November 1, 2011
Might there be reason to praise "Lifelong Death Sentences"?
The question in the title of this post is prompted by this new Sidebar piece by Adam Liptak in the New York Times, which is headlined simply "Lifelong Death Sentences." Here are excerpts from a the piece:
In 1978, when he was 27, Manuel Valle killed a police officer in Coral Gables, Fla. In September, when he was 61, Mr. Valle was put to death for his crime. A couple of hours earlier, the Supreme Court had refused to stay his execution — with one dissent. Justice Stephen G. Breyer wrote that the 33 years Mr. Valle had spent on death row amounted to cruel and unusual punishment.
That line of reasoning strikes some supporters of the death penalty as perverse. “It is a very strange argument to say that a murderer can delay justice with protracted appeals for decades and then turn around and claim his own delay as a reason to escape his deserved punishment altogether,” said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation.
But Justice Breyer’s approach has historical support, and it is in line with international opinion. “Our Constitution was written at a time when delay between sentencing and execution could be measured in days or weeks, not decades,” Justice Breyer wrote in another dissent on the same subject, this one in 1999. English law in the 18th century called for executions to take place on “the next day but one” after sentencing.
Foreign courts have ruled that living for decades under the threat of imminent execution is a form of psychological torment. “There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years,” the Judicial Committee of the Privy Council, which is based in London and hears appeals from former British colonies, wrote in a 1993 ruling in favor of two inmates who had spent more than five years on death row in Jamaica, commuting their sentences to life in prison.
Similarly, the European Court of Human Rights in 1989 ruled that extended periods on death row violated the provision of the European Convention of Human Rights that bars torture or “inhuman or degrading treatment or punishment.”...
Justice Clarence Thomas has said he is not impressed by these international rulings. “I am unaware,” he wrote in response to Justice Breyer’s 1999 dissent, “of any support in the American constitutional tradition or in this court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”
That seeming contradiction misses a larger point, Justice Breyer wrote in his dissent in the Valle case. A capital justice system that cannot be administered without long delays, he said, points to “the difficulty of reconciling the imposition of the death penalty as currently administered with procedures necessary to assure that the wrong person is not executed.”
Here is what is clear: the average prisoner on death row has spent 13 years there, and his odds of growing old in prison are pretty good. About 3,300 inmates are on death row in the United States. Last year, there were 46 executions....
A system that takes 33 years to issue a final decision about whether a defendant should live or die would seem to be broken. “The incentives driving the nation’s process of imposing and reviewing death sentences,” Professor [Jim] Liebman wrote, “are skewed from stem to stern.”
I agree with Professor Liebman that the incentives driving the current system of capital punishment are skewed toward having many more death sentences than actual executions, but I am not sure that this reality — or the fact that most death row defendants in states other than Texas and Virginia are very likely to spend at least 15 years or more before seriously facing execution — means our system is "broken." In fact, given the strong affinity some have for LWOP sentences instead of death sentence AND the reality that the public and sometimes prosecutors and victims are more concerned about the normative symbolism of death sentences rather than the stark reality of executions, one might be able to plausibly assert that "lifelong death sentences" achieve the best of all possible capital punishment worlds.
For starters, I assume the juve and mentally-retarded murderers whose death sentences were finally deemed unconstitutional in Roper and Atkins were glad that a slow review process kept them alive until their sentences were ultimately ruled unconstitutional. Same obviously goes for wrongly convicted death row inmates who have been sure to have ample time to prove their innocence. And though some victims and prosecutors complain about protracted capital case review, some other victims and prosecutors acknowledge that new facts emerge during this lengthy process which impact their views on the appropriateness and value of the original death sentence.
I am not really asserting that the modern administration of the death penalty in the US is truly ideal and truly the best of all possible capital punishment worlds. But I also do not mean to completely mock the possibility of taking a Dr. Pangloss view of the lengthy period between death sentences and execution in most states: though there are obvious costs from these delays, there are also some benefits that ought not be ignored or completely discounted.
November 1, 2011 at 08:45 AM | Permalink
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Your comment takes us nowhere and answers none of the fundamentals discussed in the Liptak article. It is merely a frantic attempt to neutralize a serious point that the length of stay on death row is both reflecting a deeply flawed system of prosecution, which results in error strewn convictions and sentence, and an exercise of cruelty that was never intended either in English Law or at the time of the creation of the Constitution. There is certainly nothing to praise in that, nor indeed to mitigate it. The fact is that neither you nor the Supreme Court (as a body) has the slightest idea how to address the flaws in the death penalty system, yet continue to resist the inescapable and inevitable conclusion that only abolition can create the conditions that will stimulate the greater reform required in the criminal justice system as a whole.
