New York Law School Legal Studies
Research Paper Series 10/11 # 7

Less than We Might:
Meditations of Life in Prison Without Parole
By:

Robert Blecker
New York Law School

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Less than We Might: Meditations on Life in Prison
Without Parole

Robert
Blecker
Professor of Law,
New York
Law School

Today, death penalty opponents—calling themselves abolitionists—often claim life without parole (LWOP) as their
genuinely popular substitute punishment for “the worst of
the worst.” These abolitionists embrace LWOP as cheaper,
equally just, and equally effective—a punishment that
eliminates the state’s exercise of an inhumane power to
kill helpless human beings who pose no immediate threat.
Furthermore, they insist, LWOP allows the criminal justice system to reverse sentencing mistakes.
So far in the United States, states that abolish capital
punishment substitute LWOP, whereas death-penalty
states offer LWOP as a supplement—the second-worst punishment for death-eligible killers who plead guilty, or
whom a jury decides to spare.
Thousands of hours in several states, interviewing and
observing more than a hundred convicted killers, along
with dozens of correctional officers who confine them—
from wardens down to line officers—have taught me that
LWOP does not substitute for, and suggest that LWOP
should not supplement, the death penalty. In those states
that reject the death penalty, LWOP may seem the only
appropriate punishment for the worst crimes and criminals. And yet, although conflicted and unsure, on balance
I believe and will argue here that as presently conceived
and practiced, life without parole—more and more the
punishment against which all else is measured—ultimately
has no place in any criminal justice system worth its name.
The current climate regarding punishment, reflected
in the mission statements and professional practices of
Departments of Corrections, contributes to the failure of
LWOP as substitute or supplement to death. A different
concept and practice of punishment—call it permanent
punitive segregation (PPS)—could supply a morally acceptable substitute to many retributive death penalty supporters
while satisfying those abolitionists who recognize that the
worst of the worst of the worst do deserve to be punished
severely—and forever. Under the banner of PPS—the new
life without parole—abolitionists who know that evil exists
and that some vicious people may deserve to die, but who
can never trust the government to kill its own citizens,
could unite with reluctant death penalty advocates, haunted
by sentencing mistakes or racial discrimination, who seek
a real, deservedly harsh permanent punishment short of

death that happens to deter more effectively and no more
expensively than today’s life in prison.
Before imagining a better world, let’s see why and how,
as presently conceived and practiced, LWOP—an indistinct
and disproportional collective response—not only fails as
retribution for the most terrible crimes but also fails to act
as a superior deterrent to life with parole. Let’s see why
LWOP succeeds, if at all, only rhetorically with death penalty opponents who claim to support it while they secretly
detest it.
I.  Retribution

Retribution literally means payback. Often in disrepute
among jurists and other educated elites, retribution persists,
and today again has become the primary justification for
punishment. I am a retributivist. We retributivists believe
in rewarding goodness and punishing sadistic or callous
cruelty. Naturally grateful, we reward those who bring us
pleasure. Instinctively resentful, we punish those who
cause us pain. We believe in payback.
Retributively, society intentionally inflicts pain and
suffering on criminals because and only to the extent they
deserve it. Thus, retribution acts to limit punishment as
much to justify it. Critics wrongly equate retribution with
revenge. They disparage retributive punishment’s essential measure—like for like—as barbaric. Retribution, like
revenge, motivates punishment. But retribution also limits it. The Biblical “eye for an eye,” originally understood
as literally no more than an eye for an eye, exemplifies retribution as a restriction as much as a justification of
punishment. Revenge needs no limit: We may wreak
revenge on a whole community for the acts of a single
member. But that revenge would be unjust. Thus, it could
not be retribution.
Never fully comfortable acknowledging its own retributive thinking, over the past few decades the United States
Supreme Court has struck down the death penalty as disproportionally severe for juvenile killers, mentally retarded
killers, and all rapists whose victims live. These criminals
could not deserve to die.
Until May 2010, the Court had not explicitly employed
retribution to limit a state’s right to imprison. That
changed with Graham v. Florida, in which the majority

Federal Sentencing Reporter, Vol. 23, No. 1, pp. 10–20, ISSN 1053-9867 electronic ISSN 1533-8363.
©2010 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy
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acknowledged retribution as “a legitimate reason to
punish.”1 Retribution’s “heart,” the majority observed,
connects punishment with the “personal culpability of the
criminal offender.”2 But “retribution does not justify
imposing the second most severe penalty [LWOP] on the
less culpable juvenile nonhomicide offender.”3
Retributivists disagree among themselves about who
deserves what—and why. Kantian retributivists would
count only the actor’s culpable mental state. The attempted
murderer deserves no less punishment because his aim
was untrue, or an attending surgeon skillfully removed the
near-fatal bullet fired point-blank into the victim’s head.
Most retributivists, however, also factor in the actual harm
willingly caused. Accordingly, all other things equal, murder
becomes worse than attempted murder, and thus deserves
greater punishment.
The majority in Graham seemingly embraced this idea,
eliminating LWOP for all juveniles who failed to kill their
victims. “What about Milagro Cunningham,” demanded
the Chief Justice concurring in Graham’s result only—this
“17-year-old who beat and raped an 8-year-old girl before
leaving her to die under 197 pounds of rock in a recycling
bin in a remote landfill?”4 His depraved, vicious, callous
attitude coupled with his depraved, vicious, callous actions
qualified him at least for the so-called second harshest punishment. Yet, illogically, the majority would have invoked
retribution as a categorical limit because Cunningham himself was 17 and his 8-year-old victim miraculously lived.
What about 16-year-old Keighton Budder, the dissent
in Graham protested? Budder “viciously attacked a 17-yearold girl who gave him a ride home from a party, put the
girl’s head into a headlock and sliced her throat, raped her,
stabbed her about 20 times, beat her, and pounded her
face into the rocks alongside a dirt road.”5 Again, because
the victim miraculously lived, the majority held in Graham, somehow retribution could not justify LWOP. No
matter that LWOP might incapacitate these dangerous
predators more certainly than a life with possibility of
parole. No matter that it might more effectively deter others. If that sentence was not deserved, it could not be
constitutionally imposed.
Furthermore, as Justice Thomas, joined by Justices
Scalia and Alito, pointed out, dissenting in Graham, the
majority’s holding—its “independent judgment” that life
without parole was “disproportional” for a juvenile whose
victim lived—“centers on retribution—the notion that a
criminal sentence should be proportioned to ‘the personal
culpability of the criminal offender.’ ”6 And although
retributivists split on how to count the actual harm the
victim suffers relative to the vicious attitude of the attacker,
all true retributivists oppose greatly disproportional
punishment.
II.  Proportionality

