Death in Prison: The Right Death Penalty Compromise

The death penalty today provides virtually none of the benefits its advocates proffer as justifications for its existence. The tiny number of death sentences imposed, the even tinier number actually carried out, the enormous drain on public resources, and the decade-long delays that inevitably occur thoroughly undermine any deterrent or retributive benefits today’s death penalty might otherwise provide. In this paper, I argue for a compromise position that promises to better serve penal purposes and that will save states money at the same time: abandon the current dysfunctional death penalty 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 remain in prison until he or she died. Death-in-prison would be a kind of hybrid sentence: like life in prison without possibility of parole (“LWOP”), death-in-prison would entail lifetime incarceration but no affirmative state action to terminate the prisoner’s life, but death-in-prison 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. If adopted, death-in-prison would reduce criminal justice expenditures, facilitate community healing, discourage divisive and ineffective commutation campaigns, and diminish wrongful executions, without forgoing what is arguably the greatest benefit of the current death penalty: the expressive value of imposing a “death” rather than a “life” sentence on highly culpable offenders