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February 2, 2016

"The Irrationality of Natural Life Sentences"

The title of this post is the headline of this New York Times Opinionator column authored by Jennifer Lackey.  Here are excerpts:

[Personal] transformations can be seen most clearly by considering the two ends of the spectrum of life.  On the early side, it is often noted that the prefrontal cortex of the brains of adolescents is still developing, and so they are more likely than adults to act on impulse, engage in dangerous or risky behavior, and misread social cues and emotions.  This raises a host of questions about the level of responsibility that juveniles bear for their crimes and the appropriate punishments that should be handed out to them.  If the underdeveloped brains of adolescents at least partly explain their criminal behavior, then holding them fully responsible for their actions, and punishing them as adults, seems wildly off the mark.

On the later side of the spectrum, only 1 percent of serious crime is committed by people over the age of 60. According to Jonathan Turley, a professor of public interest law at George Washington University: “Everyone agrees on what is the most reliable predictor of recidivism: age.  As people get older, they statistically become less dangerous.” Turley refers to this period as “criminal menopause,” a phenomenon that raises serious questions about the rationale for incarcerating the elderly.  Still, researchers project that the elderly prison population in the United States will be over 400,000 in 2030, compared with 8,853 in 1981.

At the early end of the spectrum of life, then, there is the possibility that prisoners might change; at the later end, there is the reality that they have changed.  Both facts bump up against natural life sentences.  A sentence of “natural life” means that there are no parole hearings, no credit for time served, no possibility of release.  Short of a successful appeal or an executive pardon, such a sentence means that the convicted will, in no uncertain terms, die behind bars.

Many types of arguments have been leveled against natural life sentences.  Economic ones focus on the ballooning costs of mass incarceration and the toll this takes on government budgets, especially as the age and medical expenses of prisoners rapidly increase.  Legal ones ask whether such sentences are cruel and unusual and therefore violate the Eighth Amendment, particularly for juveniles.  Social arguments ask whether natural life sentences discourage reform by providing no incentive for rehabilitation.  Moral concerns are grounded in the dignity and rights of prisoners, while psychological objections call attention to the myriad causes of deviant behavior and their responsiveness to appropriate treatment.

But one argument that is surprisingly absent from these conversations is an epistemic one that has to do with us.  For natural life sentences say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal.  Nothing.  So no matter how much a juvenile is transformed behind bars, and no matter how unrecognizable an elderly prisoner is from his earlier self, this is utterly irrelevant to whether they should be incarcerated.  Our absence of knowledge about the future, our ignorance of what is to come, our lack of a crystal ball, is in no way a barrier to determining now what someone’s life ought to be like decades from now.

Moreover, prisoners aren’t the only ones who can change: victims and their families can come to see the convicted as being worthy of forgiveness and a second chance, and public attitudes can evolve, moving away from a zealous “war on crime” approach to one that sees much criminal activity as the result of broader social problems that call for reform.  Even if we set aside the other arguments against natural life sentences — economic, legal, moral and so on — the question I want to ask here is this: how is it rational to screen off the relevance of this information?  How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades­-from-­now prisoner deserves?...

Notice that nothing in the epistemic argument here suggests that no prisoners should, in fact, spend the rest of their natural lives behind bars.  Instead, the point is that rationality requires that we leave the epistemic door open to acquiring new information.  Put bluntly, the argument says that it is irrational for the possibility of parole to be taken off the table at the outset of any sentence.

If Hume is right that “a wise man proportions his belief to the evidence,” then our beliefs about the punishment a person deserves at any given time need to be sensitive to the evidence available at that time.  But if we screen off huge amounts of potentially relevant information decades before the beliefs about what a prisoner deserves are even formed, then it is impossible for them to be proportioned to the evidence.

February 2, 2016 at 03:27 PM | Permalink


With respect to Ms. Lackey, the "legal arguments" about the constitutionality of LWOP, particularly juvenile LWOP, very much encompass the epistemological problem to which she points. It is this very problem that has led the Court to conclude that a sentencing body will rarely be able to reliably identify an "irredeemably incorrigible" juvenile. She obscures this point by failing to address the substance of the 8th Amendment arguments to which she nominally points.

Posted by: John | Feb 2, 2016 5:42:33 PM

I thought they were locked up to punish them. Not just to prevent them from inflicting additional crimes when older.

Posted by: Liberty1st | Feb 2, 2016 7:02:21 PM

Thanks for clearing that up. Another subtle point offered in an internet comment forum.

Posted by: John | Feb 2, 2016 7:51:01 PM

"But if we screen off huge amounts of potentially relevant information decades before the beliefs about what a prisoner deserves are even formed, then it is impossible for them to be proportioned to the evidence."

We do no such thing. Executive clemency is just as capable of capturing potentially relevant information as a parole board. The issue is who is staffing those positions and what criteria are being applied.

Posted by: David | Feb 2, 2016 11:34:32 PM

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