Avoiding ‘Death by Default’: Does the Constitution Require a Life Without Parole Alternative?

Abstract

This Article focuses on the minority of death penalty states which have sentencing juries choose between death and life in prison with possibility of parole, excluding the “middle option” of life without parole (LWOP). A growing body of empirical evidence shows that the absence of an LWOP option causes juries to opt for a death sentence even where death is not otherwise called for, simply to avoid the chance that the defendant may someday “walk the streets.” The Article argues that such sentencing procedures violate the constitutional principles established by the Supreme Court's 1980 decision in Beck v. Alabama and its 2002 decision in Atkins v. Virginia. Beck established the principle that, in the guilt or innocence phase, where the defendant's life was at stake, the state could not eliminate an intermediate “third option” of a lesser-included, noncapital offense because of the risk that jurors would improperly choose to convict (and thus make the defendant death-eligible) rather than reach a too lenient result. The Article urges that the Beck analysis be applied to the capital-sentencing phase to require the “third option” of LWOP. Atkins demonstrated that a consistent and substantial pattern of state legislative enactment of a death penalty reform could establish “evolving standards of decency” under the Court's Eighth Amendment jurisprudence, requiring the reform as a constitutional matter. Because only two out of thirty-eight death penalty states decline to provide an LWOP option, Atkins establishes that non-LWOP schemes violate such evolving standards of decency.