“Let the punishment fit the crime”: People have mouthed
this philosophy for millennia, and seemingly still believe
it. Originally, like for like, an eye for an eye, exact one-to-one

reciprocity supplied the simplest and most obvious measure of proportionality. But, early on, Western society
adopted less literally reciprocal measures: “If the guilty
man deserves to be beaten,” Deuteronomy declares, “the
judge shall cause him to lie down and be beaten with a
number of stripes in proportion to his offense”7 or, in
another translation, “according to the measure of his
wickedness.”8 In 1215, the Magna Carta continued humankind’s commitment to proportional punishment: “A free
man shall be amerced for a small fault only according to
the measure thereof, and for a great crime according to its
magnitude.”
Although several early state constitutions specifically
included proportionality principles—“All penalties ought
to be proportioned to the nature of the offence,” declared
New Hampshire’s in 1784 (emphasis added)—the United
States Constitution nowhere explicitly commands proportional punishment. Instead, the Eighth Amendment seems
to imply proportionality by adopting the language of the
English Bill of Rights (1689) prohibiting “excessive bail,”
“excessive fines,” and “Cruel and Unusual Punishment.”
The European Enlightenment embraced liberty and
rationality. Instead of beating a person in proportion to
the offense, the new punitive proportionality consisted in
depriving the criminal of units of freedom. The infant
American Republic endorsed this new rational proportionality by building penitentiaries and substituting prison time
for bodily punishment. The measure of punishment, however, extends beyond the quantity of time in prison. The
reality of each prisoner’s punishment consists in the experience
of that punishment—a fact that so many have lost sight of.
In 1892, declaring that the Eighth Amendment was
“directed” “against all punishments which by their excessive
length or severity are greatly disproportioned to the offenses
charged,” Justice Field, dissenting, would have prohibited
Vermont from sentencing a seller of unlicensed liquor to
fifty-four years at hard labor.9 Such a harsh punishment,
“greatly disproportioned to the offense” and “appropriate
only for felonies of an atrocious nature,” constituted “cruel
and unusual punishment.”10
O’Neil’s dissenting Justice was, for a while, alone in
requiring proportional prison terms by combining intensity and duration. In 1910, however, in Weems, a United
States Supreme Court majority struck down as disproportionally cruel a fifteen-year sentence at hard labor in chains
for falsifying a public document, more because of its
severity than its length. Weems stood alone until 1983.
Without mentioning retribution, which had fallen out of
favor, but repeatedly invoking “the longstanding principle
that punishment should not be, by reason of its excessive
length or severity, greatly disproportionate to the offense
charged,”11 in Solem v. Helm, the Court struck down a lifewithout-parole sentence for the defendant’s seventh
nonviolent felony, the crime of passing a worthless check.
Thus, constitutionally, either death, or LWOP as its substitute, must not be grossly disproportionate to the crime and
to the criminal’s particular culpability, however measured.

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But Weems and Solem v. Helm were the exceptions.
Until this year in Graham, aside from capital punishment,
the Court has almost always left it to state legislatures to
decide which sentence was proportional to which crime.
“The Eighth Amendment contains no proportionality
guarantee,” insisted Justice Scalia, joined by Chief Justice
Rehnquist in Harmelin, affirming Michigan’s right to
mandate life without parole for simple possession of a little more than a pound of cocaine while casting serious
doubt on the constitutional status of proportionality
between crime and punishment: “There is no objective
standard of gravity.”12 These two Justices saw proportionality as a pretext for members of the Court imposing their
own subjective values.
“Courts have not baldly substituted their own subjective moral values for those of the legislature,” countered
Justice White, joined by Justices Blackmun and Stevens,
dissenting in Harmelin.13 Michigan, with no death penalty,
could not constitutionally reserve the same punishment
for drug possession as it had for first degree murder.
“The Eighth Amendment does not require strict proportionality between crime and sentence,” declared Justice
Kennedy, joined by O’Connor and Souter, upholding
Harmelin’s life without parole sentence but occupying the
current constitutional middle ground.14 “Rather, it forbids
only extreme sentences that are ‘grossly disproportionate’ to
the crime.”15 In Ewing (2003), the Supreme Court again
split into three factions, a majority (5-4) affirming as not
disproportionately long California’s popular three-strikesand-you’re-out life sentence for a career criminal whose
latest crime was shoplifting three golf clubs.16
Except for the death penalty, public officials and commentators have avoided supporting intense punishment.
Thus, states have traditionally defined and distinguished
greater and lesser crimes by letter (A, B, C, D, E felonies)
or number (first degree, second degree, third degree,
etc.); then matched to each category maximum sentences
described as prison time (life, twenty-five years, fifteen
years, etc.); and finally designated prisons as maximum,
medium, or minimum security. Such designations supposedly correlate the future dangerousness and escape
risk of the prisoners with the degree their freedom will
be restricted inside—as if the worse the crime and the
longer the sentence, the higher the security level and the
more punitive the experience. By dividing prisons into
security levels, however, the public has emphasized its
own safety rather than the punishment or desert of the
person punished.
In sum, the modern emphasis on quantifiable and
rational proportionality largely has obscured the second
dimension of punishment—not only duration but also
intensity. Not only how long, but how long. Retributively,
how can state legislatures impose the same intensity of
punishment for persistent petit theft or drug possession
as for aggravated murder without violating basic standards
of disproportionality? Retributively, how can states subject
aggravated murderers and perennial thieves to the same

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prison conditions? How does a Supreme Court tolerate this
state of affairs and hold it constitutionally permissible? Only
by ignoring retribution as an objective limit on punishment
and tolerating all but the grossest disproportionality.
III.  LWOP: A Binding Covenant with the Past

