III. What's Wrong with LWOP?
There are at least three serious issues with parole-ineligible life sentences. These problems include an absence of heightened review of LWOP sentences, the mandatory application of LWOP, and the extreme racial disparity in the LWOP population.
A. Lack of Heightened Review
Death penalty cases are reviewed with a high degree of scrutiny because of the irrevocable nature of executions. In fact, several layers of review separate the imposition of death sentences from that of all lesser sentences. For instance, capital defendants generally have the right to state-appointed counsel for post-conviction litigation, but noncapital defendants do not. And, while ineffective assistance of counsel still occurs in death penalty cases some of the time, particularly for low-income defendants, these claims are carefully reviewed.
For life without parole cases, the court procedures are far more limited; appeals by the highest state court are not guaranteed as they are with death penalty cases, and the mandatory nature of LWOP sentences allows important features of a case or defendant to be overlooked. For juveniles, it is not uncommon for a defendant's attorney to be trying his or her first homicide case, as trial attorneys often cut their teeth in juvenile cases.
Those facing LWOP sentences do not benefit from the same level of procedural protections during the original trial or during the appeals process, despite the similarities they share with death sentences. And though state and federal post-conviction habeas restrictions differ from state to state, appeals are frequently time-barred. Yet there is virtually no limit to the appeals process where the penalty is death, resulting in offenders remaining in prison an average of about fifteen years before facing execution. Of the roughly 3,300 prisoners currently on death row, nearly all will die of natural causes or suicide, the same cause of death for the roughly 41,000 individuals who comprise the LWOP population.
The means by which a defendant can be sentenced to death are much more limited than those for an LWOP defendant. First, depending on the jurisdiction, both judges and juries can deliver LWOP sentences, but death sentences are usually the sole decision of juries. In addition, most states and the federal government require the jury to unanimously agree that a defendant should be sentenced to death, but this is not the case with LWOP. Unanimous jury decisions are not required for LWOP, and judges often make the sentencing decision. “ [S] cholars estimate the reversal rate for noncapital cases to be 10-20%, far below the capital reversal rate of roughly 68%.”
Another concern is the limited amount of information that juries are entitled to receive about sentencing options in death penalty cases. Simmons v. South Carolina determined that when a prosecutor who wishes to raise the issue of future dangerousness as justification for sentencing the defendant to death, he or she must disclose LWOP as an alternative if it is an option in the state. However, it is not a requirement to disclose any other sentencing options that might be available.
The lack of heightened review in cases leading to LWOP sentences brings an increased likelihood that innocent individuals will be punished. Just as placing an innocent person on death row is morally unacceptable, so too is the wrongful imprisonment of someone for the rest of his or her life. For both, it means a period of irreversible years spent in prison. Since 1973, there have been 141 exonerated death row prisoners; the exact number of exonerated individuals serving LWOP is not known but is presumed to be lower. One such case is that of the West Memphis Three, which received prominent national attention by investigative journalists and Hollywood celebrities, ultimately pressuring the state enough to revisit the case. Eventually, the two LWOP sentences and one death sentence were successfully challenged, and the three men were released after serving sixteen years in prison for crimes they did not commit.
With few exceptions the weight of the discussion around innocence claims is focused on death sentences, despite the strong probability that some prisoners serving life sentences are also innocent. Moreover, the death penalty is frequently used to leverage a guilty plea in exchange for a reduced sentence of LWOP. There is some evidence that defendants sometimes plead guilty to avoid more severe sanctions even though they are actually innocent.
Perhaps one reason the practice of trading death for the rest of one's life behind bars is morally accepted is that the public believes that it is relatively simple to have a case reopened if new evidence of innocence emerges. In a 2010 national public opinion poll, respondents were asked to provide their level of agreement (on a scale of 0-10) with the following statement: “With a sentence of life without parole, if new evidence of innocence emerges, the case can be reopened.” Sixty-six percent of respondents gave this a “10” and an additional fourteen percent gave it an “8” or “9,” meaning that the vast majority of respondents thought this was an option for life sentences. Yet, in reality this is not the case. Most states have time limits in which claims of innocence must be filed, ranging from just twenty-one days to three years. And it is more difficult to have an LWOP case examined because of the perception advanced that less is at stake compared to a death sentence. Over the past three decades, the opportunities for post-conviction appeals have been drastically reduced.
North Carolina's Racial Justice Act illustrates the subordinate position that LWOP holds in terms of protections against miscarriages of justice. Under the Act, a death row inmate can challenge his or her sentence on the grounds that race played a significant role in arriving at the sentence. Yet if the appeal is won and the case is determined to have been racially biased, the remedy is an LWOP sentence. Missouri and Pennsylvania introduced similar legislation in 2012. Lawmakers seem to have come to the conclusion that it is somehow less unjust to administer an LWOP sentence than a death sentence when race was established to have played an important role.
