In recent years, a number of states—New York, New Jersey, New Mexico, Illinois, and, in 2012, Connecticut—abolished the death penalty, replacing it with life without parole (LWOP) and ending the legislative debate about appropriate punishment for the most grievous crimes. Yet the end of death as punishment in these states should begin a new debate about the punishment of life. What should it constitute, beyond the loss of liberty? What should the day-to-day experience be of the worst offenders?
For 25 years, doing research, Ive spent thousands of hours inside maximum-security prisons in seven states. What Ive seen has appalled me. Convicted murderers play softball, volleyball, and Ping-Pong. Vicious men who raped and murdered children watch soap operas on color TVs. Serial killers who tortured their victims to death munch on snacks that they shopped for at prison commissaries.
As administered today, prison life completely disconnects crime from punishment. When I began my prison travels in 1986, I assumed that legislatures and corrections departments wanted serious crimes to result in serious punishments. But inside prison, it turns out, its nobodys job to punish. Consult corrections departments mission statements: not one so much as mentions punishment. Except for security concerns, every prisoner—whether killer or car thief—enters with a clean slate. Officers speak with one voice: What a guy did out there is none of my business. How he behaves here is my only concern. Lee Mann, a wardens assistant at the Oklahoma State Penitentiary, summed up best the indiscriminately immoral life in prison: We want to make the time for them as easy as we can, because it makes it easy for us if its easy for them.
For retributivists—those who believe that the punishment should fit the crime and that criminals should get what they deserve—the closest thing to the death penalty is not LWOP as its typically administered, but a special kind of life sentence that I call permanent punitive segregation, or PPS. A PPS sentence would be as unpleasant as the Constitution allows. PPS inmates would eat nothing but nutraloaf (a tasteless, nutritionally complete patty) and would get no canteen goodies. Visits would be kept to a constitutional minimum, and none would be contact visits; that is, these depraved murderers would never again touch another human being. To fulfill their constitutional right to exercise, they would labor daily but never play. They would certainly have no TV or Internet. Photos of their victims would adorn their cells, out of reach but in their faces. Officers assigned to guard PPS prisoners would familiarize themselves with the crime that brought the punishment. Society would tolerate no beatings or sadism from officers, but there would be no conviviality, either.
We would reserve this hopeless, bleak experience only for the worst of the worst criminals: paid assassins, mass murderers, rapist-murderers of children. Only if you really deserved PPS by your cruelty—your lethal callousness or viciousness—would you receive it. In short, PPS should never become an indiscriminate default sentence, as LWOP has largely become.
Our mission with PPS would be not rehabilitation but punishment, plain and simple. We retributivists, ignoring future costs or benefits of punishment, seek justice based almost exclusively on a criminals culpability. We believe that society should intentionally inflict harsh punishment on criminals because they deserve it—and only to the extent that they deserve it.
Still, its conceivable that PPS could have benefits in addition to its rectitude. Common sense and human nature suggest, for instance, that PPS could serve as a more effective deterrent to crime than LWOP does today. States that impose ordinary life sentences give criminals an incentive to kill their victims and leave no witnesses; we might deter these callous killers by threatening them with PPS.
Some of the states that recently abolished the death penalty have, in fact, taken small steps toward PPS. New Jersey requires LWOPers to serve their entire sentence in maximum-security prisons, where conditions are comparatively unpleasant. Connecticuts legislature requires LWOPers to serve their entire sentence in specially designated, separate prison wings under the same conditions as punitive segregation—forever denied contact visits, with no more than two hours of recreation a day.
Under the banner of PPS, death-penalty abolitionists who know that some vicious people may deserve to die but who fear sentencing errors could unite with reluctant death-penalty advocates similarly haunted by sentencing mistakes or racial discrimination. It wouldnt satisfy me, but PPS might, ironically, hasten the end of death as punishment.
Robert Blecker is a criminal-law professor at New York Law School; his crime-and-punishment memoir The Death of Punishment will be published by Palgrave Macmillan next year.