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Days Without End: Life Sentences and Penal Reform

Death fades into insignificance when compared with life imprisonment. To spend each night in jail, day after day, year after year, gazing at the bars and longing for freedom, is indeed expiation.

—Lewis E. Lawes, warden of Sing Sing prison, 1920–41

The Great Recession has spurred the reexamination of many penal policies, from the war on drugs to alternatives to incarceration, but not the widespread use of life sentences.1
The United States continues to be deeply attached to condemning huge numbers of offenders to the “other death penalty” despite mounting evidence that lengthy sentences have minimal impact on reducing the crime rate and enhancing public safety.

Life sentences have become so commonplace that about one out of eleven people imprisoned in the United States is serving one. Nearly one-third of these life-sentenced offenders have been sentenced to life in prison without the possibility of parole (LWOP).

The total life-sentenced population in the United States is about 141,000 people – or about twice the size of the entire incarcerated population in Japan. These figures on life sentences do not fully capture the extraordinary number of people who will spend all or much of their lives in U.S. prisons. They do not include the “virtual lifers,” offenders who received sentences that exceed a natural life span and who will likely die in prison long before reaching their parole-eligibility or release dates.

A life sentence has become an acceptable punishment not only for murder, but also for a wide variety of other crimes, some of them quite trivial. Under California’s draconian three-strikes laws, people have received 25 years-to-life sentences for minor infractions like stealing pizza from children and stealing change from a parked car. In November 2011, a circuit court judge in Florida sentenced a 26-year-old man whose home computer contained hundreds of pornographic images to life in prison without the possibility of parole.

Keeping so many older prisoners incarcerated does not significantly reduce the crime rate and is extremely expensive. The population of imprisoned elderly adults is growing rapidly. Between 1999 and 2007, the number of people age 55 or older in state and federal prisons grew by nearly 77 percent. Because of their greater need for expensive health-care services, prisons spend two to three times more to incarcerate an elderly prisoner than a younger one, or on average about $70,000 a year.

The explosion in the number of lifers in the United States since the 1970s is a dramatic change in U.S. penal policy. For much of the last century, a life sentence rarely meant a lifetime behind bars. In 1913, a “life” sentence in the federal system was officially defined as 15 years. Many states had comparable rules. Until the early 1970s, even in a hard-line state like Louisiana, which today has the country’s highest incarceration rate, a life sentence typically meant ten years and six months. For almost five decades, the 10/6 law, enacted in 1926, governed life sentences in Louisiana. Lifers were routinely released in Louisiana after serving about a decade if they had good conduct records and the warden’s support. The years that prisoners spent in Louisiana’s infamous Angola prison were oftentimes brutal and dehumanizing, but they nearly always had an end date. That changed almost overnight in the 1970s, as lawmakers dramatically increased the minimum time served to be considered for clemency and then in 1979 mandated that all life sentences would be served without the possibility of parole. In 1970, just 143 people were serving LWOP sentences in Louisiana. By 2009, it had mushroomed to 4,270 – or to about 11 percent of the state’s entire prison population.

Little Judicial Relief

The U.S. public has been largely indifferent to the proliferation of life sentences and of disproportionate and arbitrary punishments. Likewise, the political process has failed to engage in a serious debate about these issues. For these reasons, the courts appear to some observers to be the most promising arena to check excessive punishments like life sentences.

In the 2010 Graham v. Florida decision, the Supreme Court ruled that sentencing juveniles convicted of nonhomicidal crimes to life imprisonment without the possibility of parole was unconstitutional. In November 2011, the Supreme Court announced it would hear arguments in two cases challenging the constitutionality of LWOP for juveniles convicted of homicide (Miller v. Alabama and Jackson v. Hobbs). These actions have bolstered faith in focusing on legal strategies to reduce the lifer population. But this confidence in the judiciary’s greater potential to lead the way in curtailing extreme sentences in the United States may be unwarranted.

In the absence of a wider political push to challenge life sentences, the courts can be counted on at best to chip away at the life-sentenced population without making a major dent in it. Moreover, an excessive focus on judicial strategies may come at the cost of developing successful complementary political and legislative strategies to shrink the lifer population.

The Supreme Court has been extremely supportive of life sentences and of grossly disproportionate sentences. In Schick v. Reed (1974), it dismissed any notion that LWOP was unconstitutional. In Harmelin v. Michigan (1991), it ruled that LWOP sentences do not require the same “super due process” procedures mandated in capital punishment cases. Thus, LWOP has become cheaper and easier to mete out than a death sentence.
Most people sentenced to life do not have any real chance of getting their sentences overturned or reduced. They often have fewer legal resources to challenge their sentences because they are not entitled to the automatic appeals process available to prisoners on death row. Moreover, most post-conviction law offices and organizations focus almost exclusively on capital cases which are paid for by the federal judiciary or otherwise receive special funding.

The Supreme Court has consistently given legislators and judges wide berth to impose whatever punishments they see fit – short of death – without significant judicial oversight. In Lockyer v. Andrade (2003), the U.S. Supreme Court affirmed two 25 years-to-life sentences for a California man whose third strike was the theft of $153 worth of videotapes intended as Christmas gifts for his nieces. In Ewing v. California, it sanctioned a 25 years-to-life sentence under California’s three-strikes law for the theft of three golf clubs.

Capital punishment is one area of criminal law where the Supreme Court has at least nominally sought to define a robust oversight process and curb excessive punishment.
The Court requires states to have clear guidelines for the imposition of a capital sentence so that it is not imposed capriciously and arbitrarily. It has banned mandatory death sentences and insisted that capital defendants have the opportunity to present all kinds of mitigating evidence in the sentencing phase of their trial. It has sought to make the punishment fit the crime in capital cases, thus forbidding the execution of people convicted of rape and greatly restricting the use of the death penalty in felony murder cases.

By contrast, life sentences are imposed today in a manner that is similar in some ways to how death sentences were imposed in the pre-Furman and pre-Gregg eras before the Supreme Court nationalized capital punishment and began to regulate it through its new death-is-different doctrine. Some legal observers contend that pushing the courts to extend the death-is-different doctrine to lifers may be the most fruitful way to curtail use of this extreme sentence.

But the Supreme Court has been scrupulous about keeping “its death penalty jurisprudence from bleeding into other areas of criminal justice by repeating the truism that death is different,” explains Rachel Barlow of the NYU School of Law. Furthermore, one thing that both supporters and opponents of the death penalty agree on is that the Supreme Court’s regulation of capital punishment has not been a success. As Justice Harry Blackmun famously declared in 1994, a decade and a half after he voted in favor of reinstating the death penalty in the Gregg decision, “The death penalty experiment has failed.”

Today, the death penalty is entangled in a highly complex web of rules and procedures. Yet opponents of the death penalty complain that capital defendants are regularly denied due process and that capital punishment continues to be imposed in a capricious, arbitrary and discriminatory fashion. Meanwhile, supporters of capital punishment lament the lengthy, often unending legal appeals process in death penalty cases that in their view denies victims’ families the closure that a timely execution reportedly brings.