Posted by: peter | Nov 1, 2011 10:32:36 AM
---> Convict demands delays than seeks relief due to the delays. <---
"That seeming contradiction misses a larger point, Justice Breyer wrote..."
Land sakes, you justices are so erudite and leagues above 'we the simpletons'.
Walks like a duck and quacks like a contradiction to little ole' me.
Unlike he who murders his parents then pleads for mercy due to his orphan status? Je pense que non.
Posted by: adamakis | Nov 1, 2011 11:04:49 AM
Peter has a good point. It's not that hard. Unless you think a proper solution is to bury the problems and errors in the system under heaps of procedural default and rotten representation and just keep barreling along (please ignore that smell under the floorboards! nothing there!), scrapping the whole thing really does seem the best course at this point. The attempt to legitimize the status quo isn't very convincing.
Posted by: Anon | Nov 1, 2011 2:52:19 PM
Every case is different from another. In the Valle case, there were 2 reversals of the death sentence sent back to the trial court. The first one was handed down by a "rogue" judge Ellen Gable, who sentenced everyone to death in her courtroom and I believe was reversed everytime by the FSC.
The second sentence was vacated by the FSC upon remand from SCOTUS due to a Skipper violation.
The third death sentence was sustained and went through numerous appeals ending with SCOTUS refusing to hear the 11th Circuit's decision denying the writ. That was in 2007 and former Governor Crist did not act on the case.
It took 4 more years before Gov. Scott picked Valle out of 40+ inmates who were "death warrant eligible" to be executed. I would assume he picked Valle because the crime was committed in 1978.
Posted by: DaveP | Nov 1, 2011 3:56:25 PM
Breyer's opinion is just silly. The Constitution presupposes the ability to enforce a death sentence.
Posted by: federalist | Nov 1, 2011 7:38:03 PM
As I see it, the problem here is one of remedies. Assuming it is unjust to postpone death (personally, I am anti-death penalty), but not unjust to administer it, the remedy is what? Execute the defendant on that day it moves from just to unjust before resolving the other procedural hurdles in the works? Just let him go now?
I am curious if the idea that this is unjust is based on actual empirical research about how death row inmates feel or just the rest of us imposing that feeling upon them. Is giving someone that is innocent hope his conviction will be overturned, or the guilty time to reflect on the nature of his crime (and possibly the hope his conviction will be overturned), all that unjust? Is life, even on death row, not so precious to its holder, that having it one more day isn't better than its extinguishment?
A little wisdom from the ages supports the idea it may not be that bad:
"Be he who is joined with all the living has hope, for a living dog is better than a dead lion. For the living know they will die, but the dead konwing nothing, and they have no more reward, for the memory of them is forgotten. Their love and their hate and their envy have already perished, and forever they have no more share in all that is done under the sun." Ecclesiastes 9:4-6
Posted by: John | Nov 2, 2011 9:06:56 AM
It is not that death row inmates are (from their perspective) better off dead than alive. Obviously, most of them prefer being alive -- even in a perpetually anxious, tormented state -- to being dead. The question is whether it is cruel to keep them in that state. I have worked with death row prisoners, and the psychological and physical effects of the uncertainty and waiting are pretty profound.
Of course, someone will say "well they could stop the waiting by just giving up their appeals." I don't think that is reasonable for many reasons. For one thing, in most of the cases with extreme waits, a large part of the delay is caused by either (a) the State's failure to provide a fair trial/observe Constitutional rules or (b) extensive delays in filing of state briefs and rulings from state (and federal) courts, or both. None of this, of course, is the prisoner's fault. It is the State's responsibility to refrain from cruel and unusual punishment, and assuming that a delay of a certain length could be unconstitutional, such a violation would not be remedied by giving the prisoner a Hobson's choice between enduring that constitutional violation or voluntarily agreeing to another (i.e., the deprivation of appeals and due process).
Posted by: Anon | Nov 2, 2011 12:24:55 PM
I fail to be impressed with the claim that the founders would have considered being nervous about an imminent execution as cruel.
Their end is no worse (in fact, is much better) than the typical patient with terminal cancer. Many much better people than the average death row inmate approach death with the same knowledge that it is imminent.
Although I have not worked with death row inmates, I have worked with thousands of inmates, many of them in death row like "supermax" conditions. My experience is that they are very adept at ignoring reality and convincing themselves that the successful appeal is just around the corner.
Posted by: TarlsQtr | Nov 2, 2011 3:46:35 PM