Life without parole

The death sentence might be justifiable, but life without parole is hard to fathom. Still, there’s Whitey Bulger.

Unlike some of my friends, I can imagine situations where the death penalty would be justified. (That doesn’t mean I think there’s a way to make it work under U.S. legal and social conditions.)

But life-without-parole - accepted by some as a superior alternative - strikes me as almost always unjustified. Even if you agree with me that sometimes it’s possible to say “This person deserves to die,” how could you possibly say convincingly “The person this person will become in fifty years deserves to be in prison until he dies?”

That’s especially true, of course, when the Lw/oP sentence comes from a stupidly sadistic mandatory-sentencing law, of the kind we still have on the books federally and in some states, and as the result of gross failures of prosecutorial discretion.

That said, do I get to make an exception for Whitey Bulger? Though note that he was charged with racketeering rather than drug dealing, so though he drew two life sentences plus five years (a rather metaphysical verdict, if you read it literally) he didn’t actually get Lw/oP.

Footnote And no, though I can understand the politics of the situation, I can’t actually justify President Obama’s failure to commute a bunch of these sentences. If the pardon process is too opaque, then appoint three while male conservative Republican retired federal judges as an unofficial “clemency committee,” with a pre-commitment to commute any sentence for which they unanimously recommend commutation.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

22 thoughts on “Life without parole”

  1. Two comments. First, impossible sentences — life-plus, consecutive life, etc. — are idiotic, and make the criminal justice system look stupid. Second, my opinion is that it would tax the intelligence and wisdom of the best judge to decide who belongs in jail for, say, the next twenty years. My ideal maximum sentence would be something like 20 years — maybe less for an elderly convict — to be followed by a new kind of hearing that would be less than a new trial but more than a parole hearing to determine the justification and necessity of continued incarceration. I don’t suggest that this in likely in our lifetimes.

  2. I have trouble following your logic, and life without parole has many things to recommend it from the victim’s family’s perspective. From the first part of what you say, you seem to believe that there are acts that are unforgivable and, therefore, might justify the death penalty. Then you go on to say that there’s no justification for believing that the person that the subject will be in 50 years will, after all those years, deserve to be in prison. But the same problem plagues the death penalty; the death penalty kills off the subject and all his/her future selves-including the ones that in 50 years would have been a reformed person that in your framing might be worthy of parole had he or she not been put to death. So he or she may be worthy of potentially having parole but in some cases of not being alive to potentially have parole? That doesn’t make sense.

    Life without parole saves families from having to sit through parole hearing after parole hearing for the person who killed their loved one. There is some mercy in that, if you, indeed, accept that some crimes merit permanent, irrevocable judgment, no matter what a person evolves into (which is what your death penalty stance suggests). It’s hard to make an argument that somebody is less guilty of murder simply because a bunch of time has elapsed.

    My best friend in high school was murdered by a man who killed another girl as well, and he was only convicted on my friend’s murder; I drag myself every few years to testify at his parole hearing, and I do it because I think the ONLY thing that keeps that guy from doing it again is the fact that he’s locked up. It’s expensive, time-consuming, and emotionally draining, and I do it because I owe it to her and I want that guy to stay where he’s at. He’s fine right there. Doesn’t need to be out, doesn’t need to be dead. Just right there, where he’s watched and controlled, which he needs. He’s got a family who doesn’t really want him out either, by all appearances, but some of them are young and don’t need to live the rest of their lives knowing he died with a state’s needle in his arm. My friend’s mother and father, on the other hand, get older and sadder and more miserable with every parole hearing. If this guy ever gets out, and he will, I will then get to fear for my life because he’s got plenty of reason to hate me (I testified against him at his first trial.)

    So yeah, life without parole makes plenty of sense to me.

  3. I agree with Lisa: Mark’s theory makes no sense. It proves too much. Most incarcerated people are pretty young at the time of sentencing-if they’re sentenced for any length of time, they’re likely to be different people. (Given our prison system, they’re likely to be worse people, but that’s another issue.) There are several functions of criminal punishment, and LwoP makes some sense for some of them: retaliation, deterrence (maybe), and in a few Willie Bosket cases, incapacitation.