Compared to the virtually nonexistent oversight of noncapital cases, the death penalty review process may look robust. However, on its own, the body of rules, principles and precedents that has developed over the past four decades to govern capital punishment is notoriously confusing and often contradictory. Moreover, in the early 1980s the Supreme Court and then Congress began dismantling or weakening some of the legal protections erected for capital defendants in a shift toward “deregulating death.”

It would be a mistake to view the Graham decision as a major departure from these general trends or to interpret it as a signal that the judiciary is the Promised Land to roll back life sentences in the United States. In Graham, as in the Atkins v. Virginia (2002) and Roper v. Simmons (2005) decisions, which respectively banned the execution of the mentally retarded and juvenile offenders, the Court emphasized that it was dealing with an extremely rare sentencing practice. The Court singled out the rare use of this sentence as one piece of evidence that these particular LWOP sentences were at odds with “evolving standards of decency,” a key pillar of its death penalty jurisprudence, and thus were cruel, unusual and unconstitutional. To gauge “evolving standards of decency,” it weighed not just how many states had this sentence on the books, but also how few actually imposed it. The Court further noted that international opinion and practice were arrayed against LWOP sentences for juvenile offenders, as were some key professional associations.

Even though the Court borrowed from the capital punishment canon to invalidate LWOP for these particular juvenile offenders, “evolving standards of decency” does not look like a promising avenue to mount a broader legal challenge to LWOP or other life sentences. It is hard to make the case that the American public has become disenchanted with LWOP or life sentences more generally for most adult offenders. Prior to the 1970s, LWOP was virtually nonexistent. Today 49 states have some form of LWOP on the books, up from 16 in the mid-1990s. In six states – Illinois, Iowa, Louisiana, Maine, Pennsylvania and South Dakota – all life sentences mean life without the possibility of parole. The same is true for life sentences in the federal system, which ended parole eligibility for life-sentenced prisoners in 1987.

Since the early 1980s, the U.S. incarceration rate has quadrupled while the LWOP population is 100 times greater than it was then. Public opinion polls indicate growing and strong support for LWOP as an alternative to the death penalty. Although international practice and opinion are decidedly against LWOP and the widespread use of other kinds of life sentences, international sentiment has been at best a second-tier consideration for the Court in gauging “evolving standards of decency.”

In the Graham decision, the Supreme Court identified the “denial of hope” as another reason to declare that these specific juvenile LWOP sentences were unconstitutional. The Court indicated that an LWOP sentence for certain juvenile offenders may be unacceptable because it means that “good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the offender], he will remain in prison for the rest of his days.”

However, “denial of hope” does not look like a fruitful opening to challenge life sentences more broadly. Lifers exhibit a wide range of behaviors and coping strategies, much as one would find among the terminally ill or chronically disabled at various stages of their diagnoses and illnesses. Anyone who has spent some time with lifers – especially lifers who have been incarcerated for a decade or more – cannot fail to be impressed with how hopeful many of them appear to be. Many lifers doggedly seek purpose in their lives despite what may appear to many outsiders to be bleak living conditions and bleak life prospects.

Recent research suggests that many lifers cope with the extraordinarily difficult circumstances of their confinement by cultivating optimism about their own personal efficacy, by compiling impeccable disciplinary records, and by strictly adhering to daily routines defined by a whirlwind of educational, volunteer, religious and other activities. This helps explain why lifers tend to be leaders in creating a more stable and livable atmosphere in prisons.

This is not to deny or minimize the severe psychological distress that often comes with a life sentence. These sentences are like a death in slow motion for many prisoners, causing great mental and sometimes great physical distress. Furthermore, the conditions of confinement for lifers in the United States tend to be far worse than those for the general prison population and are more likely to fall below international human rights standards.

Recidivism and Life Sentences

The political and legislative obstacles to rethinking the widespread use of life sentences are almost as daunting as the judicial ones. The U.S. commitment to life sentences remains deep despite a formidable consensus among experts on sentencing and crime that imprisonment and lengthy sentences do not necessarily deter offenders and would-be offenders from committing crimes. State-of-the-art research in criminology is substantiating Italian philosopher Cesare Beccaria’s provocative claim in the 18th century that the certainty of punishment is a far greater deterrent to crime than the severity of punishment.

The deterrent and incapacitative effects of lengthy sentences are so modest for several reasons. First, offenders tend to be present-oriented. Thus, lengthening the sentence from, say, 15 years for a certain offense to life in prison is unlikely to have much of an effect on whether someone commits that crime or not. Moreover, the evidence that people age out of crime is compelling. Researchers have persistently found that age is one of the most important predictors of criminality. Criminal activity tends to peak in late adolescence or early adulthood and then declines as a person ages. Finally, many lifers are first-time offenders convicted of homicide. The phrase “one, then done” is commonly used to sum up their criminal proclivities. [Editor’s Note: As someone who has served a life sentence, I can note that the severity of the punishment is immaterial to criminals who do not think they will be caught or are immune from punishment and this applies equally to pickpockets, armed robbers, corporate leaders and heads of state.]

Older prisoners who have served lengthy sentences are much less likely to return to prison due to the commission of a serious crime than younger prisoners who have served shorter sentences. The recidivism rate for lifers is much lower by far than for other offenders. Lifers released from prison were less than one-third as likely to be rearrested as all released prisoners, according to an analysis by The Sentencing Project. Of the 368 people convicted of murder who were granted parole in New York between 1999 and 2003, only six, or less than 2 percent, returned to prison within three years for a new felony conviction, and none of those were reimprisoned for a violent offense according to a 2011 study by the New York State parole board.

The War on the War on Drugs

Even though life sentences and decades-long sentences contribute little to enhancing public safety and are socially and economically very costly, rethinking their widespread use is not high up on the penal reform agenda for several reasons. One reason has to do with how the political mobilization against the war on drugs has developed. The battle against the war on drugs has been premised in part on lightening up on drug offenders and other nonviolent offenders while getting tough with the “really bad guys.” This quid pro quo has reinforced the misleading belief that there are two very distinct and immutable categories of offenders, the violent ones and the nonviolent ones, which has been to the detriment of lifers. It obscures the reality that the United States, relatively speaking, is already quite punitive toward violent offenders and property offenders and has been so for a long time now. It also fuels the misperception that the war on drugs has been the primary engine of mass incarceration and that ending it would significantly reduce the country’s incarcerated population while leaving the “really bad guys” in prison where they belong.

