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After Limits on Death Penalty, is Life Without Parole Next?

Since the death penalty was reinstated by the Supreme Court in 1976, after a brief moratorium that began in 1972, that same court has significantly limited situations in which it can be used.

In 1977, the Supreme Court held that it was unconstitutional for the death penalty to be used in the case involving the rape of an adult, where the victim did not die, leaving open the question of whether or not the rape of a child is still eligible for the death penalty.

In 2008, the Supreme Court ruled on that question, holding that the rape of a child is not a crime eligible for the death penalty, where the victim did not die. This effectively means that, as of 2008, murder is the only crime eligible for the death penalty, with the possible exception of treason, and some crimes within the military justice system (mutiny, desertion in time of war, etc.), which is completely separate from the civilian criminal justice system.

In addition to limiting the crimes eligible for the death penalty to an extremely narrow category, the U.S. Supreme Court has also limited who the death penalty can be used against, irrespective of the crimes they committed. In 2002, the Supreme Court held that it was unconstitutional to execute people who are mentally retarded (generally defined as having an IQ below 70). In 2005, the same court held that states cannot execute anyone who was under the age of 18 at the time the crime was committed.

This leaves us with a good idea of where the death penalty in the U.S. currently stands: only mentally-competent adults who committed murder (almost always with some aggravating factor) can be constitutionally put to death.

It looks like the Supreme Court is now ready to consider limits on another controversial “ultimate punishment” – life imprisonment without the possibility of parole (also reported here and here). The Supreme Court handed down a decision in the case of Graham v. Florida, holding that individuals who are under 18 (at the time the crime was committed) cannot be sentenced to life without the possibility of parole in crimes where the victim did not die.

It’s important to note that this decision does not mandate the eventual release of a minor who is sentenced to life in prison; it simply says that they must eventually be eligible for parole. If the state parole board finds that this person remains a threat to society, he or she can be imprisoned indefinitely. The court wasn’t clear on the constitutionality of sentences that amount to life without parole, but go by another name, such as a 200-year prison sentence with parole possible after 150 years, or something similar.

Now, this is an extremely narrow ruling. It only applies to minors when they commit crimes other than homicide. So, adults who commit serious non-homicide crimes can still get life without parole, as can minors who commit homicide.

The Court cited some pretty good reasons for its decision – the brains of adolescents are not fully developed, and there is no way to determine with complete accuracy whether or not they can eventually be rehabilitated. Furthermore, the decision leaves open the option to keep someone locked up for life if they do, in fact, prove to be irredeemably depraved, even if they were a minor when they committed the crime. All that this ruling says is that a minor who commits a non-homicide crime must eventually be given some opportunity to prove that they have been rehabilitated. If they fail to prove that, then they can stay in jail for life.

This rule, if the restrictions stop here, seems personally reasonable. I hope however, that life in prison without parole remains available for the most heinous of crimes. While not quite as final and irrevocable as the death penalty, life without parole is a very, very severe punishment, and should not be imposed lightly. If the U.S. eventually abolishes the death penalty, there will need to be some “ultimate punishment.”

Life without the possibility of parole is, for the most part, an ultimate punishment. Modern high-security prisons make escape exceedingly difficult and rare, meaning that a sentence of life without parole has largely the same effect (in terms of removing a dangerous criminal from society) as the death penalty. Life without parole has further advantages over the death penalty – a person serving that sentence can be released if they’re eventually exonerated. Of course, this can’t undo the time that a wrongfully-convicted person spent in prison, but considering that we can’t bring people back from the dead, it’s much better than post-hoc exoneration of a person who’s been executed.

However, I don’t believe that complete abolition of the sentence of life without parole (for any class of people) is the way to go, either. Like any severe punishment, it needs to be applied judiciously, and reserved for the most severe crimes, but I believe that it is in some cases necessary.

While no punishment, including the death penalty, will deter all crime, there’s no doubt that it deters some would-be criminals. And it’s indisputable that these punishments deter the individuals they’re used on, simply by making it impossible to repeat them.

Finally, while sentencing with an eye toward retribution may be satisfying on some base emotional level, it is probably not the best policy on which to base a justice system. The focus, especially with juvenile offenders, should be rehabilitation. If most juvenile convicts must now be made eligible for parole eventually, perhaps those who run prisons will begin to think more about what types of people they want to release. Do we want to release hardened criminals who have lost decades of their life, and probably have nothing to lose? Or do we want to release people who, while incarcerated, have acquired new and useful skills, learned to read, or otherwise bettered themselves?

While some people are beyond rehabilitation, a fact which this decision acknowledges and accommodates, I believe that a significant percentage can be rehabilitated.

Perhaps this decision will force authorities to think about that possibility.

Ken LaMance


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