Bowers Examines Life Without Parole — The New Death Penalty?

April 12, 2011

Josh Bowers' background as both a public defender and an associate at a white-collar criminal defense firm gives him a unique perspective on criminal law issues. Now an associate professor at Virginia Law, Bowers has written on prosecutorial discretion, plea bargaining and drug courts, among other issues. In his latest article, "Mandatory Life and the Death of Equitable Discretion," Bowers examines how life-without-parole sentences function as an alternative to the death penalty, but lack some of the flexibility built into capital punishment deliberations.

Josh Bowers

How did you become interested in looking at life without parole (LWOP)? Why is this relevant now?

Austin Sarat, of Amherst College, invited me to write and present a chapter for a book on the question of whether life without parole is the new death penalty. The question is relevant because, over the past two decades, a majority of states have come to adopt life-without-parole statutes in one form or another, often as a mandatory alternative to capital punishment.Indeed, many death-penalty abolitionists have pushed hard for life with parole in an effort to reduce systemic reliance on capital punishment. (And with good reason: Public support for the death penalty declines precipitously when the sentencing jury is given life without parole as an option.)The turn away from the death penalty and toward life without parole has raised natural questions about the similarities and differences between the sanctions and the respective advantages and disadvantages of each.

Why/when did LWOP become a more frequently used sentencing tool?

Life without parole is a relatively new innovation. Several states passed laws mandating or permitting the penalty following the Supreme Court's 1972 decision in Furman v. Georgia, which resulted in a temporary de facto moratorium on capital punishment. Eventually, a number of states enacted new death penalty laws that successfully addressed the constitutional infirmities identified by the court in Furman. Nevertheless, even after that, life-without-parole statutes continued to grow in popularity. To some degree, the passage of these statutes reflected a distrust of parole boards and a more general trend toward nondiscretionary sentencing in noncapital cases. More importantly, the laws found traction because they faced so little resistance from traditional criminal-justice reformers, who, as indicated, viewed the punishment as a palatable alternative to capital punishment. In this way, life without parole gave a little something to everyone: Those who opposed capital punishment got something other than capital punishment; and those who opposed the perceived leniency of discretionary actors — like judges and parole boards — got relatively more rigidity in punishment.

How is an LWOP sentence determined differently than a death sentence? What are the ramifications?

The common refrain is that death is different. When commentators and courts say this, they are typically talking about the ways in which the death penalty is substantively different than other punishments — ostensible differences in kind, not just degree. Less appreciated is just how different capital sentencing process is from noncapital sentencing process. First, a jury is required to make the capital-sentencing determination, which is not the typical practice in non-capital cases in most states (although Virginia is a rare exception on this score). Second, the jury's capital-sentencing determination is flexible in a way that conventional sentencing — particularly, mandatory sentencing — is not. Specifically, a defendant may offer almost any equitable argument against imposition of the death penalty, and the jury follows no set of determinate guidelines or rules and, particularly, needs to find no mitigating factor in order to forego a death sentence. Put simply, the jury is relatively free to reach an individualized determination of just deserts on the capital question. By contrast, non-capital punishment is often the product of either relatively inflexible guidelines calculations or almost wholly inflexible mandatory-minimums. This means that, typically, life without parole is not a punishment crafted to fit the offender and his crime; rather, it is the required course. In many circumstances, it is the capital jury's only sentencing option once it decides against death. In other circumstances, it is the judge's only sentencing option for a conviction that is ineligible for capital punishment. In either event, there is almost no systemic room — beyond plea-bargaining — to craft a proportionate sentence for a defendant who is technically guilty but equitably deserves something less than life behind bars.

How can the sentencing process for LWOP be improved?

In my book chapter, I offer a couple of proposals — one weaker and one stronger — to improve the sentencing process for life without parole. The weaker version is to provide the capital-sentencing jury with more than just the options of death or life without parole. In this way, the jury would retain some amount of equitable sentencing discretion not only over the capital determination, but also over the life-without-parole determination. The more aggressive proposal is to do away with mandatory sentencing anytime life without parole is a potential sentence and, instead, to import an equitable jury-sentencing procedure modeled after the capital-sentencing approach. The advantage of the weaker proposal is that it would not impose significant added resource burdens. After all, the capital-sentencing jury would already be empanelled to ask and answer the equitable question. The advantage of the stronger proposal is that it would require an individualized determination of blameworthiness whenever a defendant faces a whole-life prison sentence (and not just in circumstances where a potential death sentence is also in play).

How does this book chapter fit in with your overall scholarship?

For some time, I have been interested in the question of equitable discretion. Specifically, when courts and commentators discuss discretion generally, they typically focus on legal or practical reasons for its exercise — that is, legal questions about the relative evidentiary strength of cases or administrative questions about resource constraints and institutional priorities. But discretionary charging, bargaining, and sentencing decisions are also shaped by equitable considerations — questions about the normative blameworthiness of a particular defendant in a particular context. In this vein, I am currently writing a series of articles aimed at achieving two things: (1) defending the exercise of equitable discretion as appropriate (and, in fact, inevitable); and (2) determining which institutional actors are more or less competent to exercise equitable discretion. Specifically, I recently published an article in the Columbia Law Review, titled Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute," that framed these issues and that presented a number of cognitive and institutional reasons to believe that professional prosecutors may — contrary to prevailing wisdom — be particularly bad (or, at least, not especially good) at exercising equitable charging discretion. In a future article, I will make the claim that laypersons may be comparatively better at evaluating normative blameworthiness, even if they are comparatively worse at accommodating legal and practical considerations. The takeaway is that the criminal justice system needs to preserve space for both lay and professional actors to exercise necessary discretion. My chapter on life without parole picks up on these themes — albeit on the sentencing (and not the charging) end — defending the exercise of equitable sentencing discretion and addressing the question of who should exercise that discretion.

What are you working on next?

I already mentioned my planned article advocating lay influence over the charging decision. But, before that, I'm turning to another related project, arguing that — implicit in the Fourth Amendment's general reasonableness" requirement — there is a constitutional need to evaluate the equities of searches and seizures. Focusing narrowly on the arrest decision (a breed of seizure), I will conclude that the existence of probable cause ought to be neither necessary nor sufficient to an all-things-considered general reasonableness" determination. Rather, a lay body ought to have normative authority to check the equitable discretion of police to make even legally authorized arrests. In this way, the Fourth Amendment's general reasonableness" requirement could serve as an adjunct to legality doctrines — like void-for-vagueness doctrine — that constrain the legal (but not equitable) authority of law enforcement.

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