Sentencing for Life: Americans Embrace Alternatives to the Death Penalty

Posted on Apr 01, 1993

Everybody believes that a per­son sen­tenced to life for mur­der will be walk­ing the streets in sev­en years.” 

– Late Judge Charles Weltner, Georgia Supreme Court [1]

Some of the jurors were want­i­ng to know would he get out in like sev­en years on good behav­ior .… If we were gonna’ put him in prison, we want­ed to make sure he would stay there. But … we did­n’t real­ly feel like he would .… we real­ly felt like we did­n’t have any alter­na­tive.” –Juror in an inter­view fol­low­ing a death ver­dict against Randall Rogers[2]
[T]here is an effec­tive alter­na­tive to burn­ing the life out of human beings in the name of pub­lic safe­ty. That alter­na­tive is just as per­ma­nent, at least as great a deter­rent and – for those who are so inclined – far less expen­sive than the exhaus­tive legal appeals required in cap­i­tal cas­es. That alter­na­tive is life impris­on­ment with­out the pos­si­bil­i­ty of parole.” –Mario Cuomo, Governor of New York [3]

Introduction Top

Contrary to the con­ven­tion­al wis­dom that Americans whole­heart­ed­ly sup­port the death penal­ty, the lat­est nation­al opin­ion poll released in con­junc­tion with this report shows that more peo­ple in this coun­try would pre­fer alter­na­tive sen­tences that guar­an­tee both pro­tec­tion and pun­ish­ment over the death penal­ty. Death penal­ty sup­port becomes a minor­i­ty opin­ion when the pub­lic is pre­sent­ed with a vari­ety of alter­na­tive sen­tences. Most Americans, how­ev­er, are unaware that the length of impris­on­ment embod­ied in these alter­na­tives is now the norm almost every­where in the country.

The fail­ure of exe­cu­tions to achieve more than a spec­ta­cle has raised the ques­tion: Could America live with­out the death penal­ty? Are there alter­na­tives to deal with the type of crim­i­nals who are cur­rent­ly sen­tenced to death? Would the American peo­ple be sat­is­fied with those alternatives?”

Since its rein­state­ment in 1976, the death penal­ty has brought lit­tle but frus­tra­tion to both pro­po­nents and oppo­nents alike. The evi­dence of racism, of inno­cent defen­dants, of costs and delay con­tin­ue to plague this coun­try’s recent exper­i­ment with the pun­ish­ment of death. The fail­ure of exe­cu­tions to achieve more than a spec­ta­cle has raised the ques­tion: Could America live with­out the death penal­ty? Are there alter­na­tives to deal with the type of crim­i­nals who are cur­rent­ly sen­tenced to death? Would the American peo­ple be sat­is­fied with those alternatives?

This report releas­es the results of a new nation­al poll which demon­strates that Americans are will­ing to give up the death penal­ty if cer­tain strin­gent sanc­tions are enforced. This poll, and sim­i­lar state opin­ion polls, con­firm that abstract sup­port for the death penal­ty drops sig­nif­i­cant­ly when respon­dents are giv­en a choice between cap­i­tal pun­ish­ment and sen­tences which assure lengthy incar­cer­a­tion and com­pen­sa­tion for the fam­i­ly of the vic­tim. Only 41% of the pop­u­la­tion would choose the death penal­ty over a sen­tence of life with­out parole cou­pled with resti­tu­tion to the vic­tim’s family.

One of soci­ety’s best kept secrets is that the length of sen­tences which peo­ple would sup­port over the death penal­ty are already in place and func­tion­ing in most of the United States. Forty-five states (plus the District of Columbia) present­ly employ a life sen­tence in which there is no pos­si­bil­i­ty of parole for at least 25 years. Thirty-three of those juris­dic­tions use a life sen­tence in which parole is nev­er pos­si­ble. Yet parole infor­ma­tion is often with­held from jurors in cap­i­tal cas­es and the use of these severe sen­tences is unknown to most of the pub­lic. As one recent study con­cern­ing the pub­lic’s knowl­edge about the death penal­ty con­clud­ed, “[A] major­i­ty of Americans have tak­en a very strong posi­tion on an issue about which they are sub­stan­tial­ly unin­formed.” [4]

In many states, the strin­gent restric­tions on release of those con­vict­ed of mur­der are a new phe­nom­e­non. But in those places where they have been the law for some time, they are work­ing as promised. In California, for exam­ple, no pris­on­er sen­tenced to life with­out parole has been released in 25 years.[5]

From all indi­ca­tions, America could be safer with­out the death penal­ty and would real­ize an enor­mous mon­e­tary sav­ing as well. Judging by the crime rates in those states that have abol­ished cap­i­tal pun­ish­ment and insti­tut­ed alter­na­tive sen­tences, the absence of the death penal­ty would cause no rise in the mur­der rate. [6] Capital mur­der­ers would not be released after serv­ing only sev­en years. Hundreds of mil­lions of dol­lars and thou­sands of hours of court time would be saved by replac­ing the death penal­ty with alter­na­tive sen­tences. The mon­ey saved could be devot­ed to crime pre­ven­tion mea­sures which real­ly do reduce crime and vio­lence and thus are the true alter­na­tives to the death penalty.

by Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center April 1993

Public Opinion and the Death Penalty Top

In 1966, more Americans opposed the death penal­ty than favored it.[7] Executions were halt­ed in 1967 and did not resume for 10 years when sup­port for the death penal­ty had grown. Today, a new phe­nom­e­non is emerg­ing from the polls. Support for the death penal­ty drops pre­cise­ly to the same low per­cent­age as in 1966 when peo­ple are giv­en the choice of strin­gent alter­na­tive sentences.

Today, a new phe­nom­e­non is emerg­ing from the polls. Support for the death penal­ty drops pre­cise­ly to the same low per­cent­age as in 1966 when peo­ple are giv­en the choice of strin­gent alter­na­tive sentences.”

In March of this year, the polling firms of Greenberg/​Lake and the Tarrance Group con­duct­ed a nation­al sur­vey of peo­ple’s opin­ions about the death penal­ty. This poll revealed an increas­ing trend, first detect­ed in a series of state polls on this issue, that Americans would favor cer­tain alter­na­tive sen­tences over the death penal­ty. Although a major­i­ty of those inter­viewed said they favored cap­i­tal pun­ish­ment abstract­ly, that sup­port is reversed when the sen­tence of life with­out parole, cou­pled with a require­ment of resti­tu­tion, is offered as an alter­na­tive. Forty-four per­cent favor that alter­na­tive, while only 41% select­ed the death penal­ty. Even the choice of a sen­tence which guar­an­teed resti­tu­tion and no release for at least 25 years caused death penal­ty sup­port to drop by 33%.

These results indi­cate a strong desire on the part of the pub­lic for pro­tec­tion from those who have com­mit­ted soci­ety’s worst crimes. There is also a pref­er­ence for con­nect­ing pun­ish­ment with resti­tu­tion to those who have been hurt by crime. Support for the death penal­ty drops below 50% with a range of alter­na­tive sen­tences, espe­cial­ly those includ­ing resti­tu­tion. Compared to the 77% who favor the death penal­ty in the abstract, sup­port drops by 21% when a sen­tence of life with no parole for 25 years is con­sid­ered; if a require­ment of resti­tu­tion is added to that sen­tence, sup­port drops by 33%. And the sen­tence of life with­out parole plus resti­tu­tion caus­es a sup­port drop of 36% and rel­e­gates cap­i­tal pun­ish­ment to a minor­i­ty posi­tion. (See Fig. 2).

Recurrent Problems Erode Death Penalty Support Top

Why is it that peo­ple who appear to sup­port the death penal­ty are will­ing to aban­don that sup­port in favor of alter­na­tive sen­tences? The answer may lie in the fact that peo­ple who sup­port the death penal­ty nev­er­the­less retain seri­ous doubts about it which are trig­gered by some of cap­i­tal pun­ish­men­t’s recur­rent prob­lems. Also, peo­ple are unaware of the sweep­ing changes that have occurred in the actu­al amount of time which con­vict­ed mur­der­ers will have to serve for their crimes.

Doubts About the Death Penalty

Most peo­ple express doubts about the death penal­ty when pre­sent­ed with some of the prob­lems which have plagued this ulti­mate pun­ish­ment for years. Forty-eight per­cent respond­ed that the issue of racism in the appli­ca­tion of cap­i­tal pun­ish­ment raised some or seri­ous doubts about the death penalty.

