Advocates of criminal justice reform (just about everybody these days) are understandably pleased that the ultimate penalty of death is dying out, so to speak, with Colorado this year joining the list of states that have abolished the death penalty. The number of executions has dropped from a modern high of 98 in 1999 to only 22 in 2019, with the number of death sentences imposed down by almost 90 percent during those years, from 272 to 34.

Before we cheer this welcome development, however, we need to revisit and replace what I call “the extended death penalty,” known officially as life without parole, or LWOP. Embraced by many abolitionists as a more humane alternative to the death penalty, it is now supported by a majority of the public over execution; a Gallup poll in October showed 60 percent chose LWOP as the punishment for murder.

There’s no uniform standard to decide which defendants deserve to eventually be eligible for parole and which don’t; these choices are inherently “arbitrary and capricious.”

In addition, as more and more prosecutors seek the death penalty more infrequently, if at all­­, they routinely press for LWOP sentences in first-degree murder cases, and sometimes for second-degree murder and armed robbery. There’s no uniform standard to decide which defendants deserve to eventually be eligible for parole and which don’t; these choices are inherently “arbitrary and capricious” and the antithesis of fairness.

As a result, even with death-sentenced inmates at a modern low of some 2,800, there are now more than 53,000 serving LWOP sentences, a four-fold increase in the past two decades. Another 44,000 are serving “virtual life” sentences of 50 or more years, past the life expectancies of almost all inmates. In other words, some 97,000 inmates have still been condemned to die behind bars.

Those who receive life sentences with parole eligibility return to prison for another violent crime at a rate of only 1.2 percent. Though LWOP inmates, by definition, cannot present any evidence of rehabilitation to a parole board, it’s reasonable to expect that ending life without parole sentences would not unleash a new murder wave.

Doing so would also save taxpayers up to $40,000 for each year of further incarceration, not to mention the costs for the growing number of elderly inmates with serious health problems. That’s the pocketbook argument against the practice.

Oct. 18, 201705:49

A better argument, in my opinion, is that restoring parole eligibility to all convicted murderers (with no guarantee of release, of course) would encourage inmates to keep their disciplinary records clean and to participate in educational and vocational programs to improve their chances of successful re-entry into their communities and job markets.

Cynics say that LWOP inmates deserve a lifetime behind bars for taking another person’s life. And regardless of the issue of justice, some are obviously incorrigible and would be a danger on the streets. No one advocates the release of serial killers and other “worst of the worst” offenders. And parole boards and governors will certainly err on the side of continued imprisonment in the most serious cases, if for no other reason that no official wants to be pilloried for releasing a murderer who murders again.

Nonetheless, conscientious parole boards and governors would find a substantial number of life-without-parole inmates deserving of release with the imposition of lifetime parole conditions — serious violations of which would result in return to prison. Despite having no chance of eventual release, many of these “lifers” already take part in educational, vocational and self-improvement programs, and have clean disciplinary records, factors that help establish the grounds for parole boards.

My personal preference would be to revise state laws to give all convicted murderers a chance for parole after serving a minimum of 10 or 15 years (those who get life sentences with the possibility of parole serve an average of 13.4 years), and a presumption of parole after age 55 or 60, by which time most inmates have “aged out” of further crime. But I understand both are unlikely of adoption in all but the bluest states, so I suggest instead urging governors to exercise their pardon and commutation powers in cases of demonstrated rehabilitation and remorse.

Let me give you an example of an LWOP inmate who, I am convinced, poses no further danger to anyone and can, if his sentence is commuted to time served, support his family and use his skills to help other inmates develop their own skills for successful re-entry into society.

Curtis Dawkins once received a graduate degree in creative writing. But he struggled with alcohol and drug use, suffering a relapse with a dose of crack cocaine on Halloween night in 2004. In the grip of substance-induced psychosis— a well-documented medical condition characterized by transient paranoia and hallucinations — Dawkins roamed his neighborhood in Kalamazoo, Michigan, garbed in a gangster costume and carrying a handgun. At one point, he demanded money from Tom Bowman, a stranger. When Bowman refused to comply, Dawkins shot him in the chest and then barricaded himself in the house with a hostage, finally surrendering to a SWAT team.

Resigned to spending the rest of his life behind bars, cut off from his partner and their three children, Dawkins turned to writing as his “lifeboat.” Much to his surprise, after several short stories were published in small magazines, a renowned literary agent (who has also represented me for 30 years) learned of his writing and sold a collection of his stories — set in an imaginary prison and suffused with inventive fantasy — to Simon & Schuster for $150,000, which Dawkins put into an educational trust for his three children. His book, “The Graybar Hotel,” received rave reviews upon publication.

Would it endanger others should Dawkins be granted a commutation after 15 years of his sentence? I think not, and (through our mutual agent) have volunteered as a pro bono lawyer to help him prepare a commutation petition.

Conscientious parole boards and governors would find a substantial number of life-without-parole inmates deserving of release with the imposition of lifetime parole.

The nascent campaign against LWOP has already secured a beachhead from which it can press for eventual abolition. The Supreme Court ruled in 2012 in Miller v. Alabama that juvenile murderers cannot be given a mandatory LWOP sentence.

By the same token, even those LWOP inmates who murdered as adults deserve resentencing consideration. The only factor in deciding whether to return an inmate to society is whether they are likely to endanger others. To say that any prisoner, whatever their crime and sentence, cannot possibly show remorse and rehabilitation, as a life-without-parole punishment does, is to say that these “bad” people — unlike the rest of us — cannot change for the good and denies their common humanity.


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