This fall, state supreme courts in Michigan and Pennsylvania will hear cases challenging their states’ use of life without parole sentences. In Michigan, the court will consider whether to ban automatic life without parole sentences for people who are 19 or 20 years old and who commit murder. The court is being asked to expand its 2022 ruling prohibiting the use of such sentences in cases of 18-year-olds.
In Pennsylvania, the Supreme Court will hear an appeal from Derek Lee, who claims that mandatory life without parole as a punishment for felony murder constitutes cruel punishment under the Pennsylvania constitution. Lee was convicted of felony murder in 2016 when his accomplice fatally shot someone during a robbery.
These cases represent important developments in an emerging movement to scale back and reconsider America’s use of a draconian punishment that activists insist should rightly be called “death by incarceration.” They offer an opportunity for death penalty abolitionists to join in the work of ending this other kind of death penalty.
That will not be an easy thing for them to do.
The difficulty arises not because they favor harsh punishments but because they have in the past used support for life without parole as a tactic in the struggle to end capital punishment in this country. Doing so has helped death penalty opponents escape the charge that they are soft on crime.
We know that great progress has been made in that struggle. Public opinion has shifted, and now, more people in the United States think that the death penalty is applied unfairly than think it is fairly applied. And support for its use is declining.
Today, according to the Death Penalty Information Center, a majority of Americans say that “life imprisonment is a better approach for punishing murder than is the death penalty…. 60% percent of Americans asked to choose whether the death penalty or life without the possibility of parole ‘is the better penalty for murder’ chose the life-sentencing option. 36% favored the death penalty.”
Before saying more about what death penalty abolitionists should now do about life without parole, let’s look at some of the basic facts about such sentences.
As Human Rights Watch notes, “Life without parole sentences are virtually unheard of in the rest of the world. The United States holds 83 percent of the world’s population serving prison sentences of life without parole….”
While capital punishment has been scaled back across the country, life sentences have increased four-fold over the past two decades, according to The Sentencing Project. LWOP sentences increased by nearly 60% from 2003 to 2016.
Roughly 53,000 people in American prisons are now serving LWOP. It wasn’t always this way.
A 2006 Note in Harvard Law Review makes that clear. “Historically,” it says, “public zeal for longer prison terms has not paralleled public zeal for the death penalty. In fact, the movement to lock people up for longer periods has sometimes inversely tracked support for the death penalty, with advocates promoting in order to decrease the other.”
For much of American history, life sentences were not life sentences.
That is because they involved “the possibility of a shorter term in prison and the presumption of eventual release. In the federal system, for example, as far back as 1913, parole reviews took place after serving 15 years, though remaining incarcerated for the rest of one’s life was still possible. In Louisiana, the so-called ‘10/6 law’ that was in place from 1926 until the 1970s meant that life-sentenced prisoners were typically released after a decade if they demonstrated ‘good behavior.’”
Before the Supreme Court’s 1972 decision in Furman v. Georgia, “only seven states had life without parole statutes,” and “even though they were authorized, LWOP was infrequently used.”
Early adopters included an unusual group of states: Massachusetts, Michigan, Mississippi, Montana, Pennsylvania, South Dakota, and West Virginia. The Harvard Note explains that “the first such statutes were promoted by prosecutors and enacted by law-and-order legislators who were fearful of facing a punishment scheme without a capital option.”
Texas was the last state to add LWOP to its punishment menu in 2005. Today, Louisiana has the highest proportion of its prison population serving life without parole sentences, at more than 15%.
As a 2023 Sentencing Project report says, “Two in five people sentenced to life without parole were 25 and under at the time of their conviction.” And the racial disparities that are pervasive in the death penalty system are also seen when LWOP is the punishment.
More than half the people serving life without parole are Black, although Black people make up less than 14 percent of the national population.
What role did death penalty abolitionists play in the growth of LWOP? The evidence suggests it was substantial.
For example, the Harvard Note suggests that “Abolitionists…blitzed both legislatures and the media with pleas to adopt life-without-parole statutes in order to reduce executions, arguing that ‘[t]he sentence of life without parole is a stronger, fairer, and more reliable punishment.’”
The result, it argues, “has been a strange pairing of death penalty abolitionists with pro-incarceration activists and legislators, joining to push life without parole statutes through state legislatures. They have been remarkably successful.”
Christopher Seeds, author of Death by Prison: The Emergence of Life Without Parole and Perpetual Confinement, agrees. “Support for life without parole among members of the anti-death penalty movement and capital defense bar,” Seeds writes, “inspired greater use of the sentence while simultaneously curbing left-wing opposition.”
A piece published this year in the Columbia Law Review Forum contends that “The abolitionist focus on the barbarity of the death penalty rendered the harms of LWOP largely ‘invisible’ as a site of concern for human rights activists.” This strategy was “remarkably successful…. It was this concurrence of the anti-death penalty movement with the age of tough-on-crime laws of the 1990s that transformed life sentences into death by incarceration.”
Looking at what has come of the abolitionist community’s advocacy for LWOP, it is not clear that it has produced a real benefit for the abolitionist movement.
The Harvard Note explains that “A state by state analysis confirms that life without parole statutes are relatively minor factor in the reduced number of executions over the past several years…. Although they may play a part in the reduction of death sentences…the patterns of death sentences in different states mirror each other, regardless of whether or when those states passed life without parole statutes.”
In addition, LWOP statutes reach far beyond the group of criminal defendants who are, or would have been, caught up in a capital prosecution. What this means is that abolitionists have endorsed a policy that “holds 25 men in prison until their natural deaths in order to spare one man….”
That is not a trade-off that abolitionists should or need to accept any longer.
The cases in Michigan and Pennsylvania offer a chance to address that trade-off and highlight the “slow process of annihilation” that LWOP produces.
