Life Without Parole as a Conflicted Punishment
Craig S. Lerner
George Mason University School of Law
September 20, 2013
Wake Forest Law Review, Vol. 48, pp. 1101-1171, 2013
George Mason Law & Economics Research Paper No. 13-50
Life without parole (LWOP) has displaced the death penalty as the distinctive American punishment. Although the sentence scarcely exists in Europe, roughly 40,000 inmates are serving LWOP in America today. Despite its prevalence, the sentence has received little academic scrutiny. This has begun to change, a development sparked by a pair of Supreme Court cases, Graham v. Florida (2010) and Miller v. Alabama (2012), which express European-styled reservations with America’s embrace of LWOP. Both opinions, like the nascent academic commentary, lament the irrevocability of the sentence and the expressive judgment purportedly conveyed - that a human being is so incorrigible that the community brands him with the mark of Cain and banishes him forever from our midst. In the tamer language of the Graham opinion, LWOP “forswears altogether the rehabilitative ideal.”
This Article tests whether that phrase is a fair characterization of LWOP today, and concludes that the Graham Court’s treatment of LWOP captures only a partial truth. Life without parole, the Article argues, is a conflicted punishment. The community indulges its thirst for revenge when imposing the sentence, but over time softer impulses insinuate themselves. LWOP is in part intended as a punishment of incalculable cruelty, more horrible than a prison term of many years, and on par with or worse than death itself. In practice, however, LWOP also emerges as a softer punishment, accommodating a concern for the inmate’s humanity and a hope for his rehabilitation.
Number of Pages in PDF File: 72
Keywords: life without parole, LWOP, death penalty, execution, Graham v. Florida, Miller v. Alabama, Eighth Amendment, punishment, sentencing, retribution, rehabilitation, banishment, clemency, juveniles, Harmelin v. Michigan, Solem v. Helm, Cesare Beccaria, John Stuart Mill, William Tallack, Walter Berns
JEL Classification: K14, K41, K42
Date posted: September 26, 2013 ; Last revised: March 7, 2014
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