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January 13, 2018

Noticing the rise in LWOP as death sentencing declines in Texas

This lengthy article from the Houston Chronicle, headlined "Harris County leads Texas in life without parole sentences as death penalty recedes," provides an astute review of the sentencing impact of a decline of death sentencing.  Here are excerpts (with the closing sentences prompting some commentary):

Once known as the "capital of capital punishment," Harris County is now doling out more life without parole sentences than any other county in the state.

In the 12 years since then-Gov. Rick Perry signed the life without parole or "LWOP" bill into law, Harris County has handed down 266 of those sentences — nearly 25 percent of the state's total, according to data through mid-December obtained from the Texas Department of Criminal Justice.

"It's concerning, but this is like economics or engine performance, there's no free lunch," said Houston defense attorney Patrick McCann. "We have far fewer death cases than we used to. That's a tremendous win. But now we have a lot of LWOP sentences."

The county's reliance on the lengthiest sentence available in capital murder cases comes as the Houston area — and Texas as a whole — has shifted away from capital punishment. For the first time in more than 30 years, 2017 saw no new death sentences and no executions of Harris County killers. And although part of that downturn stems from the possibility of life without parole, some experts see possible drawbacks....

Andy Kahan, the city of Houston's victim advocate, described life without parole as a "saving grace" for victims' families. "Like it or not, there's some really evil people out there that commit some horrible atrocities that deserve to be locked up for life," he said. "In a utopian world it'd be great if we didn't have to have it but that's not reality."

While Harris County grabs the lion's share of the state's life without parole sentences, Dallas County came in right behind with 120, according to Texas Department of Criminal Justice data through Dec. 18. Tarrant County had 69 of the state's 1,067 total such sentences, while Bexar County had 47 and Hidalgo had 26....

Just over 17 percent of the state's population lives in Harris County, according to Texas Department of State Health Services population projections for 2016. That makes for an LWOP rate of 6 sentences per 100,000 residents, which is higher than in all but two counties with populations over 100,000.

In comparison to murder figures, the relatively large number of life without parole sentences looks less surprising. According to an analysis of DPS data, in 2016 Harris County accounted for 27.7 percent of the state's murders and 22.7 percent of the murders cleared.

And while Harris County accounts for a disproportionate number of total executions nationwide — more than any other county or entire state, except the rest of Texas — it has generated only a small fraction of the total life without parole sentences across the country, based on TDCJ figures and a 2017 Sentencing Project report.

"Where the corporate culture has changed is the willingness to seek death," McCann said, referring to local prosecutors. "Cases that ten years ago would have been death even with LWOP are now charged as non-death," McCann said. "But that doesn't mean that they've stopped charging the LWOP cases."

To some extent, Texas' relatively low LWOP use compared to national numbers may stem from the fact that prosecutors have only had the option for life without parole since 2005. Before that, the harshest choices were death — or the possibility of release after 40 years....

Texas became the last death penalty state to adopt the option, after Harris County prosecutors dropped their opposition. Initially it only applied to capital murder, but later the law was expanded to include crimes like repeated sexual assault of a child.

From the statute's inception, Harris County was one of its biggest users. "It's not surprising because Harris County is also the driver of the death penalty numbers and most juvenile commitments as well," Henneke said. "Across the board Harris County is the incarceration county."...

Unlike with death-sentenced cases, there's no automatic appointment of post-conviction appellate counsel and no punishment phase of the trial, which makes the whole process quicker and cheaper. "Life without parole was an unintentional gift to major urban prosecutors' offices," McCann said. "It makes it very easy to dispose of a large number of violent and often youthful offenders without any more thought than one would need to toss away a piece garbage."

The last few passages highlight what has long been my enduring concern as abolitionist have pushed for LWOP sentences as an alternative to the death penalty. Though the extreme LWOP sentence may at first be only available for the worst murders, once on the books it can and often does creep to be applicable to a range of other crimes. And capital cases come with super due-process, much of which is constitutionally requires; LWOP can be imposed, as this article puts it, "quicker and cheaper." While I understand why abolitionists celebrate the use of LWOP in order to engineer a decline in capital cases, I also lament the various ways abolitionist advocacy for LWOP alternatives have contributed to modern mass incarceration and further entrenched carceral commitments and contentments.

January 13, 2018 at 06:37 PM | Permalink


-- LWOP can be imposed, as this article puts it, "quicker and cheaper."

Relatively speaking.

There still will be due process, obviously, and since the person isn't executed, there will be more time long term to find problems and/or grounds to commute the LWOP to a term of years. There are many decades long pending death penalty cases but recently I have also seen people executed in much less time.

As LWOP is used more, there also will be more pressure to take special concern for that as well, especially once examples come to light where it is argued to be warranted when extra attention is given to specific cases, putting aside that I doubt there isn't some level of special concern as is. We already saw that for teens -- extra care was put for LWOP and an implication made only a few teens warrant LWOP.

