This essay is a contribution to a book that asks the question whether life without parole (LWOP) is the new death penalty. The essay claims that the punishment - at least in its mandatory form - is not so much the new death penalty as the old one (but not quite). Specifically, contemporary capital punishment expressly admits - indeed requires - an equitable determination. That is, before imposing the death penalty, the capital-sentencing jury is called upon to exercise practical wisdom based on everyday experience to reach a commonsense determination of normative blameworthiness - to consider not only the particulars of the criminal incident but also the social and psychological circumstances of the defendant. By contrast, LWOP is frequently a mandatory punishment over which a jury holds no equitable sway. In this way, mandatory LWOP bears a closer resemblance to the historical mandatory death penalty. But, significantly, the analogy between the historical death penalty and modern mandatory LWOP is imperfect. Although the pre-modern jury lacked power over the sentencing determination, it enjoyed considerable influence over the guilt determination, both because common-law liability rules were more flexible and because the pre-modern jury was arbiter of both law and fact. Thus, the pre-modern jury retained robust authority to circumvent mandatory penalties in equitably problematic cases. Comparatively, the modern LWOP jury is hamstrung by a more substantively and procedurally rigid and formalized criminal-justice system. Thus, the LWOP jury lacks the equitable safety valves that tempered application of both the historical death penalty and its modern capital corollary. To the extent an opportunity for equitable discretion remains in mandatory LWOP regimes, it rests wholly with the professional prosecutor, who controls the charging decision, but who concurrently has an institutional incentive to charge high to maximize bargaining power. In such circumstances, the prime determinate of whether a defendant receives an LWOP sentence is not normative blameworthiness but willingness to plead guilty. Mandatory LWOP is, thus, a punishment that only the interested prosecutor can temper effectively, but that the prosecutor has the least interest in tempering for equitable reasons alone.
Josh Bowers, Mandatory Life and the Death of Equitable Discretion, in Life Without Parole: America’s New Death Penalty?, NYU Press, 25–65 (2012).