Although retributivists disagree among themselves on
how to weigh the actual harm produced by the most callous and cruel, all retributivists ultimately subordinate the
future costs or benefits of punishment, resting justice—
limited, proportional punishment—exclusively on a
criminal’s past moral culpability. Thus, retributivists reject
Hobbes’s classic utilitarian claim that “the aym of Punishment is not a revenge but terrour.”17 Retributivists dismiss
contemporary utilitarians who declare it irrational to cry
over spilt blood; they rebut the humane argument that certain punishments are pointless—“What good will it do to
inflict more pain?” utilitarians ask—as itself beside the
point. Justice, a moral imperative in itself, requires
deserved punishment.
The past counts.
Many death penalty abolitionists who claim to support
LWOP fail to grasp fully LWOP’s retributive core. Condemning us death penalty supporters for our retributivism—our
irrational commitment to the past—abolitionists shamelessly promote LWOP as the better option. But on what
basis? If a concern with public safety dominates individual
justice, surely in some extreme cases where a LWOPer has
become physically or mentally disabled, now suffering from
an incurable illness that renders him harmless, we as a rational society should be prepared to release him, now that he
no longer poses any threat.
Or, suppose that forty years after his imprisonment,
this convicted killer demonstrates beyond doubt that he
has thoroughly transformed himself. Now genuinely
remorseful for his despicable murders, he has long since
embraced and maintained a humane value system, helping
others, educating himself. Rationally, as forward-looking,
compassionate people, we should be prepared to forgive
and forget. We should allow him to experience his later
life, free in a society whose values he now cherishes.
I have visited with these murderers, sometimes
decades after their vicious deeds; too often, hearing their
gentle sighs and genuine regrets, I, too, cannot help but
wonder “What is the point of punishing these lifers until
death?” And yet. . . .
With LWOP, we continue to imprison him until he
dies. Like Odysseus at the mast, who made his men swear
that they would ignore his future pleas and keep the covenant, when we sentence to LWOP, we irrevocably pledge
at this moment forever: We will never let our rage and disgust disintegrate and deteriorate. LWOP creates a binding
commitment now and forever never to think differently,
or feel different—when the future becomes the present
and the present is now past. We guard against our own
future passion, not of the rage and disgust that presently
move us, but against the rationally anticipated decay of

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anger and the sense of forgiveness or mercy that will
replace it someday when we would focus exclusively on the
living criminal and forget the victim of the past. We determine never to question how it can serve human dignity to
continue to cage a changed, nonthreatening, harmless
person who seems genuinely to regret his mistakes.
In short, if we mean what we declare by LWOP, we can
do so only because we have made a covenant with that
past—that we shall never forget nor forgive; neither review
nor revise—a covenant that we bind ourselves to keep.
Thus, we reject the problematic question “What good will
it do?” and instead continue to focus on the bad that has
been done.
IV. “It’s Not My Job to Punish”: Why LWOP Fails
Retributively

When I began my prison travels, I believed that corrections officers saw their mission as ensuring that more or
less serious crimes would receive more or less serious
punishments. This thinking seemed almost too obvious
to discuss, much less dispute. However imprecisely
administered, in theory at least, the punishment would be
proportionate to the crime. The public mostly believes
this scenario, and I did, too.
The first jolt came from David Roach, warden of Lorton
Central Prison, the flagship of Washington D.C.’s prison
system. Wandering the 68-acre compound, astounded at the
freedom and laid-back lifestyle of convicted killers, I protested to the Warden at one of our first interviews. “These
guys have done bad things; they deserve to be punished.”
“The punishment should not be re-punishment,”
Roach replied. “The punishment is given in the courtroom. When the judge says ‘You have been found guilty;
you are sentenced to thus and so,’ that’s the punishment.
The judge did not send them here, in my opinion, for me
or anyone else to punish them.”
That statement astounded me. Here was the warden
telling me, a criminal law professor, that a convicted
killer had already been fully punished by his sentence,
before he even began his life in prison. Nobody’s job
here inside was to further punish him. Corrections
should create an environment conducive to rehabilitation, the Warden had explained. On entering the system,
he said, each “resident”—a “ward of the court”—should
be thoroughly tested, and professional counselors should
fashion for each individual a “treatment prescription.
Each resident must attain realistic goals that he sets for
himself.” The “staff” inside Lorton Central was “paid to
supervise” that process, he added. “I don’t believe that
the officers are merely guards. And I don’t think the
inmates are merely prisoners,” Roach explained. This
social services speak really jarred me, because I was coming to grips firsthand with some very vicious killers
sentenced to life inside Lorton.
When I first encountered him, I suspected Warden
Roach was a strange anomaly with a paternalistic, permissive attitude, at odds with his staff who had to deal

with these criminals out on the compound. Yet even
old-time supposedly tough officers such as Frank Townshend, the night shift captain at Lorton, were drinking
the Kool-Aid. Was the Captain concerned with the seriousness of a prisoner’s crime in administering his
punishment? “It’s none of my business,” Townshend
insisted. “What a man is like in here is what I’m concerned with. Not what he did out there.” And so it was
from top to bottom.
In administering punishment, if the staff consciously
ignores or remains ignorant of the prisoner’s crime, how
can LWOP be expected to substitute for the death penalty
as a morally adequate, proportional punishment? When I
first heard officers articulate these statements, I dismissed
them as wildly eccentric. After all, Lorton was the only allBlack prison system in the United States and had no racial
conflicts nor serious gang disputes, plus many Lorton officials came up from the same streets as the inmates whose
lives they regulated. In two decades of prison research,
however, I’ve found the attitude of Lorton staff nearly universal among corrections officials.
“Our job is just to follow the law,” explained Cameron
Harvanik, Oklahoma State Penitentiary’s good-natured
deputy warden, caught in jeans and a baseball cap, a video
camera thrust unexpectedly at him one Sunday afternoon.
“I mean, the judge says that this man’s got the death sentence, or the judge says this guy’s doing life without,”
Harvanik continued. “Our job is to make sure he does it.
Our job is not to punish.”
“These guys have committed the most heinous crimes,”
I protested. “Killed and raped and murdered children. Is
there ever some part of you that says, ‘These guys aren’t
getting what they deserve?’”
“To be honest with you, no. I never really think about
it,” Harvanik responded.
“So you’re not angry?”
“No, I’m not angry.”
“No matter what a guy did?”
“When I come to work every day, I flip the switch:
‘These people are human beings; it don’t matter what
their crime is, they’re still people. They deserve fair treatment, they deserve a quality of life while they’re in here.
Their punishment is doing the time.’”
“It’s not our job to punish people,” concurred Layne
Davidson, who had worked nearly every unit of Oklahoma
State Penitentiary at the time I interviewed him. “Our job is
to house them—the punishment comes when he misbehaves while inside. Being here in itself is not a punishment;
it’s what the courts say we should do. I don’t see this as a
punishment. I’m not here—and neither is my staff—to
judge what’s right and wrong. We’re here to do and carry
out what the courts have set forth.”
“Nothing you did in the past matters,” I protested.
“Not true,” he corrected me. “Assault on staff with an
injury, you’re not beyond level two for the rest of your life.
If you escape from max, if you get convicted of killing
another inmate, you’ll never go beyond level two.”

