Late last week, a clip of an interview from the New York Times with Sen. Elizabeth Warren made the rounds on social media. In it, Warren spelled out her position against the death penalty, citing the evidence of wrongful convictions and racism associated with capital punishment. Then she added: “I think that people who have committed truly heinous crimes should die in prison. I think that is how we give them the maximum, maximum punishment that we can: keep them in prison for all their days.”
Warren’s answer echoes a similar response by Bernie Sanders, who thinks those who commit “horrific” crimes should “spend the rest of their days” in prison. This position is widely accepted as the progressive stance on the death penalty: Nearly every person vying to be the Democratic presidential nominee agrees that life without parole should replace the death penalty.
But answers like Warren’s and Sanders’ represent a continuation of the same punishment-focused mindset that has fueled our incarceration addiction over the past several decades and will stand in the way of ever achieving a truly fair criminal legal system. Despite a recognition across the political spectrum of the need to end failed tough-on-crime policies that have exploded prisons and budgets, we will solve nothing if we think the answer is to substitute one cruel punishment with another. We have to end our culture of believing “maximum, maximum punishment” is the solution.
Similar to the death penalty, life without parole is prohibitively costly, does not effectively deter crime, and can be replaced without risking public safety. More than 100 people sentenced to life without parole have been exonerated since just 2013. Yet, as even Justice Antonin Scalia recognized, an innocent person is “infinitely better off” challenging a death sentence than a life sentence. Scalia explained that the same “risk of wrongful convictions” exists if “horrendous death-penalty cases were converted into equally horrendous life-without-parole cases,” but because a person will obtain more legal assistance and court attention with a death sentence, an innocent person sentenced to life without parole is more likely to “languish unnoticed behind bars.”
As Warren did, nearly every Democratic candidate has spoken about the racism inherent in the death penalty. They are of course correct: Black people account for 40 percent of the death row population. But none addressed the fact that racial imbalances are actually more stark in the life-without-parole context. Of those serving life without parole, 56 percent are Black. As Michelle Alexander, author of The New Jim Crow, recently wrote, many who sincerely think they are trying to address the “real harms” in our criminal legal system tend to “underestimate” the inherent bias and racism rampant throughout.
And life without parole is cruel. One man who served more than 36 years in prison before his life-without-parole sentence was overturned described it as “the sense of being dead while you’re still alive, the feeling of being dumped into a deep well struggling to tread water until, some 40 or 50 years later, you drown.” Canada, Mexico, France, Italy, and Germany do not have life sentences without the possibility of parole. England has one seven-hundredth the number of people serving life without parole as does the United States. In 2017, by a 16–1 decision, the European Court of Human Rights ruled that denying a person the chance for parole is “inhumane and degrading treatment” in violation of the European Convention on Human Rights. It defies reason to believe our society is made better by keeping thousands of people, as they grow elderly and infirm, in prison until they die.
Some may still see no problem with life without parole for people who commit “truly heinous crimes.” But it is a fallacy that this country has ever proven willing or capable of reserving the most severe punishments for only the worst offenders. If draconian punishments are an option, whether the death penalty or life without parole, they will be disproportionately used against people of color and wielded in an arbitrary, unfair manner.
Currently, with over 53,000 people serving a life-without-parole sentence and another 2,600 on death row, there are likely hundreds, if not thousands, of people serving these sentences who would not meet any reasonable definition of the “worst of the worst.” One-fourth of life-without-parole sentences are for a crime other than murder, and 43 percent of people on death row are in need of mental health treatment, 25 percent have an active mental health disorder, and 14 percent are intellectually disabled.
According to the Bureau of Justice Statistics, more than 40 percent of all murders are committed by people 24 years old or younger, and over 60 percent are by people not even 30 years old. In her book, Until We Reckon, Danielle Sered spells out that while young adults are the age group most prone to violence, they are also the age group most capable of change. But life without parole strips these young people of any hope of release no matter how they change. A life-without-parole sentence sends an unmistakable message: A person is irredeemable and beyond rehabilitation no matter what happens over the next 25, 30, 40 years in prison.
Allowing people sentenced to life in prison to have the opportunity—not the guarantee but the hope—for parole is not soft on crime and will not create an unreasonable risk to the public. Instead, a chance for release recognizes that our criminal legal system is supposed to rehabilitate people, and it gives people in prison a reason to reform. Most people have that capacity to grow and change. Life without parole, like the death penalty, ignores that truth while defining thousands of people for life as no more than the worst thing they ever did.
And people age out of crime, no matter the original offense. Studies have determined that whether a person is over the age of 50 is “the most important predictor of lower recidivism rates.” Only 7 percent of those ages 50 to 64 and 4 percent of those over 65 are returned to prison for new convictions—the lowest rates among all incarcerated demographics. For example, after a 2012 change in the law led to nearly 200 people who had been convicted of murder in Maryland being released after more than 30 years in prison, less than 3 percent have been rearrested and none for a serious crime of violence.
Warren and Sanders deserve praise for their criminal justice reform platforms, recognized as “the most decarceral criminal justice platforms to enter presidential politics.” So does every candidate who has taken a stance against the death penalty, a position not taken by Hillary* Clinton in 2016 or even by Barack Obama during his presidency. But their willingness to default to life without parole as a solution is evidence of the work that still must be done.
Correction, Jan. 22, 2020: This piece originally misspelled Hillary Clinton’s first name.