All the attention that opponents of the war on drugs, most notably the Drug Policy Alliance, have brought to bear on the excesses of the war on drugs have fueled the public perception that the country’s hard-line drug policies have been the primary engine of prison growth. But new research by William Sabol, the chief statistician for the U.S. Bureau of Justice Statistics, challenges this widespread belief. The contribution of violent offenders to the prison population now significantly dwarfs the contribution of drug offenders. Overall, drug offenders were responsible for 13 percent of the growth in the state prison population from 1994 to 2006. By contrast, in the face of plummeting violent crimes rates, defendants convicted of violent crimes accounted for almost two-thirds of the overall growth in state prisoners from 1994 to 2006. These figures indicate that ending the war on drugs – one of the top priorities for many penal reformers – will not necessarily end mass incarceration in the United States because drug offenders have not been the primary engine of recent growth in the prison population.

Opposition to the war on drugs has dominated the penal reform movement, overshadowing the plight of the “really bad guys” left behind. This is largely due to the funding priorities of foundations that have lavished funding on anti-drug war groups while doing little or nothing to challenge sentencing of non-drug prisoners. Recently lawmakers in several states have enacted comprehensive penal reform packages that reduce the penalties and/or provide alternatives to incarceration for drug possession and other nonviolent crimes while simultaneously ratcheting up the punishments for other crimes. For example, in 2010, South Carolina legislators approved a number of laudable sentencing reforms with bipartisan support. These reforms included equalizing the penalties for possession of crack and powder cocaine, authorizing greater use of alternatives to incarceration for people convicted of non-trafficking drug offenses and reducing the maxi-mum penalty for burglary. But South Carolina lawmakers also added two dozen offenses to the “violent crime” list and expanded the list of crimes that are eligible for LWOP sentences.

Over the past few years, maverick district attorneys launched into office in major urban areas with the backing of broad penal reform coalitions have served as important beachheads to engineer wider statewide shifts in penal policy. However, most of their focus has been on the shortcomings of the war on drugs. The plight of people serving lengthy sentences for serious or violent crimes has not been part of their reform agenda.

New York State is a good case in point. After years of political agitation by the “Drop the Rock” campaign, the state legislature finally enacted a reform package in 2009 that eviscerated what remained of the draconian Rockefeller drug laws. But at the same time, legislators rejected an extremely moderate recommendation from the New York State Commission on Sentencing Reform to extend “merit time” to a very limited pool of people convicted of violent offenses, making them eligible to have a few months at most shaved off their sentences. These were offenders who had served decades in the system, had stellar behavior records, and had earned college degrees and/or other markers of rehabilitation.

The political strategy to draw a firm line between nonviolent drug offenders and violent offenders contributes to the further demonization of “serious” or “violent” offenders in the public imagination and in policy debates. It reinforces the misleading view that there are two clear-cut, largely immutable categories of offenders who are defined most meaningfully by the seriousness of the offense that sent them away. However, on closer examination, these fixed categories – the nonviolent drug offender on one hand and the serious violent offender on the other – are more porous.

Certainly many drug offenders are in prison because their primary criminal activities were drug possession or trafficking. However, many people serving time for a nonviolent crime have been convicted of a violent offense in the past. Furthermore, police, prosecutors and some scholars claim that drug charges often serve as surrogates for a violent crime. This is so because of the difficulties that the police and prosecutors face in trying to enforce violent felonies straight up in many poor inner-city neighborhoods due to no snitchin’ norms and the vulnerability of eyewitnesses. Another factor is the fall in the clearance rates for violent felonies, partly due to a rise in stranger homicides of strangers and robbery-murders, and a relative decline in friend-and-family murders, which are easier to solve. “For all these reasons, the substitution of drug prosecutions for violent cases was natural,” according to the late William Stuntz of Harvard Law School.

Just as all drug convictions may not necessarily be what they first appear, on closer inspection all “violent” offenders are not necessarily what they seem. Many of the people sent to prison for violent offenses are not necessarily violent years later. But the widespread perception is that they still are despite stellar prison conduct records, ample evidence of rehabilitation through education, volunteering and other programs, and mounting research about deterrence and aging out of crime. Witness the uproar after the North Carolina Supreme Court declined in October 2009 to review a 2008 decision by the appellate court that a life sentence is to be considered 80 years under the state’s statutes. After the ruling, the state’s Department of Correction announced its intention to release dozens of lifers who were eligible for early release thanks to the good time and merit time credits they had accumulated. Governor Beverly Perdue stepped in to stop the releases amid numerous reports in the media that many “rapists and murderers” were about to go free. This brouhaha spurred a spate of news stories that featured outraged victims and their families and which recounted the gruesome details of crimes committed decades earlier. In August 2010, the North Carolina Supreme Court reversed course, ruling that the prisoners sentenced to life in the 1970s were not eligible for parole.

From Pizza Thieves to Serial Killers

The life-sentenced population includes not only drug offenders, but also middle-aged serial killers, getaway drivers in convenience store robberies gone awry, aging political radicals from the 1960s and 1970s, women who killed their abusive partners, three-strikers serving 25 years-to-life for trivial infractions like stealing two pieces of pizza, and men who killed their teenage girlfriends decades ago in a fit of jealous rage. Many of the people serving life sentences today were the main perpetrators of a violent crime like homicide. But a great number of them were sent away for life for far less serious infractions. A central question facing any penal reform movement concerned about the lifer issue is whether to concentrate on challenging the fundamental legitimacy of all life sentences not subject to a meaningful parole review process or to concentrate on a subset of lifers who appear less culpable and more likely to garner public sympathy.

In the 1980s and 1990s, the penal reform movement at Louisiana’s Angola prison splintered and floundered over this very issue.1 Old timers sentenced during the more permissive 10/6 regime were at odds with more recent lifers sentenced under tougher new statutes. Angola’s Lifers Association excluded “practical lifers,” that is, the men with the “basketball sentences” of a high number of years that exceed a natural life span. Lifers who were first-time offenders wearied of the all-or-nothing push for parole eligibility for all lifers, and attempted to form their own organization. They believed legislators would be more receptive to consider parole eligibility for them than for repeat offenders. Norris Henderson, a leader of Angola’s lifers who became a penal reformer on the outside, said recently, “While I think the life sentence is in itself the problem, I also believe we have to go for the low-hanging fruit. We’ve now done that with the drug lifers, so the next thing might be to see how many 10/6 lifers are here and work on them. Then how many 20-year lifers and work on them.”

The enormous heterogeneity of the life-sentenced population presents an enormous political challenge. It renders political and legal arguments based on going after the “low-hanging fruit” by emphasizing degrees of culpability and relative fairness extremely attractive. However, such strategies could be costly over the long term. They potentially sow divisions among lifers and also among their advocates on the outside. Moreover, they also threaten to undermine more universalistic arguments about redemption, rehabilitation, mercy and aging out of crime that would encompass a broader swath of the life-sentenced population. More narrowly tailored arguments may win the release of individual lifers or certain categories of lifers but may worsen the odds of other lifers left behind.

