The Papon cases poses some difficult questions about how a penal system should treat elderly and infirm prisoners. His ten-year sentence, when he was already 86, probably looked like life imprisonment at the time. (French authorities dithered for sixteen years before even bringing the case to court, but that's another matter.) Papon had a very successful career in French politics, including high national office, so he was able to defer the consequences of his crimes until it was least inconvenient for him to face them.
Apart from the particulars of the Papon case, is there any point in confining elderly prisoners until they finally die behind bars? More broadly, is it possible for even a brutal murderer to be rehabilitated after decades in prison so that he is no longer a threat to society—and may even have something positive to contribute on the outside? Is there an acceptable level of risk from such elderly or infirm prisoners, and how can "acceptable risk" be reliably determined? If past behavior is the best predictor of future behavior, how can the release of any violent offenders ever be justified? Was there any point whatsoever in sending the 87-year-old Papon to prison?
Although rules and statutes give parole boards some guidance in making release decisions, a case-by-case analysis is unavoidable. In increasing numbers of cases, though, parole or early release aren't options at all. Should they be?
The Papon case is a relatively easy call. For mass crimes and crimes against humanity of that magnitude, and to deter others, a person should spend the rest of his life in confinement. That doesn't mean such prisoners should remain forever integrated into the prison population or be treated harshly. But those complicit in mass murder, like Maurice Papon or Slobodan Milosevic, should, on principle, never be free again.
What about the rest—those who committed first-degree murder or other acts of extreme violence? Many, no doubt, committed such horrific crimes that they should never be released, or their prison careers make it clear that they remain dangerous to society. Others, including those who killed as teenagers, may pose less ultimate risk. If people commit a capital crime at the age of seventeen or eighteen, should they be kept in prison for sixty or seventy years without any possibility of release no matter how they serve their sentence? Is there no possibility of redemption for those judged by the worst moments of their lives?
Due to changing sentencing practices, these issues are becoming more common in the penal system. Studies show that juries in capital cases often prefer life imprisonment without possiblity of parole over than the death penalty. That option is given to them in 37 of the 38 states that retain the death penalty. Alaska, which has no death penalty, is the only state in which juries can't impose a life sentence without parole.
As of 2005, 9,700 U.S. prisoners are serving life sentences for crimes they committed as minors. Of that number, 2,200 are serving with no possibility of parole (1). Currently 26% of all prisoners in the U.S. are facing life sentences with no prospect of eventual release. In Michigan alone, 146 prisoners are serving sentences of life without parole for crimes they committed between the ages of 14 and 16.
These sentencing practices raise questions at both ends of the age spectrum. To what extent are juveniles responsible for their own behavior and for how long should they be confined? What are the practical implications of denying hope to a quarter of the prison population by precluding their release decades in advance? How will such sentences affect their behavior in prison (2)?
With fewer juries imposing the death penalty in capital cases, and more states moving towards a possible repeal of capital punishment (3), our prison system is likely to be facing an even larger population of aging inmates. Elderly and infirm prisoners impose significant medical costs on the prison system in their declining years. Since most convicts and their families lack the means to pay for medical care or health insurance, release from prison may not avoid the costs to society of caring for prisoners. They will likely have to depend on Medicare and Medicaid assistance in any event.
For those who oppose the death penalty, life without possibility of parole is a humane alterative that should be offered to all juries in states that retain capital punishment. But it's an alternative that can also produce harsh results.
It hardly needs to be said that people found guilty of committing extremely violent acts should be confined to prison. They should also have to bear a heavy burden of demonstrating that they pose no further risk to others before they can be released. Many, perhaps nearly all, will never be released. For the rest—those who pose no discernible threat—the penal system could offer something like a "humanitarian," but supervised, release after they reach a specified age, like seventy.
Section 15 of Oregon's Constitution provides that:
"Laws for the punishment of crime shall be founded on these principles: protection of society, personal responsibility, accountability for one’s actions and reformation."The legal and moral issues are difficult and complex, but one thing seems clear: there's not much impetus for "reformation" if a prisoner has zero possibility of ever getting out of prison. Life without possibility of parole can be an appropriate sentence in many cases. But it shouldn't be imposed automatically, without consideration of all the implications for the inmate, prison administration or the larger society.
(1) The U.S. one of only four countries that holds people in prison without possibility of release for crimes they committed under the age of eighteen. Israel holds seven, South Africa four, and Tanzania just one, compared to our 2,200 (as of 2005). More than 350 of those held in the U.S. were 15 or younger. In a recent decision prohibiting capital punishment for juvenile offenders, Justice Kennedy concluded: "Even a heinous crime committed by a juvenile" is not "evidence of irretrievably depraved character."
(2) A Massachusetts priest convicted of child abuse was murdered while in "protective custody" by a homophobic inmate who is serving a life sentence without possibility of parole.
(3) New Jersey, Maryland, New Mexico and Nebraska.
GRAPHIC Ohio State Penitentiary, opened in 1998.