Disaggregating LWOP: Life Without Parole, Capital Punishment, and Mass Incarceration in Florida, 1972–1995

• Date: 01 March 2018
• Published date: 01 March 2018
• DOI: http://doi.org/10.1111/lasr.12311

Disaggregating LWOP: Life Without Parole, Capital

Punishment, and Mass Incarceration in Florida,

1972–1995

Christopher Seeds

Over the past 40 years, life imprisonment without the possibility of parole

(LWOP) has been transformed from a rare sanction and marginal practice of

last resort into a routine punishment in the United States. Two general the-

ses—one depicting LWOP as a direct outgrowth of death penalty abolition;

another collapsing LWOP into the tough-on-crime sentencing policy of the

mass incarceration era—serve as working explanations for this phenomenon.

In the absence of in-depth studies, however, there has been little evidence for

carefully evaluating these narratives. This article provides a state-level histori-

cal analytic account of LWOP’s rise by looking to Florida—the state that uses

LWOP more than any other—to explicate LWOP’s specific processes and

forms. Recounting LWOP’s history in a series of critical junctures, the article

identifies a different stimulus, showing how LWOP precipitated as Florida

translated major structural upheavals that broke open traditional ways of

doing and thinking about punishment. In doing so, the article reveals LWOP

to be a multilayered product of incremental change, of many, sometimes dis-

jointed and indirectly conversant, pieces. Presenting LWOP as the product of

a variety of penal logics, including those prioritizing fairness and efficiency,

the article more generally illustrates how very severe punishments can arise

from reforms without primarily punitive purposes and in ways that were not

necessarily planned.

Since the early 1970s, life imprisonment without the possibility of

parole (LWOP)—a prison sentence under which a person convicted

of a criminal offense is ineligible for administrative release during

their natural life—has emerged as a regular penal practice in the

United States. So much so that the sanction not long ago was

labeled “America’s new death penalty” (Ogletree and Sarat 2012)

and its practice said to “define...the logic of contemporary penal-

ity” (Simon 2012: 282). The growth of LWOP since the 1970s is

I am grateful to David Garland, Lynne Haney,Steven Lukes, and Ann Morning for crit-

ical input and guidance; to Claire Simonich and the staff at the Florida State Library and

Archive for research assistance; and to the editors, anonymous reviewers, and many col-

leagues and friends whose valuable comments and criticisms helped improve this article.

This material is based upon work supported by the National Science Foundation under

grant SES 1534640 for doctoral dissertation research and assisted by a Mellon/ACLS Dis-

sertation Completion Fellowship from the American Council of Leaned Societies. Please

direct all correspondence to Christopher Seeds, Department of Sociology, New York Uni-

versity, 295L afayette Street, 4th Floor,New York, NY 10012; e-mail: cws296@nyu.edu.

Law & Society Review, Volume 52, Number 1 (2018)

V

C2018 Law and Society Association. All rights reserved.

remarkable both for the appearance of a new routine penal form

and for the apparent nonchalance (see Girling 2016) with which

the American public and penal state actors of all types have allowed

a practice that other developed nations consider morally reprehen-

sible (VanZyl Smit 2014) to find safe harbor.

Yet although LWOP is now a normal part of contemporary

American penal practice, even engrained in the cultural imagina-

tion, just how this came to pass has not been articulated carefully

or explained. Particularly lacking is knowledge of the specific cir-

cumstances and processes from which LWOP emerged. What

“everyone knows” about LWOP can be captured in two sweeping

claims. First, that invalidation of existing capital punishment stat-

utes by the United States Supreme Court in Furman v. Georgia

(1972) and abolition efforts by anti-death-penalty activists and liti-

gators catalyzed LWOP as an alternative form of ultimate penalty

(Harvard Law Review 2006; Steiker and Steiker 2014). Second,

that where laws calling for LWOP arose outside the capital con-

text they did so in response to high crime rates and social unrest

amidst a flow of tough-on-crime sentencing policy, including

three-strikes and truth-in-sentencing laws. By the former view,

LWOP is a fixture of capital sentencing. By the latter view, LWOP

is representative (Tonry 2016), if not exemplary (Simon 2014), of

the policy that produced mass incarceration. Each of the narra-

tives (which are not mutually exclusive) claims for LWOP a differ-

ent primary driver: the dynamics of capital punishment politics

on the one hand, reactionary tough-on-crime policy on the other.

