Worthless Checks? Clemency, Compassionate Release, and the Finality of Life Without Parole

Abstract

Life without parole (LWOP) sentences are politically popular in the United States because, on their face, they claim to hold prisoners incarcerated until they die, with zero prospect of release via the regularized channel of parole. However, this view is procedurally shortsighted. After parole there is generally another remedial option for lessening or abrogating punishment: executive clemency via pardons and commutations. Increasingly, U.S. legal jurisdictions also provide for the possibility of compassionate release for lifers, usually granted by a parole board.

On paper, pardon, commutation, and compassionate release are thus direct challenges to the claim that an LWOP sentence will inevitably and invariably lead to the prisoner’s death while incarcerated. Few previous studies, however, have examined the finality of LWOP empirically. In this Article, I present original empirical data on clemency covering the period 1990–2021 in order to investigate the relationship between LWOP sentences and the release mechanisms of executive clemency and compassionate release in both state and federal cases.

Ultimately, the results of this research reaffirm the finality of LWOP in the United States, despite the availability, on paper, of at least three potential release procedures. Only a handful of LWOP prisoners have received commutation or pardon from U.S. presidents, state governors, or pardons boards. Compassionate release has been granted almost as rarely. That said, some demographics tend to have benefited more than others. The findings presented within this Article are relevant not only to domestic clemency and end-of-life release policy but also to litigation dealing with a “right to hope” as a component of human dignity, and to the academic debate over LWOP as a global replacement for the death penalty and a form of “extreme” punishment of its own accord.

Keywords: Life Without Parole, Executive Clemency, Life Imprisonment, Commutation, Criminal Justice