The per­cep­tion of racial injus­tice with­in the crim­i­nal jus­tice sys­tem, sym­bol­ized by the image of Rodney King in Los Angeles, is rein­forced by the fact that Blacks are rep­re­sent­ed on death row three and half times their pro­por­tion in the pop­u­la­tion as a whole. And defen­dants who kill a white per­son in America are many times more like­ly to get the death penal­ty than those who kill a black per­son. [8] It is not sur­pris­ing that almost three-fourths of Blacks believe that a black per­son is more like­ly than a white per­son to receive the death penal­ty for the same crime. [9] As these facts about cap­i­tal pun­ish­ment become more wide­ly known, the enthu­si­asm for the death penal­ty may con­tin­ue to wane.

Americans also expressed doubts about the death penal­ty after hear­ing infor­ma­tion about the costs of the death penal­ty and the absence of any unique deter­rent effect. The strongest doubts, how­ev­er, were raised by the prospect that inno­cent peo­ple could be exe­cut­ed. Fifty-eight per­cent of those polled said the ques­tion of inno­cence raised doubts in them about the death penal­ty. (See Fig. 3.)

All of these issues are like­ly to cause fur­ther ero­sion in the pub­lic’s sup­port for the death penal­ty as new infor­ma­tion but­tress­es peo­ple’s con­cerns. Studies of the cost of the death penal­ty, for exam­ple, repeat­ed­ly show that it is much more expen­sive than the alter­na­tive of life in prison.[10] Reports on the death penal­ty’s deter­rent effect con­sis­tent­ly con­clude that it is no more a deter­rent than lengthy prison terms. [11] With all forms of gov­ern­ment expe­ri­enc­ing a need for stream­lin­ing expen­sive pro­grams, the death penal­ty is ripe for a cost and ben­e­fit review. [12]

Other recent stud­ies have con­firmed that many who have been con­vict­ed of cap­i­tal crimes, and even some who have been exe­cut­ed, were innocent.[13] In their recent book, In Spite of Innocence, the authors dis­cuss over 400 cas­es in which the defen­dant was wrong­ly con­vict­ed of a crime pun­ish­able by death. At least 23 cas­es have result­ed in the exe­cu­tion of inno­cent peo­ple. [14] The Supreme Court did lit­tle to dis­pel peo­ple’s doubts with its recent rul­ing that new claims of inno­cence are almost nev­er review­able by the fed­er­al courts through habeas cor­pus peti­tions. [15]

It is sober­ing to recall that when the Supreme Court over­turned all the exist­ing death sen­tences in 1972 on con­sti­tu­tion­al grounds, a num­ber of inno­cent lives were spared. Five of those who were on death row at the time went on to prove their inno­cence. [16] These inno­cent lives might well have been sac­ri­ficed and the same is undoubt­ed­ly true of some who are on death row today.

The recent release of Walter McMillian from Alabama’s death row on March 2, 1993 illus­trates this con­tin­u­ing dan­ger. [17] Mr. McMillian faced exe­cu­tion for six years. His appeals were turned down four times, despite the fact that no phys­i­cal evi­dence linked him with the crime and twelve wit­ness­es placed him else­where at the time. Only the dis­cov­ery by new attor­neys of improp­er pro­ce­dures used by the pros­e­cu­tors and of wit­ness­es who changed their sto­ries allowed the con­vic­tion to be over­turned and charges to be dropped. [18] Except for a series of for­tu­itous events, Mr. McMillian might have been exe­cut­ed while the courts refused to hear his valid claims of innocence.[19]

As the num­ber of death row inmates across the coun­try con­tin­ues to reach record highs, and as the pace of exe­cu­tions accel­er­ates, the prob­a­bil­i­ty of inno­cent peo­ple receiv­ing the death penal­ty increas­es. This, too, will like­ly increase the doubts which peo­ple have about this ulti­mate punishment.

Awareness of Longer Sentences

Most Americans are poor­ly informed about the like­ly sen­tences which cap­i­tal mur­der­ers would receive if not giv­en the death penal­ty. Only 4% believed that those sen­tenced to life for first degree mur­der would be impris­oned for the rest of their lives. The aver­age esti­mate of how long such a pris­on­er would serve was 15.6 years. Even when asked how long some­one with a life with­out parole sen­tence would serve, only 11% believed that such a per­son would nev­er be released. As dis­cussed more ful­ly below, those per­cep­tions are far off the mark. Two-thirds of the states uti­lize sen­tences for first degree mur­der which guar­an­tee that the inmate will nev­er be eli­gi­ble for release. (See Fig. 4 below.) Most of the remain­ing states for­bid con­sid­er­ing parole for at least 25 years. (See Fig. 5 below.)

Two-thirds of the states uti­lize sen­tences for first degree mur­der which guar­an­tee that the inmate will nev­er be eli­gi­ble for release. Most of the remain­ing states for­bid con­sid­er­ing parole for at least 25 years. ”



Figure 3

Results from State Polls Top

Although the results from this lat­est poll may be sur­pris­ing to those who believe that cap­i­tal pun­ish­ment has wide and unwa­ver­ing sup­port, they are con­sis­tent with a series of state polls which have explored some of the same issues over the past five years. These polls repeat­ed­ly showed that when peo­ple were pre­sent­ed with alter­na­tives to the death penal­ty, their sup­port for the death penal­ty dropped dra­mat­i­cal­ly. Polls con­duct­ed in recent years in California, Florida, Georgia, Kentucky, Minnesota, Nebraska, New York, Oklahoma, Virginia and West Virginia all con­clud­ed that peo­ple pre­fer var­i­ous alter­na­tive sen­tences to the death penal­ty. [20]

Another inter­est­ing find­ing report­ed con­sis­tent­ly in the state polls, and con­firmed by the nation­al poll, is that death penal­ty sup­port drops more with an alter­na­tive sen­tence of no parole for 25 years than with a sen­tence man­dat­ing absolute­ly no parole, pro­vid­ed that the less­er sen­tence is com­bined with the require­ment of resti­tu­tion. [21] This result chal­lenges the notion that peo­ple auto­mat­i­cal­ly favor the harsh­est of all pos­si­ble sen­tences, such as the death penal­ty or life with no parole. Rather, peo­ple sup­port rea­son­able alter­na­tives which attempt to restore equi­lib­ri­um and jus­tice where it has been frac­tured in society.

These state polls also indi­cat­ed the ambiva­lence which peo­ple have about cap­i­tal pun­ish­ment. People believe that the death penal­ty is arbi­trary, that it is imposed in a racial­ly dis­crim­i­na­to­ry man­ner, and that there is a dan­ger that inno­cent peo­ple may be exe­cut­ed by mis­take. That ambiva­lence makes actu­al jurors hes­i­tant to impose the death penal­ty when they are faced with the deci­sion. It also leads peo­ple to read­i­ly pre­fer real­is­tic alter­na­tives, once they are giv­en the choice.

Moreover, the sup­port for alter­na­tives to the death penal­ty appears to be grow­ing. In a nation­al poll in 1986, Gallup report­ed a 19% drop in sup­port for the death penal­ty when life with­out parole was offered as an alternative.[22] The same ques­tion pro­duced a 23% drop in 1991 [23]. Now, in 1993, sup­port for the death penal­ty dropped 28% when this same alter­na­tive was offered in the Greenberg/​Lake poll. Similarly, a state poll con­duct­ed in New York in 1989 revealed that 62% of the peo­ple would pre­fer a sen­tence of life with­out parole plus manda­to­ry resti­tu­tion rather than the death penal­ty. In 1991, the same ques­tion was asked and 73% sup­port­ed this alter­na­tive. [24]

The state polls reveal a num­ber of oth­er sig­nif­i­cant pub­lic per­cep­tions on the death penal­ty. For example:

  • When Nebraskans were asked which sen­tence would do the great­est good for all con­cerned, twice as many select­ed alter­na­tive sen­tences over the death penal­ty, and no parole for 30 years plus resti­tu­tion was the first choice among the alter­na­tives. [25]
  • A major­i­ty of New Yorkers said they have moral doubts about the death penal­ty and are not real­ly com­fort­able with cap­i­tal pun­ish­ment. Over 90% of New Yorkers agreed that the best way to reduce crime is to give dis­ad­van­taged peo­ple bet­ter edu­ca­tion, job train­ing, and equal employ­ment opportunities.[26]
  • Almost half of the respon­dents in Florida believed that the death penal­ty is racial­ly and eco­nom­i­cal­ly dis­crim­i­na­to­ry. [27]
  • In Oklahoma, only 5% of the peo­ple believe that the exis­tence of the death penal­ty has def­i­nite­ly made the state a safer place to live. An addi­tion­al 22% believe it prob­a­bly has made it a safer place, but 62% of the peo­ple respond­ed that it either has prob­a­bly not or def­i­nite­ly not made Oklahoma safer. Oklahomans would also pre­fer a sen­tence of life in prison over the death penal­ty by a mar­gin of 56 – 35% if they were con­vinced that the death penal­ty dis­crim­i­nates against minorities.[28]

These and sim­i­lar results from oth­er states show the shal­low­ness in the sup­port for cap­i­tal pun­ish­ment. People are frus­trat­ed and fright­ened about vio­lent crime. If they are offered no alter­na­tives which rea­son­ably meet their con­cerns for pro­tec­tion and pun­ish­ment, then the death penal­ty seems attractive.

