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Life without parole: Right for some, wrong for others

Posted by James Alan Fox, Crime and Punishment  November 8, 2012 04:00 PM

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It has been nearly two years since 24-year-old Jared Lee Loughner opened fire upon a crowded plaza in Tucson, killing six and wounding several others, including U.S. Rep. Gabrielle Giffords. Yet, after all the legal maneuvering, Loughner received sentence that guarantees he will never again walk free.

Mass murderers like Loughner or Winchester's Thomas Mortimer deserve nothing less than life imprisonment given the enormity of their crimes. While absolutely fair and appropriate for such atrocities, there are many other offenders, particularly here in Massachusetts, who receive the very same fate but who arguably deserve something less extreme.

In Massachusetts all defendants convicted of first degree murder are sent away to prison for life without the possibility of parole, regardless of any mitigating circumstances surrounding the offense or the offender. By contrast, two dozen states having life without parole on the books include it among a group of alternative sentences depending on the circumstances of the offense and the offender.

As one of the states that prohibits parole for first degree murderers, Massachusetts ranks high on the list in terms of the percentage of its incarcerated population having no hope of ever walking free (except for the very remote possibility of executive clemency). As of 2008 (see table below), according to statistics compiled by the Sentencing Project in Washington, D.C., 8.7% of the Massachusetts state prison population was under a life without parole sentence, a level that ranked third (behind Louisiana and Pennsylvania) and was four times the national average.

Of course, many states employ a more extreme sanction -- the death penalty -- among the possible sentences for first degree murder. Might the inordinately high proportion of whole-lifers in Massachusetts be a statistical artifact of our refusal to put these offenders to death?

Apparently, our extreme usage of life without parole cannot so easily be dismissed. Even when adding to the mix all those murderers given a death sentence (either executed or on death row), Massachusetts still stands at the high-end in sentencing murderers to die in prison either by natural causes or by action of the state executioner.

If the most severe punishment is to be reserved for the "worst of the worst," then life without parole makes sense for serial killers, mass murderers, certain repeat violent offenders, and those who rape or torture victims before murdering them. However, in Massachusetts life without parole eligibility is mandatory for cases of felony murder, even though homicide may not have been part of the plan. It is also mandatory for those convicted in joint ventures, even if they were not the one to pull the trigger or plunge the knife.

Many other states allow for parole eligibility as a sentencing option for murder, if the circumstances warrant it. Included among the states that allow penalty short of life without parole are Mississippi and Texas, but not Massachusetts.

So maybe it is time for Massachusetts to infuse some flexibility into sentences for first degree murder by permitting parole consideration after, say after 30 years, in those cases where mitigation outweighs aggravation. Such factors as being a first offender, suffering from psychological conditions that fall outside of the narrow definition of legal insanity, being the follower in a group-perpetrated homicide or voluntarily surrendering and confessing to the crime should matter.

Giving judges or juries options besides life without parole has several advantages, and not just for the offender. Parole eligibility would encourage participation in drug rehab and other treatment programs currently eschewed by those who have no prospect of ever walking free. Parole, as a strong incentive for pro-social behavior, helps to maintain institutional order. Also, why keep locked up large numbers of aging prisoners (with their expensive health needs) whose criminality is well in the past and thereby limiting available for younger, more active offenders? Prison space is an expensive commodity; we should utilize it more wisely and sparingly.

Importantly, whatever the justification for granting parole eligibility may be in a particular case, that is not the same as parole release. Parole is never a guarantee; inmates should be released only if they earn it.

Of course, as victim advocates say, there's no parole for those who were murdered. And some say that paroling murderers adds insult to injury. However, many other Western nations do not employ life without parole (or the death penalty). Apparently, many reasonable people do not believe that murderers must necessarily forfeit their life or their freedom.

Here in the U.S., we often dismiss long prison sentences as "mere slaps on the wrist" or "county club vacations" when neither characterization even comes close to the truth. Ask anyone who has spent decades deprived of their freedom.

So it is about time to reintroduce rationality into the sentencing process, even for murder. Not all murders are the same in severity, and not all murderers are the same in dangerousness. So while life without the possibility of parole is justifiable for some first-degree murderers, like Loughner, it is certainly not appropriate for all.