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So the past could count. But for those who administer
the prisons, life begins when life begins—from day one,
inside.
In Discipline and Punish, Foucault had seen the great
transformation in punishment from the direct application
of unpleasant sensations on the prisoner’s body to “an
economy of suspended rights.”18 The next step beyond
Foucault—the threat to withdraw privileges—more nearly
describes the experience of punishment for LWOPers
today. “They earn any privileges based on their behavior,”
Davidson continued. “If you don’t have privileges, if you
don’t have anything to offer them, you cannot control
them short of physical control. I tell you, in here the pen is
mightier than any sword. An inmate would rather me
come in that cell with a riot baton and beat on him for
punishment than write a report for an infraction, because
of privileges he’s gonna lose.”
“I wouldn’t call it justice to justify what we do to get
them to cooperate,” admitted Sgt. Hugh Rushton, officer
in charge of security inside Unit 2 of Tennessee’s Riverbend Maximum Security Institution. It puts our staff
safer. My job is safety, security. My job is not to punish.”
“Let me ask Sgt. Rushton, citizen. If you weren’t
involved, would you feel that justice is being done?”
“No sir. As citizen Rushton, it’s not justice at all—it’s
not fair to the families of the victims. As citizen Rushton,
he’s supposed to suffer. If I were on the street, I’d demand
he suffer. But I’m here to protect them.”
“The past doesn’t count?”
“It counts but you can’t let it interfere with what you’re
doing.”
“Sounds like the past counts but you can’t count it.”
“If I did, I wouldn’t be a professional.”
For Sgt. Rushton and most of his colleagues, I’ve discovered, professional means devoid of personal anger. The
corrections officer imbibes a credo that it is unprofessional to count the past, to connect crime to punishment:
“We don’t discriminate; we treat everyone the same.”
Equal protection, of course, is vital and basic to a humane
rule of law. Rightly, the criminal justice system rejects and
prevents sadistic or racist armed officers from arbitrarily
making captives’ lives miserable. When officers of the
state inflict pain on grounds other than desert, when they
discriminate on the basis of race, religion, or identity, they
not only violate equal protection but also undermine retribution. Retributive justice itself requires that the quality of
life inside match—be proportioned to—the nature of the
crime: Let the punishment fit the crime.
On death row, officers rationalize their day-to-day nopunishment credo by noting the ultimate punishment that
awaits condemned killers in the execution chamber. With
LWOPers who have escaped the death penalty or had their
sentences overturned and been released from death row
into the general prison population, however, officers could
not rationalize punishment by locating it elsewhere, at least
not inside the prison. “I’m a religious man,” explained
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come at the end of all of our lives. I don’t believe it’s anybody’s job to make their life miserable until that time.”
But the United States is a constitutional republic based
on a separation of church and state. Our Constitution
demands the pursuit of justice—in this world, by us.
“My personal opinion—certain crimes, the person
should be made to pay every day.” At last, a retributivist,
I thought, listening to Steve Beck, the warden of Stringtown. “But I’m not here to punish,” he added. Steve Beck
presided over the least restrictive institution in Oklahoma
where a capital murderer who has been spared the death
penalty could spend the rest of his life.
“A guy commits aggravated murder—rapes, tortures,
and kills—and then gets to play softball. Is that right?” I
demanded.
“My professional opinion is, whatever I’m tasked to do
by my superiors in the state of Oklahoma, I’ll do. If my
task is to tie them to a pole and horsewhip them every
Monday morning, they’ll be horsewhipped every Monday
morning. But that’s not what I’m tasked to do.”
The mission statements of every Department of Corrections supported the warden’s claim: Not one mentions
punishment. “A lot of these people,” Beck continued, “I
know what they’re in here for. I have to treat them all as if
they’re here for the same thing.”
“But people who have murdered children have the
option to play softball?”
“As long as they meet the criteria, they can play softball.”
“Can you understand why I would be appalled at that?”
“I can understand how the parents of that child would
be appalled at that.”
“You never walk by the field, see them playing softball,
and growl to yourself, ‘This is wrong. I’m in charge of it
and it’s wrong?’”
“I’ve conditioned myself not to.”
“You’re willing to sacrifice justice.”
“We’re not sacrificing justice because we’re not defining it.”
“You’re administering it. Or not,” I shot back.
“We’re administering the sentences given by the
courts.”
“The courts only give them a number. You could have
them walking in circles, you could have them dig holes
and fill them up again. That would be exercise. It would be
very punitive exercise because it would be purposeless,
and not designed to give them pleasure. Whereas softball
is designed to give them pleasure.”
“At the s.h.u. [segregated housing unit], they walk
around in a circle in a cage. That’s all they get to do. Is that
what you want everybody to do? We’ll need a lot of cages.”
Sometime later, Warden Beck’s own righteous indignation broke through: “This guy goes and kills a man and
his wife and drags them out in the field and sets them on
fire. Go hang him from a tree.”
“You can’t hang him from a tree,” I protested. “The
courts won’t let you.”
“Exactly!”

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“But don’t let him play softball and eat ice cream.”
“What am I going to do with him?”
“Make life as unpleasant as you can, legally. Even if
your staff becomes slightly more endangered, and the
inmates become slightly less controllable. Pay a price, to
do justice. Because if you’re not, nobody’s going to do it.
You’re the executive. Execute punishment.”
Warden Beck seemed to enjoy my retributive attack
on his professional persona: “As Steve Beck, I’m encouraging you. As the Warden, I’m unconcerned. As Steve
Beck, if I had my way, we’d have a lot of ropes hanging
on trees. As the Warden, I’ll have them climb the ropes
for exercise.”
Perhaps Lee Mann, warden’s assistant at the Oklahoma
State Penitentiary summed up best the indiscriminate
immorality of life in prison: “We want to make the time
for them as easy as we can, because it makes it easy for us
if it’s easy for them.”
V.  Abolitionist Rhetoric: “Death By Incarceration”

