You Should Know: Why Death Row Inmates Oppose LWOP

Reporting on the font page of today's SFChron Bob Egelko finally says what many of us who visit San Quentin prison have known for months, most  of California's death row inmates oppose Proposition 34; the voter initiative on this November's ballot that would abolish capital punishment and replace it with Life With Out Parole (LWOP) even retroactively. (read the story here).  Yes that's right, prisoners who face a lethal injection unless a court overturns their death sentence or conviction are opposed to a law that would immediately accomplish what many of them have been litigating to achieve for years, the removal of their death sentence.

That is so counter-intuitive to what most people believe about capital punishment that its worth repeating.  People on death row, not just folks in an abstract all night dorm room discussion about whether death or LWOP is worst, but folks actually condemned to die, prefer to continue with their death sentence.

The story correctly emphasizes the importance of lawyers in explaining this seeming paradox.  Everybody convicted of a serious felony like murder receives a court appointed lawyer to prepare an appeal, generally to the state courts and to the US Supreme Court.  But even when those appeals fail, and the vast majority do, death row prisoners get a court appointed lawyer to continue a second line of appeals known as habeas corpus, in both state and eventually federal courts.  These appeals are very valuable for two reasons.  First, they allow the court to consider many aspects of the underlying case against the defendant, like the police investigation and the prosecution's conduct, that are generally not reviewed on direct appeal.  Second, as the Chron story points out:

For condemned prisoners, it often represents their best chance to stave off execution by presenting their claims to federal judges, who are appointed for life, rather than elected state judges. A ruling that leads to their acquittal, or even a finding of innocence, is also more likely in habeas corpus than in the earlier direct appeal.

Many prisoners hold out the hope that their conviction will be overturned and they will be able to go home.  Ending their right to court appointed lawyer on habeas would close that door forever to most if not all of them (a handful might find lawyers to voluntarily continue their appeal).

Voters who support the death penalty should think carefully this November before they vote "NO." If you defeat Proposition 34, you will be continuing to give people convicted of capital murder exactly what they most desperately want - a lawyer that will help them get out of prison.

Less explicitly discussed but quite clear from the above, is how punishing a true LWOP sentence is.  The prospect of never being released from prison ever, with not even a low odds hope for an appeal or a parole board decision in your favor, is terribly terribly punishing.  In California it is compounded by the fact that prison conditions are extremely poor due to overcrowding and in recent years according to the Supreme Court, the prospect of torture through abysmal or non-existent medical treatment (see Brown v. Plata).  Death row inmates in California have a cell to themselves, receive more attentive supervision and visits from their lawyers, not to mention a measure of international celebrity and the scores of pen pals that brings.  All of that disappears when your death sentence is vacated (as all of them would be should Prop 34 pass), and you get dumped into the long dark tunnel known as LWOP.  In short, just as Cesare Beccaria argued more two hundred years ago in his On Crimes and Punishment, true life is worst than death as a punishment, and thus as a deterrent.

We could make it even more so by actually paroling murderers who have received a non-LWOP life sentence, as the law itself requires, but which California' politicized process has stymied for years.  If we began to parole most prisoners convicted of 2nd degree murder after 15 years, and those convicted of 1st degree murder after 25 (as the law requires), those persons sentenced to LWOP would see the reality of the grim fate they have been assigned to.

I personally oppose LWOP as "cruel and unusual punishment."  I will vote for Proposition 34  because it will at least take us to a more honest place where we acknowledge what we are actually doing in California.  After that we can begin to have a more realistic conversation about what punishment can achieve and how long that takes.  We should reform our state courts so that they are not a rubber stamp of sometimes deeply flawed convictions, and we should reform parole so that prisoners who atone and seek to reform themselves in prison face a realistic chance of going home.  Sadly only one of those things is on the ballot this November.

State of Confinement: California's Carceral Habit

Scott Simon's amazing interview with George Takai this morning brought tears to my eyes and made me think once again about why this hauntingly beautiful state with its sunny optimism and reputation for creativity and innovation has so often embraced mass incarceration in various forms.  Takai, best known to the world as Hikaru Sulu, the fictional pilot of the star-ship Enterprise in the television show Star Trek and the several feature films that followed, was confined along with his family in several concentration camps setup by the United States to intern Japanese-Americans in 1942 (read his wikipedia article here).  Talking with Simon, the host of NPR's Saturday Weekend Edition show about the new musical about the Japanese internment Allegiance, Takai related that when he and his family finally left Tule Lake, their second camp, to return to Los Angeles, housing was so expensive they had to live on skid-row near downtown LA.  His little sister wanted to go home, home to incarceration.  That Takai's family came back to LA and set themselves back to the life of being ambitious hard working Californians (Takai studied at Berkeley (Architecture) and UCLA (Acting)) is amazing and inspiring, and a reminder that children scarred  by contemporary mass incarceration can be tomorrow's George Takai's, but why is this state so prone to locking people up?

It is true that the internment of Japanese Americans was a national crime whose stain lies on our whole nation, California had a far deeper responsibility, with all the major champions and the deepest sources of racist populist support for internment based here.  While it only lasted a few years, the internment involved over 100,000 people (read the wikipedia article here).

California also was a heavy user of mental hospitals from the late 19th century through the 1950s to warehouse large numbers of people with mental illnesses or disabilities (or sometimes just deviant characters) largely without treatment and with little legal recourse to get out.  Most other states had similar institutions, but California did so at a much higher rate, and was far more aggressive in pushing sterilizations along with hospitalization and imprisonment.

Joan Didion reflects on California's habits of confinement in her powerful memoir of the state, Where I Was From (listen to an interesting interview with Didion on the book here), and points to a number of traits that seem to combine in California's political culture to favor regular paroxysms of fear and racially infused demands for exclusion.  Prominent among them is the fact that so many of the state's middle class citizens have a vision of themselves as independent entrepreneurs who have belonged to the state for ever, when in fact they are a generation or two away from migrating into California from somewhere else and the state as a whole has depended for generations on massive federal spending projects the last of which was the Reagan era military technology boom. 

This propensity to fear and loathe those we perceived coming into "our" state and to demand that a lot of them be locked up preventively is one that has achieved its most powerful and malignant form in contemporary mass incarceration.  By using crime, often regardless of how minor, as our "reason" for confining large numbers of mostly brown and black Californians, our great confinement seems superficially more just then the Internment of the Japanese or the hospitalization and coerced sterilization of people with mental illnesses and disabilities, but not if you look much closer.  Most important, this propensity to confine seems to have little to do with the specific locus of fear nor the technical-professional apparatus that is ostensibly in control of it, whether it is medical, military, or juridical.  Courts should thus refuse to give much if any deference to California's confinement decisions (unfortunately they generally do).