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

61 Pages Posted: 11 Aug 2011

See all articles by Steven J. Mulroy

Steven J. Mulroy

University of Memphis - Cecil C. Humphreys School of Law

Date Written: August 10, 2011

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.

Suggested Citation

Mulroy, Steven J., Avoiding ‘Death by Default’: Does the Constitution Require a Life Without Parole Alternative? (August 10, 2011). Tulane Law Review, Vol. 79, No. 2, 2004; University of Memphis Legal Studies Research Paper No. 109. Available at SSRN: https://ssrn.com/abstract=1907930

Steven J. Mulroy (Contact Author)

University of Memphis - Cecil C. Humphreys School of Law ( email )

One North Front Street
Memphis, TN 38103-2189
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
32
Abstract Views
261
PlumX Metrics