The Fiscal and Human Costs of Life Without Parole
| Author | Doris Schartmueller,Margaret E. Leigey |
| Date | 01 March 2019 |
| DOI | 10.1177/0032885519825496 |
| Published date | 01 March 2019 |
| Subject Matter | Articles |
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Article
The Prison Journal
2019, Vol. 99(2) 241 –262
The Fiscal and Human
© 2019 SAGE Publications
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https://doi.org/10.1177/0032885519825496
DOI: 10.1177/0032885519825496
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Parole
Margaret E. Leigey1 and Doris Schartmueller2
Abstract
In recent decades, the United States has increasingly relied on life-without-
parole (LWOP) sentences. Due to its indeterminacy, such a sentence
involves tremendous fiscal and human costs. This study first examines
the use of LWOP in Louisiana, Pennsylvania, and Massachusetts, which
have high percentages of LWOP inmates in their prison populations.
After a comparison of what type of convictions trigger LWOP, we discuss
the impact the LWOP population has had on the states’ correctional
systems. We then assess the human costs of LWOP by problematizing
the indeterminacy of the sentence and comparing how international and
domestic courts have restricted its use.
Keywords
life without parole, indeterminacy, financial costs
Introduction
When the sentence of life without the possibility of parole (LWOP) emerged
in the United States (U.S.) in the 1970s (Zimring & Johnson, 2012), it
would have been difficult to predict the popularity that the punishment
would gain as the ultimate prison sentence in the years to come. Based on
1The College of New Jersey, Ewing, USA
2The California State University, Chico, USA
Corresponding Author:
Margaret E. Leigey, Department of Criminology, The College of New Jersey, 304A Social
Sciences Building, Ewing, NJ 08628, USA.
Email: leigeym@tcnj.edu
242
The Prison Journal 99(2)
the most recent data available, there are over 53,000 LWOP inmates in the
U.S. (Nellis, 2017). When examining the global use of life imprisonment, it
is apparent that other nations have not embraced life sentences—let alone
LWOP—with the same zeal as the U.S. Some nations, especially in Europe
and Central and South Americas, do not allow for life imprisonment at all.
Among the few countries in the United Nations that do permit LWOP (20%
of 193 countries), the size of the LWOP population is minuscule when com-
pared with the U.S. LWOP population (Appleton, 2015): The U.S. has
approximately 53,000 LWOP inmates (Nellis, 2017), England and Wales
have 59 cases (Ministry of Justice, 2017), and Australia has less than 15
(Palin, 2016).
The LWOP sentence is a fairly recent addition to the U.S. sentencing
spectrum, born out of dissatisfaction with the two ultimate punishments
available in the 1970s: capital punishment and life with the possibility of
parole (LWP). In 1970, only seven states had enacted LWOP statutes
(Nellis, 2013). However, LWOP soon emerged as a viable and cheaper
option to capital punishment (Wright, 1990). After the U.S. Supreme Court
declared the death penalty unconstitutional in Furman v. Georgia (1972),
states sought out alternatives to keep offenders convicted of first-degree
murder incapacitated. From 1970 to 1990, 25 states and the District of
Colombia enacted LWOP statutes, and 17 additional states followed suit
from 1991 to 2012 (Nellis, 2013). LWOP has become the mandatory alter-
native, “a consolation prize” (Zimring & Johnson, 2012, p. 745), to the
death penalty in 20 states (Bowers, 2012).
However, the punishment is not used only as a replacement to the death
penalty because all 31 death penalty jurisdictions also authorize LWOP
(Death Penalty Information Center, 2016). As explained by Zimring and
Johnson (2012), another reason for the creation and proliferation of LWOP
was to ratchet up the severity of existing life imprisonment. In most juris-
dictions, LWOP “was a new subcategory of life terms, which did not
replace the old life terms but rather was. . . an ‘add-on’ to conventional life
terms, a step up the penal ladder” (Zimring & Johnson, 2012, p. 745). It
was designed to reduce the discretion of parole boards, as it was believed
that they were releasing life-sentenced prisoners too early either because
they still represented a threat to society or because they did not serve a
sufficient amount of time given the severity of the crime committed
(Leigey, 2015). At a time when tough-on-crime fervor spread across the
country, LWOP soon became a versatile sanction used to punish both non-
lethal violent offenses (e.g., rape, kidnapping, and armed robbery) and
nonviolent offenses (e.g., drug offenses and burglary). At present, 37 states
and the federal system authorize the punishment for nonhomicide offenses,
Leigey and Schartmueller
243
and depending on the operationalization, there are anywhere between 138
(Lerner, 2015) and 3,278 prisoners serving LWOP for nonviolent crimes
(American Civil Liberties Union [ACLU], 2013). In addition, LWOP is the
culminating sentence for habitual offenders (e.g., Three Strikes Laws) in
some jurisdictions (Nellis, 2013), with the sentence being mandatory in 13
states and in the federal system (Ogletree & Sarat, 2012).
