06/11/2012 07:17 pm ET Updated Aug 11, 2012

Latent Effects of Capital Punishment

The final chapter in The Oxford Handbook of Sentencing and Corrections answered a question that has perplexed me since I started serving my prison term 25 years ago. I used to wonder about my judge's rationale when he imposed a term that would keep me confined for decades despite my not having had a history of violence or previous incarceration. Until I read "The Dark at the Top of the Stairs: Four Destructive Influences of Capital Punishment on American Criminal Justice," the logic behind the severity of my punishment escaped me. There must've been a reason, but I couldn't grasp it.

Franklin E. Zimring, who is the William G. Simon Professor of Law and the Wolfen Distinguished Scholar at Berkeley Law, co-authored the chapter with David T. Johnson, who is Professor of Sociology at the University of Hawaii. Together, they explained that although far fewer than 1 percent of all prisoners in the United States were sentenced to death, ripple effects of the death penalty extended to hundreds of thousands of offenders beyond those formally charged with capital crimes. In their illuminating chapter, the professors discussed "four latent impacts of attempts to revive and rationalize the death penalty in the United States."

First, the professors described "The Hyperextension of Substantive Criminal Law." By hyperextension, they meant that we expected too much from the criminal law when we expected it to serve as a mechanism that would sort between killings, the motivations behind them, and the punishments that would follow. As it was currently written, some murders merited punishments of execution while with other murders, imprisonment would suffice as a punishment. In expecting the criminal law to make the distinction of which murders were deserving of death, society expected more than the legal code could deliver.

Those separations of murder began in 1794, when the state of Pennsylvania divided murder into first- and second-degree categories. The purpose of the separation was to introduce a lesser offense that would spare the murderer from exposure to capital punishment. Professors Zimring and Johnson, however, found that the distinctions between the two offenses "lacked moral authority and intellectual rigor."

By the mid-1970s, the Supreme Court made several rulings that essentially limited the death penalty to murder cases and addressed constitutional implications that would determine when jurors could sentence murderers to death. Those rulings required a series of principled standards to separate murderers that may merit death sentences from murderers who would be punished by imprisonment. Those newly imposed standards would require jurors to consider aggravating and mitigating circumstances in order to justify a death penalty. But the list of aggravating circumstances lacked a detailed justification of what actions would warrant a death sentence and why, while other facts would merit imprisonment as a punishment.

The lack of justification or analysis of the aggravating factors that could lead to death sentences resulted in an "incoherence of formal legal conceptions." Rather than scrutinizing the distinctions that could expose one murderer to the death penalty and another to imprisonment, judges assumed a "legislative competence," meaning the judges assumed that lawmakers had given appropriate levels of deliberation to each factor. Yet, while judges assumed that lawmakers had thoroughly deliberated each aggravating factor behind death-penalty justifications, the legislative record lacked any indication of how or why lawmakers selected the list of aggravating factors that could expose a defendant to death. That lack of debate suggested that the aggravating factors were selected arbitrarily, perhaps to satisfy the Supreme Court rulings, making for a flimsy substantive law that separated penalties of death from penalties of imprisonment. Without detailed scrutiny of aggravating factors in the legislative process, rules that guided juror decisions in death-penalty cases were without strong jurisprudential basis, impeaching the legitimacy of the entire criminal justice system.

The authors then wrote about "The symbolic Transformation to Harsh Punishment as a Private Reward." They argued that government could increase its destructive power by appeasing victims with ever-increasing penalties for offenders. So long as victims were being "rewarded" with the satisfaction that came with vengeance through state punishment, there wouldn't be as much scrutiny over the capacity of the penal system to accomplish other stated goals of deterrence, incapacitation, or reform.

Punishments became "symbolic rewards," demonstrating that the state placed a higher value on victims than it placed on offenders. There weren't any upward limits. The harsher the punishment, the better victims would feel. Symbolic rewards of punishment differed from conventional retribution, where penal proportionality was a limiting principle. As punishments transformed to have hierarchical and symbolic meanings, with more being better, the menu of punishments expanded and new distinctions brought new status rewards for victims. As long as the additional grades of punishments made victims feel better, the state could increase its power without as much scrutiny over liberties that laws were usurping.

