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A corrections officer removing an inmate's handcuffs at San Quentin State Prison in California.
Crime on the Ballot

Death by Another Name

California Prop 62 would repeal the death penalty. A lifer says it doesn’t go far enough.

California Proposition 62, which would abolish the state’s rarely enforced death penalty, effectively condemns the 741 residents of death row to something worse: the grinding, hopeless death of life without the possibility of parole (LWOP) inside California's broken, dysfunctional prison system. The plain language of the proposed law is neither ambiguous nor complex: “Violent murderers who are sentenced to serve life in prison without the possibility of parole in California are never eligible for parole. They spend the rest of their lives in prison and they die in prison." (emphasis in original)

What's accomplished by this initiative is merely changing the method of execution. No less a moral authority than Pope Francis has called LWOP terms of imprisonment "hidden death sentences."

Proposition 62 goes on to condemn us lifers to serve out the remainder of our sentences in "high security" prisons. These are the same prisons found to constitute cruel and unusual punishment by a conservative-leaning majority of the U.S. Supreme Court in Brown v. Plata. Prisons with extraordinarily high suicide rates, with substandard medical, dental, and mental health care, and with scant rehabilitative programs. Prisons rife with gang violence, racism, and despair. A cruel if not unusual enough death, to be sure.

The experience of serving LWOP is a subject I know all too well, and about which I've published tens of thousands of words. Over the years, I've tried to describe the indescribable. The sense of being dead while you're still alive, the feeling of being dumped into a deep well struggling to tread water until, some 40 or 50 years later, you drown.

In 1980, after a two-day trial that seemed to bore my public defender, a Los Angeles County Superior Court judge ruled that I was irredeemable, that my life, at the age of 19 years, was forfeit. I had admitted to the crime of killing Thomas Allen Fellowes in a drunken, drugged-up fistfight, and I was ready to be punished. Frankly, if anyone had asked me then, I probably would have agreed with the judge's assessment of my character and my prospects.

But neither of us could have foreseen the course of my life over the next 36 years. Dirk Van Zyl Smit, Professor of Comparative and International Penal Law at Nottingham University, England, a world authority on life sentences and a harsh critic of LWOP sentences in particular, has described them as "covenants with the past." They are just that:, a triumph of what happened then over anything that might be happening now.

I believe I have proven that the judgment from then is wrong now. I also believe that the vast majority of the thousands of men and women serving LWOP have done the same. As a leader in the movement to end LWOP, I've been privy to countless stories of transformations, acts of service and charity, and deep conversions from all over the country.

LWOP sentences, however, forever deny the humanity of prisoners, locking them into the worst moments of their lives.

Somewhere along the way, the death penalty abolitionist movement latched onto the idea that they could market a hardened version of LWOP as a "reasonable alternative" to the gas chamber and, later, lethal injection. On the ACLU's website, someone looking for guidance on this crucial civil rights issue during the last repeal campaign in 2012 would have found the following language urging a yes vote:

"Spending even a small amount of time in California's overcrowded, dangerous prisons is not pleasant. Spending thirty years there, growing sick and old, and dying there, is a horrible experience.... Prisoners condemned to die in prison are not given any special treatment and, in fact, have less access to programs than other prisoners. They are housed in high security facilities with few privileges, far away from any relatives, and in crowded group cells. Ironically, people on death row are provided much more comfortable single cells and sometimes gain celebrity and attention just by being there."

This kind of logic had two predictable side effects: It served to legitimize the sentence with the imprimatur of liberal civil rights defenders, and it began a flood of LWOP-sentenced prisoners.

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According to The Sentencing Project, LWOP is now the fastest-growing form of life sentence in the United States. There are more than 50,000 LWOP sentenced prisoners nationwide, compared to a total of about 3,000 under a traditional death sentence. With the reassurance and support of civil rights groups that advocate for the deadly trade-off, the numbers continue to grow.

Why not abolish the death penalty and life without the chance of parole? The assumption would be that it is possible for human beings to become better than their worst act. It does not mean that all prisoners would succeed. Some wouldn't try hard enough, some wouldn't be able to make the requisite changes to satisfy a skeptical parole board and an elected governor's review, and some small percentage would continue to present an unreasonable risk to the public. No one, however, would be denied all hope.

Here’s another important consequence of converting death row inmates to lifers without a chance of parole: death row prisoners are entitled (at least in theory) to additional appeals and better quality attorneys. Many falsely convicted death row prisoners have been exonerated over the past decade. One of the tricks of LWOP is that it operates under the legal fiction of not being a death sentence, therefore there are no additional appeals, no better quality attorneys, and no higher level of scrutiny. (This is probably the main reason many death row prisoners, who live on hope for an appellate rescue, have opposed ballot measures like Prop 62.)

Death penalty abolitionists generally ask the same two questions. "If we don't offer LWOP as an alternative, how can we get the public to end the death penalty?" And, "If not LWOP, what will be done with the worst of the worst"?

The facts are clear on the use of the death penalty — the vast majority of the world has abandoned it. Virtually every religious leader has condemned it. The United Nations, the European Court of Human Rights, the International Criminal Court, and every human rights organization on the planet opposes the death penalty. The truth is the death penalty is rapidly being swept into the dustbin of history along with so many other old, bad ideas.

In our peer group of democracies, there are maximum terms of imprisonment, even for murder. Of course, they reserve ways to extend imprisonment in those extremely rare cases where it's necessary; but the assumption is it isn't necessary unless proven otherwise.

The answer to what to do to the so-called worst of the worst without LWOP is even easier, because California has real-world experience. From 1967, when the Supreme Court struck down the death penalty, to 1978, when California voters restored it, the punishment for first degree murder was seven years to life. Notorious examples like Charles Manson and Sirhan Sirhan are still serving life with the possibility of parole. Contrary to the claims of death penalty supporters and opponents, the Board of Parole Hearings is extremely stingy with findings of suitability for parole. And it's important to note that the small number of released murderers have the lowest rate of recidivism of all parolees. According to the California Department of Corrections and Rehabilitation 2011 Adult Institutions Outcome Evaluations Report, 860 convicted murders were released between 1995 and 2011. Five were returned to prison; none for murder, attempted murder, or assault and battery. That's a total recidivism rate of less than 1 percent.

Trading lethal injection executions for lethal terms of imprisonment does not end the death penalty, and this lie needs to be rejected. Life without the possibility of parole is the death penalty, pure and simple. There are ways to fix the system for life-term prisoners that protect victims, provide actual justice to all, and uphold the better values of our state. Prop 62 is not one of them.

Kenneth E. Hartman has served more than 36 years of a life without the possibility of parole sentence in the California prison system. He is the Executive Director of The Other Death Penalty Project, a nationwide, grassroots, nonprofit organization of prisoners opposed to “all forms of the death penalty.” He can be reached, indirectly, at kennethehartman@hotmail.com.