Although release from an LWOP sentence is technically possible through
commutation, it has rarely occurred in this country in the last 30 years (Gill,
2010). In Leigey’s (2015) The Forgotten Men, only one of the 25 men inter-
viewed had been released. This individual’s criminal history was much dif-
ferent than the others’ for he was a habitual burglar whose criminal record
was devoid of any violence (or threat of violence), unlike the other men’s
records, which contained violent offenses (most commonly first-degree mur-
der).1 Because of its popularity and the low likelihood of release, there are
now more LWOP inmates incarcerated in the U.S. than at any other time in
history. Considering the nation’s unique reliance on LWOP, it is important to
examine the fiscal and human costs of the punishment. In 1990, Wright cau-
tiously wondered what “will happen when LWOP inmates age in America’s
prisons and need expensive health care?” (p. 533) About 30 years after Wright
posed this question, we compare and contrast three states, which The
Sentencing Project (Nellis, 2017) identified as having among the highest per-
centages of LWOP inmates in the country in 2016 (Louisiana, Pennsylvania,
and Massachusetts), and we attempt to find a preliminary answer to Wright’s
question by assessing the fiscal impact these large LWOP populations have
had on their states’ correctional systems. In addition to fiscal concerns, we
examine the human costs of LWOP, specifically how LWOP inmates are
affected by its indeterminacy, the uncertainty surrounding release. In addi-
tion, because of its indeterminacy, we compare the measures that interna-
tional and domestic courts have taken to restrict the punishment. After
examining these costs, we consider revisions to our nation’s use of LWOP
that would reduce expenses and recognize the potential for offenders to
change but without jeopardizing public safety.
The Fiscal Costs of LWOP: Lessons From Three
States
Louisiana
As of September 30, 2017, 4,838 adult offenders were serving parole-ineligible
life sentences in Louisiana. This constituted 14% of the state’s total institu-
tional population (Louisiana Department of Public Safety and Corrections,
244
The Prison Journal 99(2)
2017). As stated in several sections of Louisiana’s Revised Statutes (2016), a
life sentence means “life imprisonment at hard labor without benefit of parole,
probation, or suspension of sentence” (e.g., Louisiana Revised Statutes 2016
[LSR]: 14:30 C2). This means that all life sentences in Louisiana are LWOP.
A life sentence in Louisiana can be imposed for first-degree murder as a
mandatory alternative to the death penalty (LSR 14:30 C2). As death sen-
tences have become increasingly unpopular in recent years due to cost and
time considerations, prosecutors have more frequently moved to directly
seeking a life sentence in capital cases (“Why Is Louisiana Executing Fewer
People,” 2016). A life sentence is also mandatory for second-degree murder
(LSR 14:30:1 B), first-degree rape (LSR 14.42 D1), and aggravated kidnap-
ping (LSR 14.44 3). In addition, under its habitual offender law, LWOP is one
sentencing option for offenders convicted of multiple felonies (LRS
15:529:1). The ACLU noted in its 2013 study that Louisiana has an excep-
tionally strict habitual offender law. For instance, offenders receive LWOP
“upon conviction of a third drug offense if the third and prior offenses carry
a sentence of 10 years or more” (ACLU, 2013, pp. 20-21). This has contrib-
uted to the state having the highest number of LWOP inmates who are serving
time for crimes classified by the ACLU (2013) as nonviolent offenses (429 or
9.3% of all LWOP inmates in 2012).
Due to the parole ineligibility of life sentences in Louisiana, inmates
spend exceptionally long periods of time behind bars. Official correctional
data from Louisiana showed that as of September 2017, 41% of the state’s
lifer population had served more than 21 years. The average time served for
all lifers was 16.3 years. Meanwhile, the average age of lifers was calculated
at 46.9 years. In comparison, the average age of the general population
housed in state facilities was significantly lower at 41 years. While it could
be argued that LWOP inmates commit their governing offenses at a later age,
and thus have a higher average age than other prisoners, Louisiana data
revealed, the average...
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