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November 11, 2009

"In California, Some Want To Be On Death Row; Life Is Better There"

The title of this post is the headline of this new NPR entry, which is itself a follow-up to this important new Los Angeles Times article discussing life on California's death row.  The full headline for the LATimes piece captures the major themes of today's must-read article: "Death penalty is considered a boon by some California inmates: Given the state moratorium on executions and an appeals process that can last for decades, inmates can expect to live a long time, and with privileges other prisoners lack." Here are excerpts from the article:

White supremacist gang hit man Billy Joe Johnson got what he asked for from the Orange County jury that convicted him of first-degree murder last month: a death sentence.   It wasn't remorse for his crimes or a desire for atonement that drove him to ask for execution; it was the expectation that conditions on death row would be more comfortable than in other maximum-security prisons and that any date with the executioner would be decades away if it came at all....

Though death row inmates at San Quentin State Prison are far from coddled, they live in single cells that are slightly larger than the two-bunk, maximum-security confines elsewhere, they have better access to telephones and they have "contact visits" in plexiglass booths by themselves rather than in communal halls as in other institutions.  They have about the only private accommodations in the state's 33-prison network, which is crammed with 160,000-plus convicts.

Death row prisoners are served breakfast and dinner in their cells, can usually mingle with others in the outdoor exercise yards while eating their sack lunches, and have exclusive control over the television, CD player or other diversions in their cells.   "Death row inmates probably have the most liberal telephone privileges of anyone in state custody," said Terry Thornton, spokeswoman for the California Department of Corrections and Rehabilitation, explaining that they need ready access to their attorneys and can often make calls from their cells over a phone that can be rolled along the cellblock.

The condemned wear the same jeans and chambray-shirt prison garb, eat the same food as prepared in other prisons and enjoy the same access to mail-order and canteen goods paid for by their families, as long as they maintain good behavior, Thornton said.

Those on death row are also allowed more personal property inside their cells, to accommodate their voluminous legal documents without infringing on the 6 cubic feet of snacks and entertainment devices allowed each prisoner, said Lt. Sam Robinson, spokesman for San Quentin.  "It's not that he thinks conditions will be better; they are better," Johnson's attorney, Michael Molfetta, said of his client's request for death row. Johnson, 46, figures that he will be close to 70 by the time his appeals are exhausted, Molfetta said, "and he says he doesn't care to live beyond that."

Students who take my sentencing classes have long heard me say that I would rather be sentenced to death than to life without parole were I to be convicted of a death-eligible crime.  I often make this point when talking about wrongful convictions when suggesting that a wrongfully convicted person sentenced to death likely is likely better able to get media and the public interested in his case than a wrongfully convicted person sentenced to LWOP.  (The on-going debate in Texas as to whether Cameron Todd Willingham was wrongfully convicted seems to confirm this point.)  But this LA Times piece rightly spotlights why even the guilty might prefer a death sentence to an LWOP sentence.

And there are other benefits to death row for the guilty that are not discussed in this piece.  For example, many persons on death row are uniquely able to garner pen pals and other abolitionist supporters from European countries and also are uniquely able to garner press attention (as this LA Times article itself shows).  Put another way, a murderer condemned to death is always going to be more of a celebrity and will have a higher Q-rating than a murderer given an LWOP sentence.

Of course, some guilty murderer still surely will prefer a lower-profile LWOP fate than the higher-profile experience that comes with a death sentence.  Nevertheless, the real-world punishment dynamics discussed here are among the reasons I view LWOP sentences as generally more problematic (and, in turn, generally more "cruel and unusual" for purposes of the Eighth Amendment) than death sentences.

November 11, 2009 at 11:08 AM | Permalink

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Comments

Makes you almost want to kill a man

Posted by: . | Nov 11, 2009 11:22:52 AM

Doug,

California is an outlier. You would be a jack-ass to request death in most other states. You know this, don't you? How did it work out for Willingham? Oh yeah, even with all his advocates and evidence of wrongful conviction, he's dead.

Posted by: anon | Nov 11, 2009 12:00:48 PM

anon --

"California is an outlier. You would be a jack-ass to request death in most other states."

Quite so, as John Allen Muhammad found out last night. Which is the reason he fought the DP tooth and nail with a bunch of phony defenses.

