The rantings of a Public Defender constantly fighting against society's pervasive Police Industrial Complex. Enjoy the unique perspective of one whose life's work is to fight the system through the system.

Wednesday, July 13, 2005

Is Life without parole the same as death?

Here's a hint, most defense lawyers would say that having a client executed is about the worse thing that can happen to you as a lawyer. But, I'm wondering. Do you think that most defendants would prefer the death penalty to life without parole?

I just had my first in depth conversation with my latest special circumstance client today. He is clearly a good candidate for the death penalty. Both the type of case and his history make him the class of defendant that the prosecution could decide to seek death on. Furthermore, with his history and his type of case, I really think that a jury could sentence him to death, no matter what I try to do on the case. My goal here (he appears to be dead to rights in the guilt phase due to DNA, but we'll see about that as the case progresses, but as it stands, he has a very difficult guilt phase, to put it lightly) is to save his life and prevent him from getting the death penalty, even if it results in a sentence of life without parole.

What does he say? He doesn't really care. His attitude is that he's spent much of his life in prison already, will probably spend the rest in one form or another, and why not spend it on death row. He's in his late 30s, and it takes 20 years to get people from court to the chamber in California, so what the hell, get death, what does it functionally matter? He's probably going to die a natural death in prison anyways. And life on the row is better than life in the highest security modules he would otherwise be housed in if he's given life without parole.

Of course, this is a nightmare for me, I don't want to have someone on the row. Logistically, even if he never goes to the chamber, I will have my life turned upside down trying to fight the case, and dealing with all of the obvious complaints of ineffective assistance of counsel, having to recreate the case dozens of times for the state and federal appeals, and the habeaus corpus proceedings. All in all, a death verdict would be terrible. And that doesn't even deal with the feelings it would cause in me of "what if," and "why not this," and guilt over my performance. No, I don't need this to happen to me.

But, is it better for him? How do I convince him to try for life over death? Is it in his best interest? Is this being selfish, all about me, screw what he feels?



Anonymous Gideon said...

I had a lot of the same thoughts a few months ago, when CT was getting ready to execute it's first inmate in 45 years. Michael Ross wanted to die and waived his appeals...

It certainly is a tough question. Do you fault your client for not wanting to endure life imprisonment? No... Do you disagree with his decision? Sure. However, it is his decision to make (unless he's incompetent), but that shouldn't stop you from being the best advocate that you can. He's not going to say to you, don't find the penalty phase; if I'm found guilty let them sentence me to death immediately.

Your duty is to your client, but you cannot advise him to do something that you think is not in his best interests.... seems like you might have to play along on this one.

7/14/2005 7:56 AM

Anonymous norcalpubdef said...

I think the uncertainty of execution as opposed to death by natural causes is stressful in its own right, as is being on death row. I think that a person with a life sentence might try to better himself (or herself) while a person who knows that the state is planning to end his life at some uncertain future date might not.

On the other hand, I recently had a client in his late fifties who has spent most of his life in prison. He was looking at 18 years and I got him an offer for 4. He turned it down. He did not see any reason to get out of prison, because there is nothing out there for him. It was a very depressing conversation.

I am working on my first capital case, so I'm doing a lot of reading about this stuff. As criminal defense lawyers, I think we need to do are best to prevent the state from killing our clients, if only because in the future, the client could change his mind and want to live. I try to give my clients as many options as possible.

7/14/2005 3:00 PM

Anonymous Anonymous said...

As appellate counsel for three men on California's Death Row and former counsel to many men serving life, I have some info that will help you answer your first question ("is it better for him" to get an LWOP sentence as opposed to death?) Prolonged hunger and untreated illness are part of regular life on California's Death Row. Condemned inmates are not allowed to work for money, and the flow of food from the institution leaves many of them very hungry a lot of the time. Like prisoners in old Mexico, they are expected to get their friends and family to donate funds and supplies to meet their basic needs. Death Row inmates in California also have to endure their first four or five years of post-trial incarceration without legal counsel. By the time they get counsel, they are starved for information and feedback about what happened at the trial that put them on Death Row. On the other hand, condemned inmates in California get a few things that LWOP's don't get. They are "single celled," and they eventually get more attention from lawyers than LWOP's get. The attention they eventually get from lawyers is not very satisfying, but it can bring a chance to relitigate guilt that is seldom given to indigent life prisoners.

