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September 29, 2013

"Life Without Parole as a Conflicted Punishment"

The title of this post is the title of this lengthy and notable new article available now via SSRN and authored by Craig Lerner. Here is the 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.

September 29, 2013 at 09:56 AM | Permalink

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Comments

Federalist 74:

"Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

Posted by: C60 | Sep 29, 2013 1:08:59 PM

Lerner makes the same common and mysterious error that so many do.

With life without parole, the judge or jury is not making a decision about the rehabilitative possibilities of the criminal, but about the appropriate sanction for the crime or crimes of that criminal.

Very basic.

If rehabilitation was the issue, then we already know that the experts get it wrong, so terribly often, that it is better to leave the criminals in jail than to release them, simply based on our poor predictive judgements regading rehabilitation.

Posted by: Dudley Sharp | Sep 30, 2013 7:20:18 AM

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