Jurors, too, look for alter­na­tives. As many pros­e­cu­tors who have brought sure fire” death cas­es to juries know, there is often a reluc­tance by jurors to actu­al­ly impose the death sen­tence on guilty mur­der­ers. [29] Jurors faced with mak­ing life and death deci­sions repeat­ed­ly inquire about the true mean­ing of a life sen­tence,” appar­ent­ly hop­ing that this sen­tence will pro­vide them with an accept­able alter­na­tive to sen­tenc­ing some­one to death. [30]When they are told that parole eli­gi­bil­i­ty will not be explained, they incor­rect­ly assume that the defen­dant will be out again in 7 years. Faced with that alter­na­tive, jurors often choose death.

The Trend Toward Longer Incarceration Top

The devel­op­ment of prison sen­tences in which parole is restrict­ed either for a sub­stan­tial num­ber of years or for­ev­er is a grow­ing trend among states today. As a response to vio­lent mur­ders, almost every state, as well as the fed­er­al gov­ern­ment, now uses a lengthy guar­an­teed min­i­mum sen­tence before parole can even be con­sid­ered. The per­cep­tion that a mur­der­er con­vict­ed of a cap­i­tal crime will be back on the streets in sev­en years if not giv­en the death penal­ty is total­ly inaccurate.

The per­cep­tion that a mur­der­er con­vict­ed of a cap­i­tal crime will be back on the streets in sev­en years if not giv­en the death penal­ty is total­ly inaccurate.”

This is a sig­nif­i­cant change from twen­ty years ago when the death penal­ty was tem­porar­i­ly sus­pend­ed by the Supreme Court’s rul­ing in Furman v. Georgia. Nearly 600 death sen­tences were com­mut­ed to life impris­on­ment by that deci­sion, and almost every inmate has either been released or has an expect­ed parole date set. [31]

For defen­dants sen­tenced today, how­ev­er, the prospects are quite dif­fer­ent. Thirty-three states (plus the District of Columbia and the fed­er­al gov­ern­ment) employ a sen­tence of life with­out parole in some form. (See Fig. 4). A total of 14 states call for the impo­si­tion of a life sen­tence in which parole is not pos­si­ble for at least 25 years. Still oth­ers require that the inmate serve at least 20 years before being con­sid­ered for release. (See Fig. 5 ). And even in those few states where parole is pos­si­ble in under 25 years, it is very unlike­ly that those con­vict­ed of the worst crimes would be paroled on their first try, if ever.

Fig. 4

LIFE WITHOUT PAROLE STATES[32]

  • Alabama
  • Idaho 
  • Missouri
  • Rhode Island*
  • Arkansas
  • Illinois
  • Montana
  • South Dakota
  • California
  • Iowa* 
  • Nebraska
  • Utah
  • Colorado 
  • Louisiana
  • Nevada
  • Vermont*
  • Connecticut
  • Maine* 
  • New Hampshire
  • Washington
  • Delaware 
  • Maryland
  • Oklahoma
  • West Virginia*
  • District of Col.* 
  • Massachusetts*
  • Oregon
  • Wyoming
  • Hawaii*
  • Michigan*
  • Pennsylvania

*States with­out the death penalty.

In addi­tion:
* Mississippi, Virginia and South Carolina allow a sen­tence of life with­out parole for cer­tain recidi­vists.
* Kentucky requires that a mur­der­er serve half his term if sen­tenced for a num­ber of years. Thus, a sen­tence equiv­a­lent to life with­out parole is avail­able by sen­tenc­ing the defen­dant to an exceed­ing­ly long term of years.
* In Wisconsin, the sen­tenc­ing judge has the pow­er to set the parole eli­gi­bil­i­ty date which, in real­i­ty, could be longer than a per­son­’s nat­ur­al life. A sim­i­lar pro­vi­sion is in force in Alaska.
* The fed­er­al gov­ern­ment employs life with­out parole for mur­ders under cer­tain statutes.

Fig. 5

RESTRICTED PAROLE:
Years Before Parole Eligibility Under Available Sentences
for 1st Degree Murder Convictions

  • Alaska* 33 yr 
  • Kentucky 25 yr
  • N. Carolina 20 yr
  • Texas 35 yr 
  • Arizona 25 yr 
  • Minnesota* 30 yr 
  • N. Dakota* 30 yr 
  • Virginia# 21 yr 
  • Florida 25 yr 
  • New Jersey 30 yr 
  • Ohio 20 yr 
  • Indiana# 30 yr 
  • New Mexico 30 yr 
  • S. Carolina 30 yr 
  • Kansas* 40 yr 
  • New York* 25 yr 
  • Tennessee# 25 yr 

*States with­out the death penalty.

#Actual min­i­mum sen­tence is longer, but inmates could be released after the years stat­ed if they received both parole and all pos­si­ble good time” credit.

Under Georgia law, any­one pre­vi­ous­ly impris­oned under a life sen­tence must serve 25 years before parole consideration.

Canada requires that a con­vict­ed mur­der­er serve 25 years before being eli­gi­ble for parole.

Effectiveness of Alternative Sentences Top

People are fright­ened by press accounts of parole con­sid­er­a­tion for such noto­ri­ous crim­i­nals as Charles Manson and Sirhan Sirhan. No doubt, peo­ple believe that if these crim­i­nals are eli­gi­ble for parole, any­one would be. But nei­ther of these men was sen­tenced under a life with­out parole scheme, since that penal­ty had not been enact­ed when they had com­mit­ted their crimes. The fact that these and sim­i­lar cas­es receive con­sid­er­a­tion for parole, even though denied, tends to obscure the fact that today such offend­ers would not even be eli­gi­ble for parole. In every state, the myth that if peo­ple are not giv­en the death penal­ty they will be released in 7 years is sim­ply not true.

People are also dis­turbed by reports of pris­on­ers who actu­al­ly are released after a rel­a­tive­ly short time, some of whom com­mit addi­tion­al crimes. In Texas, for exam­ple, there is much con­fu­sion about sen­tenc­ing. Prisoners, on the whole, are only serv­ing 20% of their sen­tences and recidi­vism is a seri­ous prob­lem. [33] Typically, even those with a life sen­tence have been get­ting out in less than six years, part­ly due to the over­crowd­ing in Texas’ pris­ons. [34]

What is not wide­ly known, how­ev­er, is that for those con­vict­ed of cap­i­tal mur­der, the real­i­ty is now quite dif­fer­ent: a life sen­tence for them means they would not even be eli­gi­ble for parole for 35 years. However, Texas law for­bids either side from inform­ing the jury about the true mean­ing of a life sen­tence in a cap­i­tal case, and so death sen­tences are being returned under a gross mis­per­cep­tion. Jurors, and the pub­lic in gen­er­al, mis­tak­en­ly believe they must choose between releas­ing a vio­lent mur­der­er in 6 years or impos­ing the death penal­ty, even though the real­i­ty is quite different.

States that have used the sen­tence of life with­out parole say it works as promised. California has had a sen­tence of life with­out parole for over 25 years and not one per­son sen­tenced under this law has been released from prison.”

