Legitimizing Death: The Effect of the Anti-Death Penalty Campaign on Long-Term Sentencing

In 1972 the US Supreme Court struck down capital punishment in a case called Furman v. Georgia – a ruling that became known as the “Death is Different” decision. It was dubbed this because of what Justice Potter Stewart wrote in the decision:

More than six hundred prisoners on death rows in the thirty-nine states that had death penalty statutes at the time received a reprieve, and opponents of capital punishment celebrated. But death penalty opponents were not aware of the political firestorm that would follow, nor of the effect it would have on prisoners in the future. We (that is, us prisoners) wonder if they are still unaware.

Prior to Furman, a life sentence in our state meant that a prisoner was reviewed after 13 years, 4 months. The crime he committed and the circumstances of his life leading up to his incarceration were weighed against what he had done while in prison. It was possible that he might never be released from prison, On the other hand, if his actions were commendable enough, he would be instructed on what else he needed to accomplish in order to be considered tor release at some point in the future.

After Furman, however, in the subsequent vacuum of a court-imposed moratorium on capital punishment, and uncertainty about whether it would ever he allowed again, our state enacted a Life without Parole (LWOP) statute. The intent was to create a different sentence than a traditional life sentence for those the state would otherwise have put to death – a sentence that would share more in common with execution than incarceration. And our state wasn’t alone; we were part of a nationwide backlash against Furman. Today, Forty-nine states, as well as the federal system, have some form of LWOP.

Toward the end of the l970`s, though, many states – including our own – managed to reinstate capital punishment by adopting procedural safeguards set forth by the Supreme Court. But LWOP wasn’t taken back. Neither was it fitted with the same safeguards. It`s a mandatory sentence, which means that in non-capital cases it`s neither handed down by a judge nor given by a jury. Instead of taking over for execution, LWOP became another sentence altogether – one with much less protection against its misapplication.

The problem with adding LWOP to our state sentencing system was that it infected the system with an insidious type of inflation. Use of the sentence quickly expanded beyond those who faced the death penalty; it was extended to include individuals who, prior lo its enactment, were viewed as reformable – as well as the mentally ill, the mentally and physically handicapped, and (shame on society for this) juveniles. This expansion changed the template (or. what is known in legal circles as the “going rate”) for all sentences, especially long-term ones. It made “de facto” LWOP sentences common (that is, sentences that aren`t actually LWOP. but are so long that they may as well be). You can trace the course of this inflation through the states sentencing guidelines – a lengthening and harshening of sentences every year since LWOP was appended to the system. And when you look at crime data and read old cases in law books, you realize this isn`t because people are worse nowadays. In most instances, they were worse in the past. It’s simply that LWOP is a hard act to follow, once you start giving that sentence to people, every other sentence seems inadequate. You lose sight of what the incarceration system was instituted for; the original intent of corrections; the potential, proper utilization, and possibility of prison. There literally becomes no sentence that is long enough.

This doesn`t aid the cause of death penalty opponents either. Attorneys might find the alternative of LWOP useful in convincing a jury in a particular case to abdicate to it rather than choose execution, but overall the use of LWOP and de facto LWOP sentences only feeds the societal demand for capital punishment. When so many non-capital offenders are sentenced to die in prison, LWOP no longer seems a just or reasonable alternative for someone society is angry enough to want to execute.

Death in Prison sentences have changed what incarceration is for. The more than six hundred prisoners on death rows across the country at the time of Furman served an average of eighteen years before they were released. That’s inconceivable compared to the way it is now. Today, very few prisoners sentenced to die in prison ever faced the death penalty. In fact, most LWOP`s are non-homicides. And it`s been this way for so long now it seems natural, as if our criminal justice system and prisons are supposed to be used this way, the way it has always been.

But it isn’t. There isn`t a precedent for this in any other country today. Neither is there one at any other time in the history of our own country. One in every eleven prisoners in America today is sentenced to life. That is not what prison as an institution was founded to do.

Prison is no longer used to reform individuals – it`s a warehouse. But even that description isn`t accurate because a warehouse doesn’t harm what it stores, and the same can`t be said about prison. Even among those with manageable sentences, prison has become where hopelessness, failure, and recidivism is cultivated. Using prison to throw men (and women) away forever – many of whom were sent here as young people and who have long since reformed themselves – robs resources from the effort to reform those who need it, and to help the young people outside prison whose lives aren`t so nice, There are many young people in our state who don`t have access to u meaningful education, or even a place to live, because this is what’s being done instead. These are the young people who pour in here every week off chain buses, and they will continue to do so as long as this is what prison is used for.

A prison system should guide the reform of its young prisoners through hope and education. One that instead subjects them to indignity and humiliation, long-term solitary confinement, labor exploitation, medical neglect, debt they can’t ever pay off, and alienation from their families and communities, isn`t justice for anyone. Whether people outside prison realize it or not. it`s not justice for them either.

Of the sixteen and a half thousand prisoners in our state, over two thousand are sentenced to die behind these walls. That’s the true size of death row.

Remember Justice Potter Stewart’s words?

Death was different in l972, Justice Stewart – but it isn’t anymore.