What is the Powder Room?

A Death Sentence by Any Other Name

The first time I sat second chair on a murder trial, the client was sentenced to life without the possibility of parole. He’d allegedly committed the crime when he was 18. (In order to function as a defense attorney, I find it necessary not to form an opinion of guilt or innocence before, during, or after my handling of a case.) In the days prior my boss and mentor had fought for his innocence, in front of our carefully picked jury, and now his life - in the form of a chance at parole after about 30 years. “He’ll be in his fifties before he can even apply to leave prison, Your Honor,” she said. “He’ll be a completely different person. Think about giving him a chance to start over then.”

The judge didn’t bestow the chance. As the judge read out the sentence of life without the possibility of parole I felt as if I was falling from a great height. Though a convicted murderer doesn’t make a very sympathetic character, it’s worth asking whether life without parole should be so widely used in the United States. It is, after all, essentially a death sentence, as attorney David Dow writes in The Nation. Even life sentences with the possibility of parole can end in death or continual denials: Just ask Charles Manson, who doubtless handicapped his chances by deeming himself “very dangerous.”


The death penalty itself, wheezing along in just a few states now, is a topic for another day. Far more common in America are life sentences. According to a Sentencing Project report, one out of every nine people in prison as of 2012 was serving a life sentence. As for life without the possibility of parole - those of us in the biz refer to it as “LWOP” - thousands of prisoners in each state live each day knowing they will never leave prison alive. It’s not a uniquely American sentence, but less common than one might believe. Europe’s top human rights court views it as a violation of human dignity. That’s reflected in Dow’s comparison of LWOP’s use in similarly situated countries:

Our neighbors to the south don’t have it. Almost all of Europe rejects it. Even China and Pakistan, hardly exemplars of progressive criminal justice policy, allow prisoners serving life sentences to come up for parole after twenty-five years. Meanwhile, the United States imprisons wrongdoers for sentences that are five to seven times longer than sentences for comparable offenses in, say, Germany. Yet the recidivism rate in Germany is roughly 25 percent lower than ours.

Then there’s the matter of when people are most likely to commit crime. On Scientific American’s blog, David G. Myers posits that we should rethink LWOP for the same reason that the practice for juvenile offenders was outlawed via Supreme Court decision. (That decision, Miller v. Alabama, only came about in 2012, and was decided by a razor-thin margin. Nevertheless, over 2,000 people sentenced as juveniles remain condemned to die incarcerated.) Myers’ reasoning lies in our current understanding of frontal lobe development. As it turns out, our brain’s last significant growth spurt wraps up around the age of 25, as the frontal lobe builds tools for impulse control and decisionmaking.


According to a New York Times opinion article published this March and cited by Myers, most crimes are committed by individuals in their late adolescence and early-to-mid 20s:

Homicide and drug-arrest rates peak at age 19, according to the Bureau of Justice Statistics, while arrest rates for forcible rape peak at 18. Some crimes, such as vandalism, crest even earlier, at age 16, while arrest rates for forgery, fraud and embezzlement peak in the early 20s. For most of the crimes the F.B.I. tracks, more than half of all offenders will be arrested by the time they are 30.


Are we wasting lives and resources? When should life sentences, especially life sentences without parole, be employed? Both the science and America’s sky-high incarceration rate (which has California granting parole at historically high rates because its prisons are bursting at the seams) beg the question of how often the justice system should use its power to take away freedom for good. So do studies on the deterrent effect of severe sentences. Myers writes,

Any deterrence effect comes more from swift and sure arrest. What matters is not the length of a punishment but its probability.


America’s incarceration crisis stands as one of the only issues that both Democrats and Republicans agree needs to be addressed. If anything starts getting done in politics, we should probably start with those imprisoned for life for nonviolent, even minor, crimes. We may then have less than 1 in 100 adults in prison and spend a few less billion dollars per year maintaining that population.

The evidence in the trial I described above convinced a jury that a young man committed a premeditated and violent offense. The dumb and dangerous behavior of most teenagers and young adults doesn’t compare, but my client was a teenager nonetheless, and will change and grow into an adult like we all do. Maybe he could do some good if given the chance. I want to live in a society that believes in the possibility of growth and redemption. Maybe we could throw a little science in there too.


Lulu Yates, Esq. cannot provide legal advice in the comments. She’s too busy doing it at work and only licensed her home state.


Twitter: @luluthelawyer

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