States that have used the sen­tence of life with­out parole say it works as promised. California has had a sen­tence of life with­out parole for over 25 years and not one per­son sen­tenced under this law has been released from prison. [35] In Alabama, U.S. Court of Appeals Judge Edward Carnes, who head­ed the state’s cap­i­tal pun­ish­ment divi­sion as assis­tant attor­ney gen­er­al for many years, said that life with­out parole in Alabama means just that – no parole, no com­mu­ta­tion, no way out until the day you die, peri­od.” [36]

Louisiana has per­haps the nation’s tough­est life sen­tence law. Life in the state of Louisiana is just that – life,” said a par­dons board offi­cial in Baton Rouge. There are no 50-year life sen­tences or 25-year life sen­tences. Life means nat­ur­al life.” Nearly a 100 lif­ers have served 20 years or more at Louisiana’s State Penitentiary in Angola. [37]

In South Dakota, all those giv­en life sen­tences serve with­out pos­si­bil­i­ty of parole. The only chance for release is through the com­mu­ta­tion process requir­ing unan­i­mous approval of the com­mu­ta­tion board and the gov­er­nor. No one con­vict­ed of homi­cide has been com­mut­ed since 1974. [38]

In Connecticut, assis­tant pub­lic defend­er Robert Gold described his state’s recent expe­ri­ence with the life with­out parole alter­na­tive: The sen­tence means what it says. You get car­ried out of the prison in a pine box as your only means of exit. Parole, good time, or oth­er means of short­en­ing the sen­tence are not avail­able to peo­ple who have been con­vict­ed of [a] cap­i­tal felony.” [39]

Most of the states with­out the death penal­ty now uti­lize a sen­tence of life with­out parole for their worst offend­ers. Michigan, for exam­ple, has had a manda­to­ry life law for first degree mur­der at least since 1931. It also bears the dis­tinc­tion of being the first English-speak­ing juris­dic­tion to per­ma­nent­ly abol­ish the death penal­ty. For the past decade, the gov­er­nor has aver­aged only one com­mu­ta­tion per year of those sen­tenced to life for first degree mur­der. The time served for those few who were com­mut­ed between 1983 and 1990 aver­aged 27 years. [40]

In the District of Columbia, the vot­ers over­whelm­ing­ly reject­ed the death penal­ty short­ly after the city coun­cil passed leg­is­la­tion allow­ing for a sen­tence of life with­out parole for first degree mur­der. In New York, Governor Cuomo has also pro­posed this sen­tence as an alter­na­tive to rein­stat­ing the death penalty.

Commutation of Sentence

For those who would opt for a sen­tence under which pris­on­ers could nev­er be released, the the­o­ret­i­cal pos­si­bil­i­ty of exec­u­tive clemen­cy may appear to be a prob­lem. In most states, either the gov­er­nor or an appro­pri­ate board has the pow­er to com­mute sen­tences. [41] Unless restrict­ed by law, such a process could result in the reduc­tion of a life with­out parole sen­tence to a sim­ple life sen­tence where parole is possible.

In real­i­ty, how­ev­er, this is a very remote pos­si­bil­i­ty. Governors have the same pow­er to grant clemen­cy in death sen­tences but rarely do. On the aver­age, there has only been 1 such com­mu­ta­tion in 20 years for each state with the death penal­ty. [42] Presumably, if the same defen­dants had been giv­en life with­out parole sen­tences, gov­er­nors would have had even less incen­tive to com­mute them since the pos­si­bil­i­ty of a mis­tak­en exe­cu­tion would no longer be a moti­va­tion. This is borne out in states like Michigan, California and South Dakota which have had a life with­out parole sen­tence for some time and where com­mu­ta­tions of those con­vict­ed of first degree mur­der are exceed­ing­ly rare or non-existent.[43]

Moreover, the pow­er to grant clemen­cy is need­ed for those cas­es where evi­dence chal­leng­ing the defen­dan­t’s inno­cence or sen­tence aris­es only after the tri­al and appeals. The Supreme Court recent­ly rein­forced the need for such a safe­ty valve when it refused to review the claims of inno­cence from a con­demned Texas inmate, Leonel Herrera. Clemency,” said the Court, is deeply root­ed in our Anglo-American tra­di­tion of law, and is the his­toric rem­e­dy for pre­vent­ing mis­car­riages of jus­tice where judi­cial process has been exhaust­ed.” [44]

Some states have even gone so far as to restrict the exec­u­tive’s pow­er of clemen­cy in the worst cas­es. In California, for exam­ple, a pris­on­er serv­ing life with­out parole can­not even apply for clemen­cy for 30 years.[45]And in New York, Gov. Cuomo has pro­posed a con­sti­tu­tion­al amend­ment that would for­bid any­one from grant­i­ng clemen­cy to those serv­ing life with­out parole, should the leg­is­la­ture adopt such a sen­tence instead of the death penal­ty. [46] Thus, the pos­si­bil­i­ty that dan­ger­ous crim­i­nals would be grant­ed clemen­cy is prac­ti­cal­ly non-existent.

Juror Awareness of Alternative Sentencing

In America, juries are the voice of the peo­ple. As with the pub­lic at large, those who have served as jurors often pre­fer alter­na­tive sen­tences to the death penal­ty. A 1992 sur­vey of near­ly 800 jurors revealed that only 41% sup­port­ed the death penal­ty if alter­na­tives like life with­out parole were offered. [47] But just as the pub­lic is unaware of the fun­da­men­tal changes in U.S. sen­tenc­ing laws which have led to longer sen­tences, so, too, those with the respon­si­bil­i­ty for con­sid­er­ing death sen­tences are with­out the cor­rect infor­ma­tion. Jurors in cap­i­tal cas­es are par­tic­u­lar­ly trou­bled because they believe they must choose between sen­tenc­ing some­one to death or allow­ing them to be released in a rel­a­tive­ly short time. As the late Georgia Supreme Court Judge Charles Weltner said, Everybody believes that a per­son sen­tenced to life for mur­der will be walk­ing the streets in sev­en years.” He went on to pre­dict that the option of 20 to 25 years parole inel­i­gi­bil­i­ty would low­er the num­ber of death penal­ties that are giv­en.” [48]

The only prob­lem with this pre­dic­tion is that Georgia law (and the law of many oth­er states) for­bids the judge from explain­ing any­thing to the jury about parole pos­si­bil­i­ties, even if the judge receives a direct ques­tion from the pan­el while they are delib­er­at­ing on a defen­dan­t’s life or death sen­tence. In 23 of the 29 states which uti­lize sen­tenc­ing by the jury in cap­i­tal cas­es, there is an absolute pro­hi­bi­tion against any evi­dence or argu­ment on parole.[49] As a result jurors are left to their own misperceptions.

In one Georgia death penal­ty case, the jurors were inter­viewed after they returned their death sen­tence. Their com­ments clear­ly indi­cat­ed that they were con­sid­er­ing spar­ing the defen­dan­t’s life but were swayed by the belief that he would be out in sev­en years:

Some of the jurors were want­i­ng to know would he get out in like sev­en years on good behav­ior .… If we were gonna’ put him in prison, we want­ed to make sure he would stay there. But … we did­n’t real­ly feel like he would .… we real­ly felt like we did­n’t have any alternative.”[50]

The jurors in this case sent a note to the judge inquir­ing about the mean­ing of a life sen­tence: Does life impris­on­ment mean Mr. Rogers (the defen­dant) would be eli­gi­ble for parole in sev­en years or less on good behav­ior?” The Court replied: You are not to con­cern your­self with the reper­cus­sions of either pun­ish­ment that you fix. I can­not tell you as to the con­se­quences of either of your sen­tences that you have for your con­sid­er­a­tion.” After receiv­ing this non-answer, the jurors returned a death sen­tence 34 min­utes lat­er. [51]

Nor were this jury’s con­cerns or final deci­sion unique. A recent study looked at every Georgia tri­al in which a death penal­ty was returned by a jury since 1973. In 70 of the 280 cas­es, the jurors inter­rupt­ed their delib­er­a­tions to try to deter­mine how soon the defen­dant might be released if he were giv­en a life sen­tence. In all the cas­es, the jurors’ inquiries were rebuffed by the court and a death sen­tence was returned. [52] According to the Prosecuting Attorney’s Council of Georgia, the issue of parole aris­es in almost every cap­i­tal sen­tenc­ing tri­al.” [53]

Although Georgia does not have a life with­out parole sen­tence, some defen­dants, depend­ing on their crime and pri­or his­to­ry, may be sen­tenced so that they are not eli­gi­ble for parole for 25 to 30 years. That is sig­nif­i­cant­ly dif­fer­ent from release after the pre­sumed 7 years and could clear­ly make a life or death dif­fer­ence in the jury’s decision.

