Georgetown University Law Center
Scholarship @ GEORGETOWN LAW
2018
Against Life Without Parole
Judith Lichtenberg
Georgetown University, JL537@georgetown.edu
This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/2064 https://ssrn.com/abstract=3172899
Judith Lichtenberg, Against Life Without Parole, Wash. U. Jur. Rev. (forthcoming)
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Forthcoming, Washington University Jurisprudence Review 11.1 (2018)
AGAINST LIFE WITHOUT PAROLE*
Judith Lichtenberg Professor of Philosophy Adjunct Professor of Law Georgetown University jalichtenberg@gmail.com
I. Introduction
Until just a few years ago, vocal criticism of the American criminal justice system focused almost entirely on the death penalty. The U.S. stood out, and still does, as nearly the only developed country in the world with capital punishment, and for this it has been subject to sharp criticism both internally and internationally. The death penalty is still a target of criticism, but it may well be on its way out. In addition to the view that it is inherently wrong or barbaric— or, if not inherently wrong, then wrong or barbaric in an advanced society like the United States—at least three objections have become familiar. One is the death penalty’s enormous costs compared even to a sentence of life imprisonment—a seemingly counterintuitive fact resulting from the very high legal costs associated with the lengthy and mandatory appeals process in death penalty cases.1 Another has to do with the glaring racial and socioeconomic disparities in how the death penalty is and has been applied. Finally, there is the increasing difficulty of carrying out executions humanely as pharmaceutical companies who provide the drugs used for the most commonly used method, lethal injection, have become wary of ethical
* Professor of Philosophy, Adjunct Professor of Law, Georgetown University. I have benefitted from discussion of this paper with students in my Law and Philosophy seminar in spring 2017 as well as audiences at Georgia State University, the University of Maryland, Cornell University, the University of Lisbon, and the University of Baltimore. I would also like to thank Marcia Baron, David Luban, Robert Leider, Jeffrey Reiman, and Matthew Shields for valuable feedback.
1 See, e.g., Death Penalty Information Center, Costs of the Death Penalty, at https://deathpenaltyinfo.org/costs- death-penalty.
missteps or bad publicity. For these and perhaps other reasons, both executions and support for the death penalty have fallen in 2016 to levels lower than they have been in decades.2
If the death penalty disappears, and even if it doesn’t, the time has come to closely examine other harsh punishments in use in our system. Here I consider what is generally considered the next harshest punishment: life in prison without the possibility of parole (LWOP).3
In section II I explain why the time is ripe to evaluate the legitimacy of life sentences.
Section III explores the relationship between LWOP and the death penalty, which helps to explain why LWOP has received insufficient scrutiny. In section IV I examine the main arguments for punishment and conclude that only retribution can plausibly ground LWOP. In sections V and VI I examine various understandings of retributivism and conclude that no plausible interpretation entails or even necessarily recommends LWOP. Sections VII offers three positive arguments for the abolition of LWOP. Section VIII summarizes my conclusions.
II. Why we should reexamine the legitimacy of life without parole sentences
Close examination of life without parole sentences is overdue for a variety of reasons, familiar to many who study these issues but nonetheless worth reviewing.
2 Richard Perez-Pena, Executions Hit 25-Year-Low and Support Is Falling, N.Y. Times, Dec. 22, 2016, athttps://www.nytimes.com/2016/12/21/us/death-penalty-capital-punishment.html?_r=0; and Death Penalty Information Center, The Death Penalty in 2016: Year-End Report, at http://www.deathpenaltyinfo.org/YearEnd2016. On the pharmaceutical issues see, e.g., the inaugural episode, Cruel and Unusual, of the NPR podcast series MORE PERFECT, June 2, 2016, at http://www.npr.org/podcasts/481105292/more-perfect.
3 I say “generally considered” because some view life without parole as just as harsh or even harsher than the death penalty; more on this subject below.
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