David A Love & Vijay Das
On this day 69 years ago the United Nations adopted the Universal Declaration of Human Rights, sketching the foundation of human rights law. Led by Eleanor Roosevelt, the United States played a critical role in bringing 48 nations together to enumerate a set of core individual rights and freedoms that we all reference to this day.
Unfortunately today the US struggles to live up to these ideals it helped create. The punitive nature of American criminal justice deserves international censure. The US has emerged as the global capital of mass incarceration, and its sentencing laws must be examined.
Although it calls itself the “land of the free,” the US maintains a draconian sentencing scheme, sending more people to prison than any other nation. While it touts its own human rights record and lectures other nations on their human rights shortcomings, its voracious appetite for life sentences without parole is an embarrassment that fails to live up to the lofty rhetoric of the US Constitution, and falls far short of international standards.
The sentence of life imprisonment without the possibility of parole, or LWOP, is just as the term implies. A person will remain behind bars for the rest of his or her life and until death, without any hope of release from prison. A cruel form of punishment often referred to as “the other death penalty,” LWOP violates international human rights norms.
Violating human dignityWilliam W. Berry III of the University of Mississippi noted, human rights law is based on the concept of human dignity (pdf). Both the preamble of the Charter of the UN, and Article 1 of the Universal Declaration of Human Rights reinforce this concept.
Similarly, the US Supreme Court has said the basic concept underlying the Eighth Amendment to the US Constitution – which prohibits “cruel and unusual punishments” – is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power is exercised within the limits of civilised standards. As Berry notes, LWOP – as a “one-time decision” and “death-in-custody sentence” – violates the human dignity of the condemned (pdf), the high court’s decisions notwithstanding. A final and total condemnation of a person, LWOP sentencing is problematic because there is no way of knowing if there is proportionality in the sentence, it does not allow for rehabilitation and does not account for changes in the offender’s danger to society over time.
According to the Office of the United Nations High Commissioner for Human Rights (OHCHR), the goal of the treatment of prisoners is reformation and social rehabilitation: “Life-sentence prisoners should be eligible for release into society once they have served a sufficient period of time in custody to mark the seriousness of their offences (pdf)”.
The imposition of LWOP in the US is a violation of a number of UN human rights conventions, of which the country is a signatory, but often neglects to follow.Racial discrimination in sentencing
For example, racial and ethnic minorities disproportionately receive LWOP sentences (pdf), a violation of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), or the Race Convention. While African Americans are 13 percent of the population, they were 28.3 percent of prisoners serving life sentences as of 2009, 56.4 percent of those sentenced to LWOP, and 56.1 percent of juveniles serving LWOP (JLWOP), according to the ACLU (pdf).
Juan Mendez, the UN special rapporteur on torture and other cruel, inhumane or degrading treatment or punishment, noted the US is the only country to continue the practice of JLWOP. Many lifers serve their sentences in solitary confinement – isolation for at least 22 hours a day – which is a form of torture (pdf) under the UN Torture Convention.
The explosion of people doing time for life has been more about locking up black and brown bodies than deterring crime.
The European Court of Human Rights has found that life sentences with no hope of release raise issues under Article 3 of the European Convention on Human Rights, which prohibits torture or inhuman or degrading treatment or punishment. The court ruled that a whole life sentence must allow for reducibility (pdf) if a prisoner has been rehabilitated and continued detention is no longer justifiable.
In practice, more than 50,000 prisoners are serving life without parole today. That’s one in every 28 prisoners. One quarter of those serving life or virtual life sentences will never have an opportunity for parole.
Most doing life without parole were convicted of violent crimes. Others were not. There are more than 3,000 nonviolent LWOP offenders as young as eighteen. Offenses like stealing a $159 jacket or selling cannabis are costing lives. Sixty-five percent of these nonviolent offenders are African American. In nine states, African Americans make up two-thirds of those serving life without parole.
The surge in life without parole sentencing is staggering. LWOP rolls quadrupled nationwide from 1992 to 2012, from 12,453 to 49,081(pdf). That rate of growth is almost four times the percentage rise in people serving parole-eligible sentences.
The explosion of people doing time for life has been more about locking up black and brown bodies than deterring crime. Violent crime has been on the decline for decades, yet in states such as California, Florida, and Virginia LWOP prison populations exploded since 2003. California’s violent crime decreased by 26.4 percent yet their LWOP count grew by 281.6 percent. California has made progress reversing its tough-on-crime past, yet they’ve thrown the book and then some for many of their prisoners to this day.
Finally, despite progress being made in the area of juvenile justice, the US is still an outlier. In 2012, the US Supreme Court ruled in Miller v. Alabama it’s unconstitutional to sentence kids for life without parole. Today, however, approximately 2,100 people remain in prison for crimes they committed as children.
To give up on rehabilitating individuals attacks a core tenet of criminal justice in a functioning democracy.
Even in the aftermath of the US Supreme Court halting harsh sentencing of minors, the US continues to wrestle with the impacts of degrading sentencing. Legislators and prosecutors for too long have cast Black and Latino American children as young as 14 as irredeemable super-predators, charging, prosecuting, convicting and sentencing children as if they were adults. Most of these children, of course, sprung out of traumatic environments, poor mental health access and sometimes abusive households.
Many LWOP offenders grew out of over-policed under-resourced communities hollowed-out after years of divestment and systematic discrimination to access decent housing, education and employment. To give up on rehabilitating individuals attacks a core tenet of criminal justice in a functioning democracy. The system should not simply punish but be a place for mercy and change, a set of rules for offenders to reflect, repair and heal.
A global outlier in criminal justice, the US undermines itself on the world stage when it engages in human rights abuses against its prisoners. The nation will remain ill-equipped to serve as a human rights leader and role model as long as it ignores international standards regarding life sentences. The US must do much better, which means implementing sentencing laws that uphold human dignity and facilitate rehabilitation, rather than encouraging punitive measures that embrace cruelty and retribution for its own sake.