In his 1979 polemic defending the death penalty, at a time when the practice had almost ceased in the United States, Walter Berns despairingly invoked Nietzsche’s critique of the “pathologically soft” last man. Berns argued that only a squeamishness about, and even aversion to, punishing criminals could explain the direction of American attitudes toward the death penalty. A little more than three decades later, Berns’s lament seems dated. Within years of the publication of his book, the constitutionality of the death penalty was firmly established, and its practice surged—so much for the soft American. Recent years have witnessed declining numbers of executions and formal abolition of the practice in a few states, perhaps hinting that Berns’s predictions are belatedly coming true. But this would fail to account for the most notable development in American criminal justice: the rise of life without parole.
Life without parole, known in the parlance of criminology by the infelicitous acronym LWOP, is today the distinctive American punishment. The death penalty still attracts disproportionate scholarly interest, but academics in this regard are characteristically out of touch with reality. As already noted, there are fewer executions, and considerably fewer death sentences, than there were a decade ago. Furthermore, the perennial charge that the death penalty distinguishes America from the rest of the world betrays a European focus; China and Japan, the second- and third-largest economies in the world, still practice this punishment. What distinguishes the American criminal justice system and brands it as distinctively harsh by comparison with the civilized, and even uncivilized, world is the frequency with which it banishes its own citizens to cages for the duration of their lives and with no pretense of offering a legal mechanism for freedom.
Such a punishment, although only recently implemented on a grand scale, was conceived centuries ago. The eighteenth century Italian criminologist Cesare Beccaria is widely praised for criticizing the death penalty, but less-emphasized in the tributes to his wisdom is his enthusiastic embrace of “perpetual enslavement” as an alternative. Beccaria’s avowed intention was to replace the death penalty with a punishment worse than death itself and thus with even greater deterrent effect upon would-be criminals. Europeans today widely subscribe to Beccaria’s rejection of the death penalty, but many nations regard LWOP as so cruel as to be inconsistent with human dignity; those nations that permit LWOP limit its scope to the narrowest of cases. In America, LWOP has soared in usage as the death penalty has waned. Elected officials regularly embrace LWOP, often as an alternative to the death penalty, by emphasizing the sentence’s profound harshness. This complicates the narrative proposed by Walter Berns, for any nation capable of employing a punishment so cruel as to be rejected by most of the “civilized world” would seem to be safe from the charge of “pathological softness.”
A pair of recent Supreme Court cases, Graham v. Florida and Miller v. Alabama, arguably portends a transcontinental convergence of views on LWOP. Both opinions express reservations with America’s robust adoption of LWOP, noting the features of the sentence that give so many Europeans pause. It is not simply the purported irrevocability; it is also the expressive judgment implied—that a human being is so awful that we brand him with the mark of Cain, banish him from our midst, and pronounce at an end our interest in him and his capacity for improvement. In an older Jewish tradition, it is tantamount to sitting shiva for one who is alive but who has so shamed the community that it conducts what are in effect funeral rites. Or, in the legalistic language of the Graham opinion, LWOP “forswears altogether the rehabilitative ideal.”
This Article focuses on that phrase and tests whether, as much academic commentary assumes, it is a fair and complete characterization of LWOP today. This Article argues that the Court’s treatment of LWOP captures only a partial truth. LWOP is intended as a punishment of distinctive cruelty, more horrible than a prison term of many years and on par with or worse than death itself. In practice, however, LWOP emerges as a softer punishment, accommodating a concern for the inmate and a hope for his rehabilitation. LWOP, viewed in both aspects, is a conflicted punishment, inspired by a congeries of penological goals, including rehabilitation. One might, with some fairness, argue that LWOP is not simply conflicted but incoherent, as its practical effect is to incarcerate physically decrepit and morally reformed men long after the community’s hatred has evaporated. If the crime was so horrible, why not simply execute the criminal? But if not resorting to the ultimate punishment, why not provide a clear legal mechanism for release at some point? Life without parole, this Article argues, is the synthesis of the retributive impulse that would otherwise result in the death penalty with a rehabilitative impulse Nietzsche describes as pathological softness. Others, of course, recognize LWOP as a reflection of our moral progress.