Felony Murder

The United States is exceptional not only for its widespread use of life sentences but also for the persistence of the felony murder rule, which other common law countries have largely abolished. The felony murder doctrine generally refers to an unintended killing during a felony and/or an accomplice’s role in a murder. An accomplice can be considered as liable as the triggerman for any murder committed during the commission of another felony, such as burglary or robbery. And the definition of accomplice can be quite capacious. Lending your car to a friend who ends up using it to commit a murder can send you away for life in some states. Prosecutions for felony murder have been relatively common in the more than 30 states that allow them.

Political and legal strategies highlighting the lesser culpability of people convicted of felony murder and the gross disproportionality of their sentences can end up pitting one group of lifers and their advocates against another. One lifer appears more deserving of release by highlighting how less deserving other lifers are. This may win the eventual release of that offender who had only minimal involvement in a particular crime but perhaps at the cost of bolstering the view that the main perpetrators – or the “really bad guys” – got what they deserved and should be forever defined by the crime they committed.

Juvenile Lifers

The plight of juvenile offenders sentenced to life without the possibility of parole is another good case in point. Approximately 2,500 people currently are serving LWOP sentences for offenses committed when they were juveniles. This sentencing practice violates the 1989 United Nations Convention on the Rights of the Child and other international human rights agreements and norms. Many youths sentenced to LWOP are incarcerated in adult facilities while they are still juveniles. Despite efforts to segregate these juveniles from the adult population, often in supermax-type conditions until they turn 18, many youths in adult prisons are still subject to physical and other abuses, including rape, by adult prisoners and staff alike.

States are beginning to rethink LWOP for juvenile offenders, or JLWOP. In recent years, legislation that would eliminate or restrict the use of JLWOP has been introduced in at least nine states. As discussed earlier, Graham v. Florida and Roper v. Simmons have been major catalysts for the reconsideration of JLWOP sentences. These two cases rested on persuasive new research in brain science and psychology about adolescent brain development, most notably that the prefrontal cortex of the brain, which regulates impulse control, is not fully developed in teenagers. Opponents of executing juveniles and of condemning them to life in prison argued that children and teenagers should not be considered fully culpable for the crimes they commit, however heinous or violent, because their brains are not fully developed until they are in their 20s. As a consequence, they have greater trouble controlling their impulses and resisting peer pressure
Political and legal strategies rooted in arguments about the underdevelopment of teenage brains have proven to be an extremely promising avenue to end or at least limit the use of JLWOP sentences. However, these strategies could be costly over the long term for those offenders who were sent away for life for crimes they committed as adults and thus when they presumably had fully-developed brains. Stressing that teenagers are not fully culpable reinforces in a backhanded way the idea that adults who commit serious crimes should have known better and thus are fully culpable. The brain scan approach to criminal justice bolsters narrow biologically deterministic arguments about why people commit crimes, which are enjoying a renaissance in criminology and in public debates about crime and punishment not seen since the heyday of the eugenics movement a century ago. This approach reinforces the popular view that people who commit serious crimes are biologically incapable of fundamentally changing.

Pennsylvania has about 450 juvenile lifers, or one-fifth of the country’s total, which is more than any other jurisdiction in the world. Under Pennsylvania law, mandatory life is the only sentence available to adults and youths convicted of first- or second-degree murder, and there is no minimum age for which a juvenile can be tried as an adult. The case of Jordan Brown, initially charged as an adult in early 2010 for killing his father’s fiancée when he was eleven years old, put an unflattering national spotlight on JLWOP in Pennsylvania (Jordan’s case has since been transferred to juvenile court). Pennsylvania has been persistently unwilling to commute the sentences of juvenile lifers who have served decades behind bars, even in instances where members of the homicide victim’s family have called for mercy and release. A newly formed statewide coalition is currently engaged in an uphill battle to get Pennsylvania legislators to reconsider the state’s widespread use of JLWOP sentences. At a legislative hearing in August 2010, JLWOP opponents focused extensively on the adolescent brain development argument.

The relative culpability of juveniles convicted of felony murder was also a central issue. One of the main witnesses testifying in favor of the legislation was Anita Colón, a charismatic, articulate woman whose brother, Robert Holbrook, is serving a life sentence in Pennsylvania for a felony murder conviction when he was 16. In her testimony, Colón underscored that almost 60 percent of Pennsylvania’s juvenile lifers were first-time offenders who had never been convicted of a previous crime and that about a third were sent away for life for a felony murder conviction. This is slightly above the national average of about 25 percent. Members of the House Judiciary Committee focused much of their attention at the hearing on the relative fairness of felony murder for juvenile lifers rather than on alternative arguments raised by Colón and other witnesses about redemption, aging out of crime and the huge economic cost of incarcerating so many youths until the end of their days.

In opposing the legislation, the Pennsylvania District Attorneys Association commended the Judiciary Committee’s recent efforts to reduce the state’s prison population by focusing on diversionary and other programs directed at people convicted of less violent offenses. “That is the cohort group our collective attention should be focused on – not on letting murderers out early,” the association declared in its written testimony.

The DAs’ association and other opponents framed the proposed legislation as a violation of the rights of victims and of Pennsylvania’s commitment to truth-in-sentencing. “It would be devastating and unfair to change the rules long after families of murder victims who were told that the person who murdered their child, spouse, parent or other family members would spend the rest of his or her life behind bars,” the DAs argued.

Representatives of victims’ organizations and other opponents of the legislation echoed this view and devoted much of their testimony to recounting gruesome details of crimes committed by juvenile lifers.

The debate over JLWOP illustrates how the death penalty continues to cast a long shadow over the broader politics of punishment and penal reform. As Roper v. Simmons wound its way through the courts, organizations representing the victims of juvenile offenders generally did not mobilize in support of executing juvenile offenders.
Assurances that juveniles who were spared the death penalty would spend all their remaining days behind bars were an important reason why. At the Pennsylvania hearings, representatives of victims’ organizations portrayed ending JLWOP retroactively and making juvenile lifers eligible for parole consideration as a betrayal. They contended that many victims’ families agreed to not push for a charge of capital murder due to assurances from prosecutors that the perpetrator would be locked up for life, thus sparing the family the seemingly endless appeals process of death penalty cases.

Striking Out in the Golden State

California has been teetering at the brink of fiscal Armageddon for several years now and is struggling to comply with a federal court order, upheld in 2011 by a divided Supreme Court, to devise a plan that would reduce the state’s dangerously overcrowded prison population by more than 40,000, or to about 138 percent of capacity (compared to 200 percent in recent years). Nonetheless, the state’s commitment to incarcerating people for lengthy or life sentences at an average cost of nearly $50,000 per year has not diminished much. California operates the largest state prison system and also has the highest number of life-sentenced prisoners – about 34,000, or around one-quarter of the nation’s total.
This is more than triple the number in 1992, before the state enacted the country’s toughest three-strikes law. About one in five prisoners in California is serving a life sentence, or about double the national average.

California’s life-sentenced population is exceptional not only for its sheer size but also for its extreme heterogeneity as measured by sentencing offense. The three-strikes law in California, which has become a towering symbol of the state’s commitment to crime victims and of its uncompromising stance toward punishing offenders, poses a huge hurdle to devising effective political and legislative strategies to dismantle the “other death penalty” in the Golden State.

