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May 7, 2017

Reflecting on decreasing death sentences and increasing life sentences

The Washington Post has this "trendy" article headlined "The steady decline of America’s death rows," which reviews some of the latest notable numbers about death sentences and executions and also throws in a paragraph about life sentences based on this week's new Sentencing Project report on the topic (discussed here).  Here are excerpts:

Capital punishment in the United States is slowly and steadily declining, a fact most visible in the plummeting number of death penalties carried out each year.  In 1999, the country executed 98 inmates, a modern record for a single year.  In 2016, there were 20 executions nationwide, the lowest annual total in a quarter-century.

Death sentences also sharply declined. Fewer states that have the death penalty as a sentencing option are carrying out executions, a trend that has continued despite two U.S. Supreme Court rulings in the past decade upholding lethal injection practices. States that would otherwise carry out executions have found themselves stymied by court orders, other legal uncertainty, logistical issues or an ongoing shortage of deadly drugs. Fewer states have it on the books than did a decade ago, and some that do retain the practice have declared moratoriums or otherwise stopped executions without formally declaring an outright ban....

Another way to see the changing nature of the American death penalty: The gradual decline of death row populations. At the death penalty’s modern peak around the turn of the century, death rows housed more than 3,500 inmates. That number is falling, and it has been falling for some time. New Justice Department data show that death-row populations shrank in 2015, marking the 15th consecutive year with a decline.

There were 2,881 inmates on state and federal death rows in 2015, the last year for which the Justice Department has nationwide data available. That was down 61 from the year before.  States carried out 28 death penalties in 2015, but nearly three times as many inmates — 82 — were removed from death rows “by means other than execution,” the Justice Department’s report states. (Another 49 inmates arrived on death row in 2015.)

In some cases, inmates left death row after being cleared of the crimes for which they were sentenced. Five people sentenced to death were exonerated in 2015, according to the National Registry of Exonerations, a project of the University of Michigan Law School and the Northwestern University School of Law. Other inmates died of other causes before their executions could occur. In Alabama, three inmates died of natural causes in 2015 and a fourth hanged himself that year inside a prison infirmary, according to corrections officials and local media reports. North Carolina officials say one death-row inmate died of natural causes that year, another was resentenced to life without parole and a third had his death sentence vacated and a new trial ordered. Death sentences were thrown out in some cases. Four death-row inmates in Maryland had their sentences commuted to life in prison without parole in 2015, a decision made by then-Gov. Martin O’Malley after that state formally abolished the death penalty....

Another shift also has occurred: The number of people sentenced to life in prison has ballooned, reaching an all-time high last year, according to a report released this week from the Sentencing Project. The report states that more than 161,000 people were serving life sentences last year, with another 44,000 people serving what are called “virtual life sentences,” defined as long-term imprisonment effectively extending through the end of a person’s life. Similar to overall prison populations, people of color are disproportionately represented; black people account for nearly half of the life or virtual-life sentences tallied in the report.

Long-time readers likely know that these numbers provide one of the primary reasons why I have long worried that some criminal justice reforms advocates worry far too much about capital punishment and worry far too little about extreme prison sentences.  The fact that there are seven times as many persons serving life sentence as are on death row leads me to believe that nearly any and every concern raised about death sentencing may well be a problem of far greater magnitude with respect to lifers.

Most critically for those concerned about proportionate sentencing, every one of the almost 3000 persons on death row is an adult who was convicted of some form of aggravated murder and had a chance to argue to a jury for a lesser sentence.  But, according to the Sentencing Project data, nearly "12,000 people have been sentenced to life or virtual life for crimes committed as juveniles" and over "17,000 individuals with [some kind of life sentence] have been convicted of nonviolent crimes" and a significant percentage of lifers were subject to a mandatory sentencing scheme that required imposition of a severe prison sentence without any input by a jury or a judge.  

Though I fully understand why the death penalty has so much salience for both advocates and the general public, I still wish some portion of the extraordinary attention and energy always given to capital punishment might be redirected toward lifer laws, policies and practices.  

May 7, 2017 at 07:20 PM | Permalink


Your concerns are well taken but unclear how one can move around the concerns here.

