Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Greiner, and this is Proof Over Precedent.
This week we're bringing you a student voice.
[00:00:38] Speaker B: Hi everyone. Welcome to the show. My name is Kristin Arnold and I am a 1L at Harvard Law School and I'm interested in criminal law.
[00:00:48] Speaker C: Hi everyone. I'm Laura Quino. I'm an LLM student and I'm interested in gender.
[00:00:53] Speaker B: And we're going to be talking to you today about the under proceduralization of life without the possibility of parole.
[00:01:04] Speaker C: So, Kristen, I know that you wrote a blog post about this, so why did you choose this topic?
[00:01:09] Speaker B: I chose this topic because I've always had a general interest in capital punishment and it's the amalgamation of everything that's wrong with the criminal justice system.
And it's really important to me that we talk about this topic because it just goes under the radar because most people are focused on getting life without the possibility of parole for people who are on death row and it's seen as an alternative sentence. But I wanted to argue today that it probably shouldn't be for a number of reasons.
[00:01:42] Speaker C: Why should we care about this topic?
[00:01:44] Speaker B: Yeah, so the reason we should care about this topic is because it is just the death sentence by any other other name. You are put in prison often for the same crimes as those who get the death penalty. But you often have no hope of release and have far fewer paths for recourse.
So defendants who face a maximum sentence of life without the possibility of parole do not widely get access to automatic direct appeals. So what this means is after a death sentence comes down, a state will often require by statute that without even a request for appeal, that the sentence is automatically reviewed by an appellate court. Or even sometimes, like in the case of Florida, I believe it is automatically reviewed by the state supreme court. That is not the case for life without the possibility of parole. Also, life without parolers do not get access to a jury's role in sentencing. This is what's called a bifurcated trial.
In a bifurcated trial, there's two stages. The first stage is a jury will determine if you are guilty or innocent. And then the second part of a bifurcated Trial is the sentence. And often juries will be given a few options.
Most commonly they'll be given a choice between life without the possibility of parole and a death sentence. And they'll hear evidence about mitigating and aggravating factors and make a determination if somebody is quote unquote deserving of a death sentence.
But in certain states, they do allow a third option of life with the possibility of parole after 30 or 40 years.
Also, people who get the death penalty statutorily at the federal level get access to post conviction counsel for all stages of the criminal process, including direct and collateral appeals such as habeas petitions. And because the death penalty is so salient today, there's dozens of nonprofits and law firms specifically opposed to capital punishment that are fighting for people on death row. And that's not the case for people serving life without the possibility of parole. They often feel like there is no hope, like nobody is fighting for them.
[00:04:03] Speaker C: Okay, are you saying that maybe life at parole is an alternative sentence?
[00:04:08] Speaker B: Yeah. So in many cases it's offered as an alternative to the death penalty. And anti death penalty advocates are usually pushing for it as an alternative because at least it means that their client won't die.
But they're making the argument that it's just as harsh. But that's really the issue is that life without the possibility of parole is a cruel punishment. That makes it so somebody who made a mistake or committed a crime, it could have even been a heinous crime. It means that they will never be released from a prison cell. They will die in that prison cell. And there are some people, for example, in Alabama, they just make the argument that if you are serving life without the possibility of parole, they won't even review a commutation petition.
So they basically say you are facing a sentence of life without the possibility of parole. You're gonna die in prison, period.
But individuals serving life without the possibility of parole are often convicted of murder. But 37 states do allow it for non homicide offenses such as kidnapping, burglary, robbery, carjacking, battery, and for serious habitual offenders. There's a case in the Supreme Court that came down called Harmelin, which is a case in which somebody was trafficking a large amount of a serious drug and he actually got a sentence of life without the possibility of parole just for drug trafficking. And the court found that just possession of a large amount of that drug was sufficient to warrant a life without the possibility of parole sentence versus in death penalty cases, you can only be sentenced to the death penalty in crimes involving death. And the reason why I don't call it murder is because in the death penalty case is we talk about the felony murder rule, which is basically, if you make a choice to commit a felony, and during the commission of a felony, somebody dies, you can be charged with their death as felony murder, and you can face the death penalty for that.
