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.

Opponents of capital punishment often point out that the United States is the only developed Western country still executing prisoners, a comparison meant to shame us for being aligned with such human rights–violating countries as Iran, China and North Korea. It’s not a bad argument, but exactly the same could be said about life without parole. Our neighbors to the south don’t have it. Almost all of Europe rejects it. Even China and Pakistan, hardly exemplars of progressive criminal justice policy, allow prisoners serving life sentences to come up for parole after twenty-five years. Meanwhile, the United States imprisons wrongdoers for sentences that are five to seven times longer than sentences for comparable offenses in, say, Germany. Yet the recidivism rate in Germany is roughly 25 percent lower than ours.

Abolitionists might say in response that there are plenty of other reasons to support life without parole over the death penalty. It is less expensive, for example. This is true; carrying out an execution costs at least twice as much—and perhaps five times as much—as sentencing a murderer to life without parole. The Yes on 34 campaign argues that the measure would represent $130 million per year in savings for California.

Combined with the innocence argument—undeniably effective in a nation rattled by 300 DNA exonerations— this strategy seem to be working. Last year, a Gallup poll recorded the lowest level of support for the death penalty in forty years. Compared to a decade ago, when juries sentenced 224 criminals to death in a year, in 2011 American juries sent seventy-eight people to death row, the first time since 1976 that new arrivals on death row dipped below 100. Even in Texas—especially in Texas—which became the last death penalty state to adopt life without parole, in 2005, the decline in death sentences has been precipitous.  In 1999, Texas juries added forty-eight inmates to death row. Last year’s number was eight.

There’s no question that touting life without parole as the moral and cost-effective alternative to the death penalty has been a successful short-term strategy. But then what? Is it really necessary to eliminate any possibility of eventual release for all 725 people on California’s death row? Charles Manson is not serving life without parole, but he has been rejected every single time he has appeared before the parole board and will die behind bars. Are some of California’s death row inmates as monstrous as Manson? I suspect the answer is yes, and the parole board could keep them in prison too. But there are scores, even hundreds, who could be released at no significant risk to society.

We know this because it has happened before. When the Supreme Court briefly struck down the death penalty in 1972, 587 men (and two women) had their death sentences instantly converted to life, and more than half of them were eventually paroled. Of the more than 300 who got out, five committed another homicide.

That’s five deaths too many, you might say, and I would not disagree. But that’s not really the question. The question is whether we need permanent sentencing to prevent such crimes. The question is how much safer we are by having a punishment that forecloses on any possibility for redemption. The question is whether any marginal increase in safety and savings are justified by the high cost of keeping aging inmates behind bars until they die.

This series of questions, you might have noticed, is exactly the same as the set one might ask in the face of capital punishment.