Life without Parole

America's New Death Penalty?

Charles J. Ogletree, Jr., Austin Sarat

• Editorial: NYU Press
• Año: 2012
• ISBN:
  9780814723999
• Categoría: Droit
• Categoría: Théorie et pratique du droit

Is life without parole the perfect compromise to the death penalty? Or is it as ethically fraught as capital punishment? This comprehensive, interdisciplinary anthology treats life without parole as "the new death penalty." Editors Charles J. Ogletree, Jr. and Austin Sarat bring together original work by prominent scholars in an effort to better understand the growth of life without parole and its social, cultural, political, and legal meanings. What justifies the turn to life imprisonment? How should we understand the fact that this penalty is used disproportionately against racial minorities? What are the most promising avenues for limiting, reforming, or eliminating life without parole sentences in the United States? Contributors explore the structure of life without parole sentences and the impact they have on prisoners, where the penalty fits in modern theories of punishment, and prospects for (as well as challenges to) reform.

1
Mandatory Life and the Death of Equitable Discretion

JOSH BOWERS

The common refrain is that the death penalty is different, but one of the most underappreciated differences between capital and noncapital punishment is the degree to which the death penalty expressly admits—indeed requires—an equitable determination before imposition. Specifically, the conviction and sentencing phases of a capital trial are bifurcated, and, although the conviction phase is limited to a legalistic determination of whether the elements of a statutory crime are met, the sentencing phase demands a normative evaluation of blameworthiness, based not only on the particulars of the criminal incident but also on the social and psychological circumstances of the defendant. In short, capital punishment provides an express lever for mercy that is operated by a collective—a body of laypersons charged with doing that which members of the public do well: exercising practical wisdom based on everyday experience to reach commonsense determinations about the advisability of a particular type of punishment in a particular case for a particular defendant.

By contrast, life without parole (LWOP) is frequently a mandatory punishment over which juries have no say and typically no knowledge. By way of background, under prevailing sentencing statutes, a mandatory LWOP sentence may result from either of two scenarios. First, the sentence may be the only alternative penalty to a discretionary death sentence. Second, the sentence may be the only available penalty for a given crime. In either event, a mandatory LWOP sentence is no product of reasoned deliberation over equitable blameworthiness. It is the required course.

In this way, the administration of mandatory LWOP is strikingly different from the administration of contemporary capital punishment. The sentencing process that results in a mandatory LWOP penalty lacks the lever for mercy that typifies death sentencing. If we are to draw an analogy, the better comparison is to the administration of the historical death penalty. Specifically, under the so-called Bloody Code, which existed in England from the seventeenth until the nineteenth century, the death penalty was the mandatory sentence for a host of felony convictions—just as LWOP is often the mandatory sentence today. Put simply, LWOP is not so much the new death penalty as the old one.

But the analogy is imperfect between mandatory capital punishment and mandatory LWOP. Significantly, the Bloody Code was never quite as uniformly bloody as it purported to be: lay jurors and legal authorities commonly employed a variety of mechanisms to circumvent the ultimate penalty. In short, under the Bloody Code, the sentencing law was unyielding, but law enforcement and adjudication were somewhat less formal and more flexible. Comparatively, modern mandatory LWOP—either as a backstop to discretionary death or as a stand-alone punishment—exists in a more substantively and procedurally rigid and formalized criminal justice system that lacks the commonly invoked equitable safety valves that tempered application of the Bloody Code.

To the extent an opportunity for equitable discretion remains in mandatory LWOP regimes, it rests wholly with the professional prosecutor, who controls the charging decision, but who concurrently has an institutional incentive to charge high in order to maximize bargaining power and thereby extract favorable and expeditious guilty pleas. In such circumstances, the prime determinate of whether defendants receive an LWOP sentence is not their just desserts but their willingness to bargain for a reduced charge. As such, mandatory LWOP admits no adequate adjudicative equitable screen—just faith in prosecutors to exercise their unfettered charging authority in normatively appropriate ways, notwithstanding their significant (and often contrary) instrumental reasons to forgo measured discretion.

History is not hagiography, however. For good reason, the contemporary criminal justice system has abandoned the informal opportunities for equitable intervention that were so common under the Bloody Code (but that were likewise so prone to arbitrary abuse). Unfortunately, modern criminal justice has sought no suitable alternative equitable mechanism, opting instead to shelve equitable discretion in favor of mandatory sentencing. It is, however, a false choice between unfettered equitable discretion and statutory uniformity. A viable middle path is a robust, structured, and public equitable screen—a path already charted in the capital context. My recommendation, then, is to use the capital sentencing model as a template to reconfigure LWOP sentencing.

This, of course, invites the question, Why stop at LWOP? Perhaps we should not, but, to my thinking, it would seem to be a particularly appropriate place to start.

