by Casey J. Bastian

A major driver of mass incarceration is the abusive rate at which life sentences are imposed, as a report from the Sentencing Project examines. Referred to as “death by incarceration,” long-term sentences have become the lifeblood of America’s hyper-incarceration rates.

One of every seven prisoners is serving a life sentence. Today, the number of “lifers” exceeds 200,000, more than the total national prison population in the early 1970s. Changes in law, policy, and practices which have lengthened sentences and limited parole are at the root of this inhumane trend. The frequent use of life sentences defies research on effective public safety strategies. Worse, it amplifies class and racial inequities within the justice system.

The Sentencing Project’s function is advocating for “a fair and effective U.S. criminal justice system by providing groundbreaking research to promote reforms in sentencing policy, address unjust racial disparities and practices, and to advocate for alternatives to incarceration.”

In 2020, the project completed its fifth census of state and prison populations. The analysis of this census puts an emphasis on the number of lifers aged 55 and over.

Ashley Nellis, Ph.D., Senior Research Analyst, and Savannah En, Research Fellow, published a 2021 report for the Sentencing Project titled, No End in Sight: America’s Enduring Reliance on Life Imprisonment. The report considers “life” to include: life without the possibility of parole (LWOP), life with the possibility of parole (LWP), and “virtual” or “de facto” life (“V/DFL”), a sentence of 50 years or more imposed at any age of the offender.

The project identified several disturbing findings: 8,600 people are serving an LWP or V/DFL sentence for juvenile offenses; people of color comprise over two-thirds of those with any type of life sentence; one in 15 women are serving life; LWOP—the most extreme form—has increased by 66% nation-wide since the Sentencing Project’s first census in 2003; and 61,417 people, or 30% of all lifers, are aged 55 or older.

The report examined multiple aspects of the criminal justice process and its use of life sentences, while revealing what a more successful approach might entail.

American judicial systems have always utilized life sentences. Though never as frequently as today. There has been a notable shift in America’s enthusiasm for invoking such harsh penalties. As the report observed, “Extreme punishment for punishment’s sake is now a hallmark of the justice system with little evidence that such an approach produces better public safety outcomes.” The surge in imposing life sentences is a consequence of policies often derived from public fears coupled with political opportunism. Fears irrationally stoked by sensationalized media coverage that focuses on infrequent, worst-case examples of violent crimes commited by people with no political voice, power or money. Rather than an honest examination of violent crime, and its causes, a dangerous narrative has been developed; creating a “demand” for overly-harsh sentencing schemes. There is a public misconception that harsh sentences deter criminal activity. This is false. A certainty of apprehension is much more influential on an offender’s decision to commit a crime. Another noteworthy observation is that trends in violent crime had already been declining before the United States adopted its most punitive policies. The prolific use of life sentences makes America a regressive nation. LWOP sentences are practically unused in the rest of the world.

Globally, the foremost intent of most corrections systems is the rehabilitative transformation of the offender. Most countries have recognized LWOP is contrary to such intentions by essentially declaring such prisoners to be irredeemable. Early American prisons were also focused on correction, reformation, and reintegration. In the early 1800s, the foundational belief within American correction systems was that a functioning system would protect offenders from permanent criminality. Contemporary American correction systems are an overwhelming failure because there is no institutional accountability with respect to offender rehabilitation programs and services. The current system is mainly one of caging and exclusion, not rehabilitation.

The United States also fails in general terms. The overuse of life sentences has far surpassed the types of offense for which it was originally intended. When America incarcerates one of every 100 citizens, this results in an incarceration rate greater than that of any other country in the world. An evolution of the United States criminal legal system would require a reduction in the use of such lengthy sentences. Doing so would also result in a corresponding decline in the overall prison populations. Experts agree, crime rates have not fueled prison population increases. Instead, it is the “tough on crime” policies of longer sentences—more lifers means larger prison populations. The proliferation of habitual offender laws, truth-in-sentencing schemes, and mandatory minimums, as well as the abolishment or politicization of discretionary parole, are the main causes of this problem. The idea that “life” literally means life is a modern phenomenon. The long-term trends in the utilization of life sentences accelerated between 1988-1996. Violent crime had been at its peak during that period. Despite precipitous declines in violent crime since, the list of offenses authorizing, or even mandating a life sentence, have continuously expanded. These excessive measures often result in disproportionate and arbitrary sentences.

The United States holds 40% of the world’s life-sentenced prisoners. LWOP is authorized in the federal system and every state expect Alaska. As a result, America holds 83% of the world’s LWOP population. LWOP sentences have grown six percent nation-wide in recent years, with 36 states recording increases. Twenty-four have “lifer” populations each individually exceeding the total nation-wide 1970s prison populations. For example, Utah now has four and a half times more “lifers” today then was its entire prison population in the recent past. Of all LWOP sentences, 55% are served by Blacks. One in five Black men, and one in nine Black women, are serving a life sentence. This trend has continued over several decades and has two distinct causes. Blacks statistically engage in higher rates of violent offenses. However, harsh sentencing policies have broadened the range of offenses for which LWOP may be imposed; policies applied to Blacks more frequently. Criminologists Ruth Peterson and Lauren Krivo found that socioeconomic vulnerabilities also contribute to this trend. These issues effect Latinx populations as well. No matter the racial component, it is clear that poverty produces more crime. These harsh sentences often do not account for the causes of crime. The class bias of such sentences is even clearer with few if any wealthy people being sentenced to LWOP, regardless of race.

