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June 16, 2015

"The Death Penalty Is Cruel. But So Is Life Without Parole."

Download (4)The title of this post is the headline of this notable new New Republic commentary by Stephen Lurie.  Here are excerpts of a piece that echoes my oft-stated and enduring concern that LWOP punishments should garner a lot more attention from the anti-death penalty crowd:

Prison cells don’t attract many spectators, but executions have always drawn crowds. Paradoxically, the names and identities of death row inmates only come to matter when their execution had been scheduled: from impending death we take a sudden interest in life.

Despite the incongruity, this isn’t all that surprising. Twenty-first century America is still susceptible to the time-honored spectacle of state-sanctioned death, even if much of the attention now scrutinizes, rather than cheers, the practice. Recently, there have been many stories typical of the current fascination with American capital punishment, most notably Ben Crair’s piece in this magazine and Jeffrey Stern’s in The Atlantic. Like other recent examinations of the death penalty, both accounts focus specifically on the act of execution by lethal injection; each covers botched executions and the question of cruel and unusual punishment in the death chamber itself....

For Stern and Crair, as well as many human rights-minded activists and advocates, the death chamber is a potent and useful example of inhumanity. Other, newer abolitionists—like the legislators in Nebraska that voted to abolish the death penalty there last month—focus on the act of execution as well. While the death chamber is itself horrific, abolitionists would be remiss to ignore the more common punishment: the immense cruelty of a prisoner’s long wait for execution. The “death row phenomenon” and associated prison conditions cause significant psychological and physical harm; a so-called “death before dying” is both internationally condemned and domestically pervasive. If the end to capital punishment in the U.S. is based on concern for human beings — whether in a religious or moral sense — the reform movement must be concerned with the prison conditions left when death is not on the table.

Executions of any kind are exceedingly rare, so much so that death row itself appears to be the real punishment for the vast majority of inmates. There are just over 3,000 people awaiting execution in United States prisons. In 2013, the latest year for which the Bureau of Justice Statistics has data, there were 39 executions. That is just more than the 31 inmates who died before their scheduled executions; it is just less than the 44 death row convictions or sentences overturned that year....

Because solitary confinement is the de facto housing for American death row convicts, and because excruciating delays are par for the course, international observers have considered U.S. capital punishment inhumane enough to delegitimize its practice entirely. In his report to the UN General Assembly in 2012, Juan Méndez (the UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or Punishment) suggested that the realities of imperfect executions and death row conditions almost unavoidably run afoul of the international prohibition against human mistreatment. “Solitary confinement, in combination with the foreknowledge of death and the uncertainty of whether or when an execution is to take place, contributes to the risk of serious and irreparable mental and physical harm and suffering to the inmate,” Méndez writes. “Solitary confinement used on death row is by definition prolonged and indefinite and thus constitutes cruel, inhuman or degrading treatment or punishment or even torture.”...

Nearly every prisoner faces an abrogation of his or her 8th Amendment protections against cruel and unusual punishment; only a small few face the added cruelty and indignity of a botched execution. What about the pain of a cramped concrete cell, of shackling and restraints, attempts at self-harm, inedible food, existential fear, depression, and deprivation of any human contact? If there is concern is over fair treatment of human beings sentenced to death, it’s unwise, from a strategic standpoint, to continue ignoring the majority of their lives. Campaigns based on claims of cruel and unusual treatment would not rely on staying the execution of a single individual, but rest on the indefinite torture of thousands. That would be powerful.

Moreover, the instances of death penalty abolition that do not consider the background conditions for capital punishment invariably leave immense cruelty in its place. Nebraska’s legislation is typical in this regard: All death sentences become sentences of life imprisonment without the possibility of parole (LWOP). The de facto alternative for states that abolish the death penalty, LWOP actually retains many of the worst conditions of confinement described above, as well as still effectively sentencing the prisoner to death. It is in almost every way a death row, and as such is also an internationally condemned practice.