7/15/2005 2:33 PM

Blogger PD Dude said...

Wow, that stuff is really interesting. I didn't realize that conditions on the row were so bad. Common lore here in the trial trenches is that life on the row is better because, for instance, you get your own cell. That alone seems much better than being housed in a dorm or double celled, or worse (like in CJ here where 6 people stay in 4 man cells, 4 in bunks, 2 on the floor).

Please contact me directly, I'd love to get more information from you about this kind of stuff. I have 2 cases where it may be very germane. Thanks again for the feedback.

PD Dude

7/15/2005 7:24 PM

Anonymous Anonymous said...

Sounds like your sources construe the single cell assurance as an example of exalted treatment, when in fact single celling is actual THE ONLY thing of real value that Death Row inmates get that lifers don't. I don't mean to suggest that single celling is never worth putting one's head in a noose to get. For some clients, single celling (or being in the SF Bay Area as opposed to some prison in the boonies), will be a matter of overriding importance for very understandable reasons. Dealing with those clients at the trial court level is going to be especially difficult. Is it ethical to tell them they need to exercise their Faretta rights in order to avoid having a lawyer advocate against their interests as they see them? I think that would be better than insisting that their is no conflict of interest between client and counsel, when there surely is.

7/16/2005 12:13 PM

Anonymous Faretta said...

If he's not going to plead guilty and ask for the gurney now, he may as well fight it out and appeal. He can always withdraw later on, if he wants to, but if he doesn't fight both guilt and punishment phases now, he's got a lot fewer options, and the decision is likely irrevocable. So if it's true that it doesn't make much difference to him, LWOP or death, fight the case and decide later on if the fight is worth continuing.

7/16/2005 6:35 PM

Anonymous law student said...

...and then there is the fact that the actual execution is not carried out by doctors and there is a significant percentage of botched executions requiring adjustments to be made on the fly. Taking the event from the image of execution to a maniacal torture. Especially where lethal injection is used as the actual percentages and types of chemicals used are not regulated by anyone with medical training, pursuant to their Hippocratic oath and basic morality.

7/16/2005 6:59 PM

Anonymous Anonymous said...

So, Law Student, are you saying that someone who has taken an oath to "do no harm" should execute the guy ?

7/19/2005 9:22 AM

Anonymous law student said...

No not at all. I am saying that an execution as it currently exists in our country is a torture device. I was using the example that trained medical professionals are not used (refuse to participate) in what is clearly a medical procedure to make the point that Death carries with it some realities that are not often a part of this discussion. Procedures for the euthanization of animals are more regulated in our society than DP procedures. Thus responding to the original thread about whether LWOP is the same as Death.

7/22/2005 10:14 AM

Anonymous Renee Damstra said...

I'm doing a paper on death penalty and I wondered if you guys could tell me what the differences are between living on death row or in life imprisonment without parole?

12/28/2005 6:26 AM

Anonymous Renee Damstra said...

And where did my question go?

12/29/2005 2:42 AM

Anonymous Renee Damstra said...

Oh, sorry! It's still there. Thought you had deleted it. Now please answer then.

12/29/2005 2:42 AM

Anonymous nosimilo said...

im for life imprisonment as opposed to death. looking at it from the deterrance bit of it. i believe that life imprisonment is more harsh then the death penalty and thats wut we need these days. im south african and people over here do stupid crimes with the hope that they will be given the death penalty. i think they have to face wut they do to innocent victims and thats dying in prison

1/21/2009 9:37 AM


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