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October 14, 2021

"New York State’s New Death Penalty: The Death Toll of Mass Incarceration in a Post-Execution Era"

The title of this post is the title of this interesting new report from the the Center for Justice at Columbia University which reinforces my sense that we ought to give a lot more attention to functional death sentences (which are relatively frequent) than to formal death sentences (which are relatively rare). Here is the report's introduction (with emphasis in the original and notes removed):

New York State was once an international outlier in its use of capital punishment.  Prior to 1972, when the US Supreme Court outlawed the death penalty, New York ranked second in most executions of any state in the country, executing 1130 people over a 364 year period.  Yet, abolishing the death penalty did not slow death behind bars.  Since 1976 — when the state began compiling data on deaths in custody — 7,504 people died while in the custody of the New York State Department of Corrections and Community Supervision (DOCCS).  This is seven times the number of deaths of those who were executed by the state.  Those who have died in custody over the last 45 years have largely been Black people, and particularly in the last decade, older people and people serving sentences of 15 years or more.  Increasingly, advocates and lawmakers have come to call this devastating reality “death by incarceration,” or “death by incarceration sentences” that ensure that thousands will die in prison and/or face a Parole Board that denies release to the majority of people who appear before it, and disproportionately denies release to Black New Yorkers.

This report compiles and analyzes data on in-custody deaths in New York State between 1976 and 2020 and offers policy recommendations for curtailing the number of deaths behind bars.  Without policy intervention, thousands of currently incarcerated New Yorkers are at risk of dying behind bars in the years and decades to come. 

All lives lost in the New York State correctional system raise questions about the morality and humanity of the state and its governance.  The large proportion of deaths of incarcerated Black New Yorkers highlight the racism of criminal justice policy in the state, and how the need for racial justice is a matter of life and death.  The disproportionate deaths of older adults serving long sentences highlight important questions about the state’s investments in public and community safety.  Incarcerated adults aged 55 and older are the least likely to commit a new crime across all age groups, and yet are kept in prison due to a lack of meaningful opportunities for release and repeated parole denials. Importantly, death by incarceration sentences and repeated parole denials ignore both the reality and possibility of redemption and transformation for people in prison. Older adults in prison are often leaders, mentors and stewards of the community. Of those who are released from prison, many continue their service and leadership in their communities, mentoring young people, providing reentry services for others released from custody, and intervening to prevent and reduce violence.

This report concludes that New York State must end its new de facto death penalty and offers recommendations towards this goal, including policies with large community and legislative support.

Key Findings 

  • More people have died in NY State custody in the last decade than the total of number of people executed in the 364 years New York State had the death penalty. 1,278 people died in NY State custody in the last decade compared to 1,130 who were executed in NY State between 1608 and 1972.
  • Today, more than 1 in 2 people who die in NY State custody are older adults, compared to roughly 1 in 10 at the beginning of the era of mass incarceration. 
  • Every three days someone dies inside a NYS prison, compared to every 12 days in 1976. 
  • In 2018, Black people accounted for 45% of all deaths in DOCCS custody, despite only making up 14% of all deaths of New York State residents. 
  • People who have already served 15 years in custody account for 9 times more of the total deaths behind bars today than they did in the 1980s, the first full decade of available data. 
  • 40% of all deaths behind bars since 1976 of people 55 and older happened in the last ten years. 
  • In the most recent decade, roughly 1 in 3 people who died behind bars had served at least 15 years, compared to 1 in 29 in the 1980s.

October 14, 2021 at 09:08 AM | Permalink


Semi-OT, but are you going to cover the first sentencing that's now taken place in the Tessa Majors case?

Posted by: kotodama | Oct 15, 2021 2:13:52 AM

I generally do not even try to keep up with --- let alone blog --- many non-capital state cases unless/until they lead to significant appellate rulings and/or have some other notable sentencing angles. (That is partially a function of the fact that I do not have deep expertise with state sentencing laws and practices and so it is hard for me to be sure if any particular sentencing is ordinary or extraordinary.)

That all said, I welcome a pitch (or even a guest post) about why a particular case/proceeding is blogworthy. Do you find the 9 to life sentence to be surprising or special under NY law in this case?

Posted by: Doug B. | Oct 15, 2021 11:23:04 AM

One thing cited was the now 16 year old defendant while in custody:

"The judge, Robert Mandelbaum, said before delivering the sentence that Mr. Lewis had repeatedly fought with others imprisoned at the juvenile detention center where he is being held, and that he had participated in the violent slashing of another prisoner." [NYT]

His lawyer's reply is quoted"

“Does anyone actually think that if Rashaun Weaver was raised as comfortably and with the privilege as the racial justice marchers from the Upper West Side that he would be sitting in a jail cell inside a violent ‘juvenile center’ for almost two years,” Mr. Lichtman wrote, “rarely getting to see or even speak to his parents?”

Horrible case & a snapshot of how we as a society have a ways to go in trying to address violent crime.

When I read these things, I generally want to know what the "going rate" (as I recall from an old Samuel Walker book) in comparable cases. "9 years to life" seems rather open-ended.

Posted by: Joe | Oct 15, 2021 1:14:19 PM

Yeah, I don't know the first thing about NY law, but as Joe pointed out, the thing with 9-life being a huge range stood out to me.

Also, you have the unnamed 13 year old being charged as a minor and pleading to just robbery so getting by with only 18 months. It seems like a fairly big disparity to compared Lewis and Weaver both being just a year older, but charged as adults instead. The considerable difference in the two sentences so far adds to that disparity.

On top of that Weaver has yet to plead out, which seems crazy. What is he possibly going to gain from going to trial? Unless it's just a cynical wager that the family would rather he be given some kind of deal than have to endure trial, which I'm sure would be excruciating.

So, it just seems like the case has some interesting and unusual moving pieces, but sadly I'm not particularly qualified to discuss them. And I understand it's not realistic for you (Prof. B.) to get up to speed on the law every time some new state case turns up in the headlines.

Posted by: kotodama | Oct 15, 2021 4:29:21 PM

I saw coverage of the case in my "feed" when I came online before seeing k's comment. The cynical might see it as another "young white woman victim" case.

Anyway, I personally do like to get some context when reading such things. It seems too often we have a bunch of "interesting stories" (one thing that pops up at times, e.g., are cases involving teachers having sex with students) without getting a wider sense of how it fits into the bigger picture.

This is not a comment against the blog; it's just a comment on my personal sentiments on informed readership in general.

Posted by: Joe | Oct 15, 2021 4:52:24 PM

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