California’s 1994 three-strikes law doubles the minimum sentence for anyone convicted of a felony who has one prior serious or violent felony. For those with two or more prior serious or violent strikes, a third conviction for any felony generally means a minimum sentence of 25 years-to-life if a prosecutor chooses to invoke the three-strikes law. Unlike three-strikes statutes in many other states and the federal system, in California the third strike need not be for a serious or violent offense. Moreover, California has an extremely permissive definition of what constitutes a felony, and prosecutors have enormous leeway to upgrade misdemeanors to felonies. As a consequence, the state’s prison population includes a considerable number of people convicted under the three-strikes law who are serving lengthy sentences for trivial infractions like petty theft, minor drug possession or minor drug sales.

The proportion of three strikers in California’s prisons increased dramatically between 1994 and 2001, going from about 2½ percent to about 25 percent, where it has stabilized. The readiness of California’s district attorneys to invoke their three-strikes prerogative varies enormously around the state and even between seemingly similar cases in a single county. Offenders sentenced under the state’s three-strikes law receive on average sentences that are nine years longer than they would have received otherwise. A 2009 report by the state’s auditor estimated that the 43,500 prisoners currently serving time under California’s three-strikes law will cost the state approximately $19 billion in additional costs. More than half of those prisoners are imprisoned for a felony that is not considered violent or serious, at an additional cost of $7.5 billion.

The last major attempt to reform the state’s three-strikes law, Proposition 66, went down to a resounding defeat in 2004 after the political establishment in California, including then-Governor Arnold Schwarzenegger and current Governor Jerry Brown, rallied against the measure in the final days before the election. They joined a well-funded campaign against Proposition 66 spearheaded by conservative victims’ groups allied with the California Correctional Peace Officers Association (CCPOA), arguably the most powerful union in the state and unquestionably the country’s savviest prison guards’ union. The well-funded eleventh hour blitz of television and radio commercials exploited negative racial stereotypes and fearsome images of reviled criminals to defeat the measure.

Some lawyers and law students in California have started mobilizing to exploit a 1998 ruling by the California Supreme Court that permits trial judges, in considering a bid for leniency in a three-strikes case, to weigh whether mitigating factors like a defendant’s “background, character and prospects” place him or her outside the “spirit” of three-strikes. The Stanford Three Strikes Project has litigated various aspects of the administration of the three-strikes law in both state and federal court. Defense attorney Michael Romano, who helped found the Stanford clinic, argues that legal clinics should concentrate their efforts on gaining the release of sympathetic three-strikers “who haven’t done terrible things, who haven’t actually hurt anyone.”2 On the positive side, these below-the-radar efforts have resulted in the release of a handful of three-strikers. But given the huge size of the three-striker and life-sentenced population, it is hard to see how these below-the-radar efforts will significantly reduce the number of lifers in California.

Political support for three-strikes is not as steadfast as it once was in California. Steven Cooley, district attorney of Los Angeles and the 2010 Republican candidate for attorney general, has been an outspoken critic of some aspects of the state’s three-strikes law, earning him the umbrage of the California District Attorneys Association. Kamala Harris, who triumphed over Cooley in a tight race, pursued relatively few three-strikes cases when she was San Francisco’s district attorney.

A group of Stanford University law professors is seeking to put a new three-strikes reform measure on the ballot in 2012. The new initiative is much narrower than Proposition 66, which sought to restrict felonies that trigger a third strike to violent or serious crimes. The new proposed measure would still permit putting away for life people who had once been convicted of serious crimes like rape, murder and child molestation, and then are subsequently convicted of any third-strike felony, including a trivial infraction like shoplifting. For other repeat offenders, it would restrict the use of the tough third-strike provisions to crimes that are serious and violent offenses. The proposed measure would not change the existing second-strike provision, which doubles the sentence length for many second-strike offenders, even if the offense is not serious or violent. In promoting this new ballot initiative, its supporters appear to be embracing some of the negative, demonizing language that opponents of Proposition 66 used in 2004. “We’re making absolutely sure that these [hard-core] criminals get no benefit whatsoever from the reform, no matter what third strike they commit,” said Dan Newman, a spokesman for the new campaign to reform three-strikes in California.3

Despite these developments, a major overhaul of the three-strikes law in California via the ballot box faces a tough uphill battle. The political establishment’s commitment to three-strikes is almost theological in California. Any time that politicians’ faith appeared to waver, victims’ groups working closely with the CCPOA have had the money and organizational resources to bring them back into the fold. The CCPOA and its allies have been steadfast in their opposition to revising three-strikes, even in the case of the pizza thief, the petty drug dealer and other minor offenders. The prison guards provided a key campaign endorsement to Jerry Brown, the state’s new governor, who has assiduously cultivated the union over the years.

The case of John Wesley Ewell, charged in late 2010 with murdering four people in home-invasion robberies, has also set back the cause of three-strikes reform. Ewell, who had multiple felony convictions, had campaigned against California’s three-strikes law and had managed to escape its harsh sentencing guidelines four times. Any future ballot initiative to reform three-strikes will likely provide yet another occasion to demonstrate that California’s prisons are full of the “worst of the worst” who should not be released for a very long time – if ever.

The “Worst of the Worst”

What to do about “the worst of the worst” lurks in the background of any discussion of life sentences. Just reciting the names Charles Manson, Jeffrey Dahmer and Ted Bundy is enough to abort any serious discussion about developing political and legislative strategies to challenge the fundamental legitimacy of all LWOP sentences and of all life sentences that are not subject to meaningful parole reviews. The two key issues here are retribution and risk. Some mistakenly interpret calls to abolish all LWOP sentences and to entitle all prisoners to a parole eligibility hearing after a certain number of years as an assault on the whole idea of retribution, which has been a guiding principle, if not the preeminent philosophy, of the criminal justice system in the United States for decades, at least as applied to the poor.

The retribution issue is a familiar one from debates over capital punishment. As demonstrated most starkly with the death penalty, what constitutes an acceptable punishment is culturally, politically and socially constructed and thus varies enormously over time. Centuries ago, a mere execution was not enough to express society’s reprobation. The condemned often were publicly tortured and mutilated, and then their bodies were dissected for good measure and left on public display. By contrast, the maximum sentence available today to the International Criminal Court, which tries the gravest of crimes, including war crimes, crimes against humanity and genocide, is a life sentence reviewable every 25 years. Under California law, Charles Manson has been getting a parole eligibility hearing every two years for decades, as has Sirhan Sirhan, the assailant of Robert F. Kennedy. This is hardly a sign that California, whose prison population has increased more than 800 percent since Manson and Sirhan were convicted, has somehow forsaken retribution

The “worst of the worst” will always present a daunting challenge to penal policy. For ages, this issue dominated all discussions of capital punishment. In deciding on how best to challenge the widespread use of LWOP and whether to declare all LWOP sentences unacceptable, penal reformers certainly need to consider the realities of the broader political environment. But as Hugo Adam Bedau, a prominent death penalty abolitionist who did not endorse LWOP as an alternative to capital punishment, eloquently reminds us, “[I]t is not the task of penal reform – or of the movement against the death penalty – to present to the public whatever it will accept. The task, rather, is to argue for a punitive policy that is humane, feasible, and effective, whatever the crime and whoever the offender, and regardless of the current climate of public opinion.”

