Life

I've noticed that the NYT has been running stories recently on the plight of prisoners sentenced to life in America's prisons. Working in an anti-death penalty clinic, I know something (albeit still less than I should) about life without, or L-WOP, as I've heard several old salt defense attorneys refer to it. The usual best outcome in our cases is life without parole. In Virginia, conviction for capital murder LWOP equals a certainty that the defendant will die in prison. Offenders convicted after 1995 are not eligible for parole. They are not eligible for geriatric release. In fact, defense attorneys often take every available opportunity to stress this fact before the jury, hoping to undo any lingering apprehension at sentencing that the defendant may somehow still escape the claws of justice.

Despite this, interviews with jurors have shown that jurors "consistently and substantially undersestimate the death penalty alternative." (The Capital Sentencing Decision: Guided Discretion, Reasoned Moral Judgment, or Legal Fiction, William J. Bowers et al, at 442.)* For example:

One of the jurors held out [for life].... Very intelligent man. But I don't think he appreciated a lot of the unsaid things about the American justice system (laughs). Such as life does not mean life.... Well I think there was a basic frustration on the part of the jurors that this guy.... We were like... "What the hell are you even doing here?" Id. at 444.

Nor has it been easy to attempt to reeducate jurors regarding the parole ineligibility of those sentenced to LWOP. See Simmons v. South Carolina:

When asked by the jury whether life imprisonment carried with it the possibility of parole, the court instructed the jury not to consider parole in reaching its verdict, and that the terms life imprisonment and death sentence were to be understood to have their plain and ordinary meaning. The jury returned a death sentence.

Despite this, the NYT is understandably aggrieved at the harshness that a life sentence imposes upon the defendant. And it is a harsh sentence. Prisoners sentenced to life face only a bleak expanse of incarceration without hope of redemption until dotage comes upon them and death releases them. If anything, the NYT does not underscore the bleakness of the defendant's existence in an American maximum security prison enough: the lack of human contact, the sensory deprivation.

And yet many jurors find even this end too good for a defendant convicted of terrible crimes. I remember another professor at my law school talking about jury interviews he had conducted regarding testimony on what life would be like for a defendant sentenced to life. The lawyer had introduced it in the hope that its harshness would convince the sentencing jury that life was an adequate punishment. It had precisely the opposite effect. "He gets to exercise an hour a day?" "He gets to watch television for an hour a day?" After hearing graphic testimony for days regarding the heinous nature of the defendant's crime, juries are often not sympathetic to complaints from prisoners such as those interviewed in the NYT articles: that their lives are robbed of meaning, that they are forgotten, buried alive behind walls and bars innumerable. It is not unlikely, however, that such a punishment was precisely what the sentencing jury had in mind.

I found it interesting that the NYT offered this criticism:

"I have a problem with death penalty abolitionists," said Paul Wright, the editor of Prison Legal News and a former lifer, released in Washington State in 2003 after serving 17 years for killing a man in a robbery attempt. "They're positing life without parole as an option, but it's a death sentence by incarceration. You're trading a slow form of death for a faster one."

That is, if you're guilty. I saw a case proceed through trial to sentencing last year where my fellow students believed that there was a genuine case for actual innocence. At the sentencing phase of the trial, the defendant took the stand and asked for death. The jury gave it to him. If that man is innocent, he will have forever forfeited all chance at establishing his innocence. That choice does a deep disservice to our feeble attempts to justly govern our community and regulate our legal system.

And a prisoner may still find his own way out of a life sentence. I read a letter from an inmate serving life once. A member of the clinic had asked him to talk to a defendant and attempt to convince him to accept the Commonwealth's plea offer of life without parole. The life inmate responded that his sentence was a difficult one. He would not sugar coat it to convince the other inmate. However, the inmate wrote, suicide would always be open to the inmate and could be self-imposed if the burden grew too great.

Settling the question of whether the jury can even be informed that life means life has been a long and bitter struggle. To start down the path of relaxing sentences and allowing parole for those convicted of capital murder would ease the burden on inmates. It would provide more humane conditions of incarceration. But while the death penalty still exists, the path the NYT seems to favor in its articles would, I believe, only restoke the fires of juror confusion and significantly increase the number of death sentences administered by American juries. It would have drastic negative consequences for capital defense litigation in general and for a host of individual defendants to come.

*I apologize; I'm too lazy to whip out my blue book right now.