Interviews with jurors in oth­er states reveal a sim­i­lar pat­tern of con­cern about the like­li­hood of ear­ly release. In Virginia, those con­vict­ed of cap­i­tal crimes must serve 25 years before becom­ing eli­gi­ble for parole and cer­tain repeat offend­ers may nev­er be con­sid­ered for parole. However, Virginia law also for­bids the jury from con­sid­er­ing that infor­ma­tion in decid­ing whether a defen­dant should be giv­en a life or a death sen­tence. Jurors thus pro­ceed on grave mis­per­cep­tions when mak­ing their all-impor­tant deter­mi­na­tion. A study by the National Legal Research Group demon­strat­ed the dan­ger of unin­formed jurors. The study found that prospec­tive jurors in a sam­ple Virginia county:

Believed that a cap­i­tal defen­dant sen­tenced to life impris­on­ment will like­ly serve only 10 years in prison;

Believed that the length of time a cap­i­tal defen­dant will actu­al­ly serve when sen­tenced to life impris­on­ment is impor­tant to the penal­ty determination;

Would dis­re­gard a judge’s instruc­tion not to con­sid­er parole when sen­tenc­ing a cap­i­tal defen­dant; and

Would be influ­enced sig­nif­i­cant­ly in their sen­tenc­ing deci­sions by infor­ma­tion about Virginia’s manda­to­ry min­i­mum sen­tence of 25 years for cap­i­tal defen­dants. [54]

From this and sim­i­lar stud­ies in oth­er states [55], it is clear that many jurors are sen­tenc­ing peo­ple to death because they either lack ade­quate alter­na­tives or because they are unaware that such alter­na­tives exist. Executions based on such mis­in­for­ma­tion rep­re­sent a trav­es­ty of jus­tice. As the late U.S. Court of Appeals Judge Alvin B. Rubin not­ed, the wide­ly held mis­con­cep­tions about the actu­al effect of impos­ing a life sen­tence raise an unac­cept­able risk that the death penal­ty may be imposed on some defen­dants large­ly on the basis of mis­tak­en notions of parole law.“56

Even when a state has incor­po­rat­ed a life with­out parole option into its choice of sen­tences, the jurors are like­ly to believe that the defen­dant will still be released and, there­fore, are more like­ly to return a death ver­dict. In a sur­vey of 250 poten­tial jurors in Louisiana, an over­whelm­ing 92% of those polled inter­pret­ed a life sen­tence with­out the ben­e­fit of pro­ba­tion, parole or sus­pen­sion of sen­tence” as mean­ing that the indi­vid­ual would still be eli­gi­ble for release in a num­ber of years. [57]

Politicians often add to these inac­cu­rate per­cep­tions when they use the death penal­ty to bol­ster their cam­paigns. For exam­ple, while run­ning for gov­er­nor of California as a pro-death penal­ty can­di­date, Dianne Feinstein claimed: You can’t expect some­body to be deterred from com­mit­ting mur­der if they know they will only serve four to five years.” [58] What she neglect­ed to say is that for those who face the death penal­ty, the only alter­na­tive sen­tence in California is life impris­on­ment with no pos­si­bil­i­ty of parole. It is not sur­pris­ing, then, that 64% of Californians erro­neous­ly believe that those sen­tenced under life with­out parole would nev­er­the­less be released. [59]

Interestingly, politi­cians mis­tak­en­ly believe that their con­stituents strong­ly pre­fer the death penal­ty over its alter­na­tives. In New York, for exam­ple, 70% of the leg­is­la­tors polled thought their con­stituents would pre­fer the death penal­ty over a vari­ety of alter­na­tives. In fact, over 70% of the peo­ple would choose the alter­na­tive of life with­out parole plus resti­tu­tion. [60]

This research implies that a sen­tence which elim­i­nates parole for a sub­stan­tial peri­od, espe­cial­ly if cou­pled with a resti­tu­tion require­ment, is an appro­pri­ate alter­na­tive. It is appro­pri­ate because peo­ple pre­fer such an alter­na­tive to cap­i­tal pun­ish­ment and it pro­tects soci­ety as well as the death penal­ty. Under the present sys­tem peo­ple are being sen­tenced to death under the erro­neous assump­tion that, oth­er­wise, the pris­on­er would be released ear­ly. To the extent that jurors have been choos­ing the death sen­tence in past cas­es based on this assump­tion, the exe­cu­tions which result­ed are trag­ic mistakes.

The Effects of a Life Sentence Top

The exis­tence of a strin­gent life sen­tence can either par­tial­ly or com­plete­ly elim­i­nate the imag­ined need for the death penal­ty. In some states, a life with­out parole sen­tence is used as an option when the death penal­ty is not select­ed; in oth­er states, like Michigan and Massachusetts, it exists as a com­plete replace­ment to cap­i­tal pun­ish­ment. In Maryland, for exam­ple, the state added the sen­tence of life with­out parole in 1987 as a choice for the jury in cap­i­tal cas­es. Jurors are specif­i­cal­ly instruct­ed that they can choose a sen­tence of life with­out parole instead of the death penal­ty. In the five years since then, only eight new defen­dants have been added to the state’s death row. A sim­i­lar reduc­tion in death sen­tences has result­ed since Oklahoma intro­duced life with­out parole in 1988. That year, Oklahoma sen­tenced 18 peo­ple to death. Last year, there were only five death sentences.[61] In con­trast, Florida, which does not have life with­out parole, added 45 peo­ple to its death row in 1991. [62]

Sentences with sig­nif­i­cant min­i­mum terms can also pro­vide the pub­lic with the pro­tec­tion from repeat offend­ers that they want. An inmate released at the age of 55 or 60 years old is sta­tis­ti­cal­ly far less like­ly to engage in crime than some­one in their late 20s. Violent crime arrest rates peak at age 18 and then grad­u­al­ly decline to almost zero at age 60 and over.[63] As Louisiana’s dis­trict attor­ney, Harry Connick, Sr., said: When a guy gets to be 60, he’s not gonna rip and run a lot. Not like he used to.” [64] In addi­tion, con­vict­ed mur­der­ers are among the least like­ly offend­ers to repeat their crime, even if released. [65]

When a guy gets to be 60, he’s not gonna rip and run a lot. Not like he used to.”

–Harry Connick, Sr., District Attorney in Louisiana

Thus, if the death penal­ty were elim­i­nat­ed tomor­row, the cap­i­tal defen­dants of most states would face life sen­tences with no pos­si­bil­i­ty of parole. In oth­er states, they would have to serve lengthy min­i­mum sen­tences before even being eli­gi­ble for parole. By the time they were released, they would be in an age group where crime is at its low­est. [66]

Prisoners Serving Life

Inside prison, a num­ber of war­dens report that those serv­ing life sen­tences are the best-behaved pris­on­ers in their entire sys­tem. Leo Lalonde of the Michigan Department of Corrections says of those serv­ing life with­out parole sen­tences: After a few years, lif­ers become your bet­ter pris­on­ers. They tend to adjust and just do their time. They tend to be a calm­ing influ­ence on the younger kids, and we have more prob­lems with peo­ple serv­ing short terms.”[67] Similarly, Alabama offi­cials not­ed that their life with­out parole inmates com­mit 50% few­er dis­ci­pli­nary offens­es per capi­ta than all oth­er types of inmates com­bined. [68]

Lifers can also make a sig­nif­i­cant con­tri­bu­tion to soci­ety in the time giv­en them. For exam­ple, Craig Datesman at Graterford Prison in Pennsylvania coor­di­nates a Lifers project to help young peo­ple who have had some trou­ble with the law to go straight. We have tak­en a life and so we feel it’s our respon­si­bil­i­ty to save a life now,” said Datesman. [69] Executions, of course, cut off the pos­si­bil­i­ty of any resti­tu­tion to soci­ety or the fam­i­ly of the victim.

We have tak­en a life and so we feel it’s our respon­si­bil­i­ty to save a life now.”

