America’s other death penalty

Last week Nebraska became the 19th U.S. state to abolish the death penalty when a bipartisan coalition of lawmakers voted to override the governor’s veto of a bill they passed to ban the practice. Nebraska is the first Republican-controlled state to outlaw state-sanctioned killing since 1973.

The news was hailed as a victory for proponents of enlightened justice policy and sparked a flurry of headlines predicting the demise of capital punishment in the U.S. There is much to celebrate in the shifting national dialogue on capital punishment; however, lost in the jubilation has been a critical assessment of what happens next and what it could mean for thousands of future inmates, not to mention the taxpayers responsible for their care. 

Like every other state that has abolished the death penalty, Nebraska will replace it with life without parole (LWOP) — a sentence that was practically unknown in the U.S. until the 1970s and whose use has grown exponentially since then.

According to the Sentencing Project, as of 2012 there were roughly 50,000 inmates serving LWOP — many of them for nonviolent offenses such as drug trafficking. The number of LWOP inmates grew by nearly a quarter from 2008 to 2012. As more states back away from the death penalty, that number will spike even higher. A list of states with the most prisoners serving LWOP includes several that have eliminated their death penalty.

As with capital punishment, an argument could be made that there are remorseless offenders whose crimes are so heinous that they should never be released from prison. That is certainly true. The problem is, unlike in capital cases, there is currently no process in place to ensure LWOP sentences are reserved for those few who deserve them.

That’s because in practice LWOP enjoys far broader application — and is subject to significantly less scrutiny — than the punishment it supplants. While courts have spent years dissecting nearly every legal nuance of capital punishment and providing layers of protections for defendants facing death, the LWOP machine has churned on largely unchecked. 

In the late 1970s the Supreme Court ruled that mandatory death sentences are unconstitutional, and it barred the death penalty for crimes other than murder. But scores of inmates are sentenced every year under mandatory LWOP statutes, thereby denied the separate guilt and sentencing phases provided in death penalty trials. Meanwhile, the proportionality doctrine that applies to capital cases — which requires presentation of specific aggravating circumstances to support a death sentence — is absent when it comes to life sentences. As a result, LWOP is regularly applied to crimes far less serious than the taking of a life.

As media attention has focused on America’s broken system of capital punishment, the gravity of an LWOP sentence has been largely ignored, with the exception of cases that involve juveniles. Prisoners sentenced to LWOP (known in some states as life without mercy) have only two recourses to avoid dying in prison: a full pardon or commutation of their sentence. Both are extremely rare and nearly impossible to secure. For this reason, some criminologists now use the term “death in prison” instead of “life without parole” when referring to these sentences.

Brooklyn Law School professor and former federal prosecutor I. Bennett Capers calls LWOP “capital punishment’s often neglected stepsister.” He blames its proliferation, in part, on death penalty abolitionists who have championed LWOP as a more humane alternative without considering the implications of their compromise. 

In a 2012 book of essays titled “Life Without Parole: America’s New Death Penalty?” he reflects on his experience trying capital cases and attributes the casual attitude of many attorneys and criminal justice reformers to the idea of LWOP to the “cult of death” that permeates American jurisprudence.  

“We ... had repeated the mantra ‘death is different’ for so long that we had come to accept it as necessarily true,” he writes. “We prosecuted our LWOP defendants as if they were interchangeable widgets on an assembly line, and it was clear that they were often defended the same way too. I barely gave these defendants a thought.”  

Capers contrasts the many statutory protocols around seeking, securing and carrying out a death sentence with the near complete absence of such protections in LWOP cases. Primary among them is the vigilance applied by legislatures and courts to rectify the racial disparities long evident in capital cases — which he says are even more stark when it comes to sentences of life without parole. 

In the series of impassioned speeches that preceded the Nebraska legislature’s final vote on the death penalty, lawmakers — many of them conservatives — took turns calling out capital punishment as immoral, ineffective and fiscally unsound. Those same modifiers could be used to describe LWOP. 

It is ineffective because, except in rare circumstances, there is no measurable public safety benefit derived from keeping someone locked up for life — even those who are convicted of the most serious offenses. Convicted murderers have the lowest recidivism rate of any offender (about 1 percent), and numerous studies show that older prisoners rarely reoffend after release — particularly if they have been incarcerated for an extended period. 

Similarly, LWOP is inefficient because it utilizes enormous resources to address a nonexistent problem while invalidating the work of our parole and probation system (which is already tasked with weeding out irredeemable inmates).

Keeping people in prison for decades until they die may be cheaper than housing them on death row, but the cumulative costs are still prohibitive. By one estimate (PDF), the U.S. spends over $16 billion a year housing and caring for inmates older than 50 — twice what it costs to incarcerate younger offenders. The price of providing health care alone for these low-risk inmates is breaking state correction budgets.

Finally, denying an inmate the possibility of parole is immoral because it fails to recognize the capacity of the human soul for redemption. The only remaining motivating factor for unduly restrictive sentencing regimes — retribution — negates the principle of rehabilitation that informed American corrections policy throughout most of our history.

The Enlightenment-era criminologist Cesare Beccaria — whose writings helped influence the Founders’ thinking on criminal justice (most notably the Eighth Amendment’s prohibition of cruel and unusual punishment) — suggested that any sentence that doesn’t arise from absolute necessity is tyrannical.

If we are to avoid the tyranny of which Beccaria speaks, then defendants facing the prospect of LWOP should enjoy the same strict scrutiny afforded those who were previously subject to the ultimate punishment. If a person is to be condemned to die in prison, should it really matter in the eyes of the law if it is at the hand of an executioner or the hands of time?