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May 23, 2021

Spotlighting how "death in prison" LWOP cases still get so much less attention than capital punishment

Way back in 2008, I lamented in an article, "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'," that all the "Supreme Court attention and constitutional scrutiny given to capital cases necessarily means less attention and constitutional scrutiny given to non-capital cases."  Though that article was particularly focused on SCOTUS dockets, regular readers know I have long fretted about the tendency of so many media, lawyers, advocates and legal decision-makers to give so much time and energy to very rare capital cases when there are so many other cases with so many other ugly sentencing realities that could benefit from more attention.

Over the last decade, mass incarceration and a range of other sentencing and punishment realities have thankfully garnered considerably more attention in so many quarters.  But I think there are still problematic imbalances in coverage and commentary and concern: for example, South Carolina's decision to bring back firing squads even though the state has not had an execution in a decade got lots of attention, while a Mississippi court's decision to uphold an LWOP sentence for marijuana possession has gotten far less attention.

Against this backdrop, I was pleased to see this new lengthy article in The Marshall Project under the headline "Life Without Parole Is Replacing the Death Penalty — But the Legal Defense System Hasn’t Kept Up."  I recommend this piece in full, and here are excerpts:

Life-without-parole sentences are steadily replacing the death penalty across the United States.  Almost 56,000 people nationwide are now serving sentences that will keep them locked up until they die, an increase of 66% since 2003, according to The Sentencing Project, a nonprofit that advocates for shorter prison terms. 

By comparison, only 2,500 people nationally are on death row according to the Death Penalty Information Center; the number of new death sentences dwindled to 18 last year, as prosecutors increasingly seek life instead.  Executions are less popular with Americans than they used to be, according to Gallup, and are astronomically expensive to taxpayers.  In Dallas, the district attorney’s office says it asks for capital punishment only for egregious crimes where defendants present a continuing threat to society.

But as life without parole displaces capital punishment, the country’s patchwork system of public defense hasn’t kept up.  Only 11 states report having minimum qualifications for lawyers who represent impoverished people facing a lifetime behind bars, according to the nonprofit Sixth Amendment Center.  In Texas, there’s a continuing dispute over whether the standards for death penalty defense apply if prosecutors seek life without parole instead.

Most states have no rules, The Marshall Project and The Dallas Morning News found.  Someone just out of law school could handle a life-without-parole case in Illinois or Nebraska.  In California, where a third of the prison population is serving some form of life sentence, minimum qualifications apply only in death penalty cases; the state hasn’t executed anyone since 2006.  Other states have minimal standards. South Carolina requires just three years of experience in criminal law; Arkansas specifies that lawyers should have handled at least one homicide trial.

When it comes to life without parole, “the idea that you would treat these cases like you would treat other felonies is somewhat incomprehensible to me,” said Pamela Metzger, the director of the Deason Criminal Justice Reform Center at Southern Methodist University in Dallas.  “The sentencing stakes are so high and often irreversible.”  People facing life have far fewer chances to appeal than those facing capital punishment, and their cases draw far less scrutiny, she said....

Though thousands are serving life without parole for violent crimes such as homicide, courts in almost a dozen states have given hundreds of people that penalty for drug crimes.  Prosecutors have found that jurors are less squeamish about locking people up for the rest of their lives than about executing them. And life-without-parole trials cost thousands of dollars less than death penalty cases. They are shorter, involve fewer lawyers, allow limited appeals and often end in plea deals before trial....

“Prosecutors have gone wild with life-without-parole sentences -- but in particular counties and for particular marginalized people,” said Brandon Garrett, a Duke University law professor who wrote a book on the decline of capital punishment.  His study of North Carolina found that more than 60% of the prison population serving life without parole was Black.  Only 30% was White....

In 2003, the American Bar Association updated its guidelines for what lawyers should do for clients who face death sentences. Among other things, the guidelines say these lawyers should have extensive criminal trial experience and knowledge of death penalty case law and should hire investigators and mental health experts.  Some state legislatures and courts have adopted these standards, including Texas. But experts say enforcement is a problem.  And in almost every state, the standards don’t apply to life-without-parole cases. 

May 23, 2021 at 12:09 PM | Permalink


The concern here that other issues are crowded out is sensible but there is just a human reality that people dying has a special importance. As a matter of human limitations, yes, this is going to mean other things will get less attention.

Jesus didn't merely suffer for our sins as the story goes. He died. We have murder mysteries more than we have other types. The law for a long time provided special barriers in place to deprive people of life. This all adds up to a special concern of a special level.

Again, this is not to handwave the concern at all. And, there is very well a lot of attention given to non-murder situations. After all, on the tough on crime front, murder alone is not what gets tough punishments. Criminal justice matters in general still gets a sizable amount of attention.

Those who fight against the death penalty particularly also regularly are criminal justice activists. Chris Geidner, e.g., is particularly appalled in various capital cases. But, he is widely concerned with criminal justice matters generally.

LWOP is an imperfect solution. The concerns are repeatedly referenced by those very wary about the death penalty in particular. For instance, Justice Stevens' dissent in Harmelin v. Michigan cites LWOP is particularly extreme and in certain ways overlaps with the death penalty. He would give special concern to such punishments too.

I'm again supportive of the concern here, but just am not sure how much the special attention for an extreme permanent penalty that goes to the core of what is deemed human -- one's very life -- tells us. The concern is basically also familiar.

Police, for instance, kill about one thousand people a year (or that is a figure from a few years ago). Very bad. But, of course, there are a range of other concerns about police relations that should also get attention. The protests for the deaths of George Floyd or whatever, however, to me remain rather understandable and appropriate. And, not just deaths tend to be addressed during the resulting conversations.

The same holds true here are a regular basis. The same applies to specific protections and attention. I welcome more expansive concern, especially as executions greatly decease and the immediate concerns of executions arise less often. I also think that once execution is off the table, this is more possible. Once execution, e.g., is abolished in Virginia, the criminal justice energy that worked to abolish it can be focused more on other issues.

Hopefully, this will work as it often does -- we go thru cycles. LWOP is used more often, in part since it is promoted as legitimate as compared to the death penalty. In time, we see it is being overused. We balance the scales. So, I welcome the attention.

Posted by: Joe | May 23, 2021 12:49:52 PM

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