One of the country’s premier penal reform groups appears to have made an important shift in its stance on the abolition of LWOP. The Sentencing Project is the author of two path-breaking reports in 2004 and 2009 on life sentences that were invaluable in drawing public, journalistic and scholarly attention to this invisible issue. In the earlier report, The Sentencing Project called for abolishing LWOP “in all but exceptional cases.” In the follow-up report, it recommended eliminating all sentences of life without the possibility of parole.

The Waning of Mercy

Governors and other public officials today remain deeply opposed to releasing serious and long-time offenders, no matter how many decades they have served behind bars, no matter the pile of evidence showing that they have turned their lives around, and no matter the compelling research findings about deterrence and aging out of crime. For example, in 2008 Governor Schwarzenegger and prosecutors in California vehemently opposed the compassionate release of Susan Atkins, a former follower of Charles Manson who was convicted in the infamous 1969 Tate-LaBianca murders. Atkins, who was paralyzed and dying of brain cancer, had become a model prisoner in her four decades behind bars. Explaining why he refused to commute Atkins’ sentence when she was gravely ill, Schwarzenegger said, “[T]hose kinds of crimes are just so unbelievable that I’m not for the compassionate release.” For Schwarzenegger and many other politicians, the retributive endpoint for certain crimes is infinity. Atkins died in prison on September 24, 2009.

Over the past four decades or so, retribution has become a central feature of U.S. penal policy, supplanting rehabilitation and even public safety as the chief aim. As a consequence, mercy, forgiveness and redemption, which have been central considerations in religious, philosophical and political debates about punishment for centuries – indeed millennia – have been sidelined. This is starkly evident not only in the sharp drop in the use of executive clemency today but also in the marked change in how public officials justify the few pardons and commutations that they do grant.

Pardons and commutations were vital features of the U.S. criminal justice system throughout the 19th century and much of the 20th century. Executive clemency was a key mechanism to manage the prison population, correct miscarriages of justice, restore the rights of former offenders and make far-reaching public statements about the criminal justice system.

Presidents and governors continued to wield their powers of executive clemency even in the face of public uproars over particular pardons or commutations. On Christmas Day in 1912, Governor George Donaghey of Arkansas, a fierce opponent of the brutal convict leasing system, pardoned hundreds of state prisoners in one fell swoop in a gesture that made national headlines. In the 1930s at the height of the Jim Crow era, Governor Mike Conner traveled to Parchman Farm to investigate the “forgotten men” of Mississippi’s infamous penal farm. At his “mercy courts,” Conner freed dozens of black prisoners in the face of charges that he was granting “amnesty for ancient coons.”

Compare that with the modern-day commutation record of Pennsylvania, one of six states where life means life and where the lifer population has increased eleven-fold since the early 1970s. Between 1967 and 1994, Pennsylvania’s governors and pardon board commuted the life sentences of nearly 400 prisoners. Since then, only six commutations have been granted. Democrat Ed Rendell commuted only five life sentences during his two terms as governor. Three of those were announced just weeks before he left office in early 2011. Pennsylvania vigorously battled a lawsuit filed on behalf of prisoners sentenced prior to 1997, when the commutation rules changed significantly. That lawsuit dragged on for more than a dozen years – or about as long as a typical lifer spent in prison in Pennsylvania in the 1970s before being released.

In the first half of the 20th century, Woodrow Wilson, Franklin D. Roosevelt and Harry Truman issued hundreds and in some cases thousands of pardons and commutations during their terms. The number of presidential pardons began to ebb during the Eisenhower years and severely dropped off with President George H. W. Bush and his successors.

The American Bar Association’s Justice Kennedy Commission wisely recommended in 2004 that states and the federal government revitalize the clemency process. It urged them “to establish standards and provide an accessible process by which prisoners may request a reduction of sentence in exceptional circumstances,” including but not limited to “old age, disability, changes in the law, exigent family circumstances, heroic acts, or extraordinary suffering.” The commission also called for ensuring that procedures are in place to aid prisoners who are unable to advocate for themselves to seek clemency.

Standardizing procedures for seeking clemency and providing prisoners with more assistance to navigate the clemency process are noble goals. But they will not on their own revitalize the use of clemency and significantly reduce the lifer population. Public officials need once again to be willing to assume the political risks that come with releasing offenders early. In the past, governors and presidents were willing to weather charges of being anti-democratic or corrupt when they invoked their clemency powers.
Now that crime has become such a persistent political tripwire in the United States, they need to steel themselves – and prepare the public – for the rare but inevitable instance when a released prisoner goes on to commit a front-page crime.

Although the recidivism rate for older prisoners who have served lengthy sentences is comparatively lower, it is not – and will never be – zero. Despite all of the attention focused these days on developing better risk assessment tools, we will never be able to predict with complete certainty who will commit a serious crime if released and who will not. Lifers are not likely to commit murders or assaults while in prison or after release. However, a few will. If public officials are going to revitalize executive clemency and parole, they need to improve their rehabilitation programs and risk assessment tools. They also must do more to educate the public that prisoners who are released after serving lengthy terms are unlikely to commit violent offenses – but are not risk-free.

Governors willing to assume that risk remain the exception today. Governor Janet Granholm of Michigan commuted more sentences than her three predecessors combined before she left office in 2011. In his first six years in office, Arkansas governor Mike Huckabee granted 30 percent more clemencies than the previous three governors combined. His commutation and pardon record came under national scrutiny and spurred a spate of political obituaries for Huckabee after a man he had granted clemency in 2000 later killed four police officers in Tacoma, Washington in 2009. After a released parolee shot and killed a Massachusetts police officer in December 2010, Democratic governor Patrick Duval sought to replace much of the parole board with law enforcement appointees and introduced legislation that would further restrict parole eligibility for lifers in Massachusetts. Notably, Jerry Brown of California has been paroling a much higher proportion of lifers than his predecessors since returning to the governor’s mansion in 2011.

Some public officials have expressed interest in releasing infirm or elderly prisoners who do not pose a threat to society. One of the major obstacles is that older prisoners are more likely to have been incarcerated for a serious, violent or sexual offense. By late 2009, 15 states and the District of Columbia had established provisions for geriatric release.
However, those jurisdictions rarely released elderly prisoners due to political considerations, public opinion, the narrow criteria for eligibility, Byzantine procedures that discourage prisoners from applying for release, and the complicated and lengthy referral and review process that often drags on right up until the time a prisoner dies while still incarcerated.