BTW, assuming arugendo the unproven assertion that Willingham was innocent, why does that mean we shouldn't have executed Muhammad? Do you have any reason to believe that Muhammad didn't do it? If so, you're alone. The entire world, including his own lawyers, know he did it.

I'm not talking here about the DP system in general, nor would it be particularly helpful to have a recitation of the standard, one-size-fits-all abolitionist talking points.

What I would hope to see is something more specific and case-oriented: What reason is there that we should not have executed Muhammad?

Posted by: Bill Otis | Nov 11, 2009 12:21:16 PM

"Gang leaders are often sent to the special housing unit at Pelican Bay State Prison, where they live in isolation with few of the comforts allowed elsewhere."

Maybe the choice wasn't between death row or LWOP. Maybe the choice was between death row and the Security Housing Unit.

Posted by: George | Nov 11, 2009 1:42:43 PM

Oh those lucky, lucky death row prisoners.

Your knowledge of the relative desirability of death row and other forms of incarceration is based on what experience? Princeton at 18, followed by HLS, then academia?

You should get your money back and then go get a real job - then tell us all about what it's like to be on death row, OK?

Posted by: Bill Hilly | Nov 11, 2009 3:41:38 PM

As a person who prosecutes death penalty appeals, I have seen where inmates sometimes request to be sentenced to death because of the difference in living arrangements as a death row inmate as opposed to general population. In the state where I seek justice, death row inmates receive their own cell (with its own toilet) and they can have a TV. Most people would take that over being in general population with hundreds of other inmates.

Posted by: justice seeker | Nov 11, 2009 4:20:11 PM

Bill: You need to watch your one-size-fits-all talking points. In your response to anon, you say, "why does that mean we shouldn't have executed Muhummad?" Um, Bill, anon didn't say we shouldn't have executed Muhummad. In fact, his post didn't mention Muhummad at all. It talked about Willingham. Maybe you should heed your own advice to others and avoid one-size-fits-all talking points?

Posted by: SB | Nov 11, 2009 5:53:53 PM

justice seeker:

Just curious, in what bizarro state do you do appeals? I've tracked almost every published capital appeal for the last decade (excluding some that resolve on fed. habeas in the district court) and can recall no more than a score where the guy asked for death.

& Doug I would want to be in genpop any day.

Posted by: karl | Nov 11, 2009 7:23:45 PM

SB --

"In your response to anon, you say, 'why does that mean we shouldn't have executed Muhummad?' Um, Bill, anon didn't say we shouldn't have executed Muhummad."

His post has the clear tenor of opposition to the DP and was written hard on the heels of Muhammad's execution. But it doesn't matter in any event, since I am unaware of any rule here, or of any sound reason, that I should not be able to ask persons commenting about the DP whether they support a recent and quite prominent execution.

"Maybe you should heed your own advice to others and avoid one-size-fits-all talking points?"

And maybe you should explain to me why I need to follow your instructions about what I may say.

Absent that explanation, I will ask you the same question I asked anon: What reason is there that we should not have executed Muhammad? And, as was the case with anon, I request that you avoid a recitation of the standard, one-size-fits-all abolitionist talking points, and instead provide an answer specific to the facts of Muhammad's case.

Posted by: Bill Otis | Nov 11, 2009 7:46:35 PM

I am certain, Bill Hilly, that both death row and LWOP in the general population are horrible. That's one of the many reasons I seek to avoid committing any crimes that present the chance I will be stuck in either of those places anytime soon. Also, as you note, I have had the good fortune to spend most of my life in much nicer surroundings, and I am grateful for that fact and for the people who've helped me.

All that aside, it remains the case that excepts in the handful of states in which a death sentence is still likely to result in an execution --- e.g., Texas, Virginia, Oklahoma, Alabama, lately Ohio --- life on the row has some special benefits. It is still not a place I'd wish on even my worst enemy, but the reality in many states is akin to what this article described concerning California.

Posted by: Doug B. | Nov 11, 2009 7:56:47 PM

Doug --

"I am certain...that both death row and LWOP in the general population are horrible. That's one of the many reasons I seek to avoid committing any crimes that present the chance I will be stuck in either of those places anytime soon."

An expert confirms that deterrence works!

(Sorry, Doug, the devil made me do it).

