Wednesday, September 14, 2011


The New York Times earlier this week published a strong editorial criticizing America's increasing use and abuse of life without parole (LWOP) sentences (read it here). The use of such sentences was largely unknown in the past and remains rare outside the US. Even murderers who did not get the death penalty could be virtually certain of parole within ten or twenty years at the most.

For many LWOP represents a hopeful alternative to capital punishment. But as the death penalty declines, LWOP is growing much faster. According to the Times the number of LWOP sentences tripled from around 12,453 in 1992 to 41,095 in 2008. The sentences being imposed not just for capital murder, but for many other homicides as well as crimes like kidnapping and drug dealing.

LWOP combines the eliminationist logic of the death penalty with the control problems of incarceration. How do you motivate compliant behavior for those who have no hope of being released no matter how good their record is? The result is an inevitable degradation for both prisoners and keepers, reflected in our increased reliance on supermax prisons to punish and isolate those who have nothing to lose.

LWOP highlights a paradox of American mass incarceration at this juncture. The soft end of the penal state, the over use of prison for drug users, parole violators and female property offenders is increasingly discredited and in varying degrees being reduced. But the commitment to long incapacitative prison sentences for violent crime remains as strong as ever. Yet our outsized prison population and highly disproportionate racial profile of prisoners will remain unless we revisit our excessive sentences for violent crime.

LWOP functions as the anchoring point for a structure of excessive punishment. With LWOP widely available, life sentences with parole are rapidly increasing from an average time served of 20 years to 29 years in the past two decades. Having established a harsh and flat sentencing system for murder it becomes easy to justify sending robbers and burglars to prison for decades.

I agree with the Times that LWOP should be limited to those cases that would otherwise attract a death penalty and even these cases should be exceedingly rare and open for review. Punishment can be proportionate without being harsh. There are no coherent moral principles the require natural life as a sentence for any crime, even for murder, and most criminologists would agree that the risk of future dangerousness drops toward zero for most offenders after 40. Instead we should look to human dignity to set an appropriate cap for even the worst crimes at around 25 years with few sentences of longer than 10. Beyond these boundaries, continued imprisonment becomes degrading for both prisoners and prison officers. A sentencing structure built around those principles would leave plenty of room to mark the seriousness of different crimes, have little if any effect on deterrence while producing a far smaller, healthier and more cooperative prison population.

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