If you were sentenced to life in prison with no chance of release, how long would you want to live? Would you want to live at all?
I think about these questions often. My clients, inmates on death row, think about them every day. In more than twenty years of representing prisoners facing execution, I’ve had several ask me to waive their appeals so they could hurry up and die. There are some who think any client who “volunteers”—that's our euphemism for giving up—is necessarily irrational. I don't share that view. To be sure, two of my clients who told me to waive their appeals were mentally ill, and I fought to keep them from volunteering to die. But the others were perfectly rational. They did not want to spend at least six years, maybe fifteen, appealing their sentences, only to ultimately be strapped to a gurney and injected with poison.
It’s easy for most people to see their decisions as unhinged. We don’t spend twenty-three hours a day in sixty-square-foot cells with no TV, limited access to radio, books or magazines, and no contact with other human beings (unless you count being escorted from point A to point B by often sadistic corrections officers). I’ve had clients who want me to fight for them, and then when we win and get their death sentence converted into life, end up telling me I’ve betrayed them.
Let me be clear: most of my clients want to live. Most of them prefer a life of virtually no freedom to no life at all. But underlying this preference is a hope, however faint, they might one day get out.
On November 6, Californians will vote on Proposition 34, the Savings, Accountability and Full Enforcement (SAFE) for California Act. The ballot initiative would abolish capital punishment in the state and replace it with a sentence of life in prison without the possibility of parole. Every week I get e-mails from national abolitionist groups touting the virtues of Prop 34. Facebook ads urge me to “like” it. But there are good reasons to believe that if the vote were up to the 725 inmates on California’s death row, it would fail. When the Campaign to End the Death Penalty sent surveys on Prop 34 to more than 200 California death row prisoners, fifty inmates responded. Forty-seven opposed the measure.
For California's 725 death row inmates, having their sentences commuted to life without parole would mean automatically losing their right to state-appointed lawyers to pursue their habeas corpus appeals. For a huge proportion, this would instantly rob them of every last ember of hope and increase by up to 20 percent the number of California inmates who will grow old and die behind bars. One California death row inmate recently wrote an op-ed opposing Prop 34 suggesting that he’d rather be executed than have his opportunities for appeal taken away. In a state that has executed only thirteen people since 1976, it would take two millennia to kill every current death row inmate, a fact that also helps explain how prisoners might oppose Prop 34.
Concerns over innocence seem to be at the heart of Prop 34. “California Leads the Nation in Wrongful Convictions,” read a press release from the Yes on 34 campaign on October 24. “More Evidence that California Needs to Pass Prop 34 to Prevent Execution of an Innocent Person.” Prop. 34 supporters point out that those with strong claims of innocence will still be entitled to receive court-appointed counsel. But few of the residents of death row will be able to make such a showing.
A different kind of death sentence
The justifications given by death penalty opponents who have embraced life without parole reveal the extent to which abolitionists have surrendered the moral basis of their position. It used to be that abolitionists argued that most people who commit bad acts can change and that the cruelest punishment one can inflict is to rob a human being of hope. But this concept—I hesitate to use the word “rehabilitation”—has seeped out of the criminal justice system over the past forty years. Prisons are now designed almost entirely for security in mind and not at all for socialization. Sentences have gotten steadily longer. And while states are turning away from the death penalty, they are replacing it with a different kind of death sentence. Sending a prisoner to die behind bars with no hope of release is a sentence that denies the possibility of redemption every bit as much as strapping a murderer to the gurney and filling him with poison.