Mandatory Capital Punishment and the Bloody Code

In common-law England, capital punishment was imposed frequently. Indeed, as many as seventy-two thousand persons were executed during the reign of Henry VIII.¹ Even against this historical backdrop, however, the period from the early seventeenth to early nineteenth century—the period of the so-called Bloody Code—stands out for the sheer number of crimes punishable by mandatory death.² Specifically, there were approximately 50 crimes that carried a required capital sentence in 1688. By 1820, that figure had risen to over 220 offenses.³ Crimes as trivial as counterfeiting a stamp, stealing a rabbit, and even unlawfully felling a tree were sufficient to expose a defendant to the ultimate sanction.⁴ At the same time, Parliament sought to eliminate (or at least radically limit) the availability of benefit of the clergy—a traditional mechanism to permit equitable exception from otherwise mandatory death.⁵

Individuation, however, is not so easily eradicated from criminal justice. Mandatory sentencing law is only as rigid as the human constructs and institutional arrangements put in place to apply it.⁶ In the case of the Bloody Code, the system adapted to the “unmitigated severity” of the formal law with alternative means to circumvent its dictates. For instance, the king and his ministers used the pardon power frequently to avoid mandatory imposition of capital sentences.⁷ And, by the sixteenth century, prosecutors had developed the unreviewable power to decline prosecution in equitably appropriate cases (and in regrettably inappropriate cases, as well).⁸ Finally, and perhaps most significantly, at the trial phase, judges and juries discovered creative ways to acquit defendants of capital charges. By way of example, judges would invoke strategically doctrines such as strict construction of criminal statutes in what Livingston Hall called “a veritable conspiracy” to reject normatively problematic capital prosecutions.⁹

And, significantly, premodern juries would manipulate trial verdicts to advance the same normative end. For two reasons, these historical juries had substantially more discretion to acquit sympathetic defendants than their contemporary counterparts do. First, historical juries were arbiters of both law and fact. They were considered to be “good judges of the common law of the land” and were thus often instructed only to credit their “own consciences” or to “do justice between the parties not by any quirks of law … but by common sense as between man and man.”¹⁰ Second, historical juries had ample opportunity to align law to the dictates of moral intuition, because the common (and even statutory) law of the time was, itself, comparatively formless. In particular, the culpability concepts found in statutes of the era had not yet crystallized into the refined terms of art that they are today. Instead, a given amorphous mens rea term typically operated as little more than an “arbitrary symbol” into which decision-makers could pour the meaning they felt appropriate for the case at hand.¹¹ Concretely, the measure of guilt was “general moral blameworthiness”—a remarkably malleable concept even in less pluralistic times and a concept that, in any event, was not categorically implicated by technical violation of death-eligible statutes.¹² For example, even with respect to the grave crime of murder, the “loose” mens rea term “malice” came to be—in James Fitzjames Stephen’s words—no more than a signifier of “the propriety of hanging particular people.”¹³

As compared to the modern jury’s verdict (which focuses principally on a mechanistic determination of act and intent), the premodern jury’s verdict turned on a retributive evaluation of motive and character.¹⁴ And code language (where it existed) provided no more than the pretext for normative judgment. Consequently, the informal and unstructured nature of the era’s liability rules left significant room for the exercise of equitable discretion. In this way, the premodern jury was considered to be more than just an adjudicative body. Like a legislature, it would structure the substantive law to meet the equitable demands of the particular case by locating equitable defenses (or, alternatively, grounds for conviction) in capacious legal terms.¹⁵

And, significantly, when the premodern jury engaged in such normative evaluation, it was not unlawfully nullifying criminal law; rather, it was bending law according to the applicable procedural standards of the day.¹⁶ In short, it was the jury’s duty to declare the law’s meaning, and, when the jury shaped the law according to a particularistic moral evaluation, the jury was just doing its job.¹⁷ And, of course, once the jury declared the law in the immediate case, its announcement was inviolable.¹⁸ It was not until much later that this robust and legitimate exercise of jury power was recast as unlawful nullification.¹⁹

However, it does not follow that the power and legal authority of the premodern jury was without limit. Its ability to intervene equitably was relegated almost exclusively to the adjudicatory phase and not at all to the sentencing phase. This highlights an important but underappreciated insight: criminal justice may be mandatory or discretionary along any of several dimensions.²⁰ According to James Q. Whitman, “Systems that are harsh in one way will often systematically mitigate by showing mildness in another.”²¹ Roughly, a system may permit or forbid flexibility in enforcement, adjudication, sentencing, or the administration of punishment. Specifically, Whitman has segregated harshness according to (i) the substantive breadth of criminalized conduct, (ii) the level of enforcement, (iii) the flexibility of liability rules and affirmative defenses, (iv) the types of punishments prescribed, and (v) the certainty of administration.²² Under this taxonomy, the Bloody Code was only clearly harsh in its penalty, while it was positively lenient in its administration (based on both the flexibility of its liability rules and the frequent executive grants of pardons). Put simply, the sentencing law was rigid, but the rest of the legal system was not.

Contemporary Capital Punishment and The Bloody Code

Skip across to the New World and ahead to the twentieth century. By the end of the progressive era, mandatory punishment—capital or otherwise—had become something of a relic.²³ Typically, judges could select from wide ranges of available sentences, and parole boards had broad discretion to determine when prison terms should end.²⁴ Indeed, as of 1970, every state and the federal system had adopted indeterminate...