Sentencing Alternatives

Overview 

Discussion around the death penal­ty has increas­ing­ly shift­ed away from a moral debate to a com­par­i­son of cap­i­tal pun­ish­ment and its viable alter­na­tives. The choice today for pros­e­cu­tors, jurors, leg­is­la­tors, and the courts is usu­al­ly between the death penal­ty and a sen­tence of life with­out parole (LWOP). Some vic­tims’ fam­i­lies pre­fer LWOP to the uncer­tain­ty of secur­ing a death sen­tence and the like­li­hood of many years of appeals before an exe­cu­tion would occur. Many pros­e­cu­tors have also con­clud­ed that the high costs asso­ci­at­ed with cap­i­tal cas­es are unaf­ford­able, espe­cial­ly with the high rate of rever­sals. As the avail­abil­i­ty and use of LWOP has expand­ed, the num­ber of death sen­tences has declined dramatically.

States have also looked beyond pun­ish­ment to alter­na­tive ways of reduc­ing vio­lent crime, includ­ing com­mu­ni­ty polic­ing, the intro­duc­tion of crime-fight­ing tech­nol­o­gy, and restora­tive jus­tice efforts. In some juris­dic­tions, resources not expend­ed in seek­ing the death penal­ty could be used to sup­port these initiatives.

At Issue 

Many pros­e­cu­tors are reluc­tant to elim­i­nate the death penal­ty as an option because they see it as a bar­gain­ing chip that results in cap­i­tal defen­dants plead­ing guilty in exchange for tak­ing the death penal­ty off the table. Commentators have not­ed that the use of the death penal­ty as a threat is con­cern­ing on both eth­i­cal and con­sti­tu­tion­al grounds.

Some oppo­nents of cap­i­tal pun­ish­ment also char­ac­ter­ize the use of life-with­out-parole sen­tences as just anoth­er kind of death sen­tence and note its expand­ed use even in non-cap­i­tal cas­es con­tributed to the cur­rent prob­lem of mass incar­cer­a­tion. According to a 2021 report from The Sentencing Project, the num­ber of peo­ple serv­ing sen­tences of life with­out parole has increased 66% since 2003; one out of sev­en incar­cer­at­ed per­sons is serv­ing a sen­tence of either LWOP, life with parole, or a sen­tence of 50 years or more. Aligning with larg­er racial dis­par­i­ties in prison sen­tenc­ing, there is a dis­pro­por­tion­ate num­ber of Black peo­ple serv­ing LWOP sen­tences, accord­ing to 2020 data from the Prison Policy Initiative. The U.S. con­tin­ues to have the world’s high­est prison pop­u­la­tion per capi­ta, with 629 peo­ple per 100,000 in prison, accord­ing to Penal Reform International’s 2022 Global Prison Trends. On the oth­er hand, LWOP has been avail­able as an option in every state that has abol­ished the death penal­ty in recent years, and some defense lawyers acknowl­edge that with­out LWOP many of their clients would be in dan­ger of receiv­ing death sentences.

What DPI Offers 

Recent opin­ion polls note the public’s view of using the death penal­ty vs. alter­na­tive sen­tences, and DPI has col­lect­ed the results of those sur­veys. DPI also pro­vides infor­ma­tion on state leg­isla­tive efforts to adopt LWOP and exam­ines when and how LWOP results in cas­es where juries can­not agree on a death sentence.