The anti-death penalty movement has reached a success rate and a volume level not seen since the early 1970s, with execution rates declining, public support for the death penalty falling, and Supreme Court and lower court intervention to halt executions increasing. But this is not your parents' anti-death penalty movement. Today's activists rely heavily on strategies that did not play a prominent role in the previous surge in anti-death penalty activity. The first of these, thoroughly debated elsewhere, is the innocence movement, which focuses on the fallibility of the criminal justice system and the possibility of executing an innocent person. (1) The second, far less debated, strategy is the anti-death penalty movement's offering of an alternative to the death penalty: life without parole. Abolitionists have blitzed both legislatures and the media with pleas to adopt life-without-parole statutes in order to reduce executions, (2) arguing that "[t]he sentence of life without parole is a stronger, fairer, and more reliable punishment." (3)
These activists have embraced the life-without-parole alternative because the availability of parole is often a key factor for jurors deciding whether to impose a sentence of life or death. Parole eligibility serves as the crux of many prosecutorial closing statements in death penalty cases. Prosecutors, in more and less subtle ways, often turn their closing appeals into descriptions of future dangerousness: "Do you really want this man back out on the street?" Studies show that these prosecutorial tactics are not just rhetorical flourishes--they work. (4) The existence of parole has certainly led more juries to sentence defendants to death. Through the life-without-parole alternative, death penalty abolitionists hope to force that number back down.
The result has been a strange pairing of death penalty abolitionists with pro-incarceration activists and legislators, joining to push life-without-parole statutes through state legislatures. Working together, they have been remarkably successful. Forty-eight states now have some form of life imprisonment without parole, (5) with a great many of the statutes enacted over the last two decades. But a substantial protest camp has organized, including both defense lawyers seeking leniency for their clients and prosecutors looking for capital convictions.
This Note seeks to cut through some of the rhetorical jumble by evaluating the empirical results of life-without-parole regimes. Twenty years of experience with life-without-parole statutes shows that although they have only a small effect on reducing executions, they have doubled and tripled the lengths of sentences for offenders who never would have been sentenced to death or even been eligible for the death penalty. Before death penalty abolitionists continue to push for the expansion of life without parole, they should recognize that their crusade has lifelong ramifications for thousands of noncapital prisoners.
I. THE EMERGENCE OF LIFE-WITHOUT-PAROLE STATUTES BEFORE GREGG
Life in prison has never really meant life in prison--at least not for the last century. In 1913, "life" in the federal system officially meant fifteen years, (6) and state rules were similar. (7) With the reformist zeal of the Progressive Era came even greater enthusiasm for early release, beginning a seventy-year growth in work-release programs, halfway houses, and earlier parole-eligibility dates. (8)
Since its beginnings, however, parole has had unforeseen repercussions for prisoners. Dating back to the turn of the century, effective prison sentences in states that adopted parole grew longer rather than shorter. Two phenomena help explain this seeming paradox. First, legislatures and judges felt free to impose higher sentences when they knew that those sentences might not be served in full. Second, staying on good
behavior during parole is no easy task; the list of Progressive Era parole violations in various states included going into debt, public speaking, cohabitation outside marriage, and political activity. …