Philosophical arguments about the virtue of sentences tend to be fruitless efforts, as everyone gets bogged down in their own bias. We keep insisting our bias is right, and never make much headway against the other guy’s bias, who is simultaneously trying desperately to get us to see why his bias is right. It’s a waste of time.
But Jennifer Lackey, a Northwestern philosophy prof, does a remarkably good job at giving some hard reasons why a sentence of imprisonment “for the rest of your natural life” is a really bad idea. Life without parole, as Jeff Gamso calls it, is the slow death sentence. And, unlike the fast death penalty (which isn’t really fast), a sentence of life without possibility of parole is meted out without the fanfare of a good execution, so it often escapes notice and scrutiny.
Many types of arguments have been leveled against natural life sentences. Economic ones focus on the ballooning costs of mass incarceration and the toll this takes on government budgets, especially as the age and medical expenses of prisoners rapidly increase. Legal ones ask whether such sentences are cruel and unusual and therefore violate the Eighth Amendment, particularly for juveniles. Social arguments ask whether natural life sentences discourage reform by providing no incentive for rehabilitation. Moral concerns are grounded in the dignity and rights of prisoners, while psychological objections call attention to the myriad causes of deviant behavior and their responsiveness to appropriate treatment.
What’s particularly interesting is that in reading this list of general objections, one can’t help but realize how our inherent bias pushes us to one reason or another, neglecting the other perspectives to some greater or lesser extent.
But one argument that is surprisingly absent from these conversations is an epistemic one that has to do with us. For natural life sentences say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal. Nothing.
So no matter how much a juvenile is transformed behind bars, and no matter how unrecognizable an elderly prisoner is from his earlier self, this is utterly irrelevant to whether they should be incarcerated. our absence of knowledge about the future, our ignorance of what is to come, our lack of a crystal ball, is in no way a barrier to determining now what someone’s life ought to be like decades from now.
Lackey goes on to discuss brain development in juveniles, for whom the Supreme Court has ruled they can no longer be subject to life without parole, now applied retroactively. On the other side, that older prisoners “age out” of recidivism.
On the later side of the spectrum, only 1 percent of serious crime is committed by people over the age of 60. According to Jonathan Turley, a professor of public interest law at George Washington University: “Everyone agrees on what is the most reliable predictor of recidivism: age. As people get older, they statistically become less dangerous.” Turley refers to this period as “criminal menopause,” a phenomenon that raises serious questions about the rationale for incarcerating the elderly.
Going one step further, Lackey notes that the views of victims and their families change over time as well.
Moreover, prisoners aren’t the only ones who can change: victims and their families can come to see the convicted as being worthy of forgiveness and a second chance, and public attitudes can evolve, moving away from a zealous “war on crime” approach to one that sees much criminal activity as the result of broader social problems that call for reform.
This point may be a bit more tenuous. While it may be true of some, it’s by no means true of all. Indeed, there are victims’ families thrilled to sit at the execution of a loved one’s killer decades later.
Missing from Lackey’s epistemic discussion, of course, is the alternative view, the perspective of those who support life without parole, the slow death penalty. In the grand scheme of worthiness of concern, they feel nothing toward people who commit heinous crimes. They are unwilling to take any risk of recidivism, regardless of statistical probability. They will shed no tear for the sad life in prison of someone who has caused such harm and misery to others that they have forfeited any chance of rejoining society.
Or to put it more bluntly, they just don’t give a damn. And before one shrugs off this perspective as simplistic and unempathetic, it should be recognized that there are people sentenced to life in prison who have done truly horrible things. To idealize lifers, as some are inclined to do, as good people who made a terrible mistake is itself a terrible mistake. There are truly bad people out there.
But Lackey’s point isn’t that no one should ever be sentenced to, or serve out, imprisonment until the end of their natural life. Rather, that a sentence imposed at the time of conviction to life without parole, so that 20, 30, 50 years later, it cannot be revisited to determine whether the decision made long ago remains the proper one, fails to accommodate hard changes in the person sentenced and society’s interest in keeping that person locked up.
Is there a downside? When polling people about the death penalty, one of the strongest interests against is the existence of a life without parole option. As long as these evil people will remain imprisoned, locked away forever with no chance of parole, people are far more likely to disfavor execution. If life without parole wasn’t a certainty, there is a strong chance that the death penalty would enjoy greater support.
While this gives rise to an ironic choice, slow death or fast, despite Lackey’s strong arguments against the concept of life without parole, it reflects an unfortunately pervasive view that when someone does something exceptionally harmful, they don’t get to enjoy the empathy for their plight of slow death in prison. It’s not that Lackey’s arguments aren’t sound. They are. It’s that we, as a society, just don’t care as much about the lifers as we do about the lives they destroyed.