Might there be reason to praise “Lifelong Death Sentences”?
In 1978, when he was 27, Manuel Valle killed a police officer in Coral Gables, Fla. In September, when he was 61, Mr. Valle was put to death for his crime. A couple of hours earlier, the Supreme Court had refused to stay his execution — with one dissent. Justice Stephen G. Breyer wrote that the 33 years Mr. Valle had spent on death row amounted to cruel and unusual punishment.
That line of reasoning strikes some supporters of the death penalty as perverse. “It is a very strange argument to say that a murderer can delay justice with protracted appeals for decades and then turn around and claim his own delay as a reason to escape his deserved punishment altogether,” said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation.
But Justice Breyer’s approach has historical support, and it is in line with international opinion. “Our Constitution was written at a time when delay between sentencing and execution could be measured in days or weeks, not decades,” Justice Breyer wrote in another dissent on the same subject, this one in 1999. English law in the 18th century called for executions to take place on “the next day but one” after sentencing.
Foreign courts have ruled that living for decades under the threat of imminent execution is a form of psychological torment. “There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years,” the Judicial Committee of the Privy Council, which is based in London and hears appeals from former British colonies, wrote in a 1993 ruling in favor of two inmates who had spent more than five years on death row in Jamaica, commuting their sentences to life in prison.
Similarly, the European Court of Human Rights in 1989 ruled that extended periods on death row violated the provision of the European Convention of Human Rights that bars torture or “inhuman or degrading treatment or punishment.”…
Justice Clarence Thomas has said he is not impressed by these international rulings. “I am unaware,” he wrote in response to Justice Breyer’s 1999 dissent, “of any support in the American constitutional tradition or in this court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”
That seeming contradiction misses a larger point, Justice Breyer wrote in his dissent in the Valle case. A capital justice system that cannot be administered without long delays, he said, points to “the difficulty of reconciling the imposition of the death penalty as currently administered with procedures necessary to assure that the wrong person is not executed.”
Here is what is clear: the average prisoner on death row has spent 13 years there, and his odds of growing old in prison are pretty good. About 3,300 inmates are on death row in the United States. Last year, there were 46 executions….
A system that takes 33 years to issue a final decision about whether a defendant should live or die would seem to be broken. “The incentives driving the nation’s process of imposing and reviewing death sentences,” Professor [Jim] Liebman wrote, “are skewed from stem to stern.”
I agree with Professor Liebman that the incentives driving the current system of capital punishment are skewed toward having many more death sentences than actual executions, but I am not sure that this reality — or the fact that most death row defendants in states other than Texas and Virginia are very likely to spend at least 15 years or more before seriously facing execution — means our system is “broken.” In fact, given the strong affinity some have for LWOP sentences instead of death sentence AND the reality that the public and sometimes prosecutors and victims are more concerned about the normative symbolism of death sentences rather than the stark reality of executions, one might be able to plausibly assert that “lifelong death sentences” achieve the best of all possible capital punishment worlds.
For starters, I assume the juve and mentally-retarded murderers whose death sentences were finally deemed unconstitutional in Roper and Atkins were glad that a slow review process kept them alive until their sentences were ultimately ruled unconstitutional. Same obviously goes for wrongly convicted death row inmates who have been sure to have ample time to prove their innocence. And though some victims and prosecutors complain about protracted capital case review, some other victims and prosecutors acknowledge that new facts emerge during this lengthy process which impact their views on the appropriateness and value of the original death sentence.
I am not really asserting that the modern administration of the death penalty in the US is truly ideal and truly the best of all possible capital punishment worlds. But I also do not mean to completely mock the possibility of taking a Dr. Pangloss view of the lengthy period between death sentences and execution in most states: though there are obvious costs from these delays, there are also some benefits that ought not be ignored or completely discounted.