Life Without Parole and the Hope for Real Sentencing Reform
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Description
In recent years, people seeking to limit the use of life without the possibility of parole (LWOP) in the United States have won significant victories. The Supreme Court in Graham v. Florida declared a sentence of LWOP unconstitutionally cruel and unusual for juveniles who commit nonhomicide offenses. Some state legislatures have also limited the availability of LWOP sentences for juveniles. These could be early signals that LWOP is on the same path to fundamental reform that the death penalty has been on for the past thirty years. Whether or not reform ultimately means abolition in some jurisdictions, it could at least mean more limited use and procedural safeguards. In light of these developments, this book asks whether LWOP will become the “new death penalty” in the sense of being a punishment that undergoes significant reform by either the Supreme Court or politicians. In this chapter, I explore some reasons why it is unlikely LWOP will experience the same procedural and substantive oversight that now exists for the death penalty. The chapter begins by highlighting the problem of defining LWOP in a way that will lead to meaningful reforms. If the concern with LWOP sentences is, as the Supreme Court recently suggested in Graham, that they eliminate the realistic hope of release, then other sentences—such as natural-life sentences for which parole is just as unlikely as executive clemency of an LWOP sentence or long term-of-years sentences—would seem to be equivalent. Once one recognizes that these other sentences are comparable, problems of administrability and line drawing pose enormous obstacles to both judicial and legislative reform efforts. The next hurdle addressed by the chapter is the puzzling question of how one should limit LWOP, assuming one can define it. Although some reformers would favor outright abolition, that is exceedingly unlikely given current Supreme Court attitudes about punishment review and American politics more generally. Thus, the question becomes, who should be eligible for LWOP and which categories of offenses and offenders will create enough public sympathy to generate favorable judicial decisions or legislative reform efforts? Outside of juveniles, the pool of candidates is shallow. After addressing these substantive questions of scope, the chapter turns to the likelihood of procedural reforms and explains why LWOP sentences are unlikely to get the same procedural protections as capital cases. The sheer number of such cases is the largest obstacle, but the line-drawing problems are also likely to deter courts and legislators. It is one thing to say that “death is different” for purposes of constitutional analysis and quite another to say that LWOP is. If the Supreme Court were to open the door to procedural protections for LWOP that do not exist for other noncapital crimes, it is hard to see what would keep that door from opening still wider to encompass all noncapital sentences. But neither the Court nor legislative bodies have shown any willingness to provide greater procedural protections in noncapital cases. Because the central question of this book is whether LWOP is the new death penalty, the chapter next discusses an additional significant political obstacle to LWOP reform: the capital abolition movement itself. Anti-death penalty advocates have incentives to prevent LWOP from becoming the “new death penalty” in order to abolish the “old death penalty” and keep it from coming back. The success of abolition campaigns against capital punishment have depended heavily on the existence of LWOP, and it is unlikely that most abolitionists will join the battle to reform LWOP unless and until the death penalty is off the table as an option—and with no risk of return. Finally, the chapter concludes with a note of caution about focusing too much on what makes LWOP a unique punishment—the path paved by the Supreme Court’s “death is different” jurisprudence—as opposed to emphasizing the troublesome aspects it shares with other sentences. While a majority of the Court seems to view the extinction of hope as the main problem with LWOP, that concern is in many ways a distraction. The bigger problem with LWOP, in my view, is that in too many cases it is a disproportionate punishment relative to the offense or the offender. But a concern with disproportionate sentencing is hardly limited to LWOP sentences. Any term of years sentence with or without parole can be disproportionate under the Eighth Amendment. The Court created a “death is different” jurisprudence to avoid facing the hard question of disproportionality outside the capital context. It appears to be on the road to doing the same thing with LWOP. That may be the easier path for the Court’s docket and judicial management more generally, but it falls short of fulfilling the Constitution’s mandate, which covers all cruel and unusual punishments, not only the ones that, in the Court’s view, extinguish hope.
Source Publication
Life Without Parole: America’s New Death Penalty?
Source Editors/Authors
Charles J. Ogletree, Jr., Austin Sarat
Publication Date
2012
Recommended Citation
Barkow, Rachel E., "Life Without Parole and the Hope for Real Sentencing Reform" (2012). Faculty Chapters. 218.
https://gretchen.law.nyu.edu/fac-chapt/218
