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Why death-row inmates oppose life without parole

Jonathan Simon, professor of law | September 25, 2012

Reporting on the font page of the San Francisco Chronicle today (Sept. 25, 2012), Bob Egelko finally says what many of us who visit San Quentin prison have known for months: most  of California’s death row inmates oppose Proposition 34 — the voter initiative on this November’s ballot that would abolish capital punishment and replace it with Life With Out Parole (LWOP) even retroactively. (Read the story here.) Yes that’s right, prisoners who face a lethal injection unless a court overturns their death sentence or conviction are opposed to a law that would immediately accomplish what many of them have been litigating to achieve for years, the removal of their death sentence.

That is so counter-intuitive to what most people believe about capital punishment that its worth repeating.  People on death row, not just folks in an abstract all night dorm room discussion about whether death or LWOP is worst, but folks actually condemned to die, prefer to continue with their death sentence.

The story correctly emphasizes the importance of lawyers in explaining this seeming paradox. Everybody convicted of a serious felony like murder receives a court appointed lawyer to prepare an appeal, generally to the state courts and to the US Supreme Court. But even when those appeals fail, and the vast majority do, death row prisoners get a court appointed lawyer to continue a second line of appeals known as habeas corpus, in both state and eventually federal courts.  These appeals are very valuable for two reasons.  First, they allow the court to consider many aspects of the underlying case against the defendant, like the police investigation and the prosecution’s conduct, that are generally not reviewed on direct appeal. Second, as the Chron story points out:

For condemned prisoners, it often represents their best chance to stave off execution by presenting their claims to federal judges, who are appointed for life, rather than elected state judges. A ruling that leads to their acquittal, or even a finding of innocence, is also more likely in habeas corpus than in the earlier direct appeal.

Many prisoners hold out the hope that their conviction will be overturned and they will be able to go home.  Ending their right to court appointed lawyer on habeas would close that door forever to most if not all of them (a handful might find lawyers to voluntarily continue their appeal).

Voters who support the death penalty should think carefully this November before they vote “No.” If you defeat Proposition 34, you will be continuing to give people convicted of capital murder exactly what they most desperately want — a lawyer that will help them get out of prison.

Less explicitly discussed but quite clear from the above, is how punishing a true LWOP sentence is. The prospect of never being released from prison ever, with not even a low odds hope for an appeal or a parole board decision in your favor, is terribly terribly punishing. In California it is compounded by the fact that prison conditions are extremely poor due to overcrowding and in recent years according to the Supreme Court, the prospect of torture through abysmal or non-existent medical treatment (see Brown v. Plata).  Death row inmates in California have a cell to themselves, receive more attentive supervision and visits from their lawyers, not to mention a measure of international celebrity and the scores of pen pals that brings. All of that disappears when your death sentence is vacated (as all of them would be should Prop 34 pass), and you get dumped into the long dark tunnel known as LWOP.  In short, just as Cesare Beccaria argued more 200 years ago in his On Crimes and Punishment, true life is worse than death as a punishment, and thus as a deterrent.

We could make it even more so by actually paroling murderers who have received a non-LWOP life sentence, as the law itself requires, but which California’ politicized process has stymied for years. If we began to parole most prisoners convicted of 2nd-degree murder after 15 years, and those convicted of 1st-degree murder after 25 (as the law requires), those persons sentenced to LWOP would see the reality of the grim fate they have been assigned to.

I personally oppose LWOP as “cruel and unusual punishment.” I will vote for Proposition 34  because it will at least take us to a more honest place, where we acknowledge what we are actually doing in California. After that we can begin to have a more realistic conversation about what punishment can achieve and how long that takes. We should reform our state courts so that they are not a rubber stamp of sometimes deeply flawed convictions, and we should reform parole so that prisoners who atone and seek to reform themselves in prison face a realistic chance of going home. Sadly, only one of those things is on the ballot this November.

