Sitting in a cell as you age, through the death of family members, the birth of children and grandchildren, you are stuck. You “feel[] like you have been sentenced to death . . . like someone or something is suffocating the life out of you slowly. The pain and suffering will be there ‘till the day you die.’” Hope will become difficult to find, and you will die like you lived—in a prison cell.

One in six people who are incarcerated live like this, not knowing the end of their sentence. Over two hundred thousand people are condemned to this perpetual penal confinement, their futures in the hands of a parole board’s arbitrary decision-making authority or with no possibility of release at all. Roughly one-hundred times more people are serving these “death in prison” sentences than are facing a true death sentence. Out of these “lifers,” about a quarter of them are facing life without parole (“LWOP”).

The popularity of life sentences began following the Supreme Court’s decision in Furman v. Georgia, striking down capital sentencing structures across the states. Life without parole and other life sentences were not unheard of before 1972, but only seven states had statutes authorizing LWOP. Following Furman, some states responded by passing new LWOP statutes. LWOP became the alternative to the previously preferred death sentence. Even after the reaffirmation of capital punishment in Gregg v. Georgia in 1976, states began using life sentences in response to the Reagan-era crackdown on crime. Today, every state except for Alaska has an LWOP statute in place, and even Alaska allows for determinate term-of-years sentences that amount to life.

However, the growth of LWOP has not necessarily caused the eradication or large-scale disapproval of capital punishment. Instead, the rise of LWOP has added a new form of severe punishment to sentencing schemes across the United States. In recent years, alongside the significant rise in LWOP sentencing, executions have increased. There were only eleven American executions in 2021. This number increased to twenty- five in 2024 and is likely to continue rising as the federal government has ended a recent moratorium on executions with President Trump’s return to office.

In this paper, I argue that LWOP sentences are unconstitutional under the Eighth Amendment because of their disproportionality and moral repugnance and therefore are cruel and unusual punishments. Further, I argue that LWOP sentences are distinct from, and worse in certain ways, than capital sentences and critique the rise of LWOP as an alternative to the death penalty in recent decades.

In Part I, this Note begins by explaining the varied ways the Court has interpreted the Eighth Amendment’s Cruel and Unusual Punishments Clause, and how such a highly politicized framework has impacted the Court’s willingness to regularly enforce the Amendment’s protections. In Part II, this Note argues that despite its re-entrenchment as constitutional by the Supreme Court, LWOP constitutes a cruel and unusual punishment and is therefore unconstitutional. This paper concludes in Part III with a critique of what I have labeled the “progressive compromise,” in which left-leaning anti-death penalty organizations and individuals name LWOP as an alternative punishment in their efforts to end capital punishment. I argue that LWOP is more “cruel and unusual” in its current form than capital punishment.

Read More.