Once you have the death penalty on the books, it won't only be used for worse of worst cases. As an imperfect solution, given there isn't enough support for less, LWOP is provided here. The result will be imperfect, but the alternative again is the death penalty. Even with the death penalty in place, long prison sentences are being sought out, so the problem is there anyways.

Finally, the same people who oppose capital punishment (some not big fans of LWOP) tend to generally put pressure in place to reduce harsh penalties of all sorts. Net, just what has the efforts of "abolitionists" done here?

Posted by: Joe | Jan 13, 2018 7:16:26 PM

Quicker: If you think the death penalty is deeply wrong [the professor thinks it is okay for certain cases], even an imperfect solution is worth it. Plus, just how much abolitionist efforts here factors in here is far from clear net.

Posted by: Joe | Jan 13, 2018 7:22:45 PM

Joe you say: "As LWOP is used more, there also will be more pressure to take special concern for that as well, especially once examples come to light where it is argued to be warranted when extra attention is given to specific cases, putting aside that I doubt there isn't some level of special concern as is."

The ACLU documented more than four years ago, Joe, that there were more people serving LWOP FOR NON-VIOLENT OFFENSES than are on death row: https://www.aclu.org/report/living-death-life-without-parole-nonviolent-offenses. Meanwhile, over the last quarter-century, SCOTUS has not reviewed a single non-violent LWOP case, and in the one before that it affirmed the sentence (Harmelin in 1991). Ewing is closest, perhaps, of modern vintage and again SCOTUS affirmed and extreme sentence. In the interim, even though only serious forms of murder are even death eligible, the Supreme Court on average takes up a couple of capital cases every single term.

I understand that abolitionists generally view death as a punishment to be morally wrong, but I seek to highlight how an even more robust version of living death punishments can often follow advocacy against the death penalty. This is not a zero some game, and some abolitionist advocacy can extend to non-capital cases (see Graham and Miller). But, because capital cases get so much process and attention, and LWOP cases still get relatively little, I am always concerned by the impact of this kind of extreme punishment shift and possible net-widening.

Posted by: Doug B. | Jan 13, 2018 9:51:01 PM

In Italy, this overdue execution would be called a suicide.


Posted by: David Behar | Jan 14, 2018 1:49:41 AM

The cited statistic underlines the efforts made by those against the death penalty to address LWOP too. The quarter century reference suggests the longer trend of long prison sentences is a result of various factors, the success in using LWOP as an alternative to the death penalty to my understanding more recent, to the degree the efforts had much success.

So, how much exactly net are abolitionists hurting the cause here by pushing its use for a narrow class to avoid executions? Why are we citing them specifically?

I understand your concern for other things being crowded out, but abolitionists are not exactly the best example there since they tend to express various concerns with the criminal justice system. I kinda get the idea you think that a few executions will serve a sort of "The Lottery" benefit to settle public demand while net helping other criminal justice matters. But, even if one grants (which abolitionists do not) executing fifty or whatever number of people a year is okay, that seems naive. (You probably would not put it that bluntly, but that is how it looks.)

And, I thought we were addressing a more recent data set -- some more recent effect of abolitionist (a term that I continue to think is used with an edge) supporting LWOP. As the death penalty is used less (though with Trump, perhaps there will be an uptick), supposed LWOP will get more attention there -- SCOTUS review not the only way this can be done.

Posted by: Joe | Jan 14, 2018 10:49:53 AM

DB is a retarded idiot !!!!!

Posted by: Claudio Giusti | Jan 14, 2018 4:13:35 PM

Joe, abolitionists have been pushing for LWOP as an alternative to death for at least 30+ years. In some jurisdictions such as New Jersey, Joe, abolitionists pushed for mandatory LWOP (when there was no mandatory LWOP before) in order to get the death penalty abolished. That said, I do not mean to assert that the rise in LWOP sentences should be attributed largely or even significantly to the work of abolitionists. But I do mean to highlight that abolitionists energies and advocacy has, in some places at some times, further entrenched carceral commitments and contentments.

In the end, my gripe really is the failure of abolitionists and their sympathizers to be more willing and eager to shift even a small percentage of their energies and advocacy toward the worst forms of the "living" death penalty. There is no LWOP Information Center, no NAACP LDF report on LWOP prisoners, no ABA LWOP Due Process Review Project, and so on and so on. And this is despite the fact that every single death row prisoner was convicted of a terrible murder and got super due process; a greater number of LWOP prisoners did not even commit a violent crime and got far less process.

I hope you are right that LWOP prisoners will be getting more attention soon, but I have been lodging this complaint for two decades and I have seen precious little change so far (except for juvenile offenders).