    That being said, there are good arguments against LwoP, and in any case, it is handed out way too often. And Obama’s record on pardons is indeed disgusting. I normally view him as a sane Republican (of the Ike or Tricky Dick school of Republicanism). But on this issue, he is either a craven thug, or a hangee-burnee-floggee loon.

  4. I can’t actually justify President Obama’s failure to commute a bunch of these sentences.

    I would agree with this. I would also note that this is particularly the case given the Gov. McDonnell in VA used the pardon process very aggressively, and this seems to have been non-controversial left and right.

  5. I once saw a documentary (on A&E, I think), in which someone pointed out that a “life” sentence could just as accurately be called “death by incarceration”.

    Criminal sentencing policies should take into account known facts of human nature: specifically, that the brain does not fully mature until around age 25, that the vast majority of violent crimes are committed by young men aged 14-30, and that the middle-aged and elderly (with a few exceptions like serial killers, terrorists, and professional crime bosses) usually pose very little threat to the community.

    Regarding Bulger, I’m not sure that the “life” sentence is really relevant; he’s 84 years old, so under any finite sentence that comes close to fitting the nature of the crime, he’d almost certainly die of old age in prison before his release date.

  6. Plenty of people do things early in life that have terrible effects on the person they become in the future. Does that person “deserve” those effects? Not necessarily, but they’re still there.

    More to the point, it seems to me that the general need to rethink imprisonment may get its start with older prisoners. On the one hand, they’re not really suited for the harshly punitive conditions of “regular” prison, but on the other many of them are still menaces to society at large (for anecdata, I offer a local child-molester, whose success at abusing children had apparently improved with age because more people trusted the grandfatherly figure he presented). And on the third hand after decades of imprisonment the odds of reintegrating them into gainful employment and independent living may not be so good. A retirement community with barbed wire?

  7. Bulger was convicted in federal court, where parole was abolished under the 1984 Sentencing Reform Act. So any federal “life” sentence is LWOP.

  8. I try not to post Savvy things, but really, you don’t understand the President’s inaction? Picture the reaction of the WH chief of staff to the idea of handing the Rs the talking point that freeing criminals is a WH priority.

  9. Life without parole is often accepted by juries as an acceptable alternative to the death penalty; without it, juries might vote for capital punishment, if they thought that the convicted defendant had a change of making parole.

    Death sentences, AKA “I hereby sentence you to the death penalty appeals process for the remainder of your natural life,” are a much harder sell in many states than LWOP. The community wants to be assured that the criminal never walks the streets again, and if LWOP were not available, might demand more frequent sentences of death.

  10. I mostly agree with Ebenezer and Lisa. I still read, today, of people getting ridiculous sentence for repeated, vicious crimes. You probably know about the serial rapist that NoCal seems to have succeeded in shipping down here. (And yes, I know, a lot of the absurd sentences were from years ago. But I think there some 90s ones too.) I have no issue with LwoP for certain people, though I oppose the death penalty. (I think we should have a sentence that says, “we think that if society killed you, you would have no right to complain given what you did. But we aren’t going to do it because we don’t need to, and therefore, there is no real justification.” And that would be perhaps separate from a regular LwoP, though in effect the same.)

    At the same time, it does sound as if we need serious prison reform. Ideally prison would be sort of like a monastery, rather than enclosed fear, mayhem and racial hatred. And we seem to have issues with too much isolation and so forth.

    If we sent fewer non-violent people there I don’t see why we couldn’t do this, with maybe about the same number of guards (unions being a big obstacle to reform here?) I do believe in rehabilitation and this doesn’t make me think that means the person deserves to get “out.” To be honest, I’m not sure that a life sentence for a premeditated murder is unfair (absent our brutal prisons). Why would someone think they could coldbloodedly murder and then get out?

    1. Having said that, I think there’s a whole lot more we could and should be doing to prevent violence. Lots more money for early childhood interventions. A decent mental healthcare system. In fairness, we would need to also do those things before we could say our system was fair. We’re a long way from that.

      1. ” Ideally prison would be sort of like a monastery, rather than enclosed fear, mayhem and racial hatred.

        If we sent fewer non-violent people there I don’t see why we couldn’t do this,”

        You don’t think that prisons might be such unpleasant places in large measure, (Though certainly not entirely!) precisely because we’re putting very unpleasant people in them?

