Reporting on the font page of the San Francisco Chronicle today (Sept. 25, 2012), 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 200 years ago in his On Crimes and Punishment, true life is worse 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.
Cross-posted from Jonathan Simon’s blog Governing Through Crime