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Russell D. Covey

For Complete Article See: Russell D. Covey , Death in Prison: the Right Death Penalty Compromise, 28 Georgia State University Law Review 1085 (Summer, 2012) (105 Footnotes).


You can't beat something with nothing. That simple proposition helps explain the difficulty that death penalty opponents have faced in the campaign to abolish capital punishment. Although four states in recent years have moved forward with abolition, the majority of states continue to maintain capital punishment. Across the nation, the death penalty remains politically popular, and many who support the death penalty do so convinced that convicted capital murderers deserve to die. Still, the tide seems to be turning. Overall, the number of death sentences imposed per year has fallen in half from the 1990s, and polls indicate that support for the death penalty given an alternative option of life without parole has dropped.

Popular unease with capital punishment stems in part from its burdensome cost and in part from the increasing public awareness of the criminal justice system's potential to convict the innocent. The new awareness of the risks of capital punishment combined with the emerging consensus for leaner, less punitive, and more cost-effective punishment policies is promising to tip the balance. As James Liebman observed more than a decade ago, conservative commentators who have in the past supported the death penalty have recently come out in favor of measures to check government power in this context, with some even urging abolition. This emerging consensus creates a rare opportunity for meaningful dialogue about major reform of the death penalty.

What is needed to push the debate to the next stage is a reform proposal that achieves the moral, political, and economic gains identified by death-penalty opponents while retaining the retributive, incapacitative, and deterrent effects promised by contemporary death penalty practices. I present one such alternative here. In this Article, I argue that states should abandon their current dysfunctional death-penalty systems in favor of a new ultimate sentence: death-in-prison. A sentence of death-in-prison would be exactly what it says: a prisoner sentenced to death-in-prison would be incarcerated for the duration of his or her natural life. Death-in-prison sentences would be like sentences of life in prison without possibility of parole (LWOP) in that they would entail lifetime incarceration but no affirmative state action to terminate the prisoner's life. Like LWOP, a sentence of death-in-prison would condemn its recipient to die without any chance of release or reintegration into the community.

Death-in-prison sentences would also share several features of the conventional death penalty. As with the conventional death penalty, a special penalty trial would be needed to impose the ultimate death-in-prison sentence. In addition, persons sentenced to death-in-prison might continue to serve their sentences in special segregated death rows. Death-in-prison sentences would also be imposed with all the magisterial weightiness of conventional death sentences. Persons so sentenced would be told, like those in conventional death penalty states, that the punishment for their crime is the ultimate one--death. Although largely symbolic, the expressive value of imposing a death sentence, rather than a life sentence, may be the proposal's greatest strength.

Death-in-prison would thus not constitute a watershed change in our penal practices. As others already have recognized, LWOP itself is a kind of death sentence. My proposal begins by acknowledging this truth while also recognizing the powerful retributive symbolism that accompanies the pronouncement upon a convicted murderer of a sentence of death.

Replacement of the conventional death penalty with a new death-in-prison sentence has much to commend it. It would save money, enhance equity among offenders, eliminate the risk of wrongful executions, and increase the odds that persons wrongfully convicted of capital crimes can obtain eventual redress. Death-in-prison would also increase the sense of closure and reduce years of stress and uncertainty felt by victims' families awaiting imposition of capital sentences without reducing either the retributive or deterrent functions of punishment. The death-in-prison penalty would also redirect jurors' attention to what should be the ultimate inquiry in capital cases: whether the perpetrator on trial might be rehabilitated, or instead permanently removed from civil society. For these reasons, jurisdictions that currently retain the death penalty should abandon their outmoded capital punishment apparatus in favor of a new, death-in-prison penalty.

The argument unfolds as follows. Part II discusses the primary rationales advanced by supporters of the current death penalty, demonstrates why the death penalty as currently fashioned fails to deliver on those rationales, and explains why death-in-prison would better serve penological interests. In addition, it documents the substantial cost savings that abolition of the conventional death penalty would make possible. Part III identifies two particular ways that replacement of the current death penalty with death-in-prison would improve criminal justice. First, death-in-prison would shift capital decision-makers' focus away from whether the defendant lives or dies to what the key moral issue in the penalty phase of capital cases should be: whether the perpetrator should be temporarily or permanently excluded from civil society. By focusing the penalty phase jury on that issue, using death-in-prison sentences as the highest ultimate penalty advances and clarifies the jury's moral decision-making function. Second, replacing conventional death sentences with death-in-prison might help trigger a downward ratcheting of sentences across the board, which our overburdened criminal justice system desperately needs. Part IV briefly concludes.

[a1] . Associate Professor, Georgia State University College of Law.