Life Without Parole as a Conflicted Punishment

72 Pages Posted: 26 Sep 2013 Last revised: 7 Mar 2014

Craig S. Lerner

George Mason University - Antonin Scalia Law School, Faculty

Date Written: September 20, 2013

Abstract

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.

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

Suggested Citation

Lerner, Craig S., Life Without Parole as a Conflicted Punishment (September 20, 2013). Wake Forest Law Review, Vol. 48, pp. 1101-1171, 2013; George Mason Law & Economics Research Paper No. 13-50. Available at SSRN: https://ssrn.com/abstract=2329864

Craig S. Lerner (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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