Cross-posted from Jonathan Simon’s blog Governing Through Crime

Comments to “Why death-row inmates oppose life without parole

  1. I don’t understand, the inmates were already were tried and sentenced (that cost a lot of money). If we don’t speed up the execution, you are right it will cost a lot more money to house the inmates. Now we are staying the cost to execution is costly, not as costly to house these individuals. I did not see any reports of innocent people being executed, they were released. Then we have to pay for wrongly accusing. What did the victim get, a short life due to some person ending it, why should we continue to pay for these people! Execute, as they were sentenced. The governor needs to stay out of the justice system. What is the point of having a justice system and all the costs, if someone is going to stop what we are advised to believe in! DON’T TRANSFER, EXECUTE!!!

  2. I feel even though these men/women have done many evil crimes, I do not believe that it is souly right or just to take the life of another human being. Killing doesn’t do any good for anyone, because all killing does is bring about more killings…. pain and suffering for all involved. I feel that it doesn’t justify anything, as killing these people doesn’t bring that victim back.

    Plus I’ve read a lot of last word notes that the inmates have said as their final words, and I have to say they have moved me to tears, to be honest, as a lot of them are truly sorry and have found God and religion and faith. So I don’t feel that we as a race should belittle or judge, as there is only one judge and that is the heavenly father himself. Reading their notes on the net have opened up my eyes to the fact that none of us holds the power over God and should never even attempt to.

    Hopefully one day we will all find peace and love and all this fear and hatred will cease. I used to judge, but after reading what I’ve read, it is true that only God is judge and that’s all I got to say about it. Yes, they did wrong, but two wrongs don’t make a right. We should learn to love one another and help one another; in Jesus’s name, let there be peace….

    • I’d only say to your comment that according to Gods laws, Thou shall not kill. But those that break His rules Are Subject to Punishment. And He also states, Thou shall follow my laws as long as they don’t conflict with mans laws. Meaning, follow His words and rules but if they conflict with mans laws, you’re to follow man first…
      But if you think about it, none of His laws would contradict mans laws anyway.
      Both say Don’t Kill, Don’t Steal or Don’t Cheat (commit adultery).
      He even says if you only had $50 and had a $55 fine to pay, don’t worry about any tithes until you’ve paid your debts.

  3. Inmates on death row are afforded many luxuries that those serving a life-without-parole sentence are not given. LWOP inmates are in G-Pop in over-crowded, conditions without the basic medical care. Death-row inmates have their own cells, more privileges, access to immediate medical care – mental and physical.

  4. When death row inmates get released it is because they have been found not guilty. You seem to have been making an argument that people should have voted in favor of Proposition 34 because otherwise people on death row whom currently after further investigation get found innocent will then not have the chance to prove their innocence. Tell me now, if you got arrested wrongly for murder and found guilty because you couldn’t afford decent representation so had a court appointed lawyer should you just be left to rot, whilst the actual guilty person runs free?

  5. Since when does a murderer have more rights than the victim, and victims survivors? I am quickly losing faith in our judicial system. Evidence being kept out due to prejudice, (please give me a break)…etc. our judicial system needs some balls!

    Execute in a timely manner. No education in prison for LWOP. Why educate someone that never gets out? Funny how those who commit murder suddenly have remorse.

    This Jodi Arias case makes me sick. How one sick individual can manipulate our system. Found guilty and is still manipulating. Let her kill herself, it will save the taxpayers money. The victim trashed….that alone should escalate her execution. Also, why put in psch ward? Drag her to court in a straight jacket for sentencing…..

  6. I think the death penalty in great for child malestors, terrists, and anyone who kills a man. Thats what i believe because there is a sollution for every law and right.

  7. The appeals process needs to move faster and death sentences need to be carried out in a more timely manner. Way too many rights are afforded convicted inmates.

    Also the bare necessities of life are a privilege not a given and its not free. Inmates should have to work for their keep and food, and if they wont then they don’t eat. A college education is a privilege that is not attainable for many, so why can inmates anywhere in the U.S.A.get one for “free”?

    I will gladly pay for the bullets. What a waste of government resources.

