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March 27, 2011

"Mandatory Life and the Death of Equitable Discretion"

The title of this post is the title of this notable new book chapter by Professor Josh Bowers, which is now available via SSRN. Here is the abstract:

This essay is a contribution to a book that asks the question whether life without parole (LWOP) is the new death penalty. The essay claims that the punishment — at least in its mandatory form — is not so much the new death penalty as the old one (but not quite). Specifically, contemporary capital punishment expressly admits — indeed requires — an equitable determination.  That is, before imposing the death penalty, the capital-sentencing jury is called upon to exercise practical wisdom based on everyday experience to reach a commonsense determination of normative blameworthiness — to consider not only the particulars of the criminal incident but also the social and psychological circumstances of the defendant.

By contrast, LWOP is frequently a mandatory punishment over which a jury holds no equitable sway.  In this way, mandatory LWOP bears a closer resemblance to the historical mandatory death penalty.  But, significantly, the analogy between the historical death penalty and modern mandatory LWOP is imperfect.  Although the pre-modern jury lacked power over the sentencing determination, it enjoyed considerable influence over the guilt determination, both because common-law liability rules were more flexible and because the pre-modern jury was arbiter of both law and fact.  Thus, the pre-modern jury retained robust authority to circumvent mandatory penalties in equitably problematic cases. Comparatively, the modern LWOP jury is hamstrung by a more substantively and procedurally rigid and formalized criminal-justice system.  Thus, the LWOP jury lacks the equitable safety valves that tempered application of both the historical death penalty and its modern capital corollary.

To the extent an opportunity for equitable discretion remains in mandatory LWOP regimes, it rests wholly with the professional prosecutor, who controls the charging decision, but who concurrently has an institutional incentive to charge high to maximize bargaining power.  In such circumstances, the prime determinate of whether a defendant receives an LWOP sentence is not normative blameworthiness but willingness to plead guilty.  Mandatory LWOP is, thus, a punishment that only the interested prosecutor can temper effectively, but that the prosecutor has the least interest in tempering for equitable reasons alone.

March 27, 2011 at 09:49 PM | Permalink


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Bowers is of course absolutely right. His comments reflect the unwise decision of the Supreme Court to give such unadulterated powers to prosecutors in the first place, and the extraordinary practice of submitting their position to popular and political vote. Mandatory sentencing, whilst envisioned as a means to overcome wide variation, is the wrong approach. Inexplicably wide variation of sentencing is a symptom of professional misconduct or a lack of professional education and guidance. Systems to impose greater accountability of both are preferable to rigid sentencing, which impact unfairly and unreasonably on the accused.

Posted by: peter | Mar 28, 2011 3:53:53 AM

For years, death penalty opponents offered LWOP as the practical, pragmatic, humane alternative to execution. Their contention was that LWOP offered most of the benefits of the DP, while avoiding most of its drawbacks.

Death penalty supporters have long predicted that once the abolitionists succeeded in getting the DP repealed, they would NEXT try to get LWOP repealed. Sure enough, here we go.

Posted by: Marc Shepherd | Mar 28, 2011 8:25:43 AM

You are wrong. Abolitionists support LWOP in the clearly worst cases .... as it is practiced in the UK for example. Appeals against an LWOP order may be allowed in some minority of cases, but since the penalty is used, as it should be, very sparingly, in practice few appeals succeed. If it succeeds then there is a very good reason for it. What abolitionists do resist is the carte blanche approach which fails to give appropriate account of factors which should err on the side of review in the majority of cases. All murderers in the UK are released only on strict terms of lifelong license - which may be revoked if those terms are broken or a danger is foreseen.
The latest Amnesty report on the the death penalty worldwide may be of interest of those yet to catch up on it: http://www.amnesty.org/en/news-and-updates/report/death-penalty-2010-executing-countries-left-isolated-after-decade-progress
Easier to click on my name for link.

Posted by: peter | Mar 28, 2011 9:05:44 AM

Marc Shepherd --

Nailed it.

Posted by: Bill Otis | Mar 29, 2011 9:37:12 AM

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