Now is the time for death penalty opponents to join the effort to abolish life sentences without parole | Austin Sarat | Verdict

This fall, the Supreme Courts of Michigan and Pennsylvania will hear cases challenging the use of life sentences without parole in their states. In Michigan, the court will consider whether to ban the automatic life sentence without parole for people who are 19 or 20 years old and commit murder. The court is asked to extend its 2022 decision Prohibition of the application of such penalties to 18-year-olds.

In Pennsylvania, the Supreme Court will negotiate an appeal by Derek Lee, who argues that a mandatory life sentence without parole as punishment for murder is cruel punishment under the Pennsylvania Constitution. Lee was convicted of murder in 2016 when his accomplice shot someone during a robbery.

These cases represent important developments in an emerging movement to scale back and rethink America's application of a draconian punishment that activists insist on should aptly be called “death by imprisonment.” They offer death penalty advocates the opportunity to participate in the work to abolish this other form of capital punishment.

This will not be easy for them.

The difficulty arises not because they support harsh punishments, but because in the past they have used support for life without parole as a tactic in the fight against the death penalty in this country. In this way, opponents of the death penalty have been able to avoid the accusation that they are lenient towards crime.

We know that great progress has been made in this fight. Public opinion has shiftedand now more people in the United States believe that the death penalty is applied unfairly than that it is applied fairly. And support for its use is declining.

Today, according to the Death Penalty Information Centera majority of Americans say that “life imprisonment is a better punishment for murder than the death penalty… 60% of Americans, when asked whether the death penalty or life imprisonment without the possibility of parole was 'the better punishment for murder,' chose life imprisonment. Thirty-six percent favored the death penalty.”

Before we consider what death penalty advocates should do about life without parole, let's look at some basic facts about such sentences.

As Human Rights Watch Notes“Life sentences without parole are virtually unknown in the rest of the world. In the United States, 83 percent of the world's population is serving life sentences without parole…”

While the death penalty has been reduced across the country, the number of life sentences has increased fourfold in the last two decades, The Sentencing ProjectThe number of prison sentences without parole increased by almost 60% between 2003 and 2016.

About 53,000 people in American prisons are currently serving a life sentence without parole. It wasn't always like this.

A 2006 note in the Harvard Law Review makes this clear“Historically,” it says, “public zeal for longer prison sentences has not paralleled public zeal for the death penalty. In fact, the movement for longer prison sentences has sometimes run inversely to support for the death penalty, with supporters promoting the death penalty to reduce the other trend.”

For much of American history, life sentences were not life sentences.

This is because they involved “the possibility of a shorter sentence and the assumption of later release. In the federal system, for example, parole reviews began as early as 1913 after serving 15 years, although it was still possible to remain incarcerated for the rest of one's life. In Louisiana, the so-called '10/6 law', in effect from 1926 until the 1970s, meant that prisoners sentenced to life were usually released after a decade if they showed 'good behavior.'”

Before the Supreme Court decision in 1972 Furman vs. Georgia, “Only seven states had laws allowing life imprisonment without parole,” and “although it was permitted, it was rarely used.”

Early adopters included an unusual group of states: Massachusetts, Michigan, Mississippi, Montana, Pennsylvania, South Dakota, and West Virginia. The Harvard Note explains that “the first laws of this kind were promoted by prosecutors and enacted by law-and-order legislators who were afraid of a penal system that did not provide for the death penalty.”

Texas was the last state to include LWOP in its penal program in 2005. Today, Louisiana has the highest share more than 15% of prison inmates are serving life sentences without parole.

As a report from the Sentencing Project 2023 says“Two out of five people sentenced to life without parole were 25 years old or younger at the time of their conviction.” And the racial disparities that are widespread in the death penalty system are also seen when LWOP is the penalty.

More than half of the people serving life sentences without parole are black, even though they make up less than 14 percent of the U.S. population.

What role did opponents of the death penalty play in the spread of life parole? The evidence suggests that they played a significant role.

For example, the Harvard Note suggests that “abolitionists … bombarded both parliaments and the media with appeals to pass life imprisonment without parole laws to reduce the number of executions, on the grounds that ‘[t]“A life sentence without the possibility of parole is a harsher, fairer and more reliable punishment.”

The result, it says, “was a strange combination of death penalty opponents, incarceration advocates and politicians joining forces to push life without parole laws through state legislatures. They were remarkably successful.”

Christopher Seeds, author of Death by Prison: The Emergence of Life Without Parole and Perpetual Imprisonment, agrees“Support for life without parole among members of the anti-death penalty movement and the capital crimes advocacy community,” Seeds writes, “led to more frequent use of this punishment while curbing opposition from the left.”

An article published this year in the Columbia Law Review Forum claims that “the abolitionists' focus on the barbarism of the death penalty largely 'invisible' the harms of life sentences as a concern for human rights activists.” This strategy was “extraordinarily successful…. It was this confluence of the anti-death penalty movement with the harsh criminal justice era of the 1990s that transformed life sentences into death sentences.”

Looking at the results of the abolitionist community's commitment to life without parole, it is not clear whether it has brought any real benefit to the abolitionist movement.

The Harvard Note explains: “An analysis of individual states confirms that life without parole laws have had relatively little impact on the decline in executions in recent years… Although they may contribute to reducing death sentences,… death sentence patterns are reflected across states regardless of whether and when those states passed life without parole laws.”

In addition, LWOP statutes extend far beyond the group of defendants who are or would have been involved in a capital crime. This means that abolitionists support a policy that would “keep 25 men in prison until their natural deaths to spare one man…”

This is not a compromise that abolitionists should or must accept any longer.

The cases in Michigan and Pennsylvania offer an opportunity to address this compromise and the “slow process of destruction“, which LWOP produces.