Abstract
Charles J Ogletree, Jr and Austin Sarat (eds), Life without Parole: America’s New Death Penalty?, New York University Press: New York, 2012; 352 pp.: 9780814762486, $79.00 (cloth), $26.00 (pbk)
While the rallying cry ‘death is different’ has long helped to focus US attention on capital punishment, Charles J. Ogletree, Jr and Austin Sarat challenge this fundamental concept. Life, they suggest, is perhaps not so different from death, yet life without parole sentences (LWOP) have received little critical academic attention. In an edited volume considering a ‘punitive pecking order’ (p. 20) topped by LWOP, legal and interdisciplinary scholars confront LWOP’s inconsistent theoretical and practical justifications, its multiple meanings, and its significant injustices while beginning to conceptualize possible reforms.
Though the volume centers on LWOP, death lurks in the shadows as a constant point of comparison such that sometimes it seems life is best understood in relation to death. The parallel is intentional and unsurprising. After all, LWOP proliferated through a strategic partnership between ‘death penalty abolitionists and tough-on-crime politicians’ (p. 2) that offered LWOP in death’s place. Moreover, the volume illustrates the commonalities between these two types of sentences – highlighting LWOP’s racial disparity, shaky theoretical penal justifications, and the Supreme Court’s use of an Eighth Amendment analysis in 2010’s Graham v. Florida (categorically exempting juvenile, non-homicide offenders from LWOP) traditionally reserved for capital punishment. However, LWOP is also different from a death sentence. As the introduction concludes, ‘LWOP may well be the new capital punishment, with all of its baggage – but none of its processes’ (p. 21). The lens offered by the inextricable relationship of life to death produces insights that both challenge and reaffirm the understanding that death is different.
For example, Sharon Dolovich argues that those sentenced to LWOP exist in Agamben’s ‘state of exception’, permanently excluded from society ‘in spite of the possibility of change’ (pp. 122–123). Implicitly challenging analysis that considers the executable subject inhuman (Sarat and Shoemaker, 2011), Dolovich argues that both the procedural and symbolic aspects of a death sentence reflect humanity where LWOP reflects Agamben’s bare life – those so sentenced are excluded and forgotten. Former federal prosecutor Bennett Capers also highlights LWOP as death’s forgotten alternative, recounting that though he remembers each capital defendant, he has ‘trouble remembering even one of my LWOP defendants’ (p. 168). Capers likewise characterizes the treatment of LWOP defendants as less-than-human: ‘We prosecuted our LWOP defendants as if they were interchangeable widgets on an assembly line, and it was clear they were often defended the same way too.’ Equally striking, however, is the similarity Capers identifies in the application of LWOP and the death penalty to disadvantaged defendants. LWOP, he writes, is a tool of ‘banishment’ used to create ‘newly purged, whiter cities’ (p. 180), yet its racialized application has so far escaped substantial critique.
That LWOP is imposed uncritically undergirds several contributions. For example, the absence of meaningful consideration in sentencing leads Josh Bowers to analogize mandatory LWOP not to contemporary death penalty practices, but to death sentences mandated by England’s Bloody Codes. Bowers points out that Bloody Code jurors often invoked equitable discretion to spare a defendant’s life while many juries deciding mandatory LWOP cases have no idea of the punishment their guilty verdicts will mandate. The analogy and its limits force an uncomfortable confrontation: is our mechanical imposition of LWOP crueler than a system denoted as ‘bloody’? Bowers advances two procedural sentencing reforms: (1) give capital juries the choice between life with the possibility of parole, LWOP, or death during sentencing, or (2) adopt capital-style sentencing procedures for all LWOP cases. Bowers, however, also acknowledges additional conceptual problems with reform – does implementing procedural reforms lend LWOP a dangerous ‘patina of legitimacy’ (p. 45), and more fundamentally, what constitutes life?
Jessica S Henry engages this second question, urging the emerging dialogue surrounding LWOP to consider both formal LWOP sentences and what she terms ‘Death-in Prison’ (DIP) sentences – those lengthy prison terms that far exceed natural life expectancy as well as those sentences offering theoretical (if illusory) parole that often result in death behind bars. While Henry acknowledges the analytical difficulties inherent to DIP sentences, she argues the expansive definition is important to ensure reform does not trade life in form for life in function – as death penalty abolitionists traded death for life behind bars. The analytic problems with Henry’s DIP definition are echoed by Adam Liptak’s 29 April 2013 New York Times column tracing the disparate lower court approaches to implementing Graham’s 2010 prohibition of LWOP sentences for juvenile offenders convicted of a non-homicide crime. Where some courts interpret Graham as prohibiting only formal LWOP sentences, others have adopted a more expansive definition that includes de facto DIP sentences on the grounds that they violate the spirit if not the letter of Graham.
Where Henry focuses on definitional challenges, Marie Gottschalk highlights the LWOP population’s unwieldy heterogeneity, encompassing a spectrum of offenders bookended by the ‘pizza thief and the “worst of the worst”’ (p. 240). While this heterogeneity may make reform strategies predicated on relative culpability an analytically attractive strategy, Gottschalk warns they may ‘undermine more universalistic arguments about redemption, rehabilitation, mercy, and aging out of crime’ (p. 241–242).
Contributors also grapple with the substantive legitimacy of LWOP, but offer few suggestions in terms of achieving change. Rachel Barkow and Paul Robinson, engaging familiar legal analyses, suggest that retribution justifies LWOP for the worst offenders, but warn that LWOP’s proliferation undermines proportionality. For Robinson, imposing LWOP on a wide spectrum of offenders with variable degrees of blameworthiness undermines ‘justice, fighting crime, and having safe and productive correctional facilities’ (p. 158). Barkow argues that rather than frame LWOP as the new death penalty, emerging reform strategies must remember that LWOP applies to a wide spectrum of offenses, which, like all non-capital sentences, risk gross disproportionality of punishment to crime. Henry challenges DIP sentences as unnecessary and while Gottschalk hedges on the acceptability of LWOP for the ‘worst of the worst’, she reminds us that our penal system is ultimately accountable not to public opinion but to ensuring humanity, feasibility, and effectiveness (p. 252). Both call for penal policy that emphasizes restoration and re-entry, but offer few specific mechanisms to achieve this transformation. While Barkow evaluates several reform strategies, she ultimately finds them unviable. Jonathon Simon alone finds possible the dramatic penal transformation that seems necessary for reform. Simon, understanding LWOP’s prominence as the ‘absence of dignity and the logic of total incapacitation’ (p. 304) operating in the penal system, identifies changes occurring in policy areas that while outside punishment may reflect dignity’s increased value and can offer useful framing strategies for confronting LWOP post-Graham. The legal utility of dignity, however, seems predicated on understanding Graham as a harm to dignity, as Simon does, or perhaps as a ‘denial of hope’ (p. 232) as Gottschalk does – though she acknowledges this frame is unlikely to garner much judicial success for life sentences broadly.
Ultimately, the volume does ‘force us to ask whether death really is different’ (p. 21), but the initial answer is complicated. LWOP is like death, harsh and (debatably) unnecessary, but the volume also makes clear the two are different. For example, reformers must grapple with a punishment that is ill defined and widely applied, necessitating confrontation with nuances, like definitional ambiguities, not encountered in the anti-death movement. These, along with the other theoretical and practical challenges to reform highlighted, suggest that LWOP is different than death. Perhaps the most salient difference is that where death wanes, LWOP rises, making the efforts here a critical first step to understanding this new ‘punitive pecking order’ (p. 20).