–Craig Datesman, coor­di­na­tor of a Lifers pro­gram at Graterford Prison in Pennsylvania

It is true that length­i­er sen­tences can add to the costs of impris­on­ment. But as a replace­ment for the death penal­ty, even a sen­tence of life with­out parole would not add sig­nif­i­cant­ly to the prison pop­u­la­tion, and would, in fact, be cheap­er than the pro­longed lit­i­ga­tion asso­ci­at­ed with a death sen­tence. Approximately 250 inmates are added to death rows around the coun­try each year. Spread over the entire coun­try, that is not a sig­nif­i­cant addi­tion to a prison pop­u­la­tion which now num­bers over 1 million.[70]

Restitution Top

Requiring those who have com­mit­ted mur­der to make some mon­e­tary resti­tu­tion to the fam­i­ly of the vic­tim is strong­ly sup­port­ed by those choos­ing alter­na­tives to the death penal­ty. However, this sanc­tion has not yet been wide­ly employed by states. Inmates gen­er­al­ly receive lit­tle in the way of remu­ner­a­tion for work per­formed in prison, usu­al­ly bare­ly enough for cig­a­rettes or can­dy. A require­ment of resti­tu­tion might mean rais­ing the pay for prison work. Nevertheless, the var­i­ous opin­ion polls dis­cussed above show that a require­ment of resti­tu­tion is one of the most con­sis­tent demands by those pre­fer­ring alter­na­tives to the death penalty.

One mea­sure of what might be a fea­si­ble form of resti­tu­tion was includ­ed in a New York opin­ion poll. New Yorkers were about even­ly split in say­ing that $150,000 in resti­tu­tion to the fam­i­ly of the vic­tim would be either about right” or too lit­tle.” The $150,000 resti­tu­tion fig­ure was derived from a require­ment that the pris­on­er work 40 hours per week, 50 weeks per year, over 25 years at $3 per hour. [71] While the details of a resti­tu­tion plan need to be worked out, polls show that the con­cept is extreme­ly impor­tant to many peo­ple and could be incor­po­rat­ed fur­ther into the cor­rec­tion­al system.

Many states are becom­ing more con­scious of the needs of vic­tims in their crim­i­nal jus­tice sys­tems. [72] Although funds for vic­tim assis­tance are often pro­vid­ed direct­ly from the state bud­get, some states are propos­ing resti­tu­tion from the work of pris­on­ers them­selves. A bill before the 1993 Nebraska leg­is­la­ture would abol­ish the state’s death penal­ty and instead impose a resti­tu­tion require­ment along with a sen­tence of life with­out parole. And in Arkansas, California, Wisconsin, Idaho, and Oregon, resti­tu­tion to the vic­tim’s fam­i­ly can already be required of the offend­er in homi­cide cases. 

Other Alternatives: Decreasing the Amount of Crime Top

When con­sid­er­ing the range of alter­na­tives to the death penal­ty, the length of incar­cer­a­tion is not the only issue to be weighed. The dis­cus­sion should also include alter­na­tives which help reduce the risk of vio­lence and mur­der. Crime pre­ven­tion through com­mu­ni­ty polic­ing and gun con­trol, employ­ment oppor­tu­ni­ties, drug and alco­hol reha­bil­i­ta­tion pro­grams, ear­ly inter­ven­tion for abused and men­tal­ly hand­i­capped chil­dren are all alter­na­tives to cap­i­tal pun­ish­ment in that they low­er the risk of crime in the first place.

Crime pre­ven­tion through com­mu­ni­ty polic­ing and gun con­trol, employ­ment oppor­tu­ni­ties, drug and alco­hol reha­bil­i­ta­tion pro­grams, ear­ly inter­ven­tion for abused and men­tal­ly hand­i­capped chil­dren are all alter­na­tives to cap­i­tal pun­ish­ment in that they low­er the risk of crime in the first place.”

Governments, of course, can­not fund every pro­gram that presents itself. Each pro­gram, includ­ing the death penal­ty, has its costs. If the death penal­ty were elim­i­nat­ed, there would be an imme­di­ate sav­ings of mil­lions of dol­lars for coun­ties and states which could be trans­ferred to oth­er pro­grams with proven records for reduc­ing crime. [74] In the final analy­sis, it is these alter­na­tives which actu­al­ly address the rise in vio­lence that prompt­ed this coun­try’s return to the death penalty.

Families of Murder Victims Top

It is some­times argued that the death penal­ty is nec­es­sary to assuage the grief suf­fered by the fam­i­ly of the mur­dered vic­tim. For some fam­i­lies that may be true. However, in a coun­try with 25,000 mur­ders and 25 exe­cu­tions per year, only one in a thou­sand fam­i­lies will actu­al­ly receive such a ben­e­fit.” The rest may be left to won­der why their loss did not mer­it the same dis­tinc­tion. In fact, as many fam­i­ly mem­bers attest, nei­ther the death penal­ty nor its alter­na­tives can sub­sti­tute for the tremen­dous loss of a loved one. A life sen­tence, on the oth­er hand, does offer a sense of final­i­ty, ren­dered rel­a­tive­ly quick­ly, as well as an oppor­tu­ni­ty for some resti­tu­tion or rec­on­cil­i­a­tion in the future.

Marietta Jaeger’s sev­en year old daugh­ter, Susie, was kid­napped and mur­dered, but she has nev­er thought the death penal­ty offered any solace:

The death penal­ty caus­es fam­i­ly mem­bers more pain than oth­er sen­tences. The con­tin­u­ous sequence of court­room scenes inher­ent in death penal­ty cas­es only serve to keep emo­tion­al wounds raw and in pain for years.… Actually, the mem­o­ry of the vic­tim is gross­ly insult­ed by the premise that the death of one mal­func­tion­ing per­son will be a just ret­ri­bu­tion for the ines­timable loss of the beloved.

In my case, my own daugh­ter was such a gift of joy and sweet­ness and beau­ty, that to kill some­one in her name would have been to vio­late and pro­fane the good­ness of her life; the idea is offen­sive and repul­sive to me. [75]

In many ways, of course, the death penal­ty is no ben­e­fit at all: the threat of an exe­cu­tion means that there will almost always be a lengthy tri­al and years of appeals. Over forty per­cent of death penal­ty cas­es are turned back for recon­sid­er­a­tion. [76] Once a fam­i­ly becomes caught up in the quest for an exe­cu­tion, they are like­ly to fol­low a path of dis­ap­point­ment and failure.

The death penal­ty caus­es fam­i­ly mem­bers more pain than oth­er sen­tences. The con­tin­u­ous sequence of court­room scenes inher­ent in death penal­ty cas­es only serve to keep emo­tion­al wounds raw and in pain for years.”

–Marietta Jaeger, whose daugh­ter was murdered

Many fam­i­lies of vic­tims are total­ly opposed to the death penal­ty. They echo the thoughts of Odine Stern, for­mer direc­tor of Parents of Murdered Children, that no sen­tence can ever equate to the loss of your child’s life and the hor­rors of mur­der.” [77] Frequently, vic­tims’ fam­i­lies rec­og­nize that the death penal­ty will inflict the same pain they have felt on the accused’s fam­i­ly. As one moth­er replied when asked at the funer­al of her mur­dered son if she want­ed the death penal­ty: No, there’s been enough killing.” [78]

Murder Victims Families for Reconciliation, anoth­er orga­ni­za­tion which deals with the grief of fam­i­lies, is plan­ning a major nation­al con­fer­ence and edu­ca­tion­al pro­gram for June of 1993 around the theme of mov­ing from vio­lence to heal­ing. As an orga­ni­za­tion, they are opposed to the death penal­ty. William Pelke, one of the orga­niz­ers of the con­fer­ence and the grand­son of a mur­der vic­tim, summed up his belief in alter­na­tive sentences:

A sim­ple life sen­tence with­out the pos­si­bil­i­ty of parole can ease the pain much soon­er and enable the vic­tim’s fam­i­ly to begin the process of heal­ing.… As long as the thought remains that jus­tice has not yet been car­ried out, the heal­ing process that must take place is put on hold.”[79]

The Politics of Death Top

Life with­out parole is achiev­able imme­di­ate­ly. The Legislature could enact it Monday. I would sign the mea­sure Tuesday. It would apply to crimes com­mit­ted the next day. In fact, the only thing pre­vent­ing the next cop killer from spend­ing every day of the rest of his life in jail is the pol­i­tics of death.”

