II. Causes for LWOP Expansion
Attention to the death penalty has continued to rise, yet focus on LWOP by scholars, policymakers, and sentence reform advocates has historically been minimal by comparison. The popularity of tough-on-crime sanctions, enhanced prosecutorial discretion, concerns about purported judicial leniency, and a temporary ban on death sentences have distracted attention from the fact that the number of people serving LWOP sentences today dwarfs the number on death row.
A. Tough on Crime
One reason that the number of people serving LWOP sentences increased is that policymakers ratcheted up the severity of sentences in the 1980s and 1990s. Elevated crime rates and crime fears at that time contributed to a new system of punishment that prioritized the offense over the offender and pushed for increasingly lengthy stays in prison. Catch phrases such as “do the crime, do the time” and “life means life” were popularized and quickly translated into crime policies that ultimately eliminated many of the indeterminate sentencing structures that had been in place for more than a century, replacing them with determinate, long sentences.
Prominent among these tough-on-crime sentencing policies are three-strikes laws, one of the drivers of LWOP. Three-strikes laws have been promoted as providing confidence that upon a defendant's third conviction he or she will be given an extremely long prison sentence--preferably one that locks him or her away for life. Between 1993 and 1995, twenty-four states and the federal government enacted three-strikes laws. While most of the life sentences resulting from three-strikes laws allow for the possibility of parole, thirteen states and the federal government have three-strikes laws that mandate LWOP for certain crimes.
In 1994, Georgia passed a “two-strike” law that requires, upon conviction of the first strike, that individuals convicted of kidnapping, armed robbery, rape, aggravated sodomy, aggravated sexual battery, and aggravated child molestation are sentenced to a minimum of ten years without parole. A second strike results in life without parole. The mandatory sentence for all homicide convictions is death, life imprisonment, or LWOP; however, even those sentenced to life imprisonment must serve a minimum of thirty years before becoming eligible for parole. Within the first few years, fifty-seven people were sentenced to LWOP under the new law. As of August 2012, 737 Georgia prisoners were serving LWOP, a 270% increase from its population of 199 LWOP prisoners in August 2000. And despite the intended purpose of the law, LWOP sentences have not been reserved for the worst of the worst. Only a slight majority (58.93% as of October 2012) of life-sentenced Georgia inmates with no chance for parole has been convicted of homicide.
LWOP can be a powerful tool to motivate defendants to plead guilty in exchange for having their lives spared by the state. Knowing this, prosecutors have been known to charge a defendant with capital murder in the hopes that he or she will plead guilty and accept a reduced, LWOP sentence. This practice has been approved by the Supreme Court, though the moral and ethical appropriateness of it is questionable, and it has eased the ways in which defendants receive an LWOP sentence.
B. Repeal of the Death Penalty
The rapid rise in LWOP sentences can partly be attributed to a desire for a reliable, terminal punishment to replace the death penalty after it was declared unconstitutional in 1972. Alabama, Illinois, and Louisiana all adopted LWOP statutes in direct response to the Furman decision. Although life sentences were certainly available in many states before Furman, they usually had the option of parole. More recent LWOP statutes, though they may not be in direct response to Furman, have been successful at enacting LWOP partly because of the promise of irrevocability that the sentence offers. Numerous state examples demonstrate this point.
In 2004, Kansas Governor Sebelius publicly supported LWOP and signed it into law to show her opposition to the death penalty, even though Kansas has not had an execution since 1965 and has only nine death row inmates. Texas policymakers resisted enacting an LWOP statute for many years because of the state's devotion to the death penalty, but it finally passed LWOP legislation after the death penalty was abolished for juveniles in 2005. And New Mexico's abolition of the death penalty would not have been possible had the state not endorsed LWOP in exchange. In fact, in twenty of the thirty-four death-penalty states, LWOP is now the required alternative if a prosecutor fails to obtain a death sentence. LWOP is not only used for capital murder either. Many state legislatures have expanded the range of LWOP-eligible offenses to include a broad array of noncapital crimes as well, such as armed burglary and various drug offenses. Today about 10% of LWOP inmates have been convicted of nonviolent crimes.
C. Public Mistrust
Confidence in the criminal justice system drops and concerns are raised about judicial or correctional leniency when paroled offenders commit a new offense. The idea of eliminating the death penalty is more palatable to a fearful public if the sentence that replaces it is equally permanent, guaranteeing that the prisoner will never be released. When the public struggles to believe that lengthy sentences will be carried out in their entirety, it will prefer lifelong, determinate sentencing structures, despite evidence that lengthy prison sentences are not associated with less crime or enhanced public safety.
Public outrage ensued after outgoing Mississippi Governor Barbour released 198 prisoners in early 2012, four of which had been convicted of murder. Three of the murders occurred nearly twenty years ago and the fourth occurred more than a decade ago. While the Mississippi Supreme Court upheld Barbour's decision, it was not without political backlash: Incoming Governor Phil Bryant abruptly ended the decades-old practice of allowing prison “trusties” to work in the governor's mansion. In addition, attempts were quickly made to limit the governor's pardoning power through legislation or a change to the constitution.
Fear of judicial leniency makes the public leery of sentences that allow for even the remote possibility of release; however, as Justice Kennedy noted in Graham v. Florida, a parole-eligible life sentence does not give someone the right to be released, it just gives a person the opportunity for sentence review at some reasonable point during their sentence.
D. Promotion of LWOP as a Replacement for the Death Penalty
Executions have declined by over 50% in the past decade in large part due to successes in legislation, litigation, and public education that have narrowed or eliminated the death penalty in certain states or in certain instances (e.g., the mentally handicapped, juveniles). The steadily falling homicide rate has also contributed to the decline in executions. Without these successes, consideration of the appropriateness of LWOP would not be possible. Death penalty abolitionist work opens the door to a broader review of all extreme sentences, starting with LWOP. Just as the death penalty movement has leaned on LWOP to advance its reforms, so too has the LWOP abolition movement benefitted from the growing prominence of death penalty discussions in order to gain momentum in its own reforms.
At the same time, the steady rise in LWOP sentences may be due to the promotion of LWOP as a replacement for the death penalty. Even though clear evidence is not yet available about whether the expansion of LWOP sentences is empirically attributable to the decline in death sentences, promotion of LWOP as a humane, reasonable alternative to the death penalty desensitizes society to the fact that this, too, is a death sentence. Instead of being portrayed as such, LWOP is often portrayed as a lucky break for defendants (e.g., defendants are tempted by prosecutors and defense attorneys alike to plead guilty and serve LWOP rather than risk a death sentence).