“A better name for this sentence [LWOP] might be ‘Death
by incarceration,’” declared Professor Robert Johnson,19
trying to heighten the hyperbole of those who use artful
but misleading rhetoric to support the substitution of life
without parole for the death penalty. True, almost all
aggravated murderers sentenced to LWOP will die in
prison. But almost none will die because of prison. We all
live, condemned to die, somehow, somewhere. Some of us
will die in old age in our sleep, or watching television, or
taking a bath. Should we call these closing scenes “death
by sleep,” “death by television,” “death by bathing?” Or is it
simply about where we die? “Death by home, death by hospital, death by bowling alley. Death by incarceration.” The
rhetoric obscures the reality.
The question of justice—whether LWOP can morally
substitute for the death penalty—depends not on where
these vicious killers die, but on how they live before they die.
If the tortured victim could somehow watch what happens to her rapist-murderer, spending his life in prison
without parole, would she feel satisfied that justice was
being done? Read the testimony of abolitionists, and you’d
conjure up perpetual misery in dungeons where the LWOPers never see the light of day. But then why does the
prison commissary sell lifers suntan lotion with an SPF
factor of thirty?
“Here in the valley, suddenly yesterday, dark heavy
clouds rolled in,” recounted Sarah Mitchell to a friend and
fellow murderer.20 “That lightening put on quite a show!”
After killing, dismembering, and lighting her sister on
fire, Ms. Mitchell planned to impersonate her murdered
sister and then withdraw money from trust accounts. Convicted of that aggravated murder and sentenced to LWOP,
Mitchell candidly described her daily life in her new digs:
We are eating Good! Bananas, whole tomatoes, grapefruits, oranges, apples, pears—galore. For breakfast
it alternates between bagels cream cheese with boiled

eggs, coffee, raisen bran, milk & juice—to two fried
eggs, 3 link sausages, toast, jelly, oatmeal, coffee—to
thick-thick French toast (3 slices) syrup, cream of
wheat & milk, coffee—To Denver omelletes 3 pieces
of crisp bacon, grits, a piece of fruit, coffee, milk or
tea, toast etc.
The dinner menus are like restaurants—enchaladas, cheeseburgers. Stroganoff, chef’s salad, 1/4
chicken, tater tots, cheesecake, brownies, apple pie,
cherry cobbler, ambrosia, spaghetti, greens, ice cream
(cups & drumsticks!) pepsi, cr[eam] soda, grape
ne[ctar], baked potatoes, fruitbars, burritos, roast beef
with gravy, pepperoni, raviolis, good fish, sloppy Joes,
corn dogs. The veggies, desserts & side dishes are
very good. We get relish packets and real mayonnaise!!! It just feels so much better eating this “real”
healthy faire.
My video camera has recorded LWOPers playing
softball—in uniforms, baseball uniforms—on baseball
fields with chalked base paths, swinging for the fences
(albeit topped with barbed wire), and rounding the bases
to the cheers and high-fives of teammates and buddies.
“Never see the light of day . . . a fate worse than death,”
abolitionists argue with straight faces. The U.S. Supreme
Court rejects this empty rhetoric: “The second most severe
penalty” the majority in Graham calls LWOP.21 “A life sentence is of course far less severe than a death sentence,” the
Chief Justice concurred.22
If a state or the federal government abolishes the death
penalty and substitutes life without parole, the problem of
proportionality hardly disappears. Would multiple killers
who rape and torture children receive proportional punishment by spending the rest of their lives in prison, no longer
under a sentence of death? Would they get what they
deserve? Any legislature considering abolishing or restoring
the death penalty must face this question. We retributivists
detest arbitrary punishment. We disavow disproportionate
punishment—punishing too much or too little.
VI. An Alternative to Death and LWOP: Permanent
Punitive Segregation (PPS)

For the worst of the worst of the worst, retributively, life
itself should be a punishment beyond a permanent loss of
liberty. Life should be painful and unpleasant, every day.
Perhaps the United States could constitutionally maintain
a system of justice in which defining and administering a
life in prison can be morally substituted for the death penalty. What would it feel like?
Imagine PPS, permanent punitive segregation, reserved
only for the worst of the worst of the worst—rapist-murderers of children, for example—specially convicted and,
in a separate penalty phase, specially condemned by a jury
to suffer this fate. Those condemned to PPS would be
housed in a separate prison. They would be permanently
subjected to the harshest conditions the Constitution allows.
Specifically, their food would be nutraloaf—a tasteless
patty, nutritious enough not to foreshorten their lives.

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Visits would be kept to the minimum and none would be
contact visits, ever. These aggravated murderers would
never touch another human being again. They would
labor daily and purposelessly—digging holes to fill them
up. Other exercise would be Spartan—running in circles.
They would be provided no radios or TV and, of course, no
Internet. They would get one brief, lukewarm shower a
week. Photos of their victims would adorn their cells—in
their faces, but out of reach, reminding these condemned
killers daily of their crimes.
PPS should cost no more to keep society safe. And,
while satisfying society’s need to justly condemn and
punish, might PPS also act as a more effective deterrent
than life in prison today?
A.  Deterrence

