Death in Prison: the Right Death Penalty Compromise

• Publication year: 2010

Georgia State University Law Review

Volume 28 . ,

Article 5

Issue 4 Summer 2012

4-3-2013

Death in Prison: The Right Death Penalty Compromise

Russell D. Covey

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Recommended Citation

Covey, Russell D. (2011) "Death in Prison: The Right Death Penalty Compromise," Georgia State University Law Review: Vol. 28: Iss. 4, Article 5.

Available at: http://digitalarchive.gsu.edu/gsulr/vol28/iss4/5

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DEATH IN PRISON: THE RIGHT DEATH PENALTY COMPROMISE

Russell D. Covey

I. Introduction............................................................................1083

II. "Death-in-Prison" Sentences Would Better Serve

Penological Interests than the Dysfunctional Contemporary Death Penalty.........................................1087

A. Infrequency........................................................................1088

B. Delay..................................................................................1093

1. The Causes of Delayed and Derailed Executions........1094

2. Delay and Retribution..................................................1096

3. Delay and deterrence...................................................1101

C. Uncertainty........................................................................1102

1. Innocence and the death penalty..................................1103

2. Offender-focused proceedings......................................1108

3. Mixed moral message of state-sponsored killing.........1110

4. Cost Savings.................................................................1111

III. "Death in Prison" Sentences Would Advance

Important Penal Reforms..................................................1115

A. Permanent vs. Temporary Exclusion: The Real Moral

Choice ...............................................................................1116

B. Ratcheting Down the Chain of Overpunishment...............1118

IV. Conclusion............................................................................1119

I. Introduction

You can't beat something with nothing. That simple proposition helps explain the difficulty that death penalty opponents have faced in the campaign to abolish capital punishment. Although four states in recent years have moved forward with abolition, the majority of states continue to maintain capital punishment.¹ Across the nation,

* Associate Professor, Georgia State University College of Law. Thanks are due to my research assistants, Max Compton and Meghan Jones, for their diligent research on this project.

1. Illinois (2011), New Mexico (2009), New Jersey (2007), and New York (2007) were the most

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the death penalty remains politically popular, and many who support the death penalty do so convinced that convicted capital murderers deserve to die.² Still, the tide seems to be turning. Overall, the number of death sentences imposed per year has fallen in half from the 1990s, and polls indicate that support for the death penalty given an alternative option of life without parole has dropped.³

Popular unease with capital punishment stems in part from its burdensome cost and in part from the increasing public awareness of the criminal justice system's potential to convict the innocent.⁴ The new awareness of the risks of capital punishment combined with the emerging consensus for leaner, less punitive, and more cost-effective punishment policies is promising to tip the balance. As James Liebman observed more than a decade ago, "conservative commentators who have in the past supported the death penalty have recently come out in favor of measures to check government power in this context, with some even urging abolition."⁵ This emerging consensus creates a rare opportunity for meaningful dialogue about major reform of the death penalty.

What is needed to push the debate to the next stage is a reform proposal that achieves the moral, political, and economic gains identified by death-penalty opponents while retaining the retributive,

recent states to abolish capital punishment. See States With and Without the Death Penalty, Death Penalty Information Center, http://www.deathpenaltyinfo.org/states-and-without-death penalty (last visited Mar. 7, 2012).

2. Death Penalty Issues, Pro-Death Penalty.com, http://www.prodeathpenalty.com/issues.htm (last visited Mar. 12, 2012) ("Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." (citing Gregg v. Georgia, 428 U.S. 153, 184 (1976))); see also Samuel R. Gross, Update: American Public Opinion On The Death Penalty—It's Getting Personal, 83 Cornell L. Rev. 1448, 1460 (1998) (reporting Gallup poll results showing that 50% of death penalty supporters stated that retribution, "a life for a life," was the strongest reason for their support).

3. Scott Turow, The Death of the Death Penalty, Newsweek, Oct. 3, 2011, at 46.

4. See Jay D. Aronson & Simon Cole, Science and the Death Penalty: DNA, Innocence, and the Debate over Capital Punishment in the United States, 34 Law & Soc. Inquiry 603, 604 (2009) (stating that "over the past decade innocence has emerged as perhaps the dominant issue in death penalty discourse with 'an unprecedented effect on the debate about capital punishment'" (quoting Susan A. Bandes, Framing Wrongful Convictions, 2008 Utah L. Rev. 5, 8 (2008))).

5. Rachel E. Barkow, The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity, 107 Mich. L. Rev. 1145, 1194-95 (2009) (citing James S. Liebman, The Overproduction of Death, 100 Colum. L. Rev. 2030, 2140 n.264 (2000)).

2012] DEATH IN PRISON 1085

incapacitative, and deterrent effects promised by contemporary death penalty practices. I present one such alternative here. In this Article, I argue that states should abandon their current dysfunctional death-penalty systems in favor of a new ultimate sentence: death-in-prison. A sentence of death-in-prison would be exactly what it says: a prisoner sentenced to death-in-prison would be incarcerated for the duration of his or her natural life. Death-in-prison sentences would be like sentences of life in prison without possibility of parole ("LWOP") in that they would entail lifetime incarceration but no affirmative state action to terminate the prisoner's life. Like LWOP, a sentence of death-in-prison would condemn its recipient to die without any chance of release or reintegration into the community.

Death-in-prison sentences would also share several features of the conventional death penalty. As with the conventional death penalty, a special penalty trial would be needed to impose the ultimate death-in-prison sentence. In addition, persons sentenced to death-in-prison might continue to serve their sentences in special segregated "death rows."⁶ Death-in-prison sentences would also be imposed with all the magisterial weightiness of conventional death sentences. Persons so sentenced would be told, like those in conventional death penalty states, that the punishment for their crime is the ultimate one—death. Although largely symbolic, the expressive value of imposing a death sentence, rather than a life sentence, may be the proposal's greatest strength.

Death-in-prison would thus not constitute a watershed change in our penal practices. As others already have recognized, LWOP itself is a kind of death sentence.⁷ My proposal begins by acknowledging this truth while also recognizing the powerful retributive symbolism

6. Preservation of death row is not an essential feature of the proposal. Research literature suggests that the current practice of segregating death-row prisoners is inordinately costly, harmful to prisoners and correctional facility staff, and unnecessary in terms of facility security. Accordingly, I do not recommend retention of segregated death rows unless doing so is the only politically feasible way to win support of the proposal.

7. See generally Robert Johnson & Sandra McGunigall-Smith, Life Without Parole, America's Other Death Penalty: Notes on Life Under Sentence of Death by Incarceration, 88 The Prison J. 328 (2008), available at http://tpj.sagepub.com/content/88/2/328.full.pdf+html.

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that accompanies the pronouncement upon a convicted murderer of a sentence of death.

Replacement of the conventional death penalty with a new death-in-prison sentence has much to commend it. It would save money, enhance equity among offenders, eliminate the risk of wrongful executions, and increase the odds that persons wrongfully convicted of capital crimes can obtain eventual redress. Death-in-prison would also increase the sense of "closure" and reduce years of stress and uncertainty felt by victims' families awaiting imposition of capital sentences without reducing either the retributive or deterrent functions of punishment. The death-in-prison penalty would also redirect jurors' attention to what should be the ultimate inquiry in capital cases: whether the perpetrator on trial might be rehabilitated, or instead permanently removed from civil society. For these reasons, jurisdictions that currently retain the death penalty should abandon their outmoded capital punishment apparatus in favor of a new, death-in-prison penalty.

The argument unfolds as follows. Part II discusses the primary rationales advanced by supporters of the current death penalty, demonstrates why the death penalty as currently...