In general, the public is less concerned about innocent people being sentenced to life without parole than being sentenced to death. In the same survey referenced above, respondents were asked to report how convincing they found the following statement:
The death penalty risks executing the innocent. Many innocent people have been sent to our nation's death rows before new evidence freed them and some innocent people may have been executed. It is unacceptable to execute innocent people, and in a system run by human beings that's inevitable. Executing innocent people is a risk we can completely avoid by using sentences of life with no possibility of parole.
Seventy-one percent of respondents found this statement to be very or somewhat convincing, suggesting that the public is not nearly as concerned about individuals serving lifelong prison sentences, even if they are innocent, because the wrongful execution of them has been spared.
One might think that clemency is an option for relief from an LWOP sentence, but governors nationwide have denied virtually all clemency requests over the past three decades. Petitioners must depend on a shift in the political landscape in order to hope for relief through clemency. One's readiness for release should be a decision that is determined by a professional panel equipped to review the prisoner's original sentence and his or her rehabilitation since arriving at prison.
Some states have eased the ways in which inmates can be released from long sentences, but in reality these early release valves are rarely used. In Wisconsin, for instance, the Governor expanded a program in 2009 that permits LWOP inmates to petition for release on the basis of age and infirmity, but few inmates were released under this program and the program was later amended and restricted. Virginia and several other states have a mechanism in place for geriatric release, but this too is rarely utilized.
B. Mandatory Sentences
By 1963, all states had abolished the mandatory imposition of the death penalty. Analyses of executions before and after mandatory death sentences were permitted show a marked decline in the use of the death penalty when discretion is allowed. In at least twenty-nine jurisdictions, life without parole is mandatorily applied in some circumstances. The consequence of this is that decisions are not the product of reasoned deliberations.
The issue of mandatory LWOP sentences, at least for some, received national attention in June 2012 because of the U.S. Supreme Court decision in Miller v. Alabama. Miller held that individuals who are under the age of eighteen at the time of their crime cannot mandatorily be sentenced to life in prison without the possibility of parole. In this particular case, Mr. Miller was fourteen at the time he committed homicide. Similar to other recent rulings on juveniles, the Court maintained that juveniles' actions do not necessarily predict who they will become once they mature into adulthood. Mandatory sentences preclude the possibility of a second look and were therefore determined to be unconstitutional for individuals under eighteen.
Judges are often frustrated with mandatory sentences such as LWOP. In one review of federal judicial opinions on sentencing, repeated concerns were voiced about extremely long sentences for nonviolent and first time offenders. According to one judge, sentences that held nonviolent offenders past the age of sixty were “pointless.” “Moreover, if there is no likelihood of release before death or old age, some judges [a] re troubled that these defendants w [ill] have no hope, and therefore, little incentive to be ‘model prisoners.”’ Judges have also noted that giving a thirty-year sentence “when fifteen would accomplish the same goal” is fiscally irresponsible.
Federal judges have expressed much frustration in their limited discretion at the sentencing stage when a mandatory life sentence is the only option. Individuals who pose no threat of physical harm and have been convicted of nonviolent offenses are nevertheless subjected to mandatory LWOP sentences under harsh federal sentencing structures. Recollecting one such case, a federal judge remarked in an interview that had he not been forced to issue an LWOP sentence, he would have opted for a term of ten to twelve years.
C. Racial Disparity
Racial disparity is a widely documented problem in death sentences; multiple studies confirm that race plays a fundamental role in sanctions imposed within the criminal justice system. The race of the victim appears to play a particularly important role in whether the death penalty is sought.
Any sentence that is more likely to be imposed because of one's racial or ethnic background, all other factors being equal, is inappropriate. Just as it is wrong to administer a death sentence when it is discovered that the trial phase was influenced by race, it is also wrong to sentence someone to life in prison for this reason. Yet we see this playing out in states around the country.
Of the 41,095 people serving LWOP sentences (as of 2008), 48.3% are African-American. While data on the race of the victims for all people serving life without parole sentences has not been gathered, an analysis of data on juvenile life without parole (“JLWOP”) shows that the proportion of African-Americans serving JLWOP sentences for killing a white person (43.4%) is nearly twice the rate at which African-American juveniles overall have been arrested for taking a white person's life (23.2%). Perhaps other factors, such as a prior record, account for this large-scale disparity, but until we can be absolutely certain that these other factors provide a full explanation, it is inappropriate to permit criminal sentencing that produces racial disparity.