State-by-State Comparison of Life without Parole

State Prison Population Lifers LWOP Percent LWOP Executed LWOP or Executed Percent LWOP/Exec
Alabama 29,400 5,087 1,413 4.8% 38 1,451 4.9%
Alaska 3,500 229 --- 0.0% 0 --- 0.0%
Arizona 38,700 1,433 208 0.5% 23 231 0.6%
Arkansas 14,500 1,376 541 3.7% 27 568 3.9%
California 170,800 34,164 3,679 2.2% 13 3,692 2.2%
Colorado 23,000 2,136 464 2.0% 1 465 2.0%
Connecticut 19,500 430 334 1.7% 1 335 1.7%
Delaware 3,800 526 318 8.3% 14 332 8.7%
Florida 95,400 10,784 6,424 6.7% 66 6,490 6.8%
Georgia 54,900 7,193 486 0.9% 43 529 1.0%
Hawaii 3,600 412 47 1.3% 0 47 1.3%
Idaho 6,300 523 102 1.6% 1 103 1.6%
Indiana 27,800 250 96 0.4% 19 115 0.4%
Iowa 8,700 616 616 7.1% 0 616 7.1%
Kansas 8,800 806 2 0.0% 0 2 0.0%
Kentucky 13,800 1,073 66 0.5% 3 69 0.5%
Louisiana 38,200 4,161 4,161 10.9% 27 4,188 11.0%
Maine 2,200 58 54 2.4% 0 54 2.4%
Maryland 23,300 2,311 321 1.4% 5 326 1.4%
Massachusetts 10,300 1,760 902 8.7% 0 902 8.8%
Michigan 50,100 5,010 3,384 6.7% 0 3,384 6.8%
Minnesota 9,200 496 48 0.5% 0 48 0.5%
Mississippi 22,500 1,914 1,230 5.4% 10 1,240 5.5%
Missouri 29,700 2,582 938 3.1% 66 1,004 3.4%
Montana 3,400 171 51 1.5% 3 54 1.6%
Nebraska 4,400 515 213 4.9% 3 216 4.9%
Nevada 13,500 2,217 450 3.3% 12 462 3.4%
New Hampshire 2,900 177 63 2.2% 0 63 2.2%
New Jersey 26,200 1,257 46 0.2% 0 46 0.2%
New Mexico 6,300 391 0 0.0% 1 1 0.0%
New York 61,900 11,147 190 0.3% 0 190 0.3%
North Carolina 39,200 2,390 1,215 3.1% 43 1,258 3.2%
North Dakota 1,400 40 11 0.8% 0 11 0.8%
Ohio 50,000 5,202 216 0.4% 28 244 0.5%
Oklahoma 25,100 2,135 623 2.5% 88 711 2.8%
Oregon 13,600 719 143 1.1% 2 145 1.1%
Pennsylvania 46,300 4,349 4,343 9.4% 3 4,346 9.4%
Rhode Island 3,800 182 32 0.8% 0 32 0.8%
South Carolina 24,500 2,056 777 3.2% 40 817 3.3%
South Dakota 3,300 169 169 5.1% 1 170 5.1%
Tennessee 19,200 2,020 260 1.3% 4 264 1.4%
Texas 140,300 8,558 71 0.1% 423 494 0.4%
Vermont 2,200 89 13 0.6% 0 13 0.6%
Virginia 37,000 2,145 774 2.1% 102 876 2.4%
Washington 15,700 1,967 542 3.4% 4 546 3.5%
West Virginia 5,900 612 251 4.3% 0 251 4.3%
Wisconsin 22,300 1,072 171 0.8% 0 171 0.8%
Wyoming 2,100 197 20 1.0% 1 21 1.0%
Adapated from A. Nellis, Throwing Away the Key: The Expansion of Life Without Parole Sentences in the United States. The Federal Sentencing Reporter, 2010. Data for Illinois and Utah unavailable.
This blog is not written or edited by Boston.com or the Boston Globe.
The author is solely responsible for the content.

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About the author

James Alan Fox is the Lipman Family Professor of Criminology, Law, and Public Policy at Northeastern University. He has written 18 books, including his newest, "Violence and Security on Campus: From Preschool through College." More »

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