Noxiae poena par esto

The concept of appropriate legal punishment has been around for a long time. Cicero proposed that authorities should "Let the punishment be equal with the offence," a sentiment expressed more catchily by W. S. Gilbert in "The Mikado": "My object all sublime I shall achieve in time--To let the punishment fit the crime." A reasonable idea, but one that founders upon the shoals of disagreement as to what "appropriate" means. Do we take an eye for an eye, or do we turn the other cheek? Or something in between?

The debate becomes understandably heated around the death penalty: Is it appropriate to take a life under any circumstances? What crimes merit the death penalty? What purpose does this penalty serve? etc. (see post of 6/6/09). One thing that most people would agree on, though, is that the death penalty is reserved for the most heinous crimes, and that only the most heinous crimes should be subject to the death penalty.

One attempt to finesse the issue--to find some middle ground acceptable to both law-and-order and more liberal types--is life-without-parole (LWOP). Sometimes referred to as "living death," LWOP is exactly what the name implies: life in prison without any possibility of parole. Frankly, this sounds to us quite a bit harsher than a straightforward death sentence, but it does at least avoid the finality of execution in cases where the slightest sliver of doubt might remain.

Regardless of how one feels about LWOP, one would expect it, like the death penalty, to be reserved only for the most heinous of crimes--crimes that would carry a death sentence were LWOP not an option. We were surprised, therefore, to learn that many prisoners who had received LWOP sentences have not, in fact, committed murder. Indeed, according to "Weighing Life in Prison for Youths Who Didn't Kill," there are over 100 juvenile offenders who are currently serving LWOP sentences for non-lethal crimes.

We are not speaking of people who fall victim to "3 strikes"-type laws (which are not necessarily life sentences, nor do they necessarily preclude the possibility of parole). Rather, these are people who committed their crimes when they were under 18, and whose crimes were deemed serious enough to warrant permanent removal from society. The Supreme Court will hear appeals from two of these convicts, who claim that LWOP amounts to "cruel and unusual" punishment.

What intrigued us was our own knee-jerk reaction to the two cases: One was a 13-year-old convicted of raping a 72 year old woman; the other was sentenced to a year in jail for armed robbery, but then, after violating parole at the age of seventeen (for committing a home invasion robbery), he received the LWOP sentence.

While not necessarily opposed to LWOP in principle (for the record, we do not oppose the principle of the death penalty either), we think there is something cruel and unusual about a punishment regime that imposes the same sentence on someone who rapes an elderly woman as on someone who commits armed robbery--especially when the latter was only sentenced to LWOP because he happened to be on parole at the time of the offense. But does the fact that the sentence was imposed in a cruel and unusual manner mean that the concept of the punishment is itself cruel and unusual? We await the Supreme Court's reasoning on the question.