Posted by: Bill Otis | Nov 11, 2009 8:10:24 PM

Bill says: "And maybe you should explain to me why I need to follow your instructions about what I may say."

Then Bill says (in the same post, mind you): "I request that you avoid a recitation of the standard, one-size-fits-all talking points, and instead provide an answer to . . ."

And why exactly, Bill, am I to follow your instructions about what I may say?

Your double standards are mind-boggling. I trust you made less internally inconsistent statements in the briefs you wrote when you were practicing law.

And, BTW, I'm not an abolitionist.

Posted by: SB | Nov 11, 2009 9:28:58 PM

SB --

And STILL you won't answer the question whether you approved the execution of Muhammad. Did you? Why or why not?

Oh, and may I buy you a dictionary? A REQUEST that you avoid the rote anti-DP talking points is not an INSTRUCTION to do anything. Do you not understand the difference between a request and an instruction?

From aught that appears in your posts, you're not here to discuss sentencing; you're here to stick your tongue out. Fine. Mission accomplished. But my interest is in sentencing, and the death penalty in particular, and in the Muhammad case specifically. If you have anything substantive to say about that, I'm all ears.

Posted by: Bill Otis | Nov 11, 2009 11:39:49 PM

Bill - your anxiety concerning Muhammad is certainly justified. No serious student of human behavior would judge him as other than mentally deranged at the time of the murders he committed. There is a long history of evidence as to how that came about, including honorable service in the armed forces. The enormity of the crime for which he was found guilty is not a defense against the willful and unnecessary killing by the state of a mentally ill man. The venerable Constitution is supposed to protect American citizens against such a travesty of justice. That the Supreme Court failed to protect him, in deference to the baying mob for revenge, says much for the depths of dishonor that institution seems have plunged in recent years. Under its present leadership, I doubt any of the limited reform to protect citizens from excesses against juveniles or the mentally impaired would have taken place. American Justice is the poorer, and the American citizen the loser.

Posted by: peter | Nov 12, 2009 3:44:58 AM

Peter: What mental derangement did he have besides antisocial personality disorder? His wife was a pest to him. This brilliant man thought up a scheme. Kill her among many victims of a sniper. That way he could be rid of her without bringing suspicion upon self. It has the same derangement as, I will rob a bank to make money to buy heroin.

This post is ironic but not in the Twilight Zone world the lawyer has imposed on us. The death penalty inmate has generated massive employment for the lawyer. At the point of a gun to the head of prison officials, the convict is getting comped, as people do in Las Vegas. In a real world, this most dangerous and heinous of convict would have the least privilege, the worst conditions, and a daily beating whether he needed it or not.

Posted by: Supremacy Claus | Nov 12, 2009 7:56:59 AM

Bill,

You do an admirable huckster's job of anticipating the other side's arguments and then discrediting them, but it is all smoke and mirrors. You anticipate that I may oppose all executions. You are correct. This would, of course, include John Muhammad's execution. Now, every reason that I have to oppose all executions of course applies to the specific case of John Muhammad. But you declare all such reasons "talking points" that are exempt from the conversation. You challenge me to come up with specific reasons relating to Muhammad---but that is basically a demand that I concede that the death penalty is inappropriate only when there is a serious constitutional error at trial or the accused is actually innocent. I don't concede that. And neither do many, many people. Perhaps we are all in thrall to "talking points." Speaking for myself, I prefer to think of my position as based on things like "philosophy" and "morality."

I don't know enough about Muhammad's case to know if he had any specific compelling legal claims, although I know his attorneys argued he was insane (which doesn't seem completely out of the realm of possibility). Thus, I fall back on the general, valid reasons why we shouldn't be executing *anybody* as a society. These include: (1) It undermines our system of limited government to give the power of life and death to the State (and I still don't understand why so many conservatives consider the government omniscient and infallible when it comes to criminal justice, but incompetent, malicious, or both, when it comes to everything else); (2) It is morally degrading to our society to make a spectacle of unnecessary violence; (3) Even if items 1 and 2 are put to one side, and even assuming that the death penalty has some positive impact through retribution or deterrence, our adjudicative systems have proven so unreliable, politically motivated, and fraught with error that use of the penalty simply cannot be justified in any specific case, given the risk of error in the system as a whole (this is where Willingham and other cases of exoneration/innocence/grevious doubt as to innocence or guilt are relevant even in the case of an indisputably guilty defendant---we have demonstrated again and again that if we have the system, we are going to make mistakes).

