In 2005, Texas became the last of the death penalty states to approve “Life Without Parole” (LWOP) as a sentencing option. It was fiercely opposed by some, but welcomed as long overdue by others. Many people who are morally opposed to the death penalty were happy to see that prosecutors now had an alternative to lethal injection for those accused of the most serious crimes. However, many others who are already distrustful of over-zealous prosecutors and politically minded judges feared that LWOP would become too common, and that too many people who would have previously been given a life sentence (and would eventually become eligible for parole) would now lose out on that chance of someday leaving prison. We now have over a decade’s worth of TDCJ data to better understand how everything has evolved since the day LWOP became a sentencing option in Texas. This brief discussion of LWOP will attempt to demonstrate that the LWOP sentencing option has likely played a huge role in reducing the number of people sentenced to death, but it has also led to 50 to 80 people per year going away to prison for life who would have otherwise had a theoretical opportunity to someday be released on parole.
The Origin of LWOP
2005 marked the signing of the new LWOP sentencing law, but It took a little while for LWOP to become a commonly used option for punishment in Texas, and it is only available for a very narrow group of offenses. It is most commonly seen in capital murder cases, but it is also used in some of the most severe cases of repeated sexual abuse. Thus, most prosecutors do not routinely have to encounter scenarios where LWOP is even a possibility. Moreover, many capital murder indictments still end up resulting in murder plea agreements with very long sentences.
There are just 15 people in Texas who were sentenced to LWOP in 2006, the first year it was available to prosecutors. DA’s around the state had to consider this new tool, and carefully decide which cases were appropriate candidates for the LWOP sentence, especially given the reality that most of the murders and other violence is perpetrated by very young (and immature) people between the ages of 16 and 24. As the dockets around the state moved along, the number of LWOP convictions climbed to 56 by the end of 2007. By 2011, the annual number of people who were given LWOP climbed to approximately 100. The new additions to this infamous group has remained at approximately 100 annually, ever since 2011. In other words, each year, approximately 100 people are sentenced by the state to remain permanently incarcerated in prison until they die in prison, with no exception whatsoever, period.
There are now approximately 850 people in TDCJ with LWOP sentences. Over 230 of these people are in their 20’s, and another 329 are in their 30’s. Thus, approximately two thirds of the people who received LWOP sentences are younger adults.
As many legal scholars predicted, the option of making sure death penalty candidates go to prison and never walk the streets again HAS undoubtedly translated into a drastic decrease in the number of people who are being sentenced to death. In 2016, the death penalty was only sought in four cases statewide, and it was ultimately chosen in three out of the four. This number of death sentences is way down from the days where Harris County alone had as many as 15 death penalty sentences in a single year.
It is also clear, however, that LWOP has been substituted in place of regular life sentences for many charged with capital murder (NOTE: a person convicted of capital murder and given a life sentence has a chance at being paroled beginning 40 years into their time served). In other words, in many cases where a judge or jury would not be willing to sentence a person to die by lethal injection, with LWOP, these defendants also cannot carry the hope of someday walking out of prison, even after 40 years, when most of these people will be in their 60’s or 70’s.
Unlike inmates on death row, the LWOP population is not housed in a specific prison unit. Instead, they are scattered throughout TDCJ’s prison system. I did a little digging, and learned some interesting facts about the LWOP population. Of the 850 people in TDCJ with LWOP sentences, 55 are female, and 795 are male. The racial composition of the LWOP group is as follows: Black 344 (40.5%), Hispanic 266 (31.3%), White 227 (26.7%), Asian 10 (.01%), and Indian 1 (.001%). Most of the LWOP inmates are convicted of capital murder, but a significant number are convicted of serious sexual abuse cases.
Perhaps the most important characteristic of the LWOP group is the individual age of each person. One of the main reasons LWOP has been justified is that it should be used in cases where there is no potential for rehabilitation. However, if we accept the basic premise that most people are capable of change, especially over time, the age of LWOP inmates should be a concern for those who believe in rehabilitation as a goal of incarceration. For this group of 850 people, punishment is clearly the emphasis, and rehabilitation is not a concern.
The LWOP inmate population in Texas should reach 1,000 during 2018, and if the trend continues, we will continue to see approximately 100 new inmates with LWOP sentences each year. It’s worth the time and effort to explore what can be done to ensure that all of these people were truly blameworthy enough to justify the permanent loss of freedom and designation as being unfit to ever see parole. Perhaps the idea of commutation will someday be seen as a real tool for future governors to use in those LWOP cases where it’s seen as appropriate. Because without the hope of commutation, there will undoubtedly be some people with LWOP who did not deserve their fate.