        1. It’s probably some of both, but my feeling is, since we spend such massive amounts of money on prisons, they ought at least to be places where someone can morally recuperate from their probably-ungood upbringing, which imo is heavily responsible for where they ended up, in most cases. Very few people are born “bad.” We are so much more influenced by environment than anyone usually wants to admit.

          Plus, just as a matter of justice, if the state puts people in prison, the prisons must meet basic standards of decency and safety, which we don’t do.

          Especially since we know that some number of them are in fact innocent.

          They should be a place where people can come to grips with their past and I hope become better people. Or at least, not worse.

          1. I guess what I’m saying is that, if you took the average prison, and replaced the actual prisoners with regular, non-violent, non-criminal people, they probably wouldn’t be such awful places. They’d be not so awful places you couldn’t leave at will, of course, but most of the awfulness of prison life is a consequence of the people we put in them, who were pretty awful to be around when they were in the outside world, too.

            Yes, we need to set basic standards of decency and safety, and those standards have to take into account that they are for people who are genuinely bad human beings, who will prey upon each other if given any opportunity to. Prison needs to be redesigned to deny the inmates any opportunity to prey upon each other.

            If that means they don’t get to enjoy physical contact with each other, I’m sure a lot of victims of prison rape would be ok with that.

          2. @Brett: About twenty years ago CBS “Sixty Minutes” aired a segment about a prison in California designed for zero violence. The place was set up so there were no places a prisoner could be unobserved at all times. The story focused on the man who had planned and ran (as warden) the prison. He was dedicated to the idea that prisons, while a place of punishment should not be brutal. Seems the idea was controversial. Go figger.

  11. Allow me to pick the well-informed brains of the RBC and ask if there are definitions of overcrowding in prisons. Are there a minimum number of square feet (or cubic feet) for each prisoner to occupy?

    Similarly, I have looked without success at the Geneva Conventions for minimum standards of space for confinement of prisoners. How small a space can a POW be confined in?

    Thanks and a tip of the hat to anyone who happens to know. Part of the inhumanity of long incarceration has to do with issues of personal space and how small a cage you can put a person in before violating international standards of decency.

  12. We are convinced it would be the height of barbarism to whip someone a hundred times for an offense. Ditto for pillorying, cuffing people and getting others to look at them and shame them for a week. At the same time we are basically comfortable with long prison sentences, at least with the broad principle that people can be sent away for a decade for stealing something, to life long punishment for murderers. Trouble is, we can all vividly imagine what it would be like to be flogged a hundred times, or to have some obscene teenager throw eggs at you. But we are terrible at imagining the drudgery of being behind bars day in day out for incredibly long spans, and so dole out punishment like candy, to compensate for the fact that we (as a people, as legislators, as juries) cannot get a visceral sense for the harm we’re inflicting on someone. Especially if sentence durations have increased - I think they have over decadal time spans, didn’t find anything over longer scales from a quick google - I’m not even sure this is net moral progress. Maybe greater attention should be paid to making punishments feel vivid.

  13. Mark, are you then saying that (almost) no felon can be judged a permanent danger to society? What about a cold-blooded sociopathic killer, or the child molester in the above comment whose molesting became more successful as he aged into a friendly grandpa? Can’t we say, this guy is going to commit horrible crimes if we ever let him out of prison, so he has to stay?

  14. The idea that a murderer should be permitted to live the remainder of life with — as is nearly always the case — being able to communicate with his loved ones and to make himself a “better person” through reading and education, when he himself has denied his victim the same is simply immoral.

    That the so-called “reality-based community” largely cannot process this fact, is utterly incapable of empathy with the murderer’s victim(s) and family, and inevitably responds to death-penalty advocates with accusations of Racismâ„¢ or speaks volumes to the absurdity of that self-descriptive.

  15. Your logic does more to justify capital punishment than it does to shed any light on what should be done in response to some individuals’ actions. A sentence of life without hope of parole as an alternative to death does not mean much if 20 or 30 years later people successfully argue “we didn’t know what this person would become in time”. Some acts do put a person into a special category where redemption by mankind is not possible.

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