The American Civil Liberties Union recently released a report aptly titled “A Living Death.” It deals with the phenomenon of life sentencing without possibility of parole. Known as “LWOP,” it might as aptly be called “LWOH,” for life without hope.
Originally intended as an alternative to capital punishment, life without parole has morphed into a penalty imposed not just for murder and other dangerous felonies but also for nonviolent offenses. Focusing on this gross misuse of a sentence that some deem worse than death, the ACLU’s exposé, published in November 2013, persuasively argues that life without parole must be categorically abolished in such cases — in which its infliction, lacking all rational justification, amounts to retributivism gone rogue.
The effects of such a sentence are stark. The hopelessness bred by an endless term of incarceration predictably leads to despair, depression, chronic anxiety and thoughts of suicide. Its victims, according to the ACLU report, often describe it in terms of dying, not living: “a slow death”; “a living death”; “akin to being dead, without the one benefit of not having to suffer anymore.”
Isolation and loneliness dog their days, as they miss the important milestones in their families’ lives. (Life without parole also constitutes a sentence without reprieve for relatives: Wives lose husbands and parents, sons; children grow up without their fathers.) Exacerbating their situation, these prisoners generally have very restricted or no access to vocational, educational or treatment programs. Since society has given up on them, rehabilitation is viewed as irrelevant, a waste of money.
Notwithstanding their extreme severity, such terms are much more easily obtained and, ironically, more final than sentences of death. While capital defendants (at least in theory, and sometimes in practice) enjoy unusual substantive and procedural safeguards both before and after judgment, life without parole may be imposed and upheld without any special protections, such as separate penalty trials, post-conviction appointment of counsel and the right to appeal to the state’s highest court.
True, the U.S. Supreme Court in 2012 in Miller v. Alabama rejected as cruel and unusual mandatory life without parole for juvenile offenders. In addition, the court in 2010 in Graham v. Florida rejected life without parole for juvenile offenders convicted of nonhomicide crimes.
But except in one early decision striking down life without parole imposed for a seventh nonviolent felony, the court has shown no interest in finding the punishment unconstitutional in the case of adult felons.
Indeed, in Harmelin v. Michigan, the court’s plurality opinion in 1991 sustained a life-without-parole term for a first offense of possessing 672 grams of cocaine. Furthermore, the justices’ refusal to apply retroactively favorable precedents in different areas affecting punishment has closed another potential escape route. In the absence of commutation — a prospect as likely as finding the proverbial needle in a haystack — life without parole is truly a sentence to die within prison walls.
Perhaps this draconian form of penalty would be tolerable if given just to the worst of the worst. Yet the ACLU has located 3,278 life-without-parole recipients languishing behind bars because of crimes such as selling a single rock of crack, possessing a small amount of marijuana with intent to distribute and shoplifting minor items of property. Nearly four out of five (in the federal system, virtually all) got life without parole for drug-related crimes that did not involve violence. Receipt of such a sentence correlates more with race and geography than with degree of culpability.
Even allowing for the disproportionate representation of blacks among convicts, African-Americans constitute an excessive number — 65 percent — of this group. About 93 percent of the state inmate population sentenced to life without parole resides in institutions in the Deep South.
What has produced this travesty of justice in recent decades? Mainly, it is not judges who have chosen to throw the book at small-time criminals. Instead, it is Congress and state legislatures that have given prosecutors the tools to do so. By enacting laws, usually mandatory, calling for stringent minimum sentences (at times, life without parole) as well as habitual-offender statutes, found in some form in all jurisdictions, these bodies have reduced judicial authority and lodged almost unreviewable discretion in federal prosecutors and their local counterparts, whose charging decisions end up being tantamount to sentencing.
In addition, the federal government and 16 states have completely abolished parole, thereby further enhancing prosecutorial power and denying any role to rehabilitation in determining the length of incarceration.
Significantly, in this arena as in capital punishment, the United States is out of sync with the world community. Life without parole exists in a mere 20 percent of nations. Among these, most limit its use to murder.
In Europe, only the Netherlands and Great Britain still impose it; the European Union has forsworn it. We should follow their enlightened lead.
At the very least, we should eliminate life without parole for crimes that do not entail death or serious physical injury. Destroying hope eradicates a vital part of the human soul.
Vivian Berger is Nash Professor of Law Emerita at Columbia Law School.