Of course the death penalty deters some people. As the
Royal Commission (1948–1953) observed in its lengthy
and thoughtful report, “We can number its failures, but
we cannot number its successes.”23 We can never know
how many people who would have otherwise committed
murder stopped themselves only because society threatened death as punishment. The deterrence question,
really, is not whether the death penalty deters—sometimes
it surely does—but whether, on balance, it deters more
effectively than life without parole. A state that substitutes
life without parole for death, or life for LWOP, ought to
ask whether the harsher LWOP deters more effectively
than ordinarily life.
Abolitionists produce statistical studies to show that
the death penalty does not act as a deterrent superior to
LWOP. Death penalty advocates counter with other equally
sophisticated studies showing execution’s superior deterrent effect.
Human nature and common sense, however, buttress
the claim that LWOP fails to deter as effectively as death.
“No other punishment deters men so effectually from committing crimes as the punishment of death,” proclaimed
Sir James Fitzjames Stephen, the great nineteenth-century
English judge and a leading historian of criminal law.24
This is one of those propositions which it is difficult
to prove, simply because they are in themselves more
obvious than any proof can make them. It is possible
to display ingenuity in arguing against it, but that is
all. The whole experience of mankind is in the other
direction. . . . “All that a man has will he give for his
life.” In any secondary punishment, however terrible,
there is hope: But death is death.25
LWOP offers no hope of release, abolitionists counter;
that’s its strength.
True, but long mandatory minimum sentences such as
seventy to life for drug crimes and repeating offenders,
where the prisoner must serve the front number before
becoming eligible for parole, blurs if it does not obliterate
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of parole. A society determined to maximize the deterrent
power of life without parole would rarely impose it and
clearly separate it from life with possible parole.
Life without parole may effectively deter would-be
criminals by threatening no real prospect of release from
prison short of death. LWOP as currently practiced, however, softens the threat by offering life’s pleasures and
releases day to day, inside.
While robbing a middle-level cocaine dealer in Virginia, “Joe” and his partners discovered their robbery
victims also possessed kilos of heroin. With his victims
tied up and duct-taped, Joe decided to kill them, he
recalled. But at the last moment he changed his mind.
Why had he let them live? “When I was doing time in
Richmond, I used to see the electric chair when I swept
the hall. And what flashed in my mind was that chair,
and I didn’t want that. I couldn’t handle that. So I let
them live.”
This anecdote shows only how the death penalty
deterred this one killer at this one moment. It does not
demonstrate the more important point that sometimes
only the death penalty can deter, whereas the prospect of
life in prison will not. But Joe continued, telling me of a
similar situation in Washington, D.C., which has no death
penalty. “I killed them,” he explained matter-of-factly.
“Because I could face life inside this joint. I had done time
here before, and I knew I could do it again. But that chair,
man. That’s something else.”
Common sense, human nature, logic, and anecdote
strongly support what many recent studies suggest—death
generally deters more effectively than life without parole.
Common sense, human nature, and logic suggest that an
especially harsh, permanently hopeless life inside prison,
PPS, could more effectively deter than LWOP does now—
and perhaps deter as effectively, or more effectively, than
the death penalty itself.
For killers like Joe, only a life inside qualitatively
worse—a life that he could not have experienced before
and might only imagine—could possibly act as a marginally greater deterrent. No one sentenced to PPS will
have served it before—no one will know s/he can do it
again. When measured against all other life imprisonment, PPS will truly be something different. Although
no anecdote yet supports this untried punishment,
analogy supports its deterrence claim. Officers and prisoners agree that, inside prison, the threat of punitive
segregation generally deters lifers from acting up. So,
too, PPS can easily be imagined as deterring would-be
repeating killers and other serious street criminals from
aggravated murder, because and only because they
face PPS.
If a state abolishes the death penalty, and rape or
robbery gets a repeat offender natural life, what’s the
incentive to leave your victim as a living witness against
you? A prospect of PPS supplies that deterrent against
killing the victim, because it would be reserved only for
the most heinous murderers and attempted murderers.

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B. Emotional Cost of Not Doing Justice

Today, in death penalty states, first degree murderers
often plead guilty and accept life without parole. Each
guilty plea saves U.S. citizens hundreds of thousands of
dollars, and the victims’ families decades of cruel suspense and false assurances.
Some abolitionists, such as Reverend Cathy Harrington,
whose daughter was stabbed to death, successfully sought
to avoid these additional emotional costs by convincing the
prosecutors to accept LWOP in lieu of death. Championing
abolitionism, Rev. Harrington has gone public with her
story, urging LWOP as far better for the victims’ families.
But only the threat of death as punishment produced this
preferred outcome. Her daughter’s killer would never have
pled guilty without that quid pro quo.
Substitute LWOP for the death penalty, and this incentive disappears. Substitute PPS for the death penalty, and
the incentive to plead guilty and accept ordinary life with
or without parole to avoid PPS reappears. The duration of
punishment won’t do it; the intensity will.
Today, abolishing the death penalty—retributively,
sometimes the only proportional punishment—abolishes
justice. Cathy Harrington imagined her daughter’s killer
suffering until the day he died as a lifer, and worried that
she had consigned him to a fate worse than death. Little
did she realize that he would ask to be put into the special
needs unit, which freed him from gang violence, assured
him of four hours of recreation a day, and allowed him to
watch the Winter Olympics and play cards with his fellow
inmates.
With the death penalty’s drawn-out cycle of appeals,
the victim’s family becomes embittered. Their frustration
grows from the false promise of justice held by a death
penalty regime that delays and delays the execution of its
sentence. On the other hand, what cost to parents who
realize their child’s rapist-murderer now lives in prison
playing basketball, or watching the World Cup on color
TV? What toll to contemplate the person who tortured
your child to death now lying on a prison bed, lost in a
first-run movie or a good book?
Death penalty opponents traditionally ignore the emotional costs of not doing justice—a retributive question
cloaked as a financial one. Their insensitivity increases
with LWOP as presently administered. The victim’s family’s
bitterness and frustration intensifies from the false promise
of justice. The current system will never deliver on that
promise.
If the U.S. criminal justice system embraces permanent punitive segregation—where life itself constitutes
punishment—the victim’s family will realize that the killer
never experiences anything they would have wished for
their loved one. No participating or watching sporting
events. No pleasure of good food. No joys of human
contact—no hugs or kisses, ever.
Some readers may protest. Genetic predispositions
and early childhood abuse or neglect have formed and
deformed these criminals, they insist. Why should

anybody be subjected to sustained, inhumane, pointless
cruelty, for behavior or a personality they did not freely
choose? But the argument proves too much. If a rapist
child killer does not deserve at least PPS, why should
anybody—always subject to influence beyond their
control—ever be punished (or rewarded) for anything?
C.  Incapacitation

LWOP proponents claim their preferred sentence equals
the death penalty in its incapacitative effect. Death penalty
advocates point out, however, that a future governor may
later commute any LWOP sentence. A legislature may
decide to follow Europe’s lead and abolish life without
parole. Once released, a killer may kill again, whereas, of
course, an aggravated murderer, once executed, will never
kill again. And even while incarcerated, an LWOPer may
kill fellow prisoners, staff, or visitors. Of course, so, too,
may a condemned killer on death row, although officers
and the condemned routinely tell me that the level of violence is much lower on death row than in the general
prison population.
Ultimately, however, these arguments are beside the
point. Prison life could be designed and administered so
that convicted killers cannot kill again. Overall, the death
penalty cannot be humanely chosen over LWOP on the
basis of incapacitation alone. Besides, the United States
Supreme Court has held that to pass constitutional muster, the death penalty must serve as deterrence or
retribution.
Adopting PPS as a harsher supplement to LWOP
strips its critics of the plausible but specious argument
that LWOPers have nothing to lose in prison—that without hope of parole, they will kill again at will, knowing
nothing more can be done to them. My research confirms
what the scant literature on this topic reflects: Lifers have
the most to lose and are often the best behaved inside.
Often they have the best jobs and the easiest lifestyles,
earned over years. Although retributively unjust, these
incentives to avoid transfer or punitive segregation keep
lifers well behaved.
With the threat of PPS readily apparent to prisoners and
public alike, no one would claim that only the death penalty
could keep a lifer in check. And with PPS, the absence of
human contact would ensure that those confined to perpetual punitive segregation could not kill again.
D.  Mistake

Abolitionists often urge the substitution of LWOP for the
death penalty, arguing that mistakes are inevitable and
death is irreversible. Innocent people have certainly been
condemned to death. Most probably one, or more, has
been executed in the modern era—although the abolitionists cannot yet prove that.
Utilitarian supporters of the death penalty have countered that innocent victims of condemned killers released
from death row into the general population or free society
who kill again should offset innocents the state may execute.

