Tuesday, September 25, 2012

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.


Unknown said...

The arguments in support of Pro. 34, the ballot measure to abolish the death penalty, are exaggerated at best and, in most cases, misleading and false. Proposition 34 is being funded primarily by a wealthy company out of Chicago and the ACLU. It includes provisions that would make our prisons less safe for both other prisoners and prison officials. It significantly increases the costs to taxpayers due to life-time medical costs, the increased security required to coerce former death-row inmates to work, the money to pay those inmates to work, etc. The amount “saved” in order to help fund law enforcement is negligible and only for three years. (The money is taken from the general fund irregardless of whether Prop 34 actually saves any money.) Prop. 34 also takes away funds inmates could use to actually fight for their innocence, increasing the risk that innocent people will spend the rest of their lives in jail. The dollars Prop. 34 takes away ensure both that innocent people are not executed or spend the rest of their lives in jail. Get the facts and supporting evidence at http://cadeathpenalty.webs.com, http://waiting4justice.org/, and http://www.youtube.com/watch?v=Vb7HMOfxxLE.

Unknown said...

The 729 convicted murderers on death row were convicted of brutally killing at least 1,279 people. At least 230 of them were children. 75 more were young adults between the ages of 18-20. Another 82 victims were older than 65.

Of these victims, at least 211 of them were raped and 319 of them robbed. Sixty-six victims were killed in execution style, usually bound and shot in the back of the head. Forty-seven victims were tortured.

Forty-three of these victims were law enforcement agents and another seven were security guards. Not included in these numbers are cases where the killer attempted to kill a police officer, but was unsuccessful, as in the case of Oswaldo Amezcua who shot three police officers.

An important consideration in changing a killer’s sentence to life is whether he has murdered other inmates while incarcerated. Eleven death sentences were handed down after an already-incarcerated inmate murdered another inmate.

Unknown said...
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dudleysharp said...

Prof. Simon:

Some reality.

99.7% of murderers tells us "Give me life, not execution"
Dudley Sharp

Since 1973, there have been about 50,000 murderers (1) who may have qualified for the death penalty, based upon post Furman laws.

As of 2012, only 0.3% of those volunteered for execution and were executed.

The rest, 99.7%, have fought for life and against the death penalty/execution, using plea bargains, trials, appeals and commutation, in any fashion possible to avoid death.

No surprise. Death is feared more than life. Life is preferred over death, not just with murderers, but with all of us, save for the determined suicidal.

That's a fact based review of which sanction murderers find to be more severe and is just one example of why executions are found to deter more than life (2).


1) a) As of 2012, there have been about 8300 sent to death row since 1973. Of those, about 140, or 1.7%, have "volunteered" for execution. So far, 98.3% of those sent to death row prefer life over execution.

b) Only about 1/3 of all death penalty cases that go to trial end with a death sentence; 2/3 of the defendants received sentences less than death, as they wanted. Total, that is about 25, 200 cases.

c) Even more death penalty eligible cases, an additional 24,800 or so, are otherwise, given sentences less than death, as they wished.

Of the 50,000 eligible cases, only about 140 "volunteered" for execution.

99.7% chose life.

NOTE: I estimate that about 10% of all murders (that being 700, 000, post Furman, 1973-2012) are death penalty eligible, or about 70, 000 murders. I reduced that to 50,000 murderers, based upon some cases of multiple capital murders per murderer.

Some estimate the percentage of capital murders to be as high as 15-20%, as a percentage of all murders., which would mean it much less likely they prefer death over life, than my review shows.

(2) See deterrence reviews:

The Death Penalty: Saving More Innocent Lives

Innocents More At Risk Without Death Penalty

Unknown said...

UPDATE: Think "life without parole" means what it says? Think again. On 9/30/12 Governor Brown took the first step to parole those sentenced to life "without parole" by signing CA SB 9. This new law allows 309 current inmates with life sentences "without parole" for having killed someone to be eligible for parole after serving as little as 15 years. The bill applies to future cases as well. Can we really believe that allowing 729 killers sentenced to death will never be released only because they have been sentenced to life without parole? Remember Charles Manson and Sirhan Sirhan?