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May 22, 2018

"Against Life Without Parole"

The title of this post is the title of this new paper authored by Judith Lichtenberg available via SSRN. Here is the abstract:

Over 40,000 people in the United States today are serving life without parole sentences (LWOP) — more than triple the number in 1992.  This figure understates the case, since parole has become increasingly rare for the 140,000 prisoners serving life sentences that ostensibly permit parole. I argue that LWOP sentences should be abolished.

After reviewing the facts about LWOP, I show that of the standard reasons for punishment only retributivism can hope to justify it.  I investigate the varieties of retributivism and argue that plausible versions do not entail or even recommend it.  So, we can reject LWOP without abandoning retributivism — an important point, strategically and perhaps morally as well.

I then make the positive case for abolition, on three main grounds.  First, few (if any) people are fully culpable for their criminal acts; we should mitigate their punishment accordingly.  Second, abolishing life without parole — and indeed all life sentences — is likely to bring many benefits: to prisoners, their loved ones, the community in general, and to those who decide for abolition and who carry it out.  Among these is the promotion of certain attitudes it is good for people to have, including faith in humanity.  Finally, there’s a certain pointlessness in continuing to punish a person who has undergone changes of character that distance them greatly from the person who committed the crime many decades earlier.

May 22, 2018 at 09:45 AM | Permalink


"...parole has become increasingly rare for the 140,000 prisoners serving life sentences that ostensibly permit parole." That is not true in California. Under the Brown Administration (and the members of the Board of Parole Hearings he appoints), a lifer inmate (typically a murderer) who goes to a parole hearing now has a 1 in 3 chance of being granted parole.

Posted by: Cal. Prosecutor | May 22, 2018 11:13:47 AM

That "faith in humanity" is just faith in the author's belief.

The biggest complaint I have about the legal academy is the sterility of intellectual thought. Everyone says the same thing over and over again. There's no intellectual growth in an echo chamber.

Posted by: justme | May 22, 2018 1:28:57 PM


"Would a 21-year sentence for the unrepentant Dylann Roof, who killed nine
parishioners at Emanuel African Methodist Episcopal Church in Charleston, South Carolina in June 2015, express disrespect for his victims and the rule of law? This is the kind of sentence Roof would get in Norway. It seems ludicrous to think that Norwegians do not value life to the same degree that Americans do, and thus that their shorter sentences express or represent a disrespect of humanity."

That is called question begging.

Posted by: justme | May 22, 2018 1:42:12 PM

Again, Sweetie, the home address. All released murderers to your street. We are not dumping these toxic people into poor neighborhoods without political influence.

Posted by: David Behar | May 22, 2018 3:30:36 PM

Justine. The tradition is that after law school, the A students become professors. The C students then hire the B students to be legal practitioners. The C students are the ones not wasting a lot of time on grades in professional school, and hustling to start viable businesses. To be an A student in law school, one must memorize 7000 rules, and spend 80 hours a week studying. So one comes out knowing nothing about the real world. The Ivy law student had all A's to get in. So they spent 80 hours a week studying in college, and missed the social development of college. That is why they look, and speak as they do.

Posted by: David Behar | May 22, 2018 3:55:03 PM

Yes, if only we had your social skills, guy-who-spends-his- life-calling-for-the-beatings-of-lawyers-and-judges-on-the-internet

Posted by: RW | May 22, 2018 6:27:00 PM

North Carolina is one of only five states in the country that mandates all felony murder convictions are first degree murder and all convictions for felony murder must be punished by Life Without Parole. I am working on a post conviction motion arguing that such treatment violates the Eighth Amendment guarantee of "graduated punishment" set forth in Graham v Florida.

In the case I am working on there was a robbery and a person was killed by a stray bullet. The jury sent a question out of the jury room during deliberation stating "Do we have to convict the def of first degree felony murder if we believe the killing was an accident?" The Judge told them "Yes." The Def is now serving life without parole, which means exactly that.

In my last four murder trials I have stopped using the term "Life Without Parole" as the mandatory punishment. Instead, I tell the jury that the punishment is "Death in Prison."


Posted by: bruce cunningham | May 22, 2018 8:45:26 PM

RW. The beating of judges has justification in formal logic. Formal logic has more certainty than the laws of physics. Most people support the killing of lawyers. I do not. They would just be replaced by grateful competitors. These would be the same. A beating will deter the insurrectionist lawlessness of judges making law. Judicial review is a violation of Article I Section 1. It grants "All" lawmaking power to the Congress. All executive branch regulation also violates that Section.

Article 1 - The Legislative Branch
Section 1 - The Legislature

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Do any of you lawyers need help understanding the language of that Section?

Are tort and criminal liability a substitute for violence? All lawyers say, yes.

Legal immunity is therefore a justification for violence.

The contrapositive of a true assertion is always true. "All bats are mammals," is true. This animal is not a mammal. It is not a bat.

Posted by: David Behar | May 23, 2018 10:29:57 AM

Bruce. I read an article criticizing the support of the felony murder rule by OW Holmes. When I redid the arithmetic, it supported the deterrent effect of the Rule. OW Holmes has never, ever been wrong. Yes, he was a graduate of Harvard Law School. I understand that. People who care about victims support the felony murder rule.

Posted by: David Behar | May 23, 2018 10:34:00 AM

Professor Berman:

How many more years are you going to platform this person's calls for violence, often impliedly against yourself and your users (see, the home address thread)?


Whatever is going on in your life, it's not going to get better until you stop doing this.

Posted by: RW | May 23, 2018 6:55:29 PM

RW. Those are just personal attacks from your frustration by the facts.

Posted by: David Behar | May 24, 2018 1:19:40 AM

David: frustration with your repeated discussion of "beating of judges" and "killing of lawyers" and claims that "legal immunity justifies violence against the tortfeasors" does not stem from frustration with facts. It stems from a very justified disaffinity for your sophomoric rhetoric of physical violence, reflected in this ugly comment from a few months ago: "The place to start to remedy this ridiculous situation is to hunt and beat the asses of lawyer legislators and judges. Do not kill them. They will be replaced by grateful competitors. Beat their asses. To deter."

That said, I have noticed a seemingly genuine effort by David to bring more substance and less vitriol to his comments. Other than his comment at 10:29 above, I had to go back a number of threads to find similar ugliness. Recent developments lead me to want to believe David can and will keep trying to be a more productive and less vile comment contributor. But he has disappointed me before, and I know it can happen again and I will take action as needed.

Posted by: Doug B | May 24, 2018 11:07:03 AM

I am just a member of the public and I like in the UK..my partner is American and is currently serving LWOP..He was 18 years old at the time of the crime he has spent 25 years in prison....before his crime he worked and had no previous convictions....he never actually killed the person but was at the scene. he is a black American...he deserves a chance of even a parole hearing to review him and his sentence....

Posted by: jacqueline slater | Jan 17, 2019 10:49:50 AM

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