Rebecca Burns is an In These Times contributing editor and award-winning investigative reporter. Her work has appeared in Bloomberg, the Chicago Reader, ProPublica, The Intercept, and USA Today. Follow her on Twitter @rejburns.
Maryland has executed only five inmates since 1976, and in March the state legislature passed a bill abolishing the death penalty entirely. Of the 32 states that still have the measure on their books, 13 have not carried out any executions in the past five years. This gradual retreat from capital punishment is celebrated by activists who note that U.S. use of the death penalty, long abandoned by the rest of the developed world, places it in the company of human rights abusers such as Bahrain and North Korea.
But this is far from the only way in which our criminal justice system is singular. The U.S. imprisons more people than any other country in the world, and locks them away for increasingly long periods of time. Since 1990, the average length of prison sentences in the United States has increased by nearly 40%. When states repeal the death penalty, they typically replace it with life without possibility of parole — a sentence rejected as inhumane in states such as China and Pakistan, which allow prisoners to come up for parole after 25 years. While some anti-death penalty campaigners argue that abolition will clear the way for broader sentencing reform, others believe that the movement has settled for narrow victories instead of building a broader front against mass incarceration.
In These Times discussed the possibilities for death penalty abolition with I. Bennett Capers, a professor of criminal law at Brooklyn Law School and former federal prosecutor; Richard Dieter, executive director of the Death Penalty Information Center; and Lily Hughes, national director of the Campaign to End the Death Penalty.
If there is a flaw in the system, the flaw exists whether they were sentenced to death or sentenced to life without parole.
Maryland just became the 18th state in the U.S. to repeal the death penalty, and Delaware may soon follow. What does this mean for the movement to abolish capital punishment?
Richard: We’re seeing the beginning of the end of the death penalty. In the past decade, death sentences have dropped by about 75 percent and executions by over 50 percent. There were 43 executions last year, but they were carried out across just nine states. So the death penalty is really becoming isolated, marginalized and irrelevant to the rest of the country.
Lily: At the same time, the Campaign to End the Death Penalty has been troubled by the development of a more and more conservative approach to the question of death penalty abolition. We’re one of the only anti-death penalty organizations that has a stance on life without parole: We don’t view it as a just alternative. Anti-death penalty campaigners need to do more to address the way that the whole criminal justice system operates.
Bennett: In the fight for abolition, we can’t ignore life without parole, which is fast becoming the new death penalty. Between 1992 and 2009, we saw a 300 percent increase in the number of life without parole sentences. In most campaigns for repeal, activists make the argument that getting rid of the death penalty will not be such a bad thing because we’re going to keep people locked up without the option of parole anyway–which helps normalize it.
Could activists be successful in repealing the death penalty without embracing life without parole as an alternative?
Richard: No. You could theoretically propose it, but I don’t think it would get enough votes. Right now, life without parole is the alternative if you want to get rid of capital punishment. As long as you have the death penalty, life without parole appears to be a gift. If we got rid of the death penalty, then life without parole would be left as the most extreme punishment, and I think attention could then be focused on its negative aspects.
Lily: I have to disagree. Life without parole shouldn’t be promoted by activists as a short-term strategy for abolition, only to try to return to the issue later and attack life without parole. [This won’t work] once life without parole has been cast by campaigners as a just sentence.
Bennett: Look at what happened in Illinois [following abolition of the death penalty in 2011]. Abolitionists celebrated when Governor George Ryan took 167 defendants off of death row, saying he was too uncomfortable with the idea that those people might be executed in error. But most of their sentences were commuted to life without parole. If there is a flaw in the system, the flaw exists whether they were sentenced to death or sentenced to life without parole.
An axiom of our legal system is that “death is different,” and requires special consideration. How does this idea shape campaigns to end the death penalty?
Bennett: The whole mantra that “death is different” is part of the problem. As a prosecutor, when I was confronted with a death-eligible case, [my team] would put in immense resources because we knew that judges would make sure to dot every “i” and cross every “t.” But when defendants were facing life without parole or an equivalent, we’d treat those cases like part of an assembly line. Those cases become invisible—it’s hard to imagine coming back to them after we get rid of the death penalty. We don’t worry and lose sleep over the defendants who will never see the light of day again.
Richard: Death is not the same as life in prison. Living is different from dying—there’s no doubt in my mind about that. But there are limited resources in our system, and right now the death penalty totally distorts their distribution—it takes millions of dollars and hours of time to do one case. Once we end the death penalty, those resources can be applied to other cases. So I think death penalty abolition will restrict life without parole sentencing, not expand it.
Lily: I actually agree that the death penalty is particularly cruel and finite. At the same time, life without parole is essentially a sentence of death in prison. The only way out depends on access to an attorney, which is generally not state-funded [for appeals on non-death penalty cases]. Casting death penalty repeal as a cost-saving measure may appeal to conservatives, but we need to stop talking about cutting costs when we actually need to be expanding resources for defense and access to appeals.
Some of the most common arguments for abolition of the death penalty are that it’s rife with racial discrimination, wasteful of public resources and ineffective at deterrence. Do the same arguments apply to other forms of extreme punishment?
Bennett: The racial bias actually appears to be even worse in life without parole sentencing. Blacks represent 35 percent of individuals sentenced to death since 1977; they represent half of those sentenced to life without parole.
Richard: Race is undeniably an issue that permeates our criminal justice system. But on some of the other questions, I’m not so sure. Capital punishment is particularly demanding of resources, because death penalty trials require separate conviction and sentencing phases. On deterrence, the question is: Does the death penalty add any more deterrence than a life sentence? Many studies indicate that it does not. We don’t know yet whether this is the case for life without parole. Again, the death penalty is crowding the stage, and once it goes, there’ll be much more room to investigate these problems.
Four more states may consider death-penalty repeals this year. Looking ahead at these campaigns, is there a way to maintain momentum on abolition while also addressing these concerns about life without parole?
Richard: When it comes down to lobbying for a bill that you want to pass, if you have a whole range of reforms that you want in society, that won’t be effective. This kind of approach is fraught with compromise, but it’s part of the messy process of getting something accomplished. We are starting to see changes on some of the overriding principles—last year, the Supreme Court limited the use of life without parole sentences for juveniles.
Lily: The Campaign to End the Death Penalty’s stance against life without parole hasn’t made it impossible for us to view the passage of state-by-state death penalty repeals as a victory. In Maryland, the questions of racial bias and wrongful conviction [played a big role in the campaign], and I think emphasizing these points and changing public opinion around them is a much better strategy than promoting life without parole as a just alternative.
Bennett: A significant portion of the death penalty abolitionist community right now believes that death is wrong no matter what—even if the person is guilty. I’d like to have that same conversation about extreme punishments like life without parole. I think right now is the time to make the argument that all extreme punishments are problematic. One in 11 prisoners is now serving a life sentence. We need to realize that the problem is that, as a society, we’re just punishing far too much across the board.