  8. We got to remember people, THE GOVERNMENT’S JOB IS TO PROTECT AS MANY RIGHT AS THEY CAN BY ORDER OF IMPORTANCE. We all can agree that life is the most important because without it, the other mean nothing. Yes, he violated the right to leave of another, but by saving their life, the government is doing their job. These rights are unalienable, so even for a murder, they must be protected. As for cost, most people just being on trial for murder have to stay in prison. One man was in there for more than 11 years. Plus the price of the court, its much more than life in prison. And remember, a dead man cant work off his debt, a live one can.

  9. whoever thinks the death penalty is more expensive than life in prison than your wrong. even tho the death penalty is more expensive up front its cheaper over the long run. in prison we also have to pay for their good living there food, some prisons even offer education and jobs that we pay them for. so were actually support someone who took another life. some say the we have no right to take a person life. but who gave them the right to take someone elses?

    • I see your point, however education in prisons is soon to be completely out of the picture if not already. As for your last statement, that works in reverse, think about it: “lets solve murder with more murder.” You can’t tell me there is not a cycle going on. Plus if you believe they did not have the right to kill someone (which, make no mistake, i agree with 100%), would that not mean that you, everyone that agrees with you, and the jury and/or judge also would not have the right to kill a man a.k.a death sentence.

      Killing is bad point blank. I think no person should kill another person, therefore killing people off won’t teach our future generation how bad it is. That only is continuing a cycle of endless death.

  10. I in general support the death penalty, mainly as a deterent. However I voted in favor of the proposition from a pragmatic perscpective. Liberal California will never re-implement the penalty and the legal and other associated expense is a waste of our tax money that can be used for better purposes.

  11. we can’t afford a death penalty right now people!!!!
    by us trying to make life fair, by playing judges and gods towards criminals we are only making our deficit bigger.

  12. These people should be executed must faster. The vast majority are sociopathic. Many are gang bangers who have truly fucked up communities. A quick, easy death is too good fr them. We should have a system where they get one appeal within 6 months then whack, bye bye.

  13. I would vote no for LWOP you kill someone you deserve to be carried out by justice. That is moral , it is not revenge. Like nine 11, we carried out justice on the criminal mastermind who killed millions of innocent victims. Murders deserve to be punished for their wrong doing, especially three stricks. LWOP is a luxury, a death sentence is not.

    • Hi Lori,

      I’m doing a story about Prop 34, and am looking for people who are against it, and was wondering if you are interested in being interviewed? It’s for CalTV, which is UC Berkeley’s online news station. If so, please let me know at

  14. I prefer the “more honest place” of removing the extended delays and applying the death penalty within a reasonable time period. Let’s be honest and keep the promise made to the victims as well as all law-abiding citizens of California. Let’s be even more honest about how DP opponents have contributed to the extended and expensive legal torture of everyone involved. We all know that the anti-LWOP arguments will heat up immediately after a Anti-DP win – so just stop with the Life Without Parole is worse argument (unless it’s the victims and society you’re referring to.)

  15. This is an interesting and important and new (to me) perspective. I share your sense of what LWOP means and I’m grateful for your clarity about it. But I think the claim that those on death row are opposed to 34 is not entirely correct. There are a number who favor 34, including the 14 who have exhausted all legal appeals and will be executed within the next couple of years without Prop 34 passage.

    I, too, will vote for the “more honest place” that 34 puts us in — then on to the next step of abolishing LWOP.

  16. I am against LWOP. It’s truly a spirit crushing sentence, but I think of the nearly 20 men who are completely out of appeals, and if we don’t pass Proposition 34, they will all be executed very very soon. I know some of these men and they do not deserve to die.

    We in California have lived with a Death Penalty that in the past few years has become more theoretical than real. No one has been executed in over 6 years, but that is going to change in a matter of months. Month by month more appeals are reaching the end of the line. The appeals process rescues only a very few, and they end up with LWOP. Men far back in the appeals process can afford to wait for something better, but the price of that waiting for a better end to the death penalty is going to be the lives of many condemned inmates.