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On balance, these utilitarian death penalty supporters
argue, life-life tradeoffs suggest that with its greater deterrent force, even counting mistakes, the death penalty will
save more innocent lives than will life without parole.26
The death penalty much more sharply focuses our
attention on our own mistakes. The thought of executing
an innocent person sobers us. Expensive lawyers with abolitionist convictions offset their $1,000-an-hour billing
habit with pro-bono capital appellate work. Law-student
volunteers rush to provide research assistance and support
to the condemned. Pen pals and groupies clamor to visit.
But who champions the cause of lifers who claim their
innocence?
On balance, although the consequence of a single mistake is more tragic with the death penalty, the number of
mistakes will multiply should LWOP be substituted for
death as punishment.
Adopt PPS, and the thought of an innocent person
exposed to a lifetime of such suffering will make us shudder. With PPS, we can expect the same passion and zeal
pro-bono death penalty opponents bring to their capital
defendants. Substitute PPS for LWOP, and lifelong mistakes should dramatically decrease.
E. The Polls: The Public Choice

“For cases of murder, do you prefer the death penalty or life
in prison without the chance of parole?” Note the fallacy of
that standard poll question—how it doubly distorts.
First, discriminating, informed, retributivist advocates
reserve the death penalty only for aggravated murder—the
worst of the worst of the worst. We agree with the United
States Supreme Court and every death-penalty jurisdiction
in the United States that the vast majority of murderers do
not deserve to die. Do we “prefer” death or life without
parole “for cases of murder”? Should we retributivist advocates of capital punishment who oppose the death penalty
for most cases of murder allow the polls to count us as
abolitionists?
Second, consider the last part of the standard question:
“without the chance of parole” or Gallup’s “with absolutely
no possibility of parole.” Abolitionists delight in emphasizing that we who sometimes favor death cannot be
absolutely certain that an innocent person will never be
executed. Thus, they insist, the penalty should be abolished rather than take an infinitesimal if inescapable risk.
Yet the very same opponents who would disable us from
acting on near-certainty blithely assure their fellow citizens that LWOP carries no chance of parole.
Furthermore, most citizens polled will equate “absolutely no possibility of parole” with “no possibility of
release.” Few people factor in executive clemency. And,
although a parole board may almost never release a convicted mass murderer, even after he has aged and now
seems gentle and no longer any threat to anyone, a future
legislature may simply abolish life without parole wholesale and apply its new policy retroactively. Europe has
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crimes against humanity—although you’d be hard pressed
to discover this fact via leading media news outlets, whose
abolitionist editorials favor substituting LWOP for death
while otherwise urging the United States to follow
Europe’s lead.
The standard poll question further distorts and elevates
support for LWOP while artificially diminishing support
for the death penalty by making the aggravated murder
itself little more than an abstract event. Polls discourage
respondents from matching a concrete punishment to a
specific crime. Of course, abolitionist pollsters shy away
from asking even the abstract question directly: “Do you
favor the death penalty for the worst murderers—for example, a serial killer who rapes and tortures children?” Once
made aware of the victim’s suffering and the killer’s
viciousness, what punishment will the overwhelming
majority match to torturing and killing children? That
question (Do you favor the death penalty for the worst
murderers?—the real question) abolitionist pollsters scrupulously avoid.
Beyond obscuring from the public the nature of the
crimes that might bring these punishments, the polls
distort the nearly even split between those who seem to
prefer LWOP to death by obscuring the nature of the
punishment itself. The public widely assumes that an
aggravated murderer serving life without parole feels the
sting of punishment most severely. The abolitionist media
aids and abets this public fraud. Thus, abolitionists dismissed as “abstract” the support of 70 percent of
Californians for the death penalty in the latest Field Poll,
pointing out that 42 percent of registered voters said they
prefer LWOP and 41 percent said they prefer death for
first degree murderers.27
Let the public become aware of the actual lifestyle of
Lifers, or let states substitute PPS for today’s LWOP, and
reveal the real split between those who favor life and those
who favor death as the ultimate punishment.
F.  Retribution

Satisfying, popular, and persistent as an idea, retribution
fundamentally fails in the actual administration of punishment. Every Department of Corrections in the United
States officially rejects retribution, declaring public safety
and rehabilitation as its primary mission. Thus, prison
administration throughout the United States today largely
severs the connection between crime and punishment on
which retribution essentially rests.
As noted previously, corrections officers proclaim that
“what a man did out there is none of my business. How
he acts inside determines how he’ll be treated here.” And
although the more heinous crimes generally do carry
longer prison sentences, in fact the most vicious criminals
serving life sentences for the worst crimes often have the
best jobs, best hustles, and easiest lifestyles. In short,
largely unnoted even by retributivists themselves, inside
prisons, daily life mocks retribution: Those who deserve
it most suffer least.