–Mario Cuomo, Governor of New York

In some states, politi­cians who favor the death penal­ty have resist­ed stiffer sen­tences which elim­i­nate parole because they fear that with real alter­na­tives in place there will be no more need for the death penal­ty. In New York, for exam­ple, the politi­cians who have suc­ceed­ed in derail­ing Gov. Cuomo’s alter­na­tive of life with­out parole are those who favor the death penal­ty. They do not hide their manip­u­la­tion of the issue: they would rather have crim­i­nals get out soon­er than give up the death penal­ty as a cheap sym­bol for being tough on crime. This is what Gov. Cuomo called the pol­i­tics of death”:

Life with­out parole is achiev­able imme­di­ate­ly. The Legislature could enact it Monday. I would sign the mea­sure Tuesday. It would apply to crimes com­mit­ted the next day. In fact, the only thing pre­vent­ing the next cop killer from spend­ing every day of the rest of his life in jail is the pol­i­tics of death.[80]

The peren­ni­al spon­sor of the death penal­ty in New York, Vincent Graber, Democratic Assemblyman from Erie, admit­ted that his Senate col­leagues opposed the life with­out parole bill because its pas­sage would make the death penal­ty less of a cam­paign issue.” [81] The New York Daily News, long a sup­port­er of the death penal­ty, became tired of this bla­tant manip­u­la­tion and edi­to­ri­al­ized for a life with­out parole alternative:

Why won’t the Legislature adopt the obvi­ous alter­na­tive – life with­out parole? Because pols would rather grand­stand on the death penal­ty. It is cheap polit­i­cal expe­di­ence, not wise pub­lic pol­i­cy. [82]

Recently, even Graber has acknowl­edged that he might have to accept the life with­out parole sanc­tion as the New York leg­is­la­ture moves fur­ther away from over­rid­ing Cuomo’s veto. [83]

As in New York, some South Carolina politi­cians are afraid that the pas­sage of life with­out parole would result in less sup­port for cap­i­tal pun­ish­ment. Death penal­ty advo­cate Sen. John Drummond (D‑Greenwood), for exam­ple, strong­ly opposed life with­out parole legislation:

If we pass this, you can’t tell me that you will ever be able to seat a jury that will vote for the death penal­ty. In essence, what you’re doing is ask­ing us to vote against the death penal­ty. [84]

A sim­i­lar sce­nario has been fol­lowed in Texas, where a num­ber of state pros­e­cu­tors have opposed Gov. Richards’ life with­out parole pro­pos­al. Harris County District Attorney John Holmes stat­ed sim­ply: Those who ought to be con­fined for­ev­er ought to be exe­cut­ed.” [85]

In the end, how­ev­er, peo­ple will select politi­cians who con­form to their opin­ions. For years, the myth that Americans love the death penal­ty has fueled an expan­sion of cap­i­tal pun­ish­ment and politi­cians’ cry for more exe­cu­tions. But as the pub­lic’s pref­er­ence for alter­na­tive sen­tences becomes more wide­ly known, and as those sen­tences become incor­po­rat­ed into law, the jus­ti­fi­ca­tions for the death penal­ty will have final­ly disappeared.

Conclusion Top

America may now be ready to aban­don the death penal­ty. People strong­ly pre­fer alter­na­tive sen­tences to the death penal­ty once they are giv­en the choice. The lengthy sen­tences which peo­ple pre­fer and which guar­an­tee that con­vict­ed mur­der­ers will stay behind bars are now in place in almost every state in the coun­try. To the extent that sup­port for the death penal­ty con­tin­ues, it is because the pub­lic in gen­er­al, and jurors in cap­i­tal cas­es in par­tic­u­lar, are still unaware of this fun­da­men­tal change in U.S. sen­tenc­ing practice.

Adequate alter­na­tives are indeed in place through­out the coun­try. Almost every state now severe­ly restricts even the pos­si­bil­i­ty of parole so that con­vict­ed mur­der­ers will not be released to the com­mu­ni­ty for lit­er­al­ly decades. The pub­lic wants to be sure that mur­der­ers will not, in fact, be released after a few years and that the fam­i­lies of vic­tims are com­pen­sat­ed for their tragedy. As these ingre­di­ents become stan­dard in the coun­try’s sen­tenc­ing schemes, the death penal­ty may once again become a minor­i­ty posi­tion in this country.

Sources

Methodology Used in Poll

The lat­est poll results cit­ed in this Report are based on a nation­wide tele­phone sur­vey of 1,000 reg­is­tered vot­ers con­duct­ed between February 28 and March 1, 1993 by Greenberg/​Lake and the Tarrance Group. The sam­ple was dis­trib­uted based on vot­er turnout in the last three pres­i­den­tial elec­tions. A sam­ple of this type is like­ly to yield a mar­gin of error of +/-3.1%.

[1] Savannah News-Press, Mar. 23, 1986, at 7C, (quot­ed in Paduano & Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty, 18 Columbia Human Rights Law Review 211, 213, n.4 (1987)).

[2] Lane, Is There Life Without Parole?”: A Capital Defendant’s Right to a Meaningful Alternative Sentence, 26 Loyola of Los Angeles Law Review 325, 390 (1993) (juror Robbins).

[3] M. Cuomo, New York State Shouldn’t Kill People, The New York Times, June 171989.

[4] R. Bohm, L. Clark, & A. Aveni, Knowledge and Death Penalty Opinion: A Test of the Marshall Hypotheses, 18 Journal of Research in Crime and Delinquency 360, 360 (1991).

[5] Editorial, No Parole Means What It Says, San Francisco Chronicle, April 13, 1990 (cit­ing a gov­er­nor’s study cov­er­ing 1965 to 1990).

[6] See, e.g., H. Bedau, The Case Against the Death Penalty 5 (1992) (mur­der rates in death penal­ty states com­pared to non-death penal­ty states based on the U.S. Uniform Crime Reports, 1980 – 89).

[7] H. Zeisel & A. Gallup, Death Penalty Sentiment in the United States, 5 Journal of Quantitative Criminology 285, 287 (1989).

[8] See, e.g., Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities, U.S. General Accounting Office, at 5 (1990).

[9] A. Gallup & F. Newport, Death Penalty Support Remains Strong, But Most Feel Unfairly Applied, The Gallup Poll News Service, June 26, 1991, at 4.

[10] See, e.g., Millions Misspent: What Politicians Don’t Say About the High Costs of the Death Penalty, The Death Penalty Information Center (1992).

[11] J. Horgan, The Death Penalty, Scientific American, July 1990, at 17 (“More than a cen­tu­ry of research in the United States and oth­er coun­tries … has pro­duced no evi­dence that cap­i­tal pun­ish­ment reduces the rate of mur­der or oth­er vio­lent crime.”).

[12] See, e.g., Tabak & Lane, The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty, 23 Loyola of Los Angeles Law Review 59 (1989).

[13] Radelet, Bedau, & Putnam, In Spite of Innocence: Erroneous Convictions in Capital Cases (1992).

[14] Id. at 271.

[15] Herrera v. Collins, No. 91 – 7328, slip opin­ion, at 26 (Jan. 251993).

[16] See Pierce & Radelet, The Role and Consequences of the Death Penalty in American Politics, 18 N.Y.U. Review of Law & Social Change 711, 718 (1990 – 91).

[17] See P. Applebome, Black Man Freed After Years on Death Row in Alabama, The New York Times, March 3, 1993, at A1.

[18] CBS-TV News show 60 Minutes,” broad­cast Nov. 22, 1992, showed the case unrav­el­ing with one of the chief wit­ness­es say­ing he lied at the trial.

[19] For oth­er exam­ples of pros­e­cu­to­r­i­al mis­con­duct in death penal­ty tri­als, see Killing Justice: Government Misconduct and the Death Penalty, Death Penalty Information Center (1992).

[20] Information regard­ing the var­i­ous polls is on file with the Death Penalty Information Center.

[21] W. Bowers & M. Vandiver, New Yorkers Want an Alternative to the Death Penalty, Executive Summary, appen­dix sum­ma­riz­ing oth­er state polls (1991).

[22] Zeisel & Gallup, note 7, at 290.

[23] M. Leary, Counter-Trend to Death Penalty Emerging in California, Pacific News Service, April 20 – 24, 1992, at 6 (report­ing on California and nation­al polls); see also Gallup & Newport, note 9.

[24] See Bowers & Vandiver, note 21, at 313.

[25] Bowers & Vandiver, Nebraskans Want an Alternative to the Death Penalty, Executive Summary, at 7 – 8 (1991).

[26] See Bowers & Vandiver, note 21, at 26.

[27] Cambridge Survey Research, Attitudes in the State of Florida on the Death Penalty, Executive Summary, at 5 (1986).

[28] Grasmick & Bursik, Attitudes of Oklahomans Toward the Death Penalty, Univ. of Oklahoma, at 21, 25 (1988).

[29] See, e.g., J. DeParle, Abstract Death Penalty Meets Real Execution, The New York Times, June 30, 1991 (only 36% of those in a Justice Department sur­vey vot­ed for the death penal­ty in sim­u­lat­ed cas­es typ­i­cal of those pun­ish­able by death).

[30] See Lane, note 2, at 333.

[31] Marquart & Sorenson, A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society from Capital Offenders, 23 Loyola of Los Angeles Law Review 5, 23 (1989).

[32] See J. Wright, Life-Without-Parole: An Alternative to Death or Not Much of a Life At All?, 43 Vanderbilt Law Review 529 (1990) for state statutes regard­ing life with­out parole sen­tences, espe­cial­ly at notes 70 – 129 and accom­pa­ny text. Some statutes have a spe­cif­ic sen­tence of life with­out parole; in oth­er states the restric­tion is in the parole reg­u­la­tions. In addi­tion to the states des­ig­nat­ed by Wright, Colorado, Oregon, Utah and the District of Columbia now have sen­tences of life with­out parole for some offenses.

[33] See Funding the Justice System: A Call to Action, the American Bar Association, at 54 (1992).

[34] B. Denson, The Pros, Cons of Throwing Away Key, The Houston Post, July 14, 1991, at A‑1.

[35] See note 5.

[36] A. Malcolm, Capital Punishment Is Popular, But So Are Its Alternatives, The New York Times, Sept. 10, 1989, at 4E.

[37] See Denson, note 34, at A‑1.

[38] J. Kerkhove, Lifer?, The Messenger, July-Sept., 1992, at 19.

[39] Letter from Robert Gold to the Death Penalty Information Center, Jan. 261993.

[40] See Michigan Department of Corrections Memoranda, Feb. 10, 1993 (Terry Murphy), and April 111991.

[41] For exam­ple, all 36 States that autho­rize cap­i­tal pun­ish­ment have pro­vi­sions for clemen­cy. Herrera v. Collins, No. 91 – 7328, slip opin­ion, at 23, n.14 (Jan. 251993).

[42] M. Radelet, Clemency in Post-Furman Cases, man­u­script (Nov. 291991).

[43] See notes 5, 38 & 40 above.

[44]Herrera, No. 91 – 7328, slip opin­ion, at 20 (foot­notes omitted).

[45] M. Leary, Counter-Trend to Death Penalty Emerging in California, Pacific News Service, April 20 – 24, 1992, at 6.

[46] E. Kolbert, As Vote on Death Penalty Nears, Cuomo Advocates Life Sentences, The New York Times, June 191989.

[47]The View From the Jury Box, The National Law Journal, Feb. 22, 1993, at S2.

[48] See note 1.

[49] See Paduano & Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty, 18 Columbia Human Rights Law Review 211, 216 (1987).

[50] See Lane, note 2, at 390 (empha­sis added). Ten of the twelve jurors expressed sim­i­lar concerns.

[51] Id. at 383.

[52] Id. at 334.

[53] Id. at 334, n.42.

[54] See W. Hood, Note: The Meaning of Life” for Virginia Jurors and Its Effect on Reliability in Capital Sentencing, 75 Virginia Law Review 1605, 1624 – 25 (1989).

[55] See, e.g., Dayan, Mahler, & Widenhouse, Searching for an Impartial Sentencer Through Jury Selection in Capital Trials, 23 Loyola of Los Angeles Law Review 151, 164 – 176 (1989). 56 King v. Lynaugh, 828 F.2d 257, 260 (5th Cir. 1987) (empha­sis added).

[57] Cypress Research and Development Corporation, let­ter and report to the Loyola Death Penalty Resource Center, Aug. 311990.

[58] The Sunday Times (London), Mar. 18, 1990 (quot­ed in G. Pierce & M. Radelet, The Role and Consequences of the Death Penalty in American Politics, 18 N.Y.U. Review of Law & Social Change 711, 725 (1990 – 91)).

[59]Californians’ Attitudes About the Death Penalty: Results of a Statewide Survey, pub­lic opin­ion poll imple­ment­ed by the Field Research Corporation in Dec., 1989.

[60] See Bowers & Vandiver, note 21, at 39.

[61]Death Verdicts Slip as No-Parole Grows, The Daily Oklahoman, Nov. 101992.

[62] Bureau of Justice Statistics, Capital Punishment 1991, at 8 (October, 1992).

[63] See Bureau of Justice Statistics, Report to the Nation on Crime and Justice, Second Edition, at 41 – 42 (March, 1988).

[64] B. Denson, see note 34.

[65] See Marquart & Sorenson, note 31. In 1972, all the exist­ing death sen­tences were over­turned by the Supreme Court’s deci­sion in Furman v. Georgia. In 1989, Marquart and Sorenson looked at the cas­es of the 558 inmates whose death sen­tences were com­mut­ed to life impris­on­ment by Furman. Of these, 243 of the inmates were released to the com­mu­ni­ty. Only one of those released com­mit­ted a new homi­cide. Id. at 22 – 24

[66] See note 63 (ages of those arrest­ed for vio­lent crime); see also Capital Punishment 1991, note 62, at 10 (ages of those admit­ted to death row).

[67] Katz, In Mich., Life Without Parole, Newsday, June 20, 1989, at 5. Thomas Coughlin, (for­mer) Commissioner of the New York State Department of Correctional Services made sim­i­lar state­ments about true lif­ers” in New York. See Tabak & Lane, note 12, at 124 – 25.

[68] See Wright, note 32, at 549.

[69] S. Eisele, Lifers Help Youths Stay Out of Jail, Philadelphia Inquirer, Mar. 20, 1991, at 1‑B.

[70] See M. Mauer, Americans Behind Bars: A Comparison of International Rates of Incarceration, The Sentencing Project, at Table 1 (Jan., 1991).

[71] W. Bowers & M. Vandiver, People Want an Alternative to the Death Penalty: A New Look at Public Opinion, (draft, to be pub­lished in Law & Society Review), Jan. 151993.

[72] See, e.g., B. Galaway, Restitution As Innovation or Unfilled Promise?, 52 Federal Probation 3 (1988).

[73] See Restitution: Eligibility/​Types of Restitution Allowed (Draft), National Victim Center, Arlington, VA (1993).

[74] See, e.g., Millions Misspent, note 10.

[75] Letter from Marietta Jaeger to the Death Penalty Information Center, Feb. 171993.

[76] Memorandum to Senator Joseph Biden, Chairman, Senate Judiciary Committee, from James S. Liebman, Professor of Law, Columbia University School of Law: Rate of Reversible Constitutional Error in State Capital Convictions and Sentences that Underwent Federal Habeas Corpus Review Between 1976 – 1991 (Revised), July 15, 1991, at 4; see also Editorial: Virginia Murder, Federal Review, The Washington Post, Dec. 6, 1991. Forty per­cent of the cas­es that sur­vive review in state court are reversed in fed­er­al courts.

[77] Payton, How Parents of Slain Children Cope, Oakland Tribune, Mar. 6, 1987, at C7.

[78] T. Mathis, 1 The Voice 2, pub­li­ca­tion of Murder Victims Families for Reconciliation (March 1992) (quot­ing her mother).

[79] Letter from William Pelke to the Death Penalty Information Center, Feb. 71993.

[80] M. Cuomo, New York State Shouldn’t Kill People, The New York Times, June 171989.

[81] M. Humbert, Annual Death Penalty Battle Resumes in NYS, The Cortland Standard, Feb. 5, 1990, at 11.

[82]Instead of Death Penalty, Life Without Parole, Editorial, The New York Daily News, May 20, 1992, at 34.

[83 ] Jolt to Death Penalty: Voters Reject 2 of Its Backers, N.Y. Daily News, Sept. 13, 1990, at 11.

[84] Coley, Senate Eliminates Life Without Parole Sentence, UPI, March 191986.

[85] S. Friedman, No-parole Irks Prosecutors, Houston Post, May 6, 1991, at A‑1.