CrimProf Blog

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

Wednesday, June 8, 2011

Barkow on LWOP and Real Sentencing Reform

Barkow rachel Rachel E. Barkow (New York University (NYU) - School of Law) has posted Life Without Parole and the Hope for Real Sentencing Reform (NYU Press, Forthcoming) on SSRN. Here is the abstract:

In this chapter for a book that asks whether life without the possibility of parole (LWOP) is the new death penalty, I will explore some reasons why it is unlikely LWOP will experience the same procedural and substantive oversight that now exists for the death penalty. The chapter begins by highlighting the problem of defining LWOP in a way that will lead to meaningful reforms. If the concern with LWOP sentences is, as the Supreme Court recently suggested in Graham, that they eliminate the realistic hope of release, then other sentences – such as natural life sentences where parole is just as unlikely as executive clemency of an LWOP sentence or long term-of-years sentences – would seem to be equivalent.

But once one recognizes that these other sentences are comparable, problems of administrability and line-drawing pose enormous obstacles to both judicial and legislative reform efforts. The next hurdle is the puzzling question of how one should limit LWOP, assuming one can define it. Although some reformers would favor outright abolition, that is exceedingly unlikely given current Supreme Court attitudes about punishment review and American politics more generally. Thus, the question becomes who should be eligible for LWOP and which categories of offenses and offenders will create enough public sympathy to generate favorable judicial decisions or legislative reform efforts. Outside of juveniles, the pool of candidates is shallow. After addressing these substantive questions of scope, the chapter turns to the likelihood of procedural reforms and explains why LWOP sentences are unlikely to get the same procedural protections as capital cases. The sheer number of such cases is the largest obstacle, but the line-drawing problems are also likely to deter courts and legislators.

The Chapter also discusses an additional significant political obstacle to LWOP reform: the capital abolition movement itself. Anti-death penalty advocates have incentives to prevent LWOP from becoming the "new death penalty" in order to abolish the "old death penalty" and keep it from coming back. The success of abolition campaigns against capital punishment have depended heavily on the existence of LWOP, and it is unlikely that most abolitionists will join the battle to reform LWOP unless and until the death penalty is off the table as an option – and with no risk of return.

Finally, the Chapter concludes with a note of caution about focusing too much on what makes LWOP a unique punishment – the path paved by the Court’s "death is different" jurisprudence – as opposed to emphasizing the troublesome aspects it shares with other sentences. While a majority of the Supreme Court seems to view the extinction of hope as the main problem with LWOP, that concern is in many ways a distraction. The bigger problem with LWOP is that in too many cases it is a disproportionate punishment relative to the offense or the offender. But a concern with disproportionate sentencing is hardly limited to LWOP sentences. Any term of years or sentence with or without parole can be disproportionate under the Eighth Amendment. The Court created a “death is different” jurisprudence to avoid facing the hard question of disproportionality outside the capital context. It appears to be on the road to doing the same thing with LWOP. That may be the easier path for the Court’s docket and judicial management more generally, but it falls short of fulfilling the Constitution’s mandate.

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