prison populations from death row down to the county jail.

Like the death penalty, LWOP involves a finality in judgment, a confidence that offenders are beyond redemption. When we sentence someone to die in prison, we assume that nothing could change or alter the assessment of what that person deserves, even if they spend thirty, forty, or fifty years behind bars.

Like the death penalty, LWOP represents an abandonment of hope.

LWOP forces us to ask whether a slow death sentence is any better than a swift one. Perhaps it is just a death penalty in disguise, replicating that punishment’s insidious patterns of error and racial discrimination. Embracing it may render the gains from death penalty abolition all but illusory.

LWOP may well be the new capital punishment, with all of its baggage—but with even less due process and less understanding among fair-minded Americans about the harms that this harsh punishment imposes. It is time to make opposition to LWOP an allied cause for those who oppose the death penalty.

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