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March 12, 2021

"Are Life Sentences a Merciful Alternative to the Death Penalty?"

The question in the title of this post is the headline of this new extended Mother Jones article.  Here are excerpts:

In the midst of [recent] victories in the fight against capital punishment, many advocates are attempting to address a different form of punishment, questioning how much more merciful life imprisonment is compared to the death penalty.

Life without parole has many of the same qualities that make the death penalty so abhorrent.  Capital punishment is riddled with racial disparities, junk science, and a legal system that routinely fails the marginalized. “Those same exact flaws exist across the whole system,” says Ashley Nellis, a senior research analyst at the advocacy organization The Sentencing Project.  Looked at logically, staying alive, albeit in prison, just has to be a better outcome than being executed.  But looked at more closely, is the lesser sentence really “better” than the harshest one?  “I would not call it a humane alternative to the death penalty,” Shari Silberstein, the executive director of the Equal Justice USA, a criminal justice nonprofit, tells me.  In fact, it’s a punishment both extreme and one that disproportionately affects the most marginalized people....

For Silberstein, anti-death penalty activists shouldn’t focus solely on life without parole as an alternative to the death penalty, but they should consider an entire reconfiguration of what justice means, and what it should look like.  After someone has been harmed, “there’s a need for healing, safety, accountability, and a sense of justice,” she explains. But it is unrealistic to expect “that a prison sentence can meet all of those needs.”  Clearly, they haven’t, she notes.  Harsh sentences persevere, even in places where the death penalty has already been abolished because of the underlying belief that, as Silverstein explains succinctly, “The only sense that justice has been done is if someone else suffers.”

Perhaps now — when execution as a punishment has never seemed so obscene and unacceptable — it’s the right time to reconsider all punishments.  What is the real difference between spending years behind bars only to die strapped to a gurney while correctional staff administer enough drugs to kill you, and languishing behind bars until so-called natural causes finally, mercifully, takes your life?  Are these differences sufficient to end one punishment and while still justifying another?  If the United States is on the cusp of abolishing the death penalty, perhaps it should take the next logical step and abolish another form of cruel and unusual punishment as well: life imprisonment.

March 12, 2021 at 03:46 PM | Permalink


It's difficult for anti-death penalty advocates to make the case for more humane sentences than life without parole when life sentences are still given to individuals for nonviolent crimes.

Shari Silberstein is correct. When talking about the death penalty, it is necessary to review the entire spectrum of sentencing. It's hard to imagine that the death penalty will be replaced by life without parole when that is a sentence that is given to many categories of nonviolent people.

Posted by: beth curtis | Mar 13, 2021 4:03:17 PM

Just goes to show that the people arguing against LWOP as an alternative years ago were right, that if execution were abandoned (as it has been for practical purposes) the debate would simply shift. I say "no more", the courts were wrong to say that the eighth amendment has any sort of proportionality requirement and that is what should be fixed. Make it clear that only method of punishment is banned, not reason for punishment.

Posted by: Soronel Haetir | Mar 13, 2021 4:28:54 PM

I'd have no problem with giving the death penalty greater frequency and greater speed. The only caveat is that courts reviewing death sentences need to feel free to review claims of actual innocence de novo, regardless of whether or not the claim was raised in a timely fashion. We could make up for that by banning appeals that the execution itself would be too painful. Then we'd have less LWOP.

Posted by: William C Jockusch | Mar 14, 2021 1:17:25 PM

Actual innocence is pretty much the only claim I believe should be recognized after an initial claim (IAC, diminished capacity, whatever) has been rejected.

I also believe that Strickland poses a decent framework for evaluating IAC. That if an offender cannot satisfy both prongs there should be no relief.

Posted by: Soronel Haetir | Mar 15, 2021 12:07:34 AM

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