Women constitute the fastest growing segment of “lifers” by percentage. Far too many are in prison as a result of claiming to defend against “intimate partner violence.” Legislative amelioration of such sentencing is being considered in many states. These changes might make domestic abuse a mitigating factor and even allow for reconsideration of previously imposed sentences. One issue is that the exact number of women impacted is not known. Stanford’s Criminal Justice Center is conducting a national survey of women prisoners to research the issue. Another problem women face is they are often not the principal offender. Many times, they’re convicted for aiding and abetting. The report cited a 2016 article by L.B. Lempert that noted: “For women convicted as aiders and abettors, it was their connection to violent partners, most often male, whose violent choices, directly or indirectly, resulted in women’s sentences of life imprisonment.”

There are more than 105,567 LWP-sentenced prisoners. Nearly 7,000 were minors when sentenced. Georgia has 840 such prisoners and 45 of those were just 13 or 14 at the time of their offense. A disproportionate number are found in just four states—California, Georgia, New York, Texas—accounting for nearly two-thirds of all such sentences. Even violent offenders age out of criminal conduct. These LWP sentences for juvenile offenders specifically ignore this fact. Dozens of empirical studies evidence the age-crime curve. After their late teens and into their mid-twenties, any proclivity to offend steadily decreases. Too many are still being LWP-sentenced and will serve decades incarcerated well past any risk to public safety. Fortunately, LWP as a segment of life sentences has recorded slight declines overall.

As of 2020, there were 42,833 V/DFL-sentenced individuals. Such sentences make any release date effectively meaningless as most will never live to reach the date. Four states, Illinois, Indiana, Pennsylvania, and Texas, account for almost 43% of all V/DFL sentences. One in five Texas prisoners is serving V/DFL. While 91% of all life sentences overall are due to a violent offense, including murder, that isn’t the whole story. Laws like Texas’ “law of parties” imposes the same penalty on all participants as that of the principal offender. Meaning an unplanned homicide during a robbery would make all parties equally guilty of the murder—even the getaway driver. Robbery, aggravated assault, and kidnapping offenses result in 15% of all life sentences. People are serving life sentences for drug-related offenses in 41 states. Across America, 3,974 lifers are convicted of just drug offenses. In the federal system it is 38%. Life sentences for sex-related offenses is up 19%. Life sentences are being imposed for non-contact offenses such as receiving or transmitting child pornography for which the offender had no other direct involvement. For crimes within this spectrum, Utah has seen a 54% increase in recent years; Nevada is up 28%.

Since 2000, those aged 55 or older serving a life sentence has tripled. For those aged 55-65, an imposed sentence of life at that age has expanded 150% between 1992-2013. A person aged 65 or older is not even eligible for such a sentence in Russia. Several countries prohibit such sentences for elderly offenders. The United States’ use of life sentences for elderly offenders contradicts international human rights practices and standards. Medical costs associated with elderly prisoners is another major problem. This aging population absorbs enormous budgetary resources. Prisons are mandated to provide “adequate” healthcare. Even this minimal standard reveals most prisons are ill-equipped to act as medical facilities and do so poorly while inflicting colossal human and financial costs. Costs only increase as lifers age and their health deteriorates. The only humane strategy for elderly offenders is to hasten their release. Doing so would require an overhaul of release systems. Such American systems are either broken or non-existent today. The report identifies an existing need to create independent parole boards, designed to operate beyond the politics of executive branches and comprised of sociology, psychology, law and corrections professionals who can identify which individuals have developed while in prison and are ready for release. More emphasis on “second look” policies would also identify individuals ready for release. Corrections systems shouldn’t take more than 20 years to produce an individual able to function crime-free in society. These revamped policies and systems would acknowledge that most lifers are convicted of violent offenses but such convictions do not indicate a person is more likely to reoffend. As such, violence should not be a sole determining factor in denying someone the opportunity to reenter society. Studies show that these offenders are less likely to commit additional acts of violence upon release. Across the spectrum, the risk of any person reoffending after serving a lengthy sentence is minimal.

America’s mass incarceration crisis has adversely impacted the poorest communities rendering these vulnerable communities prone to more crime, not less.

These communities would be better served by reinvesting the dollars currently spent on mass incarceration. Dollars that could be used to identify and eliminate crimes’ causes, diminishing the need for a massive carceral system at its root. LWOP should be eliminated and a 20-year cap placed on almost all sentences. Doing so would lead to significant reductions in prison populations and cause all other sentences to be reduced. This would produce “a more humane, effective, just, and merciful system.” The European Court of Human Rights essentially banned the use of LWOP in member countries in 2013. That court concluded that even violent, repeat offenders should have the “right to hope.” The harshness of the United States’ criminal legal system contradicts such principles. America must begin to realize that those who have atoned for any harm they may have caused, while transforming themselves during their imprisonment, deserve a second chance.

Perhaps there is second chance for American corrections systems to be reimagined. There are people operating these systems who do recognize the need for change. As Deputy Warden Perry Stagg of Louisiana’s Elayn Hunt Correctional Center said, “...I believe that 99 [%] of us would agree that [LWOP]...does not make any sense in most cases...these are not bad people, but people who did a bad thing, and at some point, in their lives they deserve to tell their story...they deserve hope.” 

Source: Sentencing Project

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