Posted by: Doug B | Jan 15, 2018 8:28:10 PM

Longer prison times appears to be an indirect consequence of the decline of the Death penalty. Here in France,the average length of prison time has increased since 1981 - the year when Death penalty was abolished. Prior to 1981, a life sentence usually meant an average time of 12-15 years, whereas now a paroled lifer has spent an average time of 25 years in prison, maybe more. And this number concerns lifers who were granted a parole: an ever increasing number of lifers are found unparolable. Eventhough LWOP doesn't really exist in the French penal code (though, for very serious murder, there is still the possibility of a LWOP-like sentence that doesn't call its name), dying in prison has become a real prospect for offenders convicted of a serious crime. It's also interesting to see that most offenders who were sentenced pre-1981 but whose heads were spared (presidential reprieve, jurors who weren't willing to impose a death sentence...) are still in prison. Judges can be very cautious and this kind of offenders will be denied parole most of the time (public opinion seems to be here a crucial factor). I think that in other European countries a same phenomenon can be observed.

Posted by: Raxatu | Jan 16, 2018 7:17:53 AM

The main post specifically targeted abolitionists:

"The last few passages highlight what has long been my enduring concern as abolitionist have pushed for LWOP sentences as an alternative to the death penalty."

As I noted more than once, these people do not merely oppose the death penalty. They also generally (the ACLU cite underlines this) are concerned about what is deemed excessive punishment generally. There is no perfect solution here. They argue for the small subset of people otherwise worthy of execution, who are not all murderers, LWOP would be better than execution. This very well to some small extent helps overuse of LWOP, but any small influence THIS SPECIFIC GROUP has is balanced by their like efforts against overuse of punishment etc. generally.

So, targeting abolitionists here is to me misguided here, except perhaps if one thinks it is okay to allow the death penalty, so the special efforts to stop it is not worth the possible risks. There are efforts against LWOP; see, e.g., the cases involving teens. There are efforts against long prison sentences as seen in the drug context. To the degree there should be more, I'm not really sure how abolitionists specifically are stopping it.

If we didn't have the death penalty, there would be more ability to address other matters. Abolitionists are not to blame for there being one. It is said that "every single death row prisoner was convicted of a terrible murder and got super due process," which is false. Not every death row prison actually was convicted of "a terrible murder" -- numerous ones are guilty of murder that do not warrant the death penalty. It an aspect of the arbitrariness of the system. Multiple people on death row has had various due process violated. At times, the fact a "terrible murder" was deemed to have been committed affects such violations.

I'm all for more attention to LWOP sentences. As to your long efforts, that's fine, but the article says "for the first time," so am I too off base to suppose that a conclusion is being made some sort of tipping point NOW -- not for three decades -- is in place regarding LWOP? If so, it is hard to know what will happen now that such a point has reached.

And, yes, finally death is going to be different. A special weight is going to be put on it. Like chemo being used for cancer, stopping it will at times include usage of harsh methods that are still better than the alternative that might be open for abuse. But, LWOP prisoners are not merely forgotten by abolitionists. The same people against the death penalty do various things to concern themselves about their innocence, the injustice of their long sentences etc. It is much more like those not against the death penalty in all cases, not abolitionists, will not take enough care here.

Posted by: Joe | Jan 16, 2018 8:07:49 PM

" There is no LWOP Information Center, no NAACP LDF report on LWOP prisoners, no ABA LWOP Due Process Review Project, and so on and so on."

There are various efforts against LWOP for teens, the Death Penalty Information Center has information on LWOP, you yourself cited an ACLU report concerning problems with LWOP, international efforts against LWOP ... and various efforts (be it racially inclined or otherwise) to address due process rights etc. that would bring within it those under LWOP too. And, more probably can be cited.

So, I think your summary is a bit misleading to the extent it implies LWOP gets no real attention. Again, death is different, so yes, liberty will get somewhat less attention than deprivation of life. A suicide will get more attention than a long lingering patient who is suffering a lot. The suicide help advocate to me is not the best person to cite here, even if they in a small way promote that result.

Posted by: Joe | Jan 16, 2018 8:31:40 PM

Joe, I am not "targeting abolitionists" as much as just seeking to spotlight what Raxatu notes and what I have observed in various ways and in various settings: there seems sometimes to be a relationship in modern times between advocacy against/decline in the death penalty and greater use of greater terms of imprisonment. My comments here seek to highlight that the "death is different" concern driving some abolitionist advocacy seems often to have what might be called a "liberty cost." Those who see death as so much worse a punishment are perhaps willing to endure that liberty cost, but I am eager to make sure all recognize and reflect on this "liberty cost." And the "liberty cost" is borne by defendants who have generally committed less serious crimes --- sometimes far less serious crimes --- than those on death row.

I share your view that most abolitionists do not wish to impose this "liberty cost" as part of their advocacy against the death penalty, and I also agree that many abolitionists assail LWOP now and will assail LWOP even more if they succeed in their abolitionist efforts. But, right now, seemingly 10 times as much attention is given to each and every capital case (every one of which involves a murder) than is given to any LWOP case (many of which involve no violence). LWOP gets some attention, but sooooo much less attention than the death penalty, and I think that is a shame in a country where so few get sentenced to death (less than one per week) and so many get LWOP (perhaps over 20 per week).

Posted by: Doug B | Jan 16, 2018 10:10:52 PM

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