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June 24, 2020

Making the case against LWOP, the bigger and badder death penalty

This new NBC News commentary by Peter Irons makes the case for paying more attention to, and getting rid of, LWOP sentences.  The piece's full headline highlights its themes: "A prison sentence of life without parole isn't called the death penalty.  But it should be.  Before we cheer the huge drop in capital punishment cases, we need to revisit and replace the extended death penalty — life without parole."  I recommend the full piece, and here are excerpts:

[A]s more and more prosecutors seek the death penalty more infrequently, if at all­­, they routinely press for LWOP sentences in first-degree murder cases, and sometimes for second-degree murder and armed robbery.  There’s no uniform standard to decide which defendants deserve to eventually be eligible for parole and which don’t; these choices are inherently “arbitrary and capricious” and the antithesis of fairness.

As a result, even with death-sentenced inmates at a modern low of some 2,800, there are now more than 53,000 serving LWOP sentences, a four-fold increase in the past two decades.  Another 44,000 are serving “virtual life” sentences of 50 or more years, past the life expectancies of almost all inmates. In other words, some 97,000 inmates have still been condemned to die behind bars....

Those who receive life sentences with parole eligibility return to prison for another violent crime at a rate of only 1.2 percent.  Though LWOP inmates, by definition, cannot present any evidence of rehabilitation to a parole board, it’s reasonable to expect that ending life without parole sentences would not unleash a new murder wave.  Doing so would also save taxpayers up to $40,000 for each year of further incarceration, not to mention the costs for the growing number of elderly inmates with serious health problems. That’s the pocketbook argument against the practice.

A better argument, in my opinion, is that restoring parole eligibility to all convicted murderers (with no guarantee of release, of course) would encourage inmates to keep their disciplinary records clean and to participate in educational and vocational programs to improve their chances of successful re-entry into their communities and job markets....

My personal preference would be to revise state laws to give all convicted murderers a chance for parole after serving a minimum of 10 or 15 years (those who get life sentences with the possibility of parole serve an average of 13.4 years), and a presumption of parole after age 55 or 60, by which time most inmates have “aged out” of further crime.  But I understand both are unlikely of adoption in all but the bluest states, so I suggest instead urging governors to exercise their pardon and commutation powers in cases of demonstrated rehabilitation and remorse....

The nascent campaign against LWOP has already secured a beachhead from which it can press for eventual abolition. The Supreme Court ruled in 2012 in Miller v. Alabama that juvenile murderers cannot be given a mandatory LWOP sentence.  By the same token, even those LWOP inmates who murdered as adults deserve resentencing consideration.  The only factor in deciding whether to return an inmate to society is whether they are likely to endanger others.  To say that any prisoner, whatever their crime and sentence, cannot possibly show remorse and rehabilitation, as a life-without-parole punishment does, is to say that these “bad” people — unlike the rest of us — cannot change for the good and denies their common humanity.

June 24, 2020 at 10:16 PM | Permalink


I recently watch a female friend suffer thru the last months of her son's life and death, while he was serving a parolable life sentence in Kentucky. In his 20s, he committed an armed robbery in which he shot and killed someone. He was sentenced to life, with the possibility of parole after 25 years (which is a normal sentence for such crimes in Kentucky). In 2019, he was diagnosed with a Glioblastoma, the most dangerous and fastest growing form of brain cancer. He had neurosurgery, which removed only part of the tumor. Thereafter, the Commonwealth paid for radiation and chemotherapy, but the tumor continued to grow. The inmate became completely paralyzed on the right side of his body. is prison physician recommended that he be granted Special Medical Parole, since he had only a few months to live. is Warden and the Director of the Dept. of Corrections agreed, but the Kentucky Parole Board said "NO"! They pointed out that he would see the Board in May, after his minimum 25 year sentenced had been served by April 14th. When the Board saw this inmate in May 2020, they denied him parole. When he entered hospice care at a public hospital in Louisville, and was in a coma, the Warden permitted his Mother to come be with him and hold his hand for the last two days, until they withdrew life support and he died. The denial of parole in his case seems exceptionally cruel.

Posted by: James J. Gormley | Jun 25, 2020 9:01:26 AM

The article is right, James is right. Sentencing is a mess and everyone can see it except the US Supreme Court. Politicians (too many), Prosecutors (too many) and Judges (too many), simply don't care or lack the will to challenge it. What's the parable about walking on the other side? Good Samaritan's are rare when it comes to facing up to the injustices of sentencing policy. A pandemic hasn't shaken it. Maybe they are all waiting for a bolt of lightning from the heavens.

Posted by: peter | Jun 25, 2020 3:40:40 PM

“ My personal preference would be to revise state laws to give all convicted murderers a chance for parole after serving a minimum of 10 or 15 years (those who get life sentences with the possibility of parole serve an average of 13.4 years), and a presumption of parole after age 55 or 60, by which time most inmates have “aged out” of further crime.”

It is really not clear to me why Professor Irons’ personal preference should carry the day. What I can see is that Professor Irons is concerned about his preferences, the cost of incarceration, recidivism (but only because of its alleged support for his preference) and getting murderers the chance at parole no matter the circumstances of the killing. What Professor Irons does not give a shred a credence to is that victims have their own form of LWOP, one that can never be commuted by an act of executive grace. On that topic he says nothing.

Human beings do not operate solely in the world of statistical risk and Professor Irons‘ personal preferences of punishment and mercy. What find shocking is why he thinks we should care about his personal take on the matter. The rest of the article is standard anti-LWOP fare and not particularly insightful even from his perspective. That LWOP, aka “death in prison” (for dramatic effect), is next up in the death penalty abolitionists’ playbook is no secret.

Posted by: Eric | Jun 27, 2020 11:59:35 PM

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