Death, Life Without Parole, and Legislating Extreme Punishment


Credit: J.M. Giordano
Maryland's death chamber cell at the prison hospital in Baltimore
By: Michael Corbin
audaciousideas.org
Saturday, January 19, 2013

 Maryland lawmakers have a real chance this legislative session to vote to abolish the state’s death penalty. This makes it an opportune time to examine the growing body of research and reflection on America’s increasing use of sentences of “life without parole”(LWOP) and their relationship to the broad national trend toward capital punishment abolition.

Nowhere is that research and reflection better illustrated than in Life Without Parole: America’s New Death Penalty? by Charles J. Ogletree Jr., and Austin Sarat, published last summer. Ogletree is professor of law and Director of theCharles Hamilton Houston Institute for Race and Justice at Harvard University and Sarat is a political scientist at Amherst College.

An edited volume, Life Without Paroleshould be of particular interest to Maryland lawmakers and citizens right now as the public legislative debate about ending capital punishment begins in earnest in the state.   Indeed, the current debate in Maryland about death penalty abolition demonstrates one of the important contentions of the book. Namely, in our narrowing of focus on getting rid of the death penalty, we obscure the broader pattern of punitiveness and unequal application of punishment that is woven into our criminal justice system. As Ogletree and Sarat observe, provocatively, in their introduction, “LWOP forces us to ask whether death really is different—or at  least whether a slow death sentence is much different than a swift one.”

Thus, as the debate in the Maryland Legislature proceeds, here are a few things from Life Without Parole that should be considered:

  • http://www.audaciousideas.org/wp-content/themes/audaciousideas2/images/b...); background-attachment: initial; background-origin: initial; background-clip: initial; background-color: initial; background-position: 0px 8px; background-repeat: no-repeat no-repeat; border: 0px initial initial;">Between 1992 and 2008, the LWOP population in the United States increased 230%,” the authors write. “So that more prisoners are serving life terms than ever before.” They show that this increase is directly related to debates about the value of the death penalty, but with counter-intuitive consequences. They observe that nationally, “the enactment of life-without-parole statutes is correlated with a small decrease in the number of death sentences handed down, but it has not led to a significant reduction in execution.” They go on, even as the number of prisoners serving LWOP has exploded, the number of Americans on death row has increased as well.
  • http://www.audaciousideas.org/wp-content/themes/audaciousideas2/images/b...); background-attachment: initial; background-origin: initial; background-clip: initial; background-color: initial; background-position: 0px 8px; background-repeat: no-repeat no-repeat; border: 0px initial initial;">The authors also argue that by unquestioningly adopting LWOP, death penalty abolition has often opened the door to harsher sentencing more broadly, being a “spur to life sentences for noncapital crimes,” the say.
  • http://www.audaciousideas.org/wp-content/themes/audaciousideas2/images/b...); background-attachment: initial; background-origin: initial; background-clip: initial; background-color: initial; background-position: 0px 8px; background-repeat: no-repeat no-repeat; border: 0px initial initial;">While abolitionists argue that getting rid of the death penalty saves money, it fails to look at the accelerating costs of housing prisoners forever, with a growing crisis of a need for geriatric care in our nations prisons—for while the prisoners never get out, they do grow old.
  • http://www.audaciousideas.org/wp-content/themes/audaciousideas2/images/b...); background-attachment: initial; background-origin: initial; background-clip: initial; background-color: initial; background-position: 0px 8px; background-repeat: no-repeat no-repeat; border: 0px initial initial;">“There is evidence that, as in the case of capital punishment, LWOP is riddled with racial disparity.” The authors observe: “Not only are blacks overrepresented initially within the life-sentenced population, this statistic indicates that blacks are deemed parole ineligible disproportionately as well. These findings of racial disparities are hardly surprising: discriminatory sentencing drives the demographics of prison populations from death row down to the county jail.”
  • http://www.audaciousideas.org/wp-content/themes/audaciousideas2/images/b...); background-attachment: initial; background-origin: initial; background-clip: initial; background-color: initial; background-position: 0px 8px; background-repeat: no-repeat no-repeat; border: 0px initial initial;">Even a conservative Supreme Court observed in the case Graham v. Florida that “LWOP is a cruel and unusual punishment when imposed on juveniles for nonhomicide offenses.” The authors note that this opens the door for us to at least intellectually consider LWOP as “cruel and unusual” in itself.

One of the most powerful pieces in the volume comes from former federal prosecutor I. Bennett Capers. Capers, now a professor at Brooklyn Law School, prosecuted both capital and LWOP cases. In his essay “Defending Life” he challenges the narrow focus of many self-described death penalty abolitionists—a challenge that applies to the Maryland lawmakers and advocates now planning to rewrite our legislation of extreme punishments:

 The challenge, then, is not only to rethink the death penalty or LWOP but also to rethink our entire system of punishments. We need to rethink the current alignment of death penalty abolitionists and “tough on crime” advocates when it comes to LWOP and foster a realignment of death penalty abolitionists and sentencing reformers. We need to question, as Rachel Barkow has so eloquently done, the collateral consequences to noncapital sentences as a result of the heightened scrutiny given to death penalty cases. We need to admit where the traditional rationales for punishment—the justifications now offered by the Court for sanctioning “extreme punishments”—fail on their own merits …

Capers goes on to a very personal reflection on how he—and thus we—are potentially changed morally when we replace state-sanctioned killing  for “life without parole:”

 I can remember the names of my death-eligible defendants, I have trouble remembering even one of my LWOP defendants. And no one lost sleep over racial disparities, which were even more pronounced than in death penalty cases. (All my LWOP were black or Hispanic)

Here is the thing. The whole time I was prosecuting death-eligible cases, I used to wonder what if. Would prosecuting a death penalty case all the way through to the penalty phase change me? Would playing a role in a state-authorized killing change me? I never wondered that about my LWOP cases. Now, I do.

Life Without Parole has more that should be considered as the legislative debate over the death penalty begins in Maryland—being especially careful of the intersection of self-righteousness and political expediency in our quest to write into law our most extreme punishments.