    I deplore LWOP, but I support Proposition 34 because the killing must stop. NOW. This is our chance to end the State killing of human beings. Then we can work to make more improvements in the system. Without the Death Penalty, the way is clear for sentencing reform, and sensible treatment of those who make terrible mistakes. Without the Death Penalty there won’t be plea bargains ending in LWOP. The harshest punishment sets the bar for all punishments.

  17. Kudos to the SF Chronicle giving coverage along with the San Francisco Bay View and Campaign to End the Death Penalty and California’s Democratic Progressive Caucus’ fight to make sure prisoner’s voices are heard on this important proposition on November’s ballot.

    Prisoners including Correll Thomas and Kevin Cooper are willing to tango with the executioner rather than live out the rest of their lives in prison for a crime they didn’t do, or send the rest of their brothers and sisters on the row to the death penalty of life in prison without parole without legal representation. Kevin Cooper who has legal counsel who promises to represent him even if Proposition 34 passes takes an exceptionally moral position, because if 34 fails, he has no legal remedies between him and the date with the executioner other than our governor’s mercy. Yet, he has the courage to tell us that life without hope, is no life at all.

    Natasha Minsker, a fearless leader for Prop 34 and the ACLU, makes it clear here that prisoners, should Prop 34 pass, would be in no worse position than those already serving LWOP in California state prisons. But, let me remind you there are approximately 4,400 of those serving that death sentence!

    What one might ask themselves is, is that the paradigm we should take? Or, should we be concerned about the lack of counsel for men and women whose lives have been taken who, given the federal law of the Antiterrorism and Effective Death Penalty Act (AEDPA), one year after being resentenced to LWOP and their direct appeals being denied, must have a habeas on file, or they lose their right to review forever, not having legal counsel in what is such a complicated area of law, even most attorneys do not qualify to take these cases?

    Minsker has made the point that there are ways around this one-year deadline in the panel held by the Democratic Progressive Caucus. She might be right, but try to find that path in the maze, without legal counsel! Was it not just one short year ago when our U.S. Supreme Court for the first time in over 50 years sent the case of Troy Davis back to a Georgia federal court to ask if there was a possibility he might be innocent, and Justice Thomas called such a process a “fools errand” and the District Judge said, “not innocent enough?”

    Once convicted of a death penalty case, no matter how shaky the evidence, one can plant a field of doubt, and good luck with ever overturning that conviction – the same goes for a case carrying a sentence of LWOP – innocent, wrongfully convicted, over sentenced, etc. Just ask Troy Davis.

    One can understand why as Lily from Campaign to End the Death Penalty (CEDP) relates, the majority of responses they received from the Condemned Row said “We Don’t Want It” we’d rather gamble with the executioner and have a real chance at having someone hear our case.

    Thank you to the prisoners on the row who have had the courage to raise their voices and tell us not only for the men and women on the row, but for those serving the death sentence of LWOP. Start now, you should have started yesterday, we need legal counsel for all of us!!!

    LWOP is a death sentence too. Ending executions is only that . . . .a Proposition to end Lethal Injection. Prop. 34 does not end the death penalty.

  18. Yes, LWOP is cruel. Let’s do what Norway does – let those nice, misunderstood people out early, like Anders Behring Breivik, who killed 77 people there & got the maximum sentence of 21 years. Like you say, Professor Simon, keeping him longer, as in LWOP, would be “cruel and unusual punishment.” Heck, let’s tell those evil Norwegians to stop being cruel and let him out now.

    • Just to be clear, 21 years is the most the judge can sentence someone AT TRIAL. It does not mean that he will be released after 21 years. Rather, at that point he will be re-evaluated and if he is deemed as not a danger to society he will be released. If he is deemed a danger to society his prison term will be extended by 5 years. This will be repeated until he is released or until he dies.

      What Breivik received is a de-facto life sentence as the odds of him ever being released are slim to none, and even if they do release him it will probably be at a point where he is extremely old.

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