The Hidden Death Sentence

Pope Francis has been making the news (again!), this time for his comments at a private audience with members of the International Association of Penal Law. His comments—which reveal a sophisticated understanding of many aspects of criminal justice—covered a wide range of issues, including overcriminalization of the disenfranchised (and underpunishment of official corruption), abuses of pretrial detention, inhumane prison conditions, and the role of the media in driving public demand for “vengeance.”

In the midst of a treasure trove of richness, the comment that has attracted the most media attention so far is Pope Francis’s comparison between the death penalty and sentences of life imprisonment. As reported by Vatican Radio, in his comments today the Pope invited

“[a]ll Christians and people of goodwill . . . to fight not only for the abolition of the death penalty . . . in all of its forms, but also for the improvement of prison conditions in the respect of the human dignity of those who have been deprived of freedom. I link this to the death sentence. . . A life sentence is a death sentence which is concealed.”

Yes! That!

In recent years, the death penalty has been the subject of widespread attack from the Catholic community in the United States, on the ground that it is unnecessary for the protection of the public and undermines the “dignity of the human person.” Writings on the subject are nuanced and voluminous but, simply put, the critique is that by “offer[ing] the tragic illusion that we can defend life by taking life,” the death penalty “diminishes all of us.”  I don’t disagree one bit.

Capital lawyers often argue, and courts sometimes agree, that “death is different” from any other punishment, and that capital sentences should therefore be subject to greater scrutiny and held to higher Constitutional standards than sentences of natural death behind bars—that is, sentences that impose life, or de facto life, sentences on convicted individuals. Because capital sentences are so immediately and tangibly final, they deserve a scrutiny that terms of years don’t warrant. Or so the argument goes.

But I have often found myself troubled when death penalty abolitionists argue not only that capital punishment is wrong, but that the morally-appropriate alternative is a sentence of life without the possibility of parole. While state-sanctioned execution is the harshest penalty available under the law, sentences of natural death in prison have a brutality of their own, imposing the certainty of  death behind prison walls, often preceded by decades of isolation. Love, children, home, family, nature, work, sunshine—these basic natural goods, which define the experience of human life for the non-imprisoned, are restricted or eliminated entirely by the fact of imprisonment.

Certainly, loss of liberty is required and deserved in many cases involving serious crime, but courts often hand out sentences of imprisonment in super-size quantities that leave no room for redemption. As a result, young people grow old behind bars, their loved ones move on or die, and loneliness defines their existence. Almost 50,000 people  are serving sentences of life without parole in the United States. That number does not  include those serving de facto life sentences by virtue of lengthy terms of years, or the 110,000 people serving parole-eligible life sentences (many of whom will never be released under current restrictive parole policies). Despite the scale of sentences to life imprisonment, Catholic conversations about punishment in the U.S. have largely ignored those sentenced to die behind bars who are not on death row.

Today’s brief comments by Pope Francis don’t begin to resolve hard questions about how long sentences should last, or what kinds of crimes deserve what kinds of punishment.  (The Pope observed in his comments today that life sentences were recently repealed in the Vatican Criminal Code; however, the maximum penalty under the Code stands at a not-insubstantial 35 years.) What the Pope did do today was remind us that our criminal justice system has  discarded and forgotten many people in ways that do not comport with their inherent dignity and worth—and remind us that we are called to do something about it.