May 1, 2012

Life Beats Death, Hope Beats Both

Last week I wrote about how the voters of California will have a chance this fall to repeal that state’s death penalty via the initiative process. If the initiatives passes, those currently on California’s death row will have their sentences reduced to life without the possibility of parole (“LWOP”). That would be a step in the right direction?

Not so fast, says David Dow, writing at The Daily Beast. He argues that it would simply be replacing one form of barbarity for another:
On the plus side, LWOP saves lives, but that’s about it. In every other way it’s a nightmare: It gives up on everyone, regardless of whether they exhibit any capacity for growth and change; it robs people of hope; it exaggerates the risk to society of releasing convicted murderers; and it turns prisons into geriatric wards, with inmates rolling around in taxpayer-funded wheelchairs carrying oxygen canisters in their laps.
I don’t actually disagree with Dow about the cruelty of LWOP. Back when I was first really cementing my position against capital punishment, I relied on LWOP as a bright line that could still be drawn, a way to deal with the really evil people in society. I didn’t really give it much thought until I started doing appellate work in the local public defender office and actually began representing clients doing West Virginia’s version of LWOP.* Two things became clear.

First, the decision about whether to lock someone up forever or provide them some hope of future release is about as random as the decision about whether that person gets the death penalty or not. I had a client doing LWOP who had shot a guy in the back who was beating up his brother. My client (mistakenly) thought the guy had a weapon. But I also had a client who burned down an apartment building with four people inside. He got life with a chance of parole. How can anyone justify a system that produces such random results?

Second, telling someone they will die in prison is both a poor way to try and achieve any kind or rehabilitation and run a prison. Yesterday I was in a hearing for a client who is currently doing life in prison for drug offenses. Under the 2011 amendments to the Sentencing Guidelines he could have his sentence reduced to 30 years. The judge recognized that when you take a 22 year old and tell him he’s going to spend the rest of his life in prison that it makes him unlikely to worry about finishing his GED or behaving well towards other inmates and guards. After all, what does he have to lose?

As Dow points out, in spite of the popular conception of murderer as unredeemable killers, most actually aren’t. The problem with LWOP, then, is that it prevents an individualized determination as to whether someone has truly reformed and is remorseful. Furthermore, it gives that someone a motivation to not give a shit about whether he does or not – he’s got no chance of getting out. And make no mistake, that’s all I’m talking about – a chance. Some killers are beyond redemption or rehabilitation and should, rightly, never see the light of day again. But it’s impossible to know who they are at the front end of a sentence that is going to last for decades.

So I actually agree with Dow about what LWOP is, but I still think his conclusion about the California initiative is misguided. He writes off the fact that LWOP, compared to the death penalty, at least allows the state to correct a mistake when it convicts an innocent person (as happened yet again recently). Granted, it’s not perfect, but death is far more permanent and irreversible. I think he also overlooks the fact that any criminal justice reform is an incremental process. Voters may not ditch the death penalty in California. Asking them to go a step further and eliminate LWOP at the same time would pretty much guarantee nothing gets accomplished.

I’m not a religious person, so I don’t really believe in “redemption” in a spiritual sense. But I do think that people change and they can change if given the proper motivation. Hope of release one day could provide that motivation for some. It’s better in the long run to give it to them and see what they do with it. Giving up on people won’t get us very far.

* In West Virginia, defendants in “capital” cases – first degree murder and kidnapping with injury – can receive sentences of either life with or without the possibility of parole, a decision made by a jury. If a defendant gets “life with,” he serves 15 years before being eligible for release.

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