'Life Without Parole' Under Modern Theories of Punishment
Paul H. Robinson
University of Pennsylvania Law School
Life Without Parole: America's New Death Penalty? (Charles J. Ogletree, Jr. & Austin Sarat eds., New York University Press 2012).
U of Penn Law School, Public Law Research Paper No. 10-34
Life without parole seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like "three strikes." Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment. The prerequisite conditions for effective general deterrence are the exception rather than the rule. Moreover, effective and fair preventive detention is difficult when attempted through the criminal justice system. If we really are committed to preventive detention, it is better for both society and potential detainees that it be done through a civil system that openly admits its preventive justification and goals.
Further, recent research shows that deterrence and incapacitation-based distributions of punishment commonly conflict not only with principles of deontological desert but also with lay people's intuitions of justice. Research also suggests that, by allowing such injustices, the criminal justice system undermines its moral credibility with the community it governs and thereby undermines its ability to harness the more powerful forces of normative crime-control.
This preference for a desert-based distribution of punishment is reflected in the American Law Institute's recent amendment of the Model Penal Code – its first amendment in 48 years – which set desert as the dominant distributive principle for sentencing. Is LWOP an appropriate sentence under that desert principle? The core principle for a desert distribution is this: greater punishment should be imposed upon an offender of greater blameworthiness and less punishment upon an offender of lesser blameworthiness. Because LWOP represents the endpoint of the imprisonment continuum, it can be an appropriate sentence only for the most egregious case (or, if the death penalty is available, the second most egregious case). To use it more broadly is to violate desert by punishing equally cases of identifiably different degrees of blameworthiness, thereby trivializing the greater blameworthiness of the more serious cases. In other words, a desert distributive principle would not demand LWOP in a case if there has been, or reasonably could be, a noticeably more egregious case. This suggests LWOP ought to be a rare sentence, reserved only for the most blameworthy offenders.
Keywords: criminal law, sentencing, life without parole, punishment theory, deterrence, incapacitation, empirical desert, deontological desert, three strikes statutes, coercive and normative crime control
Date posted: October 23, 2010 ; Last revised: June 25, 2012
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