Too Cruel, Not Unusual Enough is the first ever published collection of essays written by prisoners serving life without parole (LWOP) in the United States.[1] The project was launched and carried out by The Other Death Penalty Project (ODPP). The ODPP is an organization created by Kenneth Hartman who is currently serving LWOP in California. Composed of prisoners, the group calls on death penalty abolitionist groups to stop promoting LWOP as a “supposedly humane alternative to lethal injection”.[2] ODPP opposes the idea that promoting this alternative punishment is a necessary first step to abolishing the death penalty. The aim of Too Cruel, Not Unusual Enough is to give a voice to those prisoners serving LWOP and to raise attention to their painful experiences of the punishment.

LWOP is “cruel”

Too Cruel, Not Unusual Enough is above all a brutal and raw testimony of the cruelty of LWOP. Prisoners explain that LWOP denies hope to a number of individuals including juveniles, the elderly, and the mentally ill. This denial of hope is cruel and inhumane because it rules out any possibility for them to ever change and become capable of being reintegrated back into society. More precisely, it excludes the mere consideration that they may ever change. These men and women get permanently excluded when sentenced, and prison becomes a warehouse of the excluded. Some of those writing from within prison walls stress that they committed their crimes before they turned 18 years old. The memories of who they were as young men and women are far-gone. As the years pile up, these individuals have changed but no procedural or legal opportunities are available for such changes to be considered, or at the least brought to others’ attention.

One of the cruellest aspects of LWOP is the acute degree of alienation from the outside world. Unlike other convicts, these women and men know from the moment their sentence is imposed that their ties with their families and friends are permanently destroyed. They are also alienated within the prison walls, where they are frequently denied educational or employment programs and sometimes even denied adequate medical care. Compounding matters, these individuals experience the general pains of prison, both physical and psychological, to the very limits of their life. Left with no prospect of release or review, the authors in Too Cruel, Not Unusual Enough describe suicide or drugs as the only escape route. Yet, even choosing to end their life is a challenge. One testimony in particular cries out his wish to end his life. He does not want to be maintained ‘alive’. In all these ways, LWOP is more than a mere deprivation of liberty. Prisoners endure a cruel and traumatising existence.

Despite these accounts, LWOP has triggered scarce debate, activism or reform. Instead, it appears that LWOP has been actively promoted, including by certain opponents of the death penalty who perceive it as a strategic avenue to negotiate the short-term goal of the abolition of the death penalty.[3]

LWOP is “not unusual enough”

Prisoners writing in Too Cruel, Not Unusual Enough suggest that the greatest hurdle to overcome in order to successfully challenge LWOP is overcoming a perception in the United States that it is not “unusual enough”. To be declared unconstitutional, it does not suffice for LWOP to be considered “cruel”. It also needs to be “unusual”, which entails conflicting with the ‘evolving standards of decency’.[4] The Supreme Court has construed “evolving standards of decency” as a reflection of a certain societal consensus at a specific point in time. The Court thus looks to societal developments in addition to making its own independent judgment when determining those standards.

From within prison walls, it is virtually impossible to investigate why LWOP is not perceived as unusual, i.e. why it does not conflict with standards of decency. How could individuals who have been permanently excluded from society possibly explain why they have been banished forever? Researchers standing outside prison walls, however, have the tools and space to investigate why LWOP is not perceived as an unusual punishment.

My unverified and tentative suggestion is that one reason LWOP is perceived as a tolerable punishment is that some human right activists and policy makers, who could have challenged this punishment, have instead promoted it. Opponents of the death penalty have presented LWOP as a preferable alternative. As a result, public opinion may have been persuaded that LWOP as an acceptable punishment. Progressive reforms aimed at terminating capital punishment may have ultimately entrenched another form of cruel and inhuman punishment. The floor is now open for further research.

 


 
[1] Hartman, K.E., (2013), Too Cruel, Not Unusual Enough, (2013), (The Steering Committee Press ed.)
[2] Hartman, K. E.,  (2009), “The Other Death penalty Project Announces Letter Writing Campaign to Anti Death Penalty Groups”, http://www.prnewswire.com/news-releases/the-other-death-penalty-project-announces-letter-writing-campaign-to-anti-death-penalty-groups-84945657.html, last accessed 17 November 2013.
[3] Appleton, C. and Grover, B (2007), ‘The Pros and Cons of Life without Parole’, British Journal of Criminology, 47: 597. Steiker, C. and Steiker, J.M. (2008), ‘Opening a Window or Building a Wall? The Effect of Eighth Amendment Death Penalty Law and Advocacy on Criminal Justice More Broadly’, U. Pa. J. Const. L., 11:155-205. Steiker, C. and Steiker, J.M. (2010), ‘Cost and Capital Punishment: A New Consideration Transforms an Old Debate’, University of Chicago Legal Forum, 1:2010. Henry, J. S.  (2012), ‘Death-in-Prison Sentences: Overutilized and Underscrutinized’, in Ogletree, C.J and Sarat, A. (eds), Life Without Parole, America’s New Death Penalty?, NYU press, pp. 66. Gottschalk, M. (2012), ‘No Way Out? Life Sentences and the Politics of Penal Reform’, in Ogletree, C.J and Sarat, A. (eds), Life Without Parole, America’s New Death Penalty?, NYU press, pp. 227. Nellis, A. (2013), ‘Tinkering with Life: A Look at the Inappropriateness of Life Without Parole as an Alternative to the Death Penalty’, Univ. Miami. L.R., 67:439.
[4] Trop v. Dulles, 356 U.S. 86 (1958).