IV. LWOP as an Inappropriate Alternative to the Death Penalty
The reasons why American society will eventually decide to eliminate the death penalty as a punishment are as important as the outcome--maybe more so. Subsequent sentencing reform efforts are more difficult when LWOP is promoted as an alternative only to be opposed later. As advocates work to eliminate the death penalty, they may harm later efforts if LWOP is dismissed as unworthy of similar ethical concerns.
This is apparent in the juvenile arena, where the potential pitfalls of this approach were observed during the oral arguments in Miller, the Supreme Court case considering LWOP for juveniles. At oral argument, Justice Ginsburg pointed out that LWOP was a sufficiently severe sanction that could be a constitutional alternative to the death penalty for juveniles:
[B] ut in Roper, the Court also made the point--when it ruled out the death penalty, it said, “To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction.”
So, the Court in Roper seemed to be anticipating this case and suggesting that--that it was all right, it was constitutional.
Pitting these two sentences against one another makes later reform efforts more difficult.
The Supreme Court typically avoids regulating the constitutionality of sentences other than the death penalty. Graham v. Florida, which acknowledged the appropriateness of an Eighth Amendment analysis for a noncapital, non-homicide crime, is a significant departure from the Supreme Court's precedent for narrowing the scope of its Eighth Amendment considerations to the death penalty. Before Graham, the Court had largely limited its rulings on cruel and unusual punishments to death-eligible cases. In Graham, Justice Kennedy wrote that “life without parole sentences share some characteristics with death sentences that are shared by no other sentences” because both “alter [ ] the offender's life by a forfeiture that is irrevocable.”
The death penalty is a small fraction of our complete crime policy structure, yet it stands as a symbol both domestically and internationally that America continues to be tough on crime. At a 2011 GOP debate, Texas Governor Rick Perry announced with pride that his state's execution of 234 people demonstrated “the ultimate justice.”
