V. Suggestions for Reform
A. Seek Nuanced Assessments of Death Penalty Alternatives
Despite sizable declines in support over the years, the majority of the public still favors the death penalty. In a 2010 Gallup Poll, 64% of respondents said that they supported the death penalty for persons convicted of murder and 29% opposed it; the percentage in favor of the death penalty wavered only slightly between 2002 and 2010. Yet, when surveys provide alternatives to the death penalty, support for the death penalty drops considerably.
It is misleading to measure public opinion based on a limited range of sentencing options when, in actuality, there are additional sanctions that both support prison reform and protect public safety. It is essential to explore public support for all sentencing alternatives to the death penalty, not only life without parole.
Promotion of LWOP in exchange for fewer death sentences legitimizes LWOP even though it, too, is rife with problems of its own.
B. Look to Other Countries for Guidance
Many countries exist without the death penalty or LWOP and are able to maintain public safety. These countries do not experience major crime spikes. According to a 2005 United Nations report, seven countries reported having a mandatory life sentence for murder; however, all of them reported mechanisms for releasing prisoners after a certain period of time. In 2005, the United Kingdom had only twenty-two prisoners serving LWOP sentences. Most European countries do not have parole-ineligible life sentences. In these countries, it is recognized that no one should be declared beyond reform or redemption without first attempting to rehabilitate them. A comprehensive review after some term of years is considered appropriate because of the emphasis on human rights and human dignity. Perhaps we can learn from these countries how to develop a continuum of sanctions that encourages individual reform and protects the public at the same time.
C. Oppose LWOP Except in Death-Eligible Cases
The esteemed American Law Institute notes in its Model Penal Code that LWOP is only an appropriate sentence in cases where the defendant would otherwise receive the death penalty. The advocacy for LWOP as an alternative to the death penalty should not endorse LWOP as an acceptable sentence on its own, leading to a further upward creeping of LWOP sentences.
Perhaps the wholesale elimination of LWOP as a sentence is unlikely in the near future, limited largely by continued loyalty to the retributive goal of punishment. Judicial or legislative bodies could decide to narrow the scope of allowable scenarios that could result in an LWOP sentence, excluding the mentally handicapped and those convicted of felony murder from LWOP eligibility, for instance. These exemptions were successfully made for the death penalty in Enmund v. Florida and Atkins v. Virginia. Graham and Miller are significant victories in excepting juveniles from tough sanctions, but the progress need not be limited to juveniles. These two recent cases suggest the Court's potential willingness to draw additional categorical distinctions in limiting LWOP sentences.