[00:06:23] Speaker C: Okay. I guess I'm now wondering what happens to people that are subject to life without parole.
[00:06:29] Speaker B: Yeah, it's really sad, actually. 87% of prisoners who die in prison die from illness, not natural causes. They're not growing old, and they're ineligible for elderly parole or compassionate release. What's really weird about this is that in criminal law and in criminology, we talk about an age crime curve. So this is, at a certain age, you're more prone to committing crimes, but as you age, there's a less probability that you commit crimes because you age out of that behavior. You've started a family or you have just moved on from that lifestyle. And by the time you're 70 or 80, there's zero percent likelihood that you'll be committing crimes. But they want you to die in prison if you get the sentence. And then, as I said before, some states do not review commutation petitions.
So it could be that you've been a model prisoner for 40 years and they don't care. They'll just let you die in prison.
Oh, wow.
[00:07:35] Speaker C: I guess I'm thinking also about the error rates. When we think about capital punishment, we know there are high error rates. Is this different for life without parole or what do you think?
[00:07:45] Speaker B: Yeah. So actually, to expand on that, the statistics show that it is. It's really alarming. And capital punishment can cases. 41% of death sentences are thrown out on direct appeal, and 40% of those that survive an appeal were overturned through a collateral appeal, also known as a federal habeas corpus petition for serious error, which makes it so 68% of cases are overturned on appeal. And the most common errors are egregiously incompetent lawyering or prosecutorial suppression of critical evidence.
So you may be thinking to yourself, okay, capital punishment is bad. So that's why we have all these procedures. But if life without the possibility of parole individuals are often going through the same process, shouldn't there be some cause for concern that at least some level of errors exists?
I will concede that it is possible that capital punishment just has higher error rates, and that's why people are getting death and not life without parole. But it's important to be skeptical, because death penalty cases have two experienced trial attorneys. They have increased media and pro bono scrutiny. There's knowledge by all parties involved of this increased scrutiny and the fact that multiple avenues for relief exist to challenge the sentence. And prosecutors secure life without the possibility of parole sentences by threatening the death penalty at trial, leading to potential concerns about people pleading guilty to crimes that they didn't commit in order to avoid being executed by the state. So with all of these in mind, it's likely that life without parole has the same or similar error rates.
[00:09:30] Speaker C: Okay, so I guess we can be skeptical about it, but it's important to know what's behind this.
What can be done to test this?
[00:09:40] Speaker B: Yeah, in this class we often talk about randomized control trials in which you can look at outcomes.
And I thought through a few of these, one of them is to do an RCT testing error rates when you're providing program sponsored counsel for capital murder convictions versus no program sponsored counsel and to test the error rates. And secondly, you could compare states that do not provide certain protections for people who face elw to states that do provide that support. So for example, in California, the sentence of life without the possibility of parole does have an automatic appeal versus that's not true for Texas. So you could also do that and control for relevant differences.
Alternatively, you could use synthetic controls. Given the vast differences between California and Texas in all areas of the criminal.
[00:10:41] Speaker C: Justice system, those tests sound very interesting. Imagine that we can actually implement all of them. What do you think would be the path forward?
[00:10:50] Speaker B: Yeah, so I think that if we do find similarly high error rates, that's a call to action.
Error rates are economically inefficient and they're creating higher cost to the system. So there's more reason to prevent.
We often talk about these concerns when we're describing what can be done to the criminal justice system. The question is always, how much is this going to cost? But the real question is, how much is this costing us?
The fact that these appeals show such high error rates is inefficient to the system. It's costing us so much money. And so if we can do something at the start to prevent it, then we're resolving a lot of these costs. There's also some literature that discusses what it would look like to consider bifurcating trials to assess whether life without the possibility of parole is truly deserved and not just an alternative to capital punishment. So we could bring the question to a jury of what the sentence should be in a second separate trial, and you can bring in that evidence and could look at providing life without the possibility of parole, or providing life with parole after a certain number of years or just a term of year sentence.