To this I would also add: The death penalty needlessly divides us, stirring up anger and resentment; it distorts our politics, both judicial and otherwise; it has an odious history of discriminatory application; it wastes resources that could go to preventing crime, helping victims, and providing adequate representation for defendants; and we would not miss it if it were gone.

As noted by another poster, I wasn't even talking about Muhammad. I was just objecting to what I took to be overly glib comments by Doug about the desirability of a death sentence. But even if Muhammad "deserves" to die---a position which for most of us probably has some visceral appeal---I would not let the state kill him for the reasons listed above.

Ps- This comment is absurdly long and probably inappropriate for the forum, and it shows why I don't feel the need to explicate my full philosophy and range of opinions in every comment I make on a blog post, as you seem to expect. But for some reason I have let you bait me into further, lengthy explication here...

Posted by: anon | Nov 12, 2009 10:43:19 AM

10:43:19, you post reflects precisely my reasons for opposing the death penalty. It has nothing to do with "bleeding heart liberals" having sympathy for the condemned, though on occasion sympathy can be the fair and just emotion. "I have no sympathy for..." this or that defendant has become a catch phrase but it is largely irrelevant.

S. Clause, you may be interested in TalkLeft's argument or explanation.

Posted by: George | Nov 12, 2009 1:12:08 PM

George: thanks for the link.

It is rough in there. I think prisoners should have a choice of being executed or go continuing in prison to serve out their term. This choice should be offered to all inmates. We would then have a real fraction of insider people who know cruelty, decide for themselves, and what is their best interest, rather than left wing ideologues or self-dealing lawyers, telling them what they should do.

Posted by: Supremacy Claus | Nov 12, 2009 5:44:38 PM

Anon --

"You do an admirable huckster's job of anticipating the other side's arguments and then discrediting them, but it is all smoke and mirrors. You anticipate that I may oppose all executions. You are correct."

So it doesn't matter WHAT the facts are??!! If, in any other discussion about sentencing, you said that you didn't care about the facts of the crime, you'd be laughed off stage. If you want a system that actually IS immoral, one that intentionally ignores the facts will get you there fast.

And you can cut out the "huckster" stuff. You don't need it, it isn't true, and it's not in keeping with the obvious, though wrongheaded, intelligence you bring to the argument.

"Now, every reason that I have to oppose all executions of course applies to the specific case of John Muhammad. But you declare all such reasons 'talking points' that are exempt from the conversation."

That's because they ARE talking points, and have been belabored a zillion times, here and elsewhere. But I give you credit for stating them with more refinement than most do.

"You challenge me to come up with specific reasons relating to Muhammad---but that is basically a demand that I concede that the death penalty is inappropriate only when there is a serious constitutional error at trial or the accused is actually innocent..."

You are partly correct here. Mostly, I was attempting to focus on specifics rather than generalities, because it is my experience that that is the way the analysis moves forward.

"...I don't concede that. And neither do many, many people. Perhaps we are all in thrall to 'talking points.' Speaking for myself, I prefer to think of my position as based on things like 'philosophy' and 'morality.'"

So do those who oppose you. They are not lesser creatures.

I am called away just now, but I will later return to address the remainder of your points. There is just one thing I want to address now, real quickly. It is your statement that, "The death penalty needlessly divides us, stirring up anger and resentment..."

It's true that the DP is a divisive issue, but that is hardly a reason to resolve it in favor of your position. If anything, the divisive quality of the debate argues for resolving it in favor of the majority, not the minority.

Posted by: Bill Otis | Nov 12, 2009 6:42:14 PM

"All that aside, it remains the case that excepts in the handful of states in which a death sentence is still likely to result in an execution --- e.g., Texas, Virginia, Oklahoma, Alabama, lately Ohio --- life on the row has some special benefits. It is still not a place I'd wish on even my worst enemy, but the reality in many states is akin to what this article described concerning California."
.
Pretty soon you can add Missouri to the list. I suspect that Florida and maybe Delaware will see a spate of executions soon.

Posted by: federalist | Nov 12, 2009 9:38:38 PM

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