Last July, the European Court of Human Rights decided that a sentence of life in prison without parole was inhuman and degrading treatment, and so in violation of international human rights. The 49 people currently serving life without parole in the U.K. will be resentenced, but the ruling won’t alter the fates of the more than 49,000 people in that same situation in the U.S.
Until a few decades ago, it was rare for criminals to be sentenced to take their dying breath in prison. But now their ranks are growing fast. The number of prisoners serving life sentences without parole is four times higher than it was two decades ago and 22.5 percent higher than it was in 2008, according to a report released Wednesday by The Sentencing Project, an advocacy group for sentencing reform. This group is now 15 times larger than the number of Americans on death row.
The population has exploded, in part, because of the rise of mandatory minimums for “habitual offenders.” But it’s also a surprising byproduct of the anti-death penalty movement, which has leaned on life without parole to achieve its goals.
Bargaining with death
Life without parole has been a potent bargaining chip for death penalty abolitionists. A 2010 poll found that seven in 10 Californians supported the death penalty, but when presented with life without parole as an alternative, support for capital punishment fell to 41 percent. In 2004, U.S. Health and Human Services Secretary Kathleen Sebelius, a Catholic death penalty abolitionist, enacted a life without parole law authored by other death penalty abolitionists when she was governor of Kansas. In May, Maryland became the latest state to abolish the death penalty, but only by replacing it with life without parole, just as New Mexico did in 2009.
According to David Dow, who has represented more than 100 death row inmates in Texas, the anti-death penalty community has come to accept life without parole as a reasonable concession because it has suffered “psychological fatigue” from “losing so frequently for so long.” (Support for the death penalty is currently higher than it was in 1972.)
“Once you have two or three decades of more deaths,” Dow says of the activists’ campaign, “you begin to view as a victory what you would have otherwise viewed as a defeat.”
Death penalty attorneys have also helped drive the trend; for them, the win is getting death off the table for clients, and life without parole is increasingly the alternative. District attorneys too have become much more eager to trade the death penalty down for life without parole, which can save up to millions in court costs. Life without parole, it seems, makes strange bedfellows.
The trauma of parole
There are few advocates fighting on the other side, except when it comes to the approximately 2,500 inmates, according to Human Rights Watch, who are serving life sentences without parole for crimes committed as minors. As the only country to permit such sentences for juveniles, Human Rights Watch, Amnesty International and bar associations from Japan to South Africa filed a joint amicus brief in January 2012 urging the U.S. Supreme Court to outlaw the practice as cruel and unusual -- which it did. So far, states have been mixed over whether to apply the ruling retroactively.
Jennifer Bishop-Jenkins was unimpressed when a politician tried to lower the death penalty eligibility age to 16 to “honor” her sister, who was brutally murdered while pregnant. But she does believe that life without parole is fitting for the exceptionally callous teen murderer.
“The 17-year-old who killed my family members was not a child,” says Bishop-Jenkins, who’s now president of the National Organization of Victims of Juvenile Lifers. “He planned the murder for months in advance, months. He was not a poor kid from a gang-infested neighborhood. He was a white rich kid, who lived in a $3 million house, and he did this because he was bored and was thrilled by violence and evil.”
Victims' rights advocates point out that life without parole is usually reserved for the most-horrific offenses, and that the option of parole should be balanced with the fresh trauma each new parole hearing would bring to victims’ loved ones. Notorious mass murderer Charles Manson has been up for parole 12 times.
“He keeps coming up, and they’re spending the money, and putting the victims’ families through hell,” Bishop-Jenkins said. “They have to talk to the media, and reopen the wounds.”
Not all murderers
Life without parole is mostly reserved for murderers, but not always. At least 13 states and the federal government currently trigger a mandatory life without parole sentence after a certain number of strikes, and sometimes these strikes include drug felonies. The Sentencing Project found that in eight states more than 30 percent of the life without parole population is in for a nonviolent crime.
One of them is Larry Yarbrough, who owned a popular BBQ joint in Kingfisher, Okla. until he was convicted of trafficking in illegal drugs in 1997. When his life without parole sentence was handed down -- Yarbrough had five previous felonies -- Dennis Will, one of the jurors, said “I felt like I’d been hit right in the stomach.” Will said he still thinks about Yarbrough, now serving his 16th year, about once or twice a week.
Yarbrough’s record since has been clean, with commendations from the Department of Corrections for his work training guide dogs. He’s still married to his wife Norma after 43 years, and has five children and 13 grandkids.
The state parole board twice voted to commute Yarbrough’s sentence, and twice the governor overturned it. His attorney Debbie Hampton is trying to campaign for the repeal of life without parole, but says the state’s defense bar hasn’t been very supportive. “They wanted the option of life without,” she explains. “... They wanted a lesser option than death.”
Finding death the better option
Yarbrough is the kind of poster boy of excessive sentencing that activists often hold up to make their claims. Many cases like his exist, but they are the minority. Campaigning against life without parole more generally means grappling with the heinousness of a lot of the crimes. Many note the enormous expense of housing prisoners for life, and the evidence that long-term, older convicts are extremely unlikely to offend again.
Prisoners make a different kind of argument. In the lead up to California’s vote last year on whether to replace the death penalty with life without parole, Tom Young, a death row inmate in the state, wrote how it would diminish the appeals process for people like him. When the Campaign to End the Death Penalty sent surveys about the ballot initiative to death row prisoners, 47 of the 50 respondents opposed it.
Dow, the death row attorney, says his clients aren’t so solidly pro-death penalty as the ones in California, noting that in California a death row inmate is in fact very unlikely to be killed, while in Texas it’s a near certainty. But he added: “I’ve also had clients who get out of death row by agreeing to life without parole. Two to three years later they say they think they’ve made a very bad decision and is there a way to undo it?”
The fact that life without parole extinguishes any chance for rehabilitation, any chance that a human being can change, is why the European Court of Human Rights ruled that life without parole violated their convention. The prisoners in the case certainly weren't sympathetic characters; one killed four men for his sexual gratification, another killed his parents, his sister and her two young kids. But that fundmantal question is largely absent from U.S. debate: Is hope -- however slim, however faint -- a human right?