Both accounts are plausible, and both find some grounding

in the slight information we have about LWOP’s history (see Har-

vard Law Review 2006; Rowan and Kane 1991–92; Stewart and

Lieberman 1982; Wright 1990). Neither account, however, has

been explored in detail. As scholars of punishment increasingly

emphasize, “[a]stonishingly little research has been done on the

sentence of life without the possibility of parole” (Tonry 2016:

46), and the “causes of the proliferation of LWOP and its remedy

deserve far more attention from legal scholars and social scientists

than they have received” (Zimring and Johnson 2012: 747). Par-

ticularly needed are studies of “when, why and how individual

states came to enact LWOP statutes” and of the “direct catalysts

... located in regional, state, and local conditions” (Gottschalk

2012: 260–61, quoting Lynch 2011).

This article uses an in-depth state-level history of LWOP to

question and complicate the conventional wisdom. In recent years,

a “second generation” of sociology of punishment scholarship has

turned from national to state and local-level historical inquiry to

explain penal change (Campbell 2012). In uncovering state-level

arrangements and conjunctures that work has prompted revision

Seeds 173

of taken for granted claims and assumptions about how laws and

penal practices develop. One might say the state-level studies (e.g.,

Campbell 2012; Lynch 2010; Schoenfeld 2014) are in the practice

of problematizing standard narratives. This paper brings that sort

of detailed historical analytic lens to bear on the emergence of

LWOP.

I reconsider the stories we take for granted by beginning at

the beginning: an archival inspection of LWOP as it came about

in the state that was first to reenact capital punishment after Fur -

man and which currently holds more LWOP prisoners than any

other: Florida (Nellis 2017; see Radelet and Vandiver 1983). The

conditions and events that led to more than 8000 people serving

LWOP sentences in the Sunshine State (Nellis 2017) offer a win-

dow into understanding LWOP at its most virulent. Florida is

also significant because it implicates archetypes with a powerful

hold in current thinking on American punishment. This includes

those noted above, claiming death penalty abolition and tough-

on-crime policy, respectively, as the primary drivers of LWOP. It

also includes another archetype upon which much recent penal

state scholarship rests: a story of regional similarity, presenting

the American South (or Sunbelt) as a particular kind of “penal

place” where shared experiences of racial oppression and slavery,

decentralized government, and fiscal conservatism buttress a pro-

death penalty alignment, a punitive approach to corrections, and

a fertile base for harsh sentencing policy (Campbell 2011, 2012;

Lynch 2010; Perkinson 2010; Schoenfeld 2014). In discussions of

Southern penality, as in talk of the death penalty and mass incar-

ceration, Florida is exemplary.

Given that Florida is a climate in which punitive penal practi-

ces are institutionally and culturally entrenched and mass incar-

ceration has flourished, one might expect LWOP to emerge there

with particular and pace-setting intensity. Further, because in

Florida the death penalty has been especially prized (see Von

Drehle 1988), one might expect LWOP to come on there with

special force after Furman. At a glance, then, Florida’s leadership

in LWOP sentencing today seems what one would expect, an

understandable result of death penalty abolition dynamics and

the punitive turn working together.

Yet however aptly the conventional narratives describe the

manner in which LWOP operates at present, they do not ade-

quately explain its emergence. These two principles—LWOP as an

alternative to the death penalty and LWOP as an intentional tool

for the harshest of punishment—leave out an important element of

LWOP’s character. In doing so, they also neglect important lessons

that LWOP has to teach about penal development and studying

penal change.

174 Disaggregating LWOP