Sentencing for Life: Americans Embrace Alternatives to the Death Penalty

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

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%.

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. ”

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 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 1^st 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.

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 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]

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. 

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.

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]

“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.

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.