The symbolic transformation to harsh punishment as a private reward "degovernmentalized" the death penalty. Instead of establishing a punishment that served the needs of the community, the punishment served the needs of the victim. It led to a proliferation of additional punishments as status rewards, and contributed to a massive growth of America's imprisoned population.

The authors then pointed to "The Problematics of Life Without Parole (LWOP)" as an example of expanded punishments. For the most part, the LWOP penalty was a new subcategory of life terms. It did not replace the old life terms but rather was another step up the penal ladder, or another rung on the hierarchy of punishment, above life sentences with parole eligibility but below death. Symbolically, it could have value for the family members of victims, as LWOP represented a severe sanction for the offender, showing the value of the victim by inflicting a never-ending punishment for the crime.

The authors showed that although LWOP may have originally been conceived as an alternative to death sentences, it evolved into an expansion of the punishment menu. They cited figures from 1993 that showed 12,453 prisoners were serving life without parole in the United States. By the year 2008, that number had risen to 41,095, for an increase of 230 percent. Further, in states that offered punishment options of death or LWOP, there wasn't a decline in death penalty cases, just a massive increase in the number of prisoners serving sentence of LWOP. Indeed, thousands of drug offenders served sentences of LWOP in federal prison despite their not having had histories of violence or weapons.

Professors Zimring and Johnson argued that the death penalty masked the severity of LWOP sentences. Many citizens misconstrued LWOP as an act of mercy, failing to recognize the enormous pain and public expense that accompanied LWOP sentences, many of which were imposed for nonviolent crimes by consenting adults. The authors theorized that the "American focus on capital punishment has desensitized public concern about the huge growth of imprisonment," where sentences of multiple decades have become the norm. The distinguished professors wisely proposed "routine administrative review of most long and life sentences," but recognized that we were likely light years away from such reforms.

Finally, the authors made a compelling argument to show how the "Diversion of Legal and Judicial Resources from the Scrutiny of Other Uses of State Power" influenced the entire system. When prosecutors charged defendants in ways that exposed them to death sentences, they ushered in the need for "super due process," requiring enormous legal expenses at every stage of the judicial proceedings. Complying with constitutional standards for the imposition of the death penalty required the expenditure of those financial and professional resources, but they came from a limited pool. Our nation had a finite number of lawyers with the skill set necessary to challenge the overreach of governmental authority. When most of those lawyers concentrated their energy on the 3,500 capital defendants on death row, the result was "a shortage of resources to monitor state authority in a nation with more than 2 million persons behind bars."

The authors pointed out that for every prisoner who was sentenced to death, there were 500 prisoners who were sentenced to imprisonment. And yet when the Supreme Court reviewed cases of a criminal nature, they gave disproportionate attention to death-penalty cases. Nearly half of all criminal cases that the Supreme Court reviewed concerned the death penalty, leaving insufficient judicial resources "to scrutinize the vast expansion of state punishment in the United States." The opportunity costs of reviewing death-penalty issues translated into insufficient resources to review other parts of the criminal justice system.

Taken together, the "four latent impacts" of the death penalty that Professors Zimring and Johnson articulated in their chapter helped me grasp a possible rationale for the lengthy sentence I served. Their work explained that an enduring legacy of the American resurgence of capital punishment was that it helped to take the focus off of other areas of the criminal justice system, and in the process, eviscerated protections against governmental excess. The focus that society placed on the death penalty desensitized citizens to other abuses of governmental power. Sentences that required defendants to serve years, decades, or multiple decades in prison became acceptable, even in cases where violence was not a factor. The quarter century that I served in prison may not have had anything to do with justice, as it turned out, but instead furthered America's commitment to mass incarceration and an overreach of governmental power.