Friday, October 22, 2010
Robert Blecker (New York Law School) has posted Less than We Might: Meditations on Life in Prison Without Parole (Federal Sentencing Reporter, Vol. 23, No. 1, 2010) on SSRN. Here is the abstract:
Today, death penalty opponents mostly claim life without parole (LWOP) as their genuinely popular substitute punishment for "the worst of the worst." These abolitionists embrace LWOP as cheaper, equally just, and equally effective - a punishment that eliminates the state’s exercise of an inhumane power to kill helpless human beings who pose no immediate threat. Furthermore, they insist, LWOP allows the criminal justice system to reverse sentencing mistakes. Some even characterize it as a "punishment worse than death."
Thousands of hours in several states, interviewing and observing more than a hundred convicted killers, along with dozens of correctional officers who confine them - from wardens down to line officers - have taught me, however that LWOP does not substitute for, and suggest that LWOP should not supplement, the death penalty.
In those states that reject the death penalty, LWOP may seem the only appropriate punishment for the worst crimes and criminals. However, although conflicted and unsure, on balance I argue here that as presently conceived and practiced, life without parole - more and more the punishment against which all else is measured - ultimately has no place in any criminal justice system worth its name.
The current climate regarding punishment, reflected in the mission statements and professional practices of Departments of Corrections, buttressed by the U.S. Supreme Court in Graham only contributes to the failure of LWOP as a substitute or supplement to death. A different concept and practice of punishment - call it permanent punitive segregation (PPS) - could supply a morally acceptable substitute to many retributive death penalty supporters while satisfying those abolitionists who recognize that the worst of the worst of the worst do deserve to be punished severely - and forever.