Rise of LWOP sentences contributes to Californication of Texas justice

Regular readers will recall Grits has oft lamented the Legislature's unwise choice - abetted by prosecutors and death-penalty abolitionists back in 2005 - to add life-without-parole (LWOP) as a sentencing choice for capital murder but to simultaneously eliminate the option for juries to select life with parole (after 35-40 years, if memory serves).

I didn't like it for several reasons, not the least of which is needlessly filling up the prisons with old people that my granddaughter then must pay for. Anyway, LWOP gives too much power to prosecutors in their charging decisions (accept a plea or die) while making us little safer. And LWOP may encourage inmate misbehavior inside the prison by giving people nothing to lose. (A prison-guard commenter at TexasJustice.org noted that all five prisoners in the escape attempt at the Polunsky unit last year, including the three who were shot, were LWOP capital defendants.) Not to mention the growing costs of healthcare for the elderly in prison are so high that incarceration to the end of life, in the majority of cases, simply doesn't pass the cost-benefit test.

So this has never been my favorite Texas sentencing policy, even though observers say it's a partial contributor to Texas' recent decline in new death sentences. The latest report from the Houston Chronicle's Lise Olsen ("Nearly 400 capital murder convicts get life without parole," Nov. 29) confirms precisely Grits fears since the LWOP law was created:

In six years, Texas has built a "lifer's row" filled with 398 prisoners who will never be released through parole - a fast-growing group that already has outpaced the number of inmates serving a death sentence in the Lone Star State, a Houston Chronicle analysis of prison records shows.

Harris County prosecutors, who historically have led the state in seeking death sentences, have so far also been the most aggressive in pursuing capital murder charges and obtaining mandatory life without parole sentences in capital cases.

Texas became the last of the death penalty states to approve life without parole in September 2005, after Harris County prosecutors dropped their opposition to the change. The law applies only to offenders convicted of capital murder.

She could have added that the Legislature this year, regrettably if perhaps predictably, began to tack on life without parole sentences for non-capital crimes as well.

Texas actually has far fewer "lifers" incarcerated in TDCJ compared to many other large states, both with and without the chance for parole - e.g., at last count, around 6% of Texas prisoners were serving life sentences, compared to about 20% in California.

Grits considers the expansion of LWOP sentences and life sentences generally, coupled with the failure to adequately fund prisoner healthcare, as part of a growing Californication of the Texas prison system, putting us on a track that, in the medium-to-long term, finds TDCJ butting heads with US Attorneys and federal judges, an experience corrections veterans in Texas will perhaps not entirely pleasantly recall from the days of Judge William Wayne Justice's rule over TDCJ from the federal bench. As old-timers at TDCJ or California's current prison mandarins would tell you, this is an outcome to be avoided at all costs, not blithely courted. It's an area where, when the state can't handle its own business, the feds eventually handle it for you