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66 | 2 Death-in-Prison Sentences Overutilized and Underscrutinized Jessica S. Henry Over 41,000 people in the United States are serving a sentence of life without the possibility of parole (LWOP).1 In total, more than 140,600 people are serving some form of life imprisonment.2 The data do not include the unknown number of people sentenced to prison terms that exceed their natural life expectancy. Even as a conservative estimate, the data paint a stark picture of a prison population rife with individuals serving sentences which will end only upon their death. These sentences have been described variously as “a living death sentence,”3 “death by incarceration,”4 a “virtual death sentence,”5 a “prolonged death penalty,”6 a “delayed death penalty,”7 “a death sentence without an execution date,”8 and the “other death penalty.”9 Each phrase attempts to capture the reality that many noncapital sentences, regardless of their formal title, are in fact “death-in-prison” (DIP) sentences. This chapter deliberately does not limit consideration of DIP sentences to offenders serving a formal sentence of LWOP. As experience has shown, narrow definitions can have serious and unintended consequences. In recent years, for instance, the effort to eliminate capital punishment may have increased the legitimacy of other severe sanctions. Some death penalty abolitionists , capitalizing on public opinion which showed a preference for LWOP over capital punishment, argued that the severity and certainty of LWOP rendered it a more humane and palatable alternative to death. They joined forces with tough-on-crime policymakers to severely restrict capital punishment in jurisdictions such as Maryland and to entirely eliminate capital punishment in jurisdictions such as New Jersey and New Mexico.10 As death sentences declined, LWOP sentences increased, but not in perfect substitution. LWOP sentences were not simply meted out in what would formerly have been death cases. Rather, LWOP also became a legitimate form of punishment for a host of offenses that were never death eligible in the first place.11 In turn, other DIP sentences were perceived as less severe in comparison to Death-in-Prison Sentences | 67 formal LWOP. In this way, the concerted and well-intended effort of some abolitionists, scholars, and policymakers to avoid the execution of the few may have resulted in increased DIP sentences for the many.12 DIP sentences have been virtually ignored by scholars, courts, and policymakers . While capital punishment has been the subject of intense scrutiny, other severe sanctions, such as LWOP, life imprisonment, or those in which an offender is sentenced to a lengthy term of years, have lingered quietly on the sidelines. Capital cases receive heightened scrutiny because they involve the ultimate sanction of death. Yet the placement of capital punishment at the peak of the punishment hierarchy has meant that other severe sanctions, including those which end only in death, have received far less attention and scrutiny than their capital counterparts.13 In terms of actual impact, however, literally tens of thousands of people are serving DIP sentences, while a fraction of that—3,260 as of April 2010—are serving an actual capital sentence.14 Given the extent and breadth of DIP sentences, a robust and thoughtful discussion about their scope, application, and justification is long past due. DIP sentences are closer on the sentencing continuum to capital sentences than other punishment because, like capital sentences, DIP sentences are severe and degrading, are arbitrarily imposed, and have been condemned by members of the international community. While DIP sentences are not the same as capital punishment, they are sufficiently severe in their own right to warrant the same heightened scrutiny and legal protections afforded to capital cases. Part I of this chapter defines DIP sentences. As the title of this book suggests, LWOP can certainly be described as the United States’ “new death penalty.” This chapter, however, urges the consideration of all sentences that result in the incarceration of individuals beyond their natural life. While the formal sentence of LWOP ensures that an individual will die in prison, so do other severe sentences, such as life imprisonment in certain jurisdictions and extremely lengthy prison terms. As will be discussed , the latter sentences pose more complex definitional challenges than LWOP does, but they nonetheless warrant inclusion into any discussion of severe sentences. Part II of this chapter examines the proposition that DIP sentences, in fact, are closer to capital punishment on the sentencing continuum than other punishments are and cites three factors in support of this...

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