Tuesday, February 23, 2010

Nightmare Life-in-Death

Her lips were red, her looks were free,
Her locks were yellow as gold :
Her skin was as white as leprosy,
The Night-mare LIFE-IN-DEATH was she,
Who thicks man's blood with cold.
Samuel Taylor Coleridge, The Rime of the Ancient Mariner.

It's easy, in the abstract, to be an abolitionist (would that everyone were) taking the pure and simple view. The government shouldn't be in the business of killing people. A mistake is no more than murder and we make mistakes. It costs too much. We can use the savings to prevent crime (and maybe rebuild some infrastructure or put people back to work). There are catchy (or maybe not) slogans.
  • An eye for an eye makes the whole world blind.
  • Why do we kill people to show people that killing people is wrong?
  • Thou shalt not kill.
  • Death is different.
Besides, we don't need it. We can just lock 'em up and throw away the key. You know, LWOP, life without the possibility of parole.

The math is right. When LWOP becomes a sentencing alternative to death, death sentences decrease. Members of the abolitionist community, especially lawyers who toll in the death penalty trenches, for that reason, and to save their clients' lives, argue for and endorse LWOP sentences. When the jury comes back with LWOP, we treat it as a win. (Anything but death at the hands of the state is a win, as I've noted before.)

But LWOP is also problematic. We call it a life sentence, and of course it is. When LWOP is imposed the person will spend the rest of his or her life in prison. Of course, that's true of a death sentence, too. The difference between the sentence of LWOP and the sentence of death is the mechanism by which the life is to be terminated. And in some cases the alacrity.

Does that matter? How much? Why?

Talking about Graham v. Florida and Sullivan v. Florida, the two juvenile LWOP cases argued in the Supreme Court back in November and awaiting decision, I wrote of LWOP:
It's death in prison. Death penalty light.
And I wondered how it ever made sense as a sentence.

On what rationale do we say that the quadriplegic must be imprisoned? To protect the rest of us? To show we're tough? Because it's important to punish what she did? What goal are we serving?

A life sentence with the possibility of parole is a life sentence (or a death sentence, if you prefer) with room for reconsideration. Where's the harm in that? Must we deny the possibility of redemption? The possibility of rethinking? The possibility of hope?

To what end, exactly?

If the end is simply to prevent the state from committing murder, I get it. For some of my clients, I'll advocate it. As an alternative - as the only viable alternative to the death penalty in some circumstances - I'll endorse it.

But on its own terms, it's indefensible.

Which brings me to why I'm talking about this today.

Abolitionists, many of them, have been arguing for years that LWOP is morally indefensible, as cruel as death. (Some death row inmates agree, others don't.) There has been within the abolitionist community an ideological struggle between those who endorse LWOP as a sentencing alternative and those who oppose it. Those outside the community, those who favor death (or at least LWOP), point to that struggle.

Take a look at Bill Otis at Crimes and Consequences.
Question: When is LWOP not really LWOP?
Answer: Whenever their lips are moving.
His point is simple and, at least to an extent, right. If we abolish the death penalty and replace it with LWOP, some of the energy and commitment and legal work that previously went to abolition of state killing will go to abolition of LWOP. (Whether his accusation of dishonesty about this among abolitionists is fair is a different question.)

In fact, the organizing is occurring now - while death is still very much on the metaphorical table.

Doug Berman yesterday quoted a press release from the newly organized The Other Death Penalty Project, a group of prisoners serving LWOP sentences.

The Other Death Penalty Project, similarly, rejects the proposition that life without the possibility of parole is a necessary first step toward ultimate abolition of the death penalty. The distinction is one of method, not kind. Instead of moving to the elimination of death sentences, this tactic of trading slow executions for quick executions has resulted in an explosion of men and women sentenced to the slower method....
For Scott Greenfield, this starts, at least, to call the question.
Rarely are we faced with an intramural dispute between sides with which agree, but which present such a clear and insurmountable internal conflict. I don't want to side against either position, but realize that taking such a position is just a cop out since one undermines the other. In the past, dealing individually with the issues arising from each sentence, it was unnecessary to pick sides. The Other Death Penalty Project forces the issue, and it's understandable that they do.

While my gut is that life without parole, the death penalty prolonged, is a horrible fate, execution is worse. But it's no longer as clear to me as it was before. This is a real dilemma.

No answers today. That'd be too easy.

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