The "extraordinary attention and energy" given to the death penalty in various ways is going to benefit non-capital cases particularly since it includes a range of things that don't just benefit them. The aftermath of Roper and its application to non-capital sentences is but an example. Surely there are groups out there concerned about juvenile offenders getting very long sentences. etc.

Some people will care more about those who would die, ending life having special meaning to humans (for both sides here), but major groups involved against the death penalty are quite concerned about long prison sentences too. This is particularly the cases if the reasons involve drug related crimes. There also is debate there on what should be labeled "non-violent," particularly given the illegal drug business is very violent in various ways even if specific criminals are not.

Anyway, if we weren't in the business of arbitrarily executing a relative few murderers, more effort could be spent on non-capital matters.

Posted by: Joe | May 7, 2017 7:59:21 PM

@joe writes, "ending life having special meaning to humans (for both sides here)."

But should it? One argument against the death is special cant is that it implicitly values the quantity of life over the quality of life. There is a segment of people who clearly think that the quality of life is more important than the quantity of life and we know that for a fact because they commit suicide rather than go on living. One can argue the normative aspects of suicide endlessly but there can be no dispute that people do conclude that their quality of life is so poor that they would rather die than go on living. So if such a person is sentenced to life in prison they would be sentenced to a fate worse than death (in their own eyes).

As for your argument that opposition to the death penalty has some "trickle down" effects there may indeed be a very limited truth to that statement--it is not wholly irrational. Yet I am skeptical to the degree in which that is true. I can only think of one situation where we might see any trickle down--juveniles. We also seem some movement on the issue of solitary confinement but its difficult to know just how much overlap there is between those two camps.

Posted by: Daniel | May 7, 2017 8:41:56 PM

As the death penalty wanes, as it is ended in more states, the death penalty appellate bar loses jobs. Life sentences should be a far more lucrative targets of appellate practice if the statistics above are correct. There are 3000 people on death row, and over 150,000 with life sentences. That should grow the appellate business by 50 fold.

Naturally, Berman is always looking out for the making of the lawyer rain, "..., I still wish some portion of the extraordinary attention and energy always given to capital punishment might be redirected toward lifer laws, policies and practices."

Posted by: David Behar | May 8, 2017 8:58:07 AM

A "special meaning" does not mean that other things should simply be ignored. In some cases, see euthanasia, life itself might not win out in the end.

It means that there is a reason that killing people gets extra attention, a result of a range of reasons. This can be cited in various contexts, including war, medical treatment and environmental law. And, it to me is telling alone that there are so few "volunteers" among death row inmates.

The overall concern for the death penalty does not merely come because people don't like killing people. For instance, a major group involved in move to abolish the death penalty that led to Furman v. Georgia were civil rights groups that saw it as a result of racial injustice. The fight for injustice here isn't limited to the death penalty. The groups involved as well as the legal efforts will affect other things.

The same applies to the push for federal habeas, which gets special juice to the degree it is seen as a means to keep people from being executed. But, the various wins there don't just benefit people on death row. If stopping execution of juveniles because of their special characteristics will apply to non-capital cases, why not other groups as well? If fighting the death penalty expands the reach of multiple amendments, it will not just apply to those on death row. Those who support the death penalty, including Scalia, repeatedly have said just that.

So, yes, I don't think it is "wholly irrational" that the overall movement here affects other things than the death penalty itself.

Posted by: Joe | May 8, 2017 10:25:14 AM


"why not other groups as well?"

My disagreement with your claim isn't theoretical but prospective. It is possible to imagine a future where the death penalty has major downstream effects on other areas of justice. The question becomes is this rosy scenario likely? I don't think it is likely. There is little evidence that the death penalty agitation has overall improved the state of criminal justice in this county, viewed in its most holistic context. Indeed, there is as Doug B. points out a rational case that the death penalty has overall been a distraction to the cause or reducing overcriminlization/overincarceration.

So until I see /significant/ downstream effects from death penalty agitation I remain skeptical as to whether it is doing more good than harm.

Posted by: Daniel | May 8, 2017 12:53:20 PM

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