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The adoption of PPS could sustain that connection
between crime and punishment. Every corrections official
working in PPS should be required to read a description
of the crime of every LWOPer punished with PPS. We
should tolerate no abuse of these prisoners, no beatings or
sadism on the part of officers guarding them. But no conviviality, either. Officers would be instructed to be proper,
but distant and cold. For PPS, Corrections’ mission should
be punishment. Those most vicious predators punished
by perpetual punitive segregation would receive no better
food, housing, or medical care than that offered to innocent
poor outside.
As it connects crime and punishment, PPS clearly separates LWOP from ordinary life sentences. This hopeless,
bleak experience should be reserved only for the worst of
the worst of the worst. No “three strikes and you’re PPS.”
No “drug kingpin and you’re PPS.” PPS should never be a
default sentence, as LWOP has become in states such as
Florida, which abolished parole. Only if you deserve PPS
by your cruelty should you receive it.
PPS should never be inflicted because a person, juvenile
or adult, is found incorrigible—not subject to change or
development. The perpetually dangerous must be incapacitated, but PPS should be reserved only for the deserving.
PPS constitutes a retributive sentence, plain and simple—an
unbreakable covenant with the past.
G.  Denunciation

For twenty-five centuries at least, Western culture has
specially denounced and distinguished the worst killings.
Yet with a greater variety of crimes, especially narcotics
offenses carrying ridiculous mandatory minimums, the
line between life with and without parole has blurred.
“Three strikes and you’re out” compounds the problem.
In short, those too long and too common sentences
undercut that special denunciation which ought to attach
only to the worst criminals.
Although the majority in Graham subsumed denunciation under retribution,28 denunciation sometimes
separately justifies a special sentence, even if that sentence
may never be carried out. States such as New Hampshire,
which executes nobody, tenaciously cling to the death
penalty, probably from a need to ritually denounce and
condemn killers whom the state will never in fact execute.
In its capital jurisprudence, the Supreme Court has
repeatedly declared that death is different. PPS, too,
should constitute a separate sentence, clearly distinguished from all others, requiring a special penalty trial.
If PPS were adopted, perhaps then the death penalty
could be justly abolished, although some of us retributivists would still insist death sometimes constitutes the
only just response. In any case, states that have abolished
the death penalty might adopt PPS, but use it very, very
sparingly.
Meanwhile, states that retain the death penalty should
reconfigure their death rows to replicate the conditions of
PPS.

H. Conclusion: The Moral Illogic of LWOP
Without PPS

But we don’t have PPS. We have supermaxes that keep
prisoners safely confined, largely in isolation, and we have
temporary punitive segregation units that punish prisoners briefly for prison infractions. We have a death penalty
in most states, and LWOP in all.
At first glance, the underlying logic of life without parole
seemed plausible enough: “The greater includes the lesser.”
The community’s greater power to kill its worst offenders
necessarily included a lesser, but still awesome, power to
imprison them for life without possibility of release.
Life without parole, however, is a very strange sentence
when you think about it. And the more you do think about
it, the less stable becomes its moral support. Although it
may represent the jury’s unanimous second choice—of
those who would condemn the killer to die, and others
who would leave open a possibility of redemption from a
life spent inside a prison—today the sentence itself seems
at once too little or too much.
If a sadistic or extraordinarily cold, callous killer
deserves to die, then why not kill him? We ought to keep
our covenant with the past, steel ourselves against counting all potential future rehabilitation or remorse of the
most vicious killers. The past cries out and demands it.
But if we are unwilling to extinguish the personality of
the condemned and the body that houses it, why should
we—like Odysseus at the mast—forever place it outside
of our own power to reassess? Why should we ignore the
rich, mature, constructive, vital human being that even the
most heinous killer may become? If we keep the killer
alive, why strip him of all hope?
Increasingly, conventional wisdom seems to reject the
death penalty and substitute LWOP. It seems to me better
to reject LWOP and refine capital punishment, reserving it
for only the worst of the worst of the worst.
So, absent PPS, although LWOP may be the closest
moral approximation that states without a death penalty
can reach, although LWOP may often be the only unanimous compromise verdict a bitterly divided jury can reach,
and although LWOP may be the ultimate sanction abolitionists recommend, still, when all is said and done, it
doesn’t feel right.
True, by one logic, the greater includes the lesser. But
then, too, sometimes, morally, by doing less than we
might we do more than we may.
Notes
	1	 130 S. Ct. 2011, 2028 (2010).
	2	 Id. at 2028 (quoting Tison v. Arizona, 481 U.S. 137, 149
(1987)).
	3	 Id.
	4	 Id. at 2041 (Roberts, C.J., concurring).
	5	 Id. at 2051 (Thomas, J., dissenting).
	6	 Id. at 2054 (Thomas, J., dissenting) (quoting Tison, 481 U.S.
at 149).
	7	 Deuteronomy 25:2 (English Standard) (emphasis added).
	8	 Deuteronomy 25:2 (Darby).

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	9	O’Neil v. Vermont, 144 U.S. 323, 339-40 (1892) (Field, J.,
dissenting) (emphasis added).
10	 Id. at 364.
	
	11	 Solem v. Helm, 463 U.S. 277, 285 (1983).
	12	 Harmelin v. Michigan, 501 U.S. 957, 965 (1991).
	13	 Id. at 1016 (White, J., dissenting).
	14	 Id. at 1001.
	15	 Id.
	16	Ewing v. California, 538 U.S. 11 (2003). See also Lockyer v.
Andrade, 538 U.S. 63 (2003).
17	 Thomas Hobbes, Leviathan 175 (Cosimo Books 2009) (1651).
	
18	 Michel Foucault, Discipline & Punish: The Birth of the Prison
	
11 (Alan Sheridan trans., Vintage Books 2nd ed. 1995).
	19	 See Robert Johnson & Sandra McGunigall-Smith, Life
Without Parole, America’s Other Death Penalty: Notes on
Life Under Sentence of Death by Incarceration, 88 Prison J.
328, 328 (2008); Testimony of Robert Johnson at Public
Hearing Before N.J. Death Penalty Study Comm’n, July 19,
2006.
	20	This quotation and the following excerpts come from Sarah

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Mitchell’s letter from prison, a copy of which is in the author’s
possession.
	21	 Graham, 130 S. Ct. at 2016 (quoting Harmelin, 501 U.S. at
1001).
	22	 Id. at 2038 (Roberts, C.J., concurring) (emphasis added).
23	 Royal Comm’n on Capital Punishment, 1949–1953 Report 20
	
(1953).
24	 Id. at 753 (citing James Fitzjames Stephen, Capital Punish	
ments, Fraser’s Magazine, June 1864).
25	 Id.
	
	26	 See, e.g., Cass R. Sunstein & Adrian Vermeule, Is Capital
Punishment Morally Required? Acts, Omissions, and Life-Life
Tradeoffs, 58 Stan. L. Rev. 703 (2005).
27	Bob Egelko, Field Poll finds 70% support death penalty, S.F.
	
Chron., July 22, 2010, at http://articles.sfgate.com/201007-22/bay-area/21992975_1_death-penalty-focus-capitalpunishment-sentence (quoting Stefanie Faucher, associate
director of Death Penalty Focus).
	28	 Graham, 130 S. Ct. at 2028 (quoting Roper v. Simmons, 543
U.S. 551, 571 (2005)).

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