But I also just wanted to point out, you may be thinking throughout this, that some people just deserve to be in prison for the rest of their life. They are a danger to society.
They've done something really heinous. Victims don't need to live with the thought that, that they will get out of prison one day and maybe they will continue to commit crime. And I do just want to say that is a valid concern.
But life with parole doesn't guarantee parole. You still have to be eligible for it. And there are many benefits to providing individuals with that. It preserves their hope. It leads to the possibility of rehabilitation.
If you go into prison and you're told at the outset that there is nothing you can do to improve your prospects of getting out, you're not going to do anything to get out of that system. And the system should at least care at some level about rehabilitation.
And so if we provide individuals with a life, with the possibility of parole sentence, we're giving them hope. And we're also probably creating a better prison system because individuals are trying to rehabilitate themselves instead of just accepting the fact that they're going to die in prison.
And as we talked about earlier, elderly parole is an option. There's a point in an individual's life where they are just no longer a harm to society because they just don't have that same energy, they don't have that same desire.
That's usually when they get to the point where they're elderly. And so there's no reason to be keeping people in prison who are not a threat to society. They've served 30, 40, 50 years in prison. They've served their time.
They're just a cost to the system at that point.
[00:14:02] Speaker C: Okay, given all of what you've said, I'm still wondering if capital punishment is really different.
[00:14:09] Speaker B: Yeah, that's totally fair. And the Supreme Court is also wondering that too. But they in case law have described it as different because of the severity, finality, the suffering associated with knowing that at some point in the future, after you've exhausted your appeals, the state will end your life. And there's also a spectacle associated with it. And so Supreme Court has found a different.
But my point today in discussing this and the necessary procedures is to talk about how it isn't. You're still getting a death sentence. And it's just about timing. And that's why we should be worrying about the inadequate procedures and the fact that if 70% of people sentenced to death aren't really supposed to be facing that sentence because of serious errors and because these procedures are detecting those errors, it's important that we at least look to increasing the procedures of life without the possibility of parole in order to prevent the same errors from happening, which would be a true miscarriage of justice. And also just looking at what happens to people when they spend the rest of their life in prison. They're dying of terminal illnesses, there's mental deterioration, there's no hope because nobody's fighting for them, and there's improper medical care and less compassion from the public and people around.
Just as a closing thought, I've brought this topic today to talk about the negatives that are associated with life without parole in general. But again, there are paths forward. There are things that we can do. We can look to increasing the procedures of life without parole and treating it as seriously as we do. The death penalty bifurcating trials would be a great way to increase procedures and make it so you can introduce different evidence at different stages of the trial.
We can look to providing better representation for individuals to prevent errors at the outset, given the fact that one of the most common errors is egregiously incompetent lawyering.
And also just take it more seriously in the public eye so we can put more scrutiny on individuals and when they are not following the proper procedures.
[00:16:28] Speaker A: Proof over precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
Thanks for listening. If we piqued your interest, please subscribe wherever you get your podcasts. Even better, leave us a rating or share an episode with a friend or on social media.
Here's a sneak preview of what we'll bring you next week.
[00:16:53] Speaker D: So when you made your Instagram account, you entered into a contract the terms and conditions of Instagram, and there was a clause in there that said that you forfeit your right to sue Instagram in court and if you have any claims against Instagram, you need to sue them in arbitration.
So this sort of clause is found in a lot of commercial contracts where you're unable to sue companies that, that you're obtaining their services for in court and have to go to arbitration.
And arbitration is administered by a private organization.
Usually retired judges or attorneys are the adjudicator.
And you know the terms. The terms vary. Sometimes there's minimums and maximums on damages or damage, awards there's prohibitions on things like class actions, jury trials. So it's a lot different than court litigation. It's a lot faster.
But as you can see, these certain rules could potentially disadvantage consumers.
