by Jayson Hawkins
Capital punishment has been a part of the American experience from the earliest times. Virginia executed a colonist in the seventeenth century, and since then, nearly every method of execution, from hanging to lethal injection, has found purchase upon some corner of the U.S.
Times, however, are changing. Virginia, the state second only to Texas in executions over the last 45 years, is poised to abolish capital punishment. Four other states have done the same over the last five years, and many others where the death penalty is a statutory option have not executed anyone in years. For the first time in American history, capital punishment is widely unpopular and showing every sign of going the way of the dinosaurs.
While social justice advocates and other progressives are generally excited by the prospect of eliminating the death penalty, there is a growing chorus of concern about what has become the default alternative to a sentence of death—a sentence of life.
Life sentences come in a variety of forms. There is the self-explanatory life-without-parole, life with parole (with parole eligibility varying state by state from seven to 40 years), and virtual life, which is a sentence of 50 or more years. The extraordinary length of many of these sentences is compelling many people to ask if there is a real difference, in terms of what is cruel and unusual, between strapping someone to a gurney to give them a lethal injection and simply locking the same person in a cage until “natural causes” bring about the same result.
As a practical matter, there are many reasons to question life in prison as a “solution” to the myriad of concerns raised by capital punishment. Ashley Nellis, a senior research analyst at the Sentencing Project, asserts that the flaws that engender so much concern about capital punishment “exist across the whole system,” and “All of the arguments one makes for eliminating the death penalty are also true for life in prison.” [Nellis’ recent report, “No End in Sight,” was further analyzed in Prison Legal News, July 2021, p. 42.]
The statistics certainly support that conclusion. The widely noted racial disparities in capital punishment are also present in life sentences. More than two thirds of prisoners serving life are people of color, including one out of every five Black men in prison. Worse, defendants facing life do not receive the extensive legal help, unlimited appeals, or network of anti-death penalty activists offering assistance. As of 2021, 185 death row inmates have been exonerated, and some studies estimate that roughly 4% of those still on death row are factually innocent. If prisoners who have all the avenues available cannot find justice, one shutters at the thought of how many lifers who do not have the benefit of that degree of assistance are innocent.
The number of people this question affects is large and growing. The Sentencing Project reported that there are currently over 200,000 people serving life sentences in the U.S., including 22 times more people serving life without parole than those awaiting death. Of those serving life, 4,000 were convicted of a drug-related offense, and 8,600 lifers were sentenced as minors.
The sheer scope of the population of lifers raises the question of whether this sentence can function as a viable alternative to death on a moral or practical scale. One in seven prisoners is currently serving life, and as this group grows and ages, the costs associated with their incarceration will grow apace.
Morally, the immediate question that presents itself is why life has become an alternative. If death sentences are undesirable because of racial disparities, junk forensic science, and a legal system that regularly fails the marginalized, how is life any better?
If the goal of the justice system is to administer the maximum amount of suffering without incurring a measurable amount of social guilt, then perhaps life is the answer. Otherwise, perhaps a society that is questioning the justice of death sentences should question whether life in a cage is truly more merciful.
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