June 12, 2012
"Death in Prison: The Right Death Penalty Compromise"
The title of this post is the title of this notable new piece on SSRN by Professor Russell Covey. Here is the abstract:
The death penalty today provides virtually none of the benefits its advocates proffer as justifications for its existence. The tiny number of death sentences imposed, the even tinier number actually carried out, the enormous drain on public resources, and the decade-long delays that inevitably occur thoroughly undermine any deterrent or retributive benefits today’s death penalty might otherwise provide. In this paper, I argue for a compromise position that promises to better serve penal purposes and that will save states money at the same time: abandon the current dysfunctional death penalty in favor of a new ultimate sentence: death-in-prison.
A sentence of death-in-prison would be exactly what it says: a prisoner sentenced to death-in-prison would remain in prison until he or she died. Death-in-prison would be a kind of hybrid sentence: like life in prison without possibility of parole (“LWOP”), death-in-prison would entail lifetime incarceration but no affirmative state action to terminate the prisoner’s life, but death-in-prison would also share several features of the conventional death penalty. As with the conventional death penalty, a special penalty trial would be needed to impose the ultimate death-in-prison sentence. In addition, persons sentenced to death-in-prison might continue to serve their sentences in special segregated “death rows.” Death-in-prison sentences would also be imposed with all the magisterial weightiness of conventional death sentences. Persons so sentenced would be told, like those in conventional death penalty states, that the punishment for their crime is the ultimate one — death. If adopted, death-in-prison would reduce criminal justice expenditures, facilitate community healing, discourage divisive and ineffective commutation campaigns, and diminish wrongful executions, without forgoing what is arguably the greatest benefit of the current death penalty: the expressive value of imposing a “death” rather than a “life” sentence on highly culpable offenders.
June 12, 2012 at 04:50 PM | Permalink
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I'm having trouble deciding if this is a very clever idea or a dodge. There is basically no substantive difference between Covey’s “Death in Prison” and LWOP. It is really just a new label for a method of punishment we already have.
He suggests a separate penalty trial before Death in Prison can be imposed. If the jury refuses to do so, what would be the alternative? Would it be LWOP (which is indistinguishable), or a life sentence with the possibility of parole?
Of course, he is right that the modern death penalty has almost no benefits whatsoever and is far too costly in relation to whatever benefits it does have. But he comes across as just a proponent of abolition by another name.
Posted by: Marc Shepherd | Jun 12, 2012 5:07:49 PM
"Of course, he is right that the modern death penalty has almost no benefits whatsoever and is far too costly in relation to whatever benefits it does have. But he comes across as just a proponent of abolition by another name."
That we've managed to keep the death penalty in the face of the assaults of a vocal minority is worth it. Final justice was imposed today in Idaho for a truly heinous crime. I'd say that was worth it.
Posted by: federalist | Jun 12, 2012 6:02:58 PM
I thought the paperwork routinely given to inmates at their quarterly "team" meetings listed an out time. For those with a life sentence the out time is "Death". Those who have a life sentence are told 4 times a year that they might as well be dead.
Posted by: Obvious | Jun 12, 2012 7:05:18 PM
Well if CA got to work there wouldn't be a small number of executions. Thanks to a dysfunctional admin and even more dysfunctional district court we are left wondering when will executions finally take place...and take place at a rate of 10-12 per year to clear the back log? Glad to see Idaho AND Mississippi carried out an execution today. About time. MS is giving TX a run for it's money.
Posted by: DeanO | Jun 12, 2012 7:38:02 PM
It's kinda BS that the proponent justifies this policy, in part, on the costs of the present death penalty, yet is willing to let his proposal keep all the procedural trappings of capital punishment. At least in present-day LWOP, the prisoners don't get special (statutory and constitutional) rights of post-conviction procedure.
Posted by: Alex | Jun 12, 2012 8:10:49 PM
just more bureaucracy, wasted time and money... either keep the death penalty or get rid of it. Do the states want to save money or not...what ridiculous academic BS.
Posted by: Just do it | Jun 12, 2012 8:16:41 PM
Marc Shepherd nails it: "I'm having trouble deciding if this is a very clever idea or a dodge. There is basically no substantive difference between Covey’s 'Death in Prison' and LWOP. It is really just a new label for a method of punishment we already have....[H]e comes across as just a proponent of abolition by another name."
It's vintage abolitionist shake-and-jive to say blandly that the specific goal they have embraced for years as a way to end executions is a "compromise."
Word games, and transparent word games at that.
P.S. Retentionists could just as well suggest the "compromise" of life without parole, only the life will be shortened by state intervention.
Posted by: Bill Otis | Jun 13, 2012 3:14:20 AM
The arguments in support of the ballot measure to abolish the death penalty are exaggerated at best and, in most cases, misleading and erroneous. The Act would only make our prisons less safe for both other prisoners and prison officials, significantly increase the costs to taxpayers due to life-time medical costs, the increased security required to coerce former death-row inmates to work, etc. The amount “saved” in order to help fund law enforcement is negligible and only for a short period of time. Bottom line, the “SAFE” Act is an attempt by those who are responsible for the high costs and lack of executions to now persuade voters to abandon it on those ground. Obviously, these arguments would disappear if the death penalty was carried forth in accordance with the law. Get the facts at and supporting evidence at http://cadeathpenalty.webs.com.
Posted by: C Bernstien | Jun 13, 2012 3:16:26 AM
This appears to be a renaming of life without parole, to give more majesty. The special death row is a renaming of high security areas or Supermax.
It does not solve the problems of the license to kill with absolute immunity, nor the high expenses of the end of life care. These may far exceed the cost of the death penalty. These costs do got to health care rather than lawyers. I am not discussing healthcare rent seeking, using lawyer malpractice threats to generate massive worthless, futile, and painful end of life care. The victims may get their revenge when the prisoner is subjected to defensive medicine, and futile care at the end of life, with torture grade pain, indignities, and deprivations. When docs are dying, they allow none of this rent seeking procedure on themselves.
Posted by: Supremacy Claus | Jun 13, 2012 6:13:24 AM
"In this paper, I argue for a compromise position..death-in-prison."
Tha, I offer compromise of similar quality…execution with delicate background music.
Posted by: Adamakis | Jun 13, 2012 9:08:32 AM
Maybe I should not take this procedure seriously, but what prosecutor would waste the time and money seeking "death in prison"? It is a punishment in name only, which admittedly is like the current death penalty here in CA, but when all hope of execution is lost, "death in prison", I don't see the point.
Posted by: David | Jun 13, 2012 10:21:48 AM
It seems to me that when a 60 year old person is given a sentence of 25 years, that is "death in prison." In reality, it is, even for people younger than 60 most of the time. People don't live as long in prison.
Posted by: Dana | Jun 15, 2012 5:51:07 PM
So, if a 50 year old man is given the mandatory minimum under the Adam Walsh Act, for improperly touching a minor, he is effectively give the death in prison sentence.
Posted by: Dana | Jun 15, 2012 5:53:30 PM
well dana i dont' know about where you are but here in florida a conviction under the jessica lundsford law min is 25year to life! so YEP pretty much!
Posted by: rodsmith | Jun 17, 2012 1:47:28 AM