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Who's Really Sentenced to Life Without Parole?: Searching for 'Ugly Disproportionalities' in the American Criminal Justice System

75 Pages Posted: 11 Nov 2015  

Craig S. Lerner

George Mason University - Antonin Scalia Law School, Faculty

Date Written: November 10, 2015

Abstract

Critics argue that the American criminal justice system is rife with “ugly disproportionalities” and “brutal penalties on the undeserving.” One particularly brutal punishment is the sentence of life without the possibility of parole (LWOP). The punishment, conceived decades ago as a substitute for the death penalty, scarcely exists in the rest of the world. Today, while capital punishment wanes in the United States, steadily increasing numbers of defendants are sentenced to LWOP. Furthermore, according to a recent ACLU Report, over 3,000 of the 50,000 inmates serving LWOP were convicted of nonviolent offenses. There is no uglier disproportionality than a defendant, guilty of a minor crime, banished to prison for the remainder of his life.

This Article questions this narrative and therewith the contemporary wisdom as to the brutality of American criminal justice, at least in its imposition of LWOP sentences. The author conducted a detailed study of every inmate sentenced to LWOP in eight states. In a few states, it is impossible to find a single inmate sentenced to LWOP for any crime other than murder or the most serious violent crimes. Even in jurisdictions that impose LWOP for crimes labeled “nonviolent,” the inmates are few in number and often present aggravating factors, such as extensive criminal histories or previous violent crimes. Inevitably, criminals sentenced to LWOP will vary in culpability, and some will appear not to merit this punishment. Drawing attention to their plight can spur executive clemency in individual cases. But accusations that the American legal system is rife with “ugly disproportionalities,” at least insofar as this claim is applied to LWOP sentences in the states, appear to have little merit.

Keywords: Alabama, ACLU, Arkansas, burglary, criminal justice system, culpability, death penalty, drugs, Eighth Amendment, Florida, Georgia, habitual offender statutes, Iowa, life without parole, LWOP, murder, nonviolent offenses, proportionality, South Carolina, violent crimes, Washington, Wisconsin

JEL Classification: K14

Suggested Citation

Lerner, Craig S., Who's Really Sentenced to Life Without Parole?: Searching for 'Ugly Disproportionalities' in the American Criminal Justice System (November 10, 2015). Wisconsin Law Review, Vol. 2015, No. 5, pp. 789-862, Forthcoming; George Mason Law & Economics Research Paper No. 15-51. Available at SSRN: https://ssrn.com/abstract=2688743

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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