Life Without Parole Under Modern Theories of Punishment

Paul H. Robinson

University of Pennsylvania Law School

Life without parole seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like “three strikes.”  Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment.  The prerequisite conditions for effective general deterrence are the exception rather than the rule.[1] And effective, and fair, preventive detention is difficult when attempted through the criminal justice system.  If it is to be done, it is better for both society and potential detainees that it be done under a civil commitment system that openly admits its preventive detention justification and goals.[2] (For example, habitual offender statutes, the most common path to sentences of LWOP, tend to ignore dangerous offenders during their most violent high-testosterone years, while they are accumulating their three strikes, and detain them for the much longer period of their non-violent geriatric years.)

Further, recent research shows that such distributions of punishment, according to general deterrence or incapacitation, commonly conflict not only with principles of deotological desert but also with lay people’s intuitions of justice and that, by allowing such injustices, the criminal justice system undermines its moral credibility with the community it governs and thereby undermines its crime-control effectiveness.[3]

The American Law Institute recently adopted desert as the Model Penal Code’s dominant distributive principle for sentencing – the Code’s first amendment in 48 years.  Is LWOP an appropriate sentence under a desert principle?  The core principle for a desert distribution is this:  greater punishment should be imposed upon an offender of greater blameworthiness and less punishment upon an offender of lesser blameworthiness.[4] Because LWOP represents the endpoint of the imprisonment continuum, it can be an appropriate sentence only for the most egregious case (or, if the death penalty is available, the second most egregious case).  To use it more broadly is to violate desert by punishing equally cases of identifiably different degrees of blameworthiness, thereby trivializing the greater blameworthiness of the more serious cases.  In other words, a desert distributive principle logically bars LWOP in a case if there has been, or reasonably could be, a noticeably more egregious case.  This suggests LWOP as a rare sentence, which marks out the special case of the most extreme blameworthiness that can arise.


[1] See Robinson, Distributive Principles of Criminal Law chs 3-4 (Oxford 2008).

[2] See id. at ch 6.

[3] See Robinson, Goodwin & Reisig, The Disutility of Injustice, N.Y.U. L. Rev. (forthcoming 2010)  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1470905

[4] See Distributive Principles, at chs 7-8.

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