On March 18 Governor Bill Richardson formally ended New Mexico’s death penalty, ratifying votes for abolition by the State Senate and House. Richardson festooned the signing with language about this being the “most difficult decision” of his political life, arrived at only after he had toured the maximum-security unit where offenders sentenced to life without parole would be held. “My conclusion was those cells are something that may be worse than death,” he said. “I believe this is a just punishment.”
For Richardson the flaw with the death penalty lies in its imperfection. “Faced with the reality that our system for imposing the death penalty can never be perfect, my conscience compels me to replace the death penalty with a solution that keeps society safe.” Embalmed in this self-serving verbiage are many pointers to how seriously the whole abolitionist cause has gone off the rails, fleeing the arduous moral battleground of Redemption and Revenge for the tempting pastures of Efficiency.
With the death penalty, irreversible mistakes bring the whole justice system into well-deserved disrepute. But of course the state has a ready answer, one conveniently cued for them by the abolitionists who have set the stage for the state to offer its substitute: life without the possibility of parole (LWOP)–living death, or in Richardson’s creepy phrase something “worse than death.” Also recruited into the abolitionists’ arguments for efficiency have been pragmatic calculations that the death penalty is simply too expensive. It costs a ton of money, particularly in a state like California, to fight a death penalty case through the courts and the appeals process, pay for prosecutors and defenders to amass the data and the witnesses for the post-verdict penalty phases of the trial, get someone onto death row in San Quentin and then fight further endless battles over habeas corpus writs, stays of execution and so forth.
Bill Clinton did his best to speed up the conveyor belt by signing the Antiterrorism and Effective Death Penalty Act of 1996. But it’s still a hugely expensive hassle to line things up so lethal injection can proceed. Against all this, what’s brisker than the offer of LWOP as part of a plea bargain? Sign on the dotted line. Pack the prisoner off to a concrete box and throw away the key. As the Dallas Morning News editorialized in support of LWOP for Texas: “It’s harsh. It’s just. And it’s final without being irreversible. Call it a living death.”
Nothing much is going to change in New Mexico, except for the worse. The state has only formally executed one man since 1960: Terry Clark, a child-killer, had his appointment with the lethal needle in 2001. This number may soon swell to three because the two men on death row face execution because they were condemned to die before abolition comes into legal force on July 1. Presumably their chances of commutation have diminished, since no one wants to be accused of giving killers anything resembling a lucky break. Meanwhile, the number of convicted people drawing the “living death” card will go up, as juries will likely find it easier to sentence defendants to living death–LWOP–with less worry about the irreversibility of a mistaken death sentence.
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When I drive south to the Bay Area, I pass San Quentin, where 641 prisoners sit on death row. In the very unlikely event they get executed, they will have waited an average of 17.5 years from the moment they were condemned. Thirteen people have been executed in California since the US Supreme Court allowed capital punishment to resume in 1976. When I drive from Crescent City, with its supermax Pelican Bay prison, down Highway 101, jog over to Redding and head south on Interstate 5 to Los Angeles, I traverse a Gulag Archipelago in which thousands of prisoners are serving decade upon decade of hard time, with hundreds of them in solitary confinement, often for years on end. Yet it is the situation of the 641 that elicits maybe 98 percent of the energies of reformers.
How many prisoners nationally are under sentence of “living death”? The Sentencing Project tells my colleague Keith Newell there were 33,633 people serving life sentences without parole in the United States in 2003, which is 26.3 percent of the total number of people serving life sentences. The analyst at the Sentencing Project told Keith that they have tried to determine how many people are effectively serving life sentences without parole (i.e., life plus extra years), but that it’s been a nightmare to do so. They don’t even have a ballpark estimate.
The irony is that a moral debate is finally in motion over America’s horrifying sentencing laws. In New York State, the Rockefeller drug laws, which destroyed so many thousands of lives with mandatory sentencing, are being modified. Senator Jim Webb of Virginia is courageously trying to coax into life a national commission to review the criminal justice system. Webb tells the Washington Post that cops and prosecutors often target the wrong people and says he believes society can be made safer while making the system more “humane and cost-effective.” He flourishes a fine piece by Atul Gawande in the March 30 issue of The New Yorker stigmatizing solitary confinement (“at least twenty-five thousand inmates in isolation in supermax prisons”) as torture.
Humane! Now there’s a novel word. Maybe the notion of prison time as a path to redemption for murderers and pickpockets will creep through a crevice in the wall of prejudice that shields the national and political posture on crime and punishment from rationality. As radical abolitionist Bill Dobbs remarks, “Just as the electric chair and gas chamber fell out of favor, now injecting lethal poison into veins is becoming unfashionable. But death and torture have a new sweet spot, life in prison without parole. And some of the credit for that goes to the anti-death penalty crowd who ought to think harder about what ‘abolition’ means.”
