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The Irrationality of Natural Life Sentences

Why the punishment may pose an ethical conflict
“Current selves and future selves can vary from one another no less than two altogether distinct people do.” – Jennifer Lackey, professor of philosophy

This article originally appeared in the New York Times on February 1, 2016.

By Jennifer Lackey

I’ve been teaching philosophy for 15 years, and while I’ve had some very memorable experiences along the way, I knew early on that my current seminar would be unique. The course itself is on values, and each Monday for nearly three hours my students debate — in an often lively and engaging manner — issues ranging from the existence of universal moral truths to the permissibility of torture and the death penalty. In fact, a few weeks ago, there was a complaint about the level of noise coming from my classroom. The reason for the noise? The utilitarians were rather loudly arguing to the Kantians that sacrificing one of their classmates to prevent the Paris attacks would clearly have been justified.

The complaint resulted in a guard being stationed in the doorway of my classroom to ensure that there wasn’t “a security threat,” followed by some breath-holding as I waited to see if I would, once again, be removed from the building. You see, the course I’m teaching is at Stateville Correctional Center — a maximum-security men’s prison in a suburb of Chicago — where raised voices aren’t typically the result of intense philosophical debate about normative ethical theories. Yet, the room felt no more in need of a guard than do my classes at Northwestern.

In some respects, this is a striking fact. Just about all of my students at Stateville have been convicted of at least one murder; some have assaulted staff members, and others have spent over a decade in solitary confinement. Some are former gang members, and others were on death row — neighbors with John Wayne Gacy — for almost half of their lives.

In other respects, however, this is not at all surprising. The most obvious is that some end up at Stateville for reasons that are disconnected from culpability — coerced confessions, poor counsel, a racist jury, and so on. But even where these external forces are largely absent, the fact that my classroom seems indistinguishable from those at an elite university turns out not to be that shocking. And here’s the simple, yet crucially important reason: People can change, often in profoundly transformative ways.

Such transformations can be seen most clearly by considering the two ends of the spectrum of life. On the early side, it is often noted that the prefrontal cortex of the brains of adolescents is still developing, and so they are more likely than adults to act on impulse, engage in dangerous or risky behavior, and misread social cues and emotions. This raises a host of questions about the level of responsibility that juveniles bear for their crimes and the appropriate punishments that should be handed out to them. If the underdeveloped brains of adolescents at least partly explain their criminal behavior, then holding them fully responsible for their actions, and punishing them as adults, seems wildly off the mark.

On the later side of the spectrum, only 1 percent of serious crime is committed by people over the age of 60. According to Jonathan Turley, a professor of public interest law at George Washington University: “Everyone agrees on what is the most reliable predictor of recidivism: age. As people get older, they statistically become less dangerous.” Turley refers to this period as “criminal menopause,” a phenomenon that raises serious questions about the rationale for incarcerating the elderly. Still, researchers project that the elderly prison population in the United States will be over 400,000 in 2030, compared with 8,853 in 1981.

At the early end of the spectrum of life, then, there is the possibility that prisoners might change; at the later end, there is the reality that they have changed. Both facts bump up against natural life sentences. A sentence of “natural life” means that there are no parole hearings, no credit for time served, no possibility of release. Short of a successful appeal or an executive pardon, such a sentence means that the convicted will, in no uncertain terms, die behind bars.

Many types of arguments have been leveled against natural life sentences. Economic ones focus on the ballooning costs of mass incarceration and the toll this takes on government budgets, especially as the age and medical expenses of prisoners rapidly increase. Legal ones ask whether such sentences are cruel and unusual and therefore violate the Eighth Amendment, particularly for juveniles. Social arguments ask whether natural life sentences discourage reform by providing no incentive for rehabilitation. Moral concerns are grounded in the dignity and rights of prisoners, while psychological objections call attention to the myriad causes of deviant behavior and their responsiveness to appropriate treatment.

But one argument that is surprisingly absent from these conversations is an epistemic one that has to do with us. For natural life sentences say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal. Nothing. So no matter how much a juvenile is transformed behind bars, and no matter how unrecognizable an elderly prisoner is from his earlier self, this is utterly irrelevant to whether they should be incarcerated. Our absence of knowledge about the future, our ignorance of what is to come, our lack of a crystal ball, is in no way a barrier to determining now what someone’s life ought to be like decades from now.

Moreover, prisoners aren’t the only ones who can change: victims and their families can come to see the convicted as being worthy of forgiveness and a second chance, and public attitudes can evolve, moving away from a zealous “war on crime” approach to one that sees much criminal activity as the result of broader social problems that call for reform. Even if we set aside the other arguments against natural life sentences — economic, legal, moral and so on — the question I want to ask here is this: how is it rational to screen off the relevance of this information? How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades-from-now prisoner deserves?

In any other domain, it would obviously be irrational to make a high-stakes decision about the rest of another person’s life that not only rules out the possibility of ever considering additional evidence, but is also meant to be absolutely final.

If I were given the option to heavily invest in one, and only one, career for my 15-year-old based only on her current beliefs, preferences, and character, I would refuse without hesitation. A lot can change in a decade, especially during the critical transition between adolescence and adulthood. Even choices that we expect to significantly constrain our future selves, such as marriage, can be revisited in light of new evidence. This is precisely why divorce is legal. Yet natural life sentences stand out as a glaring exception: They permit binding, life-altering decisions to be made in a state of radical epistemic impoverishment.

Of course, when punishment is connected with rehabilitation, it’s undeniable that information about changes, especially among prisoners, is relevant. But this is also true for all but the crudest forms of retributive justice. It’s a commonplace that information about a person’s mental states bears on the punishment deserved, regardless of its consequences. When considering punishments, including at parole hearings, we are often highly sensitive to whether the wrongdoer appreciates the wrongness of the act, feels remorse, and is committed to not being a repeat offender.

Compare two students known to have cheated: The first fully acknowledges that looking at her notes during an exam was wrong, is clearly contrite, and promises to never do so again; the second flagrantly and steadfastly lies about it and shows no evidence that he won’t cheat again. It is fairly standard for the second student’s punishment to be harsher than the first’s.

But if we take two students with such different mental states regarding cheating as deserving of different sanctions, why would we not regard two stages of the same person — one at 19 and another at 49 — with radically different attitudes toward his crime, as deserving of different punishments? Current selves and future selves can vary from one another no less than two altogether distinct people do.

Notice that nothing in the epistemic argument here suggests that no prisoners should, in fact, spend the rest of their natural lives behind bars. Instead, the point is that rationality requires that we leave the epistemic door open to acquiring new information. Put bluntly, the argument says that it is irrational for the possibility of parole to be taken off the table at the outset of any sentence.

If Hume is right that “a wise man proportions his belief to the evidence,” then our beliefs about the punishment a person deserves at any given time need to be sensitive to the evidence available at that time. But if we screen off huge amounts of potentially relevant information decades before the beliefs about what a prisoner deserves are even formed, then it is impossible for them to be proportioned to the evidence.

Nearly all of my students at Stateville are serving natural life sentences. At least a handful of them have been incarcerated since they were teenagers, one since he was 14. While I didn’t know any of their decades-earlier selves, their current selves are some of the most extraordinary students I’ve had in my 15 years of teaching. They are painters and poets, mentors and authors, researchers and advocates. They breathe new life into philosophical questions I’ve been asking for the entirety of my career. And yet we tell these men that who they are now and what they have accomplished matters so little to how they ought to be treated that we won’t even bother to consider it. Rationality demands that we do better.

- Jennifer Lackey is a professor philosophy at Northwestern University.