It’s for this reason that some, like Andrew Dilts, an assistant professor of political theory at Loyola Marymount University, refer to current forms of death penalty abolition as “death penalty replacement,” the same result but with the added effect that prisoners lose even more legal protections. As Dilts writes in the new volume Death and Other Penalties: Philosophy in a Time of Mass Incarceration, these alternative sentences appease the “almost fetishistic levels” of concern over execution while it “effectively deflects attention away from the moment of death, even though death is necessarily a part of the sentence.” In addition, whereas “the Court requires strict review of offender qualifications, strict procedural guidelines, extended appeals processes, and additional standards of heightened scrutiny…the same procedural and substantive protections are simply not applied” to life sentences. The result, ultimately, is simply a “dramatic reduction of appellate rights” for inmates that are still condemned to die; it’s a slower death with even less of a chance for redemption. While the conversion of these sentences might lessen some of the specific psychological traumas related to the death row phenomenon, it does not address the expected use of solitary confinement or other inhumane treatment. There is nothing in an execution-focused narrative that would lead to the transformation of these conditions: It might, rather, cement them as appropriate penal policy.

June 16, 2015 at 09:11 AM | Permalink


Concern with long time residents of prison is fine but there still retains various protections to those there, including those for life. And, since they are ALIVE, they still have some rights (at least of the worldly kind) unlike those who are dead, which might be why there is a "fetish" of concern for killing people.

If we stopped killing people, something with respect the author of this blog supports for the 'worst of the worst' (which will continue this "fetish" process, since there will always be concerns, mistaken selection of the "worst" and so forth as long as killing people is of special significance to this society), by state authorized capital punishment perhaps we can more rationally focus criminal justice resources as a whole.

Posted by: Joe | Jun 16, 2015 9:44:04 AM

LWOP is an absolutely immune license to kill, far better than that of James Bond. Bond has to answer to ridiculous, stupid civil service reviews, and harassment by left wing politicians, for his authorized killings of terrorists.

For every execution there are about 5 prison murders. Most of these murders do not pass Eighth Amendment muster, such as being stabbed 50 times. But the lawyer does not care. Murderers generate lawyer jobs, victims do not, and may rot.

Posted by: Supremacy Claus | Jun 16, 2015 2:51:32 PM

Abolitionists are truly foolish. There will be no legal recourse for a murder by a LWOP murderer. Jeffrey Dahmer feared for his life in general population , and for good reason. He was brutally murdered without any participation by guards, save his placement. It will be a funny irony. When the death penalty is banned from all states, prison murders will replace it, and justice will be far better served. These murders by prisoners will be 100 times crueler than current methods being nit picked by lawyers and judges. Not all abolitionists are lawyers, but all lawyers are stupid. They cannot do anything right, and the government they control 100% cannot do anything right. The incompetence of government, and all those unintended consequences of laws, stem from that fundamental phenomenon, lawyers are stupid.

Posted by: Supremacy Claus | Jun 16, 2015 3:13:16 PM

Not a word from this awful person about using a little girl as a sex doll for a week, then not having the courage to kill her, but putting her and her plush blue dolphin in a garbage bag, and burying her alive. That is the kind of man the author wants us to treat nicely. The author is an abomination. The families of murder victims should visit him with the lash.

Posted by: Supremacy Claus | Jun 17, 2015 7:11:22 AM

I posted that comment on The New Republic site. Here, I am alone in advocating for real victim's interests. At that site, I was in the overwhelming majority of commentators. The people here are horrible freaks.

Posted by: Supremacy Claus | Jun 17, 2015 7:18:13 AM

I am against the death penalty because many innocent people may be sentenced.

Posted by: EDUARD | Jun 17, 2015 3:26:08 PM

I am against the death penalty in some crimes, not all crimes should have the death penalty

Posted by: lucas | Sep 29, 2016 11:14:13 AM

the death penalty should only be for rapists and murderers in my opinion and should serve as an example so that the next does not repeat

Posted by: Francis | Nov 29, 2017 8:09:55 PM

I am against the death penalty because many innocent people may be sentenced.

Posted by: Rodrigo | Mar 20, 2018 10:43:36 AM

For me, the death penalty is the last instance that mankind has to punish those who are no longer able to live in society !! And it will always be a delicate matter !!!

Posted by: Paulo Matias | Apr 6, 2018 10:27:40 AM

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