Released long-time offenders do not pose a widespread public threat. But they do pose a significant risk to political careers. Changes in the institutional structure of parole and pardon boards could provide public officials with some important political insulation from potentially controversial release decisions. States almost always staff such boards with political appointees, who are extremely vulnerable to the wrath of public opinion. Four decades ago, the President’s Commission on Law Enforcement and the Administration of Justice recommended that the boards be comprised of psychologists, social workers, corrections officials and other professionals with specialized training and expertise to evaluate offenders’ suitability for release. That recommendation remains largely unrealized today.

As U.S. Senator James Webb said at a 2008 conference on prisoner reentry sponsored by the Hamilton Project, “The real question is about fear. And I think it invades the political process.” Politicians and public officials can help neutralize that fear by educating the public about the nuances of deterrence, the limited utility of lengthy sentences for fighting crime, the phenomenon of aging out of crime, and the strengths and limits of risk assessment tools. However, they cannot guarantee that releasing offenders will be risk-free. As Glenn Martin of the Fortune Society said at the Hamilton Project conference, “[W]e need to increase our appetite for risk ... we have to at least accept the fact that some people are going to fail and some people are going to fail pretty significantly.”

The public’s and politicians’ low appetite for risk is not the only obstacle to expanding the use of executive clemency and rethinking the widespread practice of condemning so many people to the “other death penalty.” Another factor is the widespread belief today that clemency should only be used to remedy “miscarriages of justice,” as Supreme Court Justice William Rehnquist famously argued. Governors are largely unwilling to treat mercy as a permissible reason for granting clemency. The few commutations and pardons that are granted today are usually justified as a means to rectify some shortcoming of the judicial process: the offender is innocent or has a credible claim of innocence; he or she did not receive a fair trial; the sentence is disproportionately severe compared to what other participants in the crime received. These “anti-mercy conceptions of clemency” wholly reject redemption, forgiveness, reconciliation and mercy as legitimate claims for clemency, greatly narrowing the pool of prisoners who might petition for a pardon or commutation. But they do more than that.

The impact of executive clemency extends far beyond all the individuals lucky enough – or not – to receive a pardon or commutation. Executive clemency is an important means to make a statement about the criminal justice system and, more broadly, about what kind of society we want. As such, it shapes the wider political environment in which issues of crime and punishment are debated and criminal justice policy is forged.

Governor Donaghey’s wholesale pardon of hundreds of prisoners a century ago was intended as a searing denunciation of Alabama’s system of convict leasing. Woodrow Wilson was an ardent supporter of temperance but opposed the Volstead Act, which imposed Prohibition. As president he pardoned hundreds of alcohol-related offenders. His pardons were widely understood at the time to be an indictment of Prohibition. Governors Lee Cruce of Oklahoma (1911-15), Winthrop Rockefeller of Arkansas (1966-70) and Toney Anaya of New Mexico (1982-86) issued mass commutations to empty their death rows, and justified their actions with calls for mercy for the condemned.

By contrast, of the four dozen commutations of people sentenced to death between 1976 and 2003, only four were based on what appeared to be merciful reasons. When Illinois Governor George Ryan pardoned four prisoners on death row and commuted the sentences of 167 others in 2003, he rejected mercy and compassion as legitimate explanations for his actions. He explained that he was acting because of problems in the way capital punishment was administrated, not because the death penalty was fundamentally immoral. At the time, Ryan went out of his way to reaffirm his law-and-order credentials and to herald life in prison without the possibility of parole as a fate perhaps worse than death.

Supreme Court Justice Anthony Kennedy lamented in a 2003 speech to the American Bar Association, “The pardon process, of late, seems to have been drained of its moral force.” As a consequence, many crimes remain eternally unforgivable and unforgettable. Their perpetrators are forever defined by the crime, despite all the evidence piling up over the decades of their incarceration that they are not the same person who committed that crime and they no longer pose a significant threat to public safety.

Capital Punishment and the “Other Death Penalty”

The death penalty abolition movement and the tenacity of capital punishment in the United States pose two additional important challenges to reducing the lifer population. Thanks in part to the innocence movement, with its dramatic focus on people wrongly condemned to death, the death penalty is declining in the U.S. The number of people executed each year has fallen by about half since the late-1990s, and public opinion polls show support for capital punishment is waning.

The new focus on the plight of the innocent has overshadowed the wider question of what constitutes justice for the guilty housed on death row and for the growing number of lifers who will likely die in prison or spend most of their lives there. The number of people sentenced to death and executed has fallen sharply, but at the cost of a huge spike in those sentenced to “death by incarceration.”

Over the years, many leading abolitionists have ardently supported LWOP. They have uncritically accepted LWOP as a viable alternative to the death penalty, thus helping to legitimize the wider use of a sentence that has many features in common with capital punishment. These abolitionists have helped normalize a sanction that, like the death penalty, is way out of line with human rights and sentencing norms in other developed countries. European countries generally do not permit LWOP, and those that do use it sparingly. In many European countries, if a “lifer” does not continue to pose a major threat to public safety, he or she is typically released after serving about a dozen years or so. As of 2007, Germany had about 2,000 prisoners serving life sentences, or about the same number as the state of Mississippi, whose total population is barely 4 percent of Germany’s population.

One has to be careful here about how much blame to apportion to death penalty abolitionists for the proliferation of life sentences in the United States, however. Neither opponents nor supporters of capital punishment could have predicted the fierce conservative backlash after the 1972 Furman decision and how it would spur the push for more punitive penal policies. At the time, the abolitionist movement was not really a movement at all but rather a consortium of elite public-interest lawyers. They could not have done much to stem the punitive stampede in the immediate wake of Furman as states rewrote their death penalty statutes and began to rethink life sentences.
Moreover, executive clemency still appeared to be a viable mechanism to secure the release of many lifers. Thus abolitionists at that time could endorse LWOP or a life sentence as an alternative to capital punishment, figuring that most lifers – even those serving LWOP sentences – would be released after a decade or two at the most. Indeed, there was an expectation at the time that as states returned to determinate sentencing systems, the importance of executive clemency as a release mechanism was likely to grow.

Abolitionists likely played an important role in establishing the legitimacy of LWOP in the 1970s, 1980s and 1990s, but probably were quite incidental in most cases to the final legislative outcome. Some abolitionists ardently opposed promoting LWOP as an alternative to the death penalty. Hugo Adam Bedau, for example, declared, “The death penalty is not the only outrageous form of punishment active in our society, even if it is the worst.” But a number of prominent abolitionists enthusiastically promoted LWOP as an equally tough – or even tougher – retributive moral sanction, including Governor Mario Cuomo of New York, Sister Helen Prejean of Dead Man Walking fame, and Steven Brill, the founder of The American Lawyer. Leading abolitionist organizations generally took an ambiguous or agnostic position on LWOP in the 1980s and 1990s.

Capital defense attorneys have been deeply vested in retaining LWOP. Evidence suggests that the possibility of parole, however remote, is often a key factor for jurors in capital cases, who must decide whether to impose the death penalty or a life sentence. In those death penalty states where LWOP is an alternative option, capital defense attorneys, in making their pitch for life over death, emphasize that the defendant will never get out of prison and that a life sentence that stretches out for decades is actually more punitive than condemning someone to death. LWOP statutes appear to have played only a minor role in the recent drop in the number of executions in the United States. But they have contributed to a doubling or even tripling of the sentence lengths for offenders who never would have been sentenced to death in the first place or even been eligible for the death penalty. Lifers today serve on average 29 years in prison, up from about 21 years in 1991.

Prosecutors in capital punishment states have been some of the fiercest opponents of LWOP statutes. In states where parole is a possibility – however remote – for life-sentenced offenders, prosecutors often focus their closing arguments on warnings about the future threat the defendant poses if released on parole one day. For this reason, district attorneys in Texas long resisted LWOP statutes. That changed in 2005 when prosecutors in Harris County, the epicenter of the death penalty in the United States, dropped their opposition to LWOP; thus, Texas was no longer the only remaining death penalty state that was a holdout against LWOP. Since then the LWOP population in the Lone Star State has skyrocketed while the number of people receiving death sentences appears to be dwindling.

The exploding lifer population and our growing understanding of the similarities between how life sentences and death sentences are imposed, and on whom, have not prompted a fundamental rethinking of the connections between death penalty abolitionism and wider penal policy. The abolitionist movement still operates quite independently of the wider penal reform movement to roll back the carceral state. Typical of many mainstream abolitionist organizations, Amnesty International remains notably agnostic on the question of alternatives to the death penalty – except in the case of juvenile lifers, which it has taken a forceful public position against.

In 2002, Amnesty International rejected a recommendation by its own internal review committee to “initiate a thorough discussion of alternatives to the death penalty,” even though its unwillingness to recommend or oppose substitute punishments might be undermining “the credibility of its overall argument for abolition.” As for the National Coalition Against the Death Penalty (NCADP), number 10 on its current list of “Ten Reasons Why Capital Punishment is Flawed Public Policy” is: “Life without parole is a sensible alternative to the death penalty.” The Campaign to End the Death Penalty is on record as opposing LWOP but does not prominently publicize its opposition.

Attorney Barry Scheck, one of the leading figures in the innocence movement today, continues to strongly defend LWOP as an alternative to capital punishment. Scheck and other foes of capital punishment who testified before the New Jersey Death Penalty Study Commission in 2006 generally did not raise any concerns about the state’s growing lifer population as they promoted LWOP as an alternative to the death penalty.

The Other Death Penalty Project, a new group composed exclusively of prisoners, has called upon death penalty abolitionists to stop promoting LWOP as a “supposedly humane alternative to lethal injection.” The group rejects the proposition that LWOP “is a necessary first step toward ultimate abolition of the death penalty.” Kenneth E. Hartman, a founder of the group, is serving a LWOP sentence in California for killing a man in a fistfight more than three decades ago when he was 19 years old. Hartman describes a life sentence as an “execution in the form of a long, deliberate stoning that goes on for as long as I draw breath.”

The abolitionist experience is relevant to the debate over life sentences in another respect. Opponents of life sentences and LWOP should be wary of making some of the same missteps that death penalty abolitionists made in the 1960s and 1970s by focusing primarily on judicial strategies and largely ignoring the legislative or political arenas. An exclusive focus on judicial strategies forces an issue to be framed within the constraints of prior legal texts, rules and decisions. As a consequence, arguments and evidence that may be compelling in the political sphere fall to the wayside because the courts have been unreceptive to those approaches. For example, given the Supreme Court’s persistent indifference and/or hostility to claims about racial discrimination in the administration of criminal justice, it is not surprising that legal strategies to challenge life sentences do not stress the racial aspects of such sentences. However, the gross racial disparities in the administration of both capital punishment and LWOP are a potentially compelling political issue.

Dead Men Walking

The current economic crisis presents an opportunity to redirect U.S. penal policy that opponents of the prison boom should exploit. However, framing this issue as primarily an economic one will not sustain the political momentum needed over the long haul to drastically reduce the prison population and bring about the end of LWOP and the release of large numbers of lifers.

Reentry has caught the political imagination of penal reformers, policy-makers and public officials spanning the political spectrum. But as reentry has skyrocketed to the top of the penal reform agenda, lifers are facing the prospect of a further deterioration in their conditions of confinement. Despite all the recent talk about reentry, funding for treatment, programs and services for prisoners is shockingly limited and continuing to shrink. In an age of tightening budgets and a fixation on reentry, lifers are increasingly being denied programs and activities that might make their days without end more bearable. As one lifer in California lamented, “The thinking goes that since we will never get out of prison there is no point in expending scarce resources on dead men walking.”4

The prospects are bleak that the plight of lifers will become a leading issue on the penal reform agenda any time soon. This political quiescence in the face of exponential growth in the lifer population is particularly striking given the intense legal and political mobilization against capital punishment in recent years. There are currently about 3,300 prisoners on death row in the United States. Nearly all of them will die in prison of natural causes or suicide – not lethal injection. Compare that with the estimated 141,000 people now serving life sentences in the U.S. The reinstatement and transformation of capital punishment have been central legal and political issues for going on four decades now. Meanwhile the United States has been nonchalantly condemning tens of thousands of people to the “other death penalty” with barely a legal or political whimper.

For complete citations and a more extensive discussion of these issues, see Marie Gottschalk, “No Way Out? Life Sentences and the Politics of Penal Reform,” in Charles Ogletree and Austin Sarat, eds., Life Without Parole: America’s New Death Penalty (New York: NYU Press, forthcoming).

Marie Gottschalk is a professor in the Department of Political Science at the University of Pennsylvania. She specializes in American politics, with a focus on criminal justice, health policy, the U.S. political economy, organized labor, the welfare state and the comparative politics of public policy. Among other works, she is the author of The Prison and the Gallows: The Politics of Mass Incarceration in America (Cambridge, 2006), which is available from PLN.


1 I especially would like to thank the students in the Prison University Program at San Quentin for their thoughtful comments on an earlier version of this article.

i This account of the penal reform movement in Angola prison is based on Lane Nelson, “A History of Penal Reform in Angola, Parts 1 and 2,” The Angolite, September/October 2009 and November/December 2009.

ii Quoted in Emily Bazelon, “Arguing Three Strikes,” The New York Times Magazine, May 21, 2010.

iii Tracey Kaplan, “Stanford Law Professors Submit Proposed Initiative to Limit Three Strikes Law,” The Mercury News, November 2, 2011.

iv Kenneth E. Hartman, “The Other Death Penalty,” in James Ridgeway and Jean Casella, “Voices from Solitary,” May 19, 2010, (accessed Nov. 22, 2010).

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