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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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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

My son Paul Poupart doc 357073 got 20 years without probation or parole for a made up charge in Jefferson Parish LA on 1/11/2011.There is no justice here. They claim he posted pictures of a woman on top a police car posing for pictures as a threat for the cop not to appear and testify in court about a fight 1 year earlier where he punched a guy once for hitting a pregnant friend. The charge was put on him two weeks after that trial, and after the pictures appeared, after the trial they said the threat was made for, and, they said it was made not to the officer but to a bar owner to pass the message on. Again, the battery trial went on. Also, after being charged with simple battery at that trial, they put him in jail 12 days until sentencing (for a misdemeanor???), and then let him go. Isn't that illegal. Can't get anyone to listen to this. The pictures came out on the internet 5 days after he got out, not the next day as they claim, and, they didn't prove he posted them because he didn't post them. Still, the charge of public intimidation went to trial and he was found guilty. He was told prior to trial that if he didn't take a 2 year deal, he would be multiple billed and get 20 years without prob or parole. They didn't offer this deal, they made a threat to him! He wasn't guilty so he went to trial and none of us expected a high priced attorney to lose this simple case, but he did. That sounded more like a threat to my son. Also, they came and ransacked my house 3 days after the pictures appeared, no search warrant shown to me until 1/2 hour into searching and after I asked twice to see it, looking for the pictures he took but didn't post, and, broke open a safe, were going to pull it from the floor but they pryed it open and found the disk with the pictures on it. Again, he took the pictures but did not post them. Other people were there taking pictures that night. I know this has nothing to do with weed but no one will listen because of his record. No murders/no attempted murders nothing like that. What is a crime is the cop said he never saw the girl on the car in those pictures at motions, when he is smiling and looking right at the camera. He is a liar and the D.A. had it in for my son for suing them at an earlier time for a traffic accident. We are in the appeal process and no lawyer will argue his claims. The newspapers had it wrong also. They wrote what they were told to write. I've never heard of a trial being set for a Friday and pushed back to a Tuesday before that Friday. NEVER. They always push them forward, never back. That's so the media wouldn't be there to hear the lies they were telling.

Posted by: Sidney | Feb 1, 2017 8:40:15 PM

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