Apparently, America is losing its stomach for state-imposed death—if prompted by the injection of lethal drugs into the body of the condemned. However, if death is the result of a long, lonely, pointless life behind bars, America is still on board.
Many opposed to the death penalty are celebrating what appears to be the beginning of the end of capital punishment. However, there is another kind of death penalty thriving in America: Life in prison without the possibility of parole— a more subtle, yet real, sentence of death.
There are about 3,000 inmates on death rows around the U.S. According to the Sentencing Project, more than 49,000 men and women are serving life without parole. Life sentences have increased 22.2 percent since 2008, because death penalty abolitionists have successfully argued for life in prison as an appropriate alternative to the death penalty.
This year will end with 28 executions—the fewest in nearly a quarter century. The death penalty has been under siege for several years. A number of states—Connecticut, Illinois, Maryland, New Jersey, New Mexico, New York, and Nebraska—have recently abandoned capital punishment. The governors of four other states—Colorado, Oregon, Pennsylvania, and Washington—have imposed execution moratoriums.
Three states—Texas, Missouri and Georgia—accounted for 86 percent of all executions in 2015; yet about 61 percent of Americans continue to support the death penalty, according to a recent Gallup poll.
The argument has long been made that the U.S. is the only developed Western country still executing prisoners, often comparing America to countries such as China, Iran and North Korea.
The same can be said for life in prison without the possibility of parole.
Almost all of the nations of Europe reject life without parole; even lifers in China are eligible for parole after 25 years, according to Prof. David R. Dow of the University of Houston Law Center, writing in The Nation. And it should be noted that the U.S. is the only country in the world that currently sentences juveniles to life without the possibility of parole. Approximately 2,570 inmates nationwide serve life-without-parole sentences for crimes they committed as juveniles.
Even some death row inmates will tell you that life in prison is no bargain. Sure, a life sentence—like a death sentence—is likely to end in a prison death; but lifers have few of the procedural rights and opportunities for review afforded death row inmates.
Death by execution, as opposed to death by the passage of time, is different. Those subject to the death penalty have what is referred to as “super due process.” The condemned have legal counsel appointed to represent their interests throughout the process. A person sentenced to die in prison receives only one automatic appeal, and is not provided court-appointed counsel after the appeal is complete.
Andrew Dilts, an assistant professor of political theory at Loyola Marymount University, wrote in Death and Other Penalties: Philosophy in a Time of Mass Incarceration that life without parole appeases the “almost fetishistic levels” of concern over execution while it “effectively deflects attention away from the moment of death, even though death is necessarily a part of the sentence.”
The result, according to Stephen Lurie in the New Republic, is simply a “dramatic reduction of appellate rights” for inmates who are still condemned to die. It's a slower death with even less chance for redemption.
Therein will be the rallying cry for criminal punishment reformers. As the death penalty disappears, super due process will be demanded for those now facing America's most severe sentence: life without the possibility of parole.
Eighth Amendment challenges, direct review, bifurcated trials and unlimited collateral attacks await the “new” death penalty—death by passage of time. Life without parole is the next frontier for death penalty abolitionists.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner's Toll, 2010,” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino. He welcomes readers' comments.