Life Without Parole (LWOP) is one of the most frequently cited alternatives to the death penalty. For some proponents, LWOP ensures the same level of certainty, retribution and incapacitation as the judicial killing of a condemned person. Ashley Nellis (2013) writes that ‘LWOP is often touted as the humane alternative to the death penalty, yet many of the problematic aspects of the death penalty are also applicable to this sentence.’
Despite this caution, many jurisdictions are considering the introduction of this sentence (through ‘whole life terms’ for example in the case of England and Wales). A significant amount of research has now suggested that the abolition of the death penalty should not usher in an age of LWOP. As noted by Hugo Adam Bedau (1990), ‘The death penalty… is not the only form that cruelty in punishment may take.’
In Trinidad and Tobago, Hood and Seemungal’s (2009) research found that there is little support for LWOP among those working in the criminal justice system. Only a minority of judges, defence counsel and prosecution counsel favoured LWOP as the best alternative to the mandatory death penalty. Just two judges favoured LWOP, while 12 judges listed this as their least favoured alternative. Likewise, only one defence counsel and two prosecutors suggested LWOP as the best alternative.
There is therefore little support for life without parole among those who work within the Trinidadian criminal justice system.
However, despite little support for LWOP among criminal justice practitioners, Allum and Delzin (2003) were very critical of a de facto imposition of such a sentence in Trinidad and Tobago. They write that many death sentenced prisoners have their sentence commuted for a term of 75 years, which is an effective sentence to die in prison.
Growth of LWOP
LWOP originated in the United States. Although it existed in a handful of states by the 1970s, its use grew considerably following the 1972 US Supreme Court decision of Furman v Georgia which struck down all death penalty laws across the country for a temporary period (Hood and Hoyle, 2015). Now, all US states have LWOP on the statute books (except Alaska which has instead a comparable sentence of 99 years imprisonment). In many of these states, it is a mandatory sentence for particular offences. In the US therefore, the use of LWOP has risen by 300% in almost 20 years, from 12,453 prisoners serving such a sentence in 1992, to over 41,000 in 2008 (Nellis, 2013).
Issues with LWOP
One of the central issues with a sentence of mandatory LWOP for murder directly mirrors the central issue raised regarding the use of the mandatory death penalty for murder, namely, that it offers no prospect of differentiating the ‘worst of the worst’. Instead, mandatory LWOP ensures that all convicted murderers will die in prison, regardless of age, circumstances or other mitigating factors. The use of mandatory LWOP means that these sentences have not been arrived at by ‘reasoned deliberations’ (Nellis, 2015).
These factors were crucial in the recent decision of the Belize Court of Appeal, which ruled that mandatory life sentences without the possibility of parole breached fundamental human rights standards. The Court found that these sentences breached the right to a fair trial, as the sentence was set by parliament rather than judges. As there was no prospect of ever being released, the Court also found that it constituted inhuman and degrading treatment.
A recent case from Antigua also suggests that Caribbean jurisprudence does not favour LWOP. Lorriston Cornwall was released after 20 years in prison. When he was convicted of murder, the death penalty was the mandatory sentence. However, the court (decision of 16 Nov 2016) took into consideration Lorriston’s rehabilitation and remorse about the crime.
Marion Vannier (2015), writing about the attempted introduction of LWOP in Canada, outlined the ways in which LWOP violates human rights:
- It denies a capacity to change;
- It compounds the pains of imprisonment, including the physical and psychological ill-health which results from a prolonged period of imprisonment;
- It represents a ‘permanent elimination’, and erases a person just as surely as does a death sentence.
The denial of any opportunity to change can be particularly marked when persons were convicted at a young age. The growing use of LWOP for juveniles represents one of the urgent concerns as to how this sentence is used (Nellis, 2013). Clint Smith (2016) writing in The New Yorker tells of the experience of a man sentenced to LWOP in a prison in Massachusetts for a murder committed while he was still a teenager. Smith writes that despite a 2012 Supreme Court ruling, in Miller v Alabama, that LWOP for juveniles was unconstitutional, the more recent ruling of Montgomery v Louisiana held instead that such sentences should be offered the chance of a second hearing. Smith writes:
‘The question is whether it makes good public policy – does it make us safer and align with our espoused notions of justice – to keep aging men and women in prison until they die?’
Likewise, research on LWOP in the US has shown that its use is marked by racial disparity; of 41,000 people serving life without parole in 2008, 48.3% were African-American (Nellis, 2015).
The use of LWOP also risks the ‘sentence creep’ phenomenon of ‘net-widening’ and ‘up-tariffing’. These terms refer to the unintended consequences of law reform which has the effect of subjecting more persons to punishment that they would otherwise not have experienced.
Finally, Wright (1990) has noted that LWOP is used by prosecutors in capital cases to secure guilty pleas; the offer of some form of life imprisonment acts as sufficient leverage to encourage offenders to plead guilty. While this tactic has been approved by the US Supreme Court, it offers an ethically dubious process with little regard for the interests of justice.
Ken Hartman (Hartman and Vannier, 2015), a prisoner serving a life sentence without the prospect of parole, has written of his own experience of confinement, in an attempt to bring home the realities of this punishment, what he calls ‘death by imprisonment’. Calling LWOP ‘America’s Other Death Penalty Problem’, Hartman begins:
‘What does it say about a country that can condemn 50,000 men and women to the slow, grinding death in prison of life without the possibility of parole?’
Hartman writes that what was once a US phenomenon is now spreading globally, as a seemingly appropriate punishment. But he writes that the myth that it is reserved for ‘the worst of the worst’ is just that, and is instead ‘less a consequence of the severity of the crime than one’s ability to procure adequate representation, his or her economic status, and the color of his or her skin.’
Sarah Solon (2014), writing on the same theme, argues that if the public truly knew the conditions of imprisonment for those serving such sentences, they would not so lightly condemn persons to the sentence. Arguing that LWOP ‘is an extreme and excruciating punishment’, Solon claims that misleading media reports of what prison is like have blinded society to the barbarity of LWOP.
Another criticism of LWOP is that these sentences are not subject to ‘heightened review’ (Nellis, 2015). This could be particularly pertinent in the Caribbean context; one of the criticisms of the retention of the Privy Council as the final court of appeal in Trinidad and Tobago is that only or the rich or those persons sentenced to death who can avail of the expertise of pro bono lawyers can afford to access the court. Under a system of LWOP, it is doubtful that all those serving such a sentence would be assured of continued access to the necessary legal assistance. Ashley Nellis (2015) notes that while death penalty cases in the US are subject to considerable scrutiny, there is less legal interest in the cases of those suffering under a sentence of life without parole. In effect then, there is seemingly less recourse for prisoners serving a sentence of life without the possibility of parole, as these cases more easily escape the notice of human rights organisations and legal firms.
Ashley Nellis (2013) has concluded that the:
‘promotion of LWOP as a humane, reasonable alternative to the death penalty desensitizes society to the fact that this, too, is a death sentence.’
Finally, Bedau (1990) concludes that one important consideration to bear in mind in the debate on LWOP, is that, firstly, we do not need such a sentence, and secondly, that it is not introduced because of need, but because of other factors that relate to politics and public opinion:
‘LWOP is probably completely unnecessary as an alternative to the death penalty. Its current popularity is owing not to rational judgments of its necessity to protect the public or to mete out deserved retribution, but to public anxiety over premature or irrational release of still-dangerous felons and by those opponents of the death penalty who are willing to clutch at any straw, any frying pan in a fire.’