CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, October 22, 2010

Blecker on LWOP

Blecker robert 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.

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What exactly do you mean when you say "permanent punitive segregation?" How is that different than life without parole?

Posted by: JT | Oct 22, 2010 1:03:05 PM

Having worked for the Illinois Death Penalty Trial Assistance, LWOP to me was known as, "natural life." I often heard heard others refer to "natural life," as "natural death." Why? Because Illinois has not had parole since around 1977, natural life was, in fact, not leaving prison unless it was in a pine box. There was no "Get out Of Jail Free," card for good behavior. It was just that - life in jail. Hence, the nickname.

Cynicism comes easy to those of us who deal who deal with such heavy "life & death" issues issues on a daily basis. When all you deal with are alleged killers, and people who want to kill them, it's really hard to keep your head on straight. You have to laugh, or you'll cry your eyes out, or scratch them out, depending on the situation.

And, it's a well-known fact that in criminal defense work, that you don't always like your client. When discussing whether or not there should even be a death penalty, several of us in the trenches agreed that it was a far worse punishment for the defendant to wake up every day as "Bubba's boyfriend," than it was to sit in solitary confinement, and face a needle puncture 10-15 years down the road.

In fact, many defendants who learned they were facing LWOP would take the stance called, "Gimme the juice or cut me loose." This phrase meant, "let me out, or kill me now." This meant the client was not willing to accept a plea offer, but, instead wanted only a trial where they could win and walk out of the court room, or, if they lost, they would then set aside all their appeals, and demand an immediate date for execution, just like Timothy McVeigh.

These defendants knew that it was a far worse punishment to be in general population every day for the rest of their life. They also knew that, if they did receive a death sentence, they would sit on death row, in solitary confinement, forced to wait for an appeal they believed would never be granted, or forced to wait for an execution date that may never be set, due to the current moratorium.

From my vantage, there is no easy answer. Having dealt with many death penalty defendants, I know that most are not evil. Most did something really stupid that caused another person's death.

After my years of exposure to death penalty trials, I personally believe that the death penalty serves a purpose only when inmate has killed another inmate, a prison employee, or another individual inside the prison facility. And then, it serves a purpose only if the killing was not committed in self-defense.

Only when the facility demonstrates that it is no longer able to control its own inmate, then do I believe that the time has come to "kill the killer."

Just my experience. YMMV.

Posted by: Kristy Gosteli | Oct 22, 2010 3:24:14 PM

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