Life Imprisonment without Parole IS Civic Death (no clickbait)

Based upon the Trop Principle, any punishment imposed by an ideally democratic state must base the justification for punishment in citizenship. The state also “cannot strip those subject to [punishment] of the rights necessary to the kind of citizenship fundamental in a democracy” (1). From these principles, Brettschneider argues that we must fundamentally rethink the way we treat prisoners with respect to our deprivation of their rights to political participation and the other associated rights necessary to for substantive participation.

It seems that a logical consequence of Brettschneider’s argument is that the death penalty should also be prohibited under these circumstances. After all, if we cannot deprive people of their citizenship in the process of punishment as that destroys the very basis of punishment, surely, we cannot deprive them of their lives? Being alive, after all, seems to be a very necessary precondition to being able to be a citizen. Though, this seems to be a self-evident case. If we are deeply concerned about the loss of citizenship, we must be equally if not more concerned about the deprivation of life. Unless we are to implicitly equate one’s citizenship as being more valuable than one’s life.

However, I want to explore another case that could constitute a sufficient impediment to one’s citizenship to warrant its restriction in an ideally democratic society. If we accept the Trop Principle, we must abandon any form of punishment that deprives citizens of their citizenship or the rights fundamental to enjoying that citizenship. Thus, a circumstance can constitute a substantive deprivation of one’s citizenship even if it is not a formal deprivation of it. On these grounds, I argue that life imprisonment without the possibility of parole can, absent certain extenuating factors, constitute substantive deprivation of one’s citizenship by indefinitely relegating people to effectively second-class citizens with respect to their democratic rights. Given the current state of prisons in America, I would argue that, in practice, life imprisonment without the possibility of parole constitutes ‘exile’ and thus an effective kind of ‘civic death.’ Since American prisons do not allow for the robust civic engagement that Brettschneider argues for, then confining an individual to prison for life is functionally the same as killing them (in the civic/public sphere). They are, in a literal sense, permanently separated for the general body of citizens, and thus I think ‘exile’ is an appropriate analogy for this case.

Perhaps, one could argue that in the ideally just democratic society which abides by the three core values, life imprisonment without parole could theoretically be an acceptable form of punishment. As Brettschneider puts it “the purpose of punishment…is not to inflict a moral penalty or to prompt repentance. Rather, it is to enforce the criminal law and, at best, to allow the criminal to acknowledge that he shirked his democratic duty” (150). As to the first part, it seems that this could be an acceptable means of enforcing the criminal law. However, as to the second part, life imprisonment without parole seems a bit more dubious. For, if we allow no opportunity to ‘rejoin’ society as a full member, then the purpose of punishment as reaffirming our democratic duty (which the wrongdoer has violated) seems meaningless. There will be no future opportunity to fully utilize one’s democratic duty, no opportunity to be a full citizen. For, even if we grant to the permanently imprisoned all of the substantive rights Brettschneider argues for, life in confinement still lacks all of the other liberties a free person enjoys by design. However, if one is confined for life, then that person effectively ‘loses’ their full citizenship. If I can never exercise full rights again, then haven’t I also died a kind of civic death? At the very least, I am condemned to live the remainder of my life as, at best, a ‘half-citizen.’ Either way, this seems to be a functional deprivation of one’s citizenship and therefore impermissible under the Trop Principle.

There are also other concerns involved with the prohibition of life imprisonment without parole. For example, one could argue that releasing an offender of a sufficiently dangerous nature who still posed a threat to society would be impermissible since the state must act to safeguard the basic liberties and dignities of its other citizens. However, this doesn’t seem to preclude the state from considering offenders on a case-by-case basis and requiring a stricter standard of scrutiny for justifying indefinite imprisonment. I grant that there may be extreme, egregious circumstances that warrant life imprisonment and that are completely justified by the Trop Principles. If such persons would pose an immense threat to society, then the state is obligated to protect the rights and liberties of other members and keep that person confined. However, absent these circumstances, I argue that life without the possibility of parole is unacceptable in an ideally just democratic society.

There are also real-world examples that show a society without permanent imprisonment is possible. For example, the Norwegian prison system maintains a maximum limit to how many years a person can be sentenced (21 in most cases and 30 for things like genocide and crimes against humanity). Granted, courts do review and are entitled to reject applications for early release—as they did in denying the release of Anders Breivik, a far-right extremist who killed 77 people. Thus, they still allow for a common sense weighing of the compelling interest in protecting society against potential harm from an early release, while shifting the burden to the state to justify the reasons for denying a release. Meanwhile, America has currently sentenced over 2,500 MINORS for life without the possibility of parole (ACLU) and is one of the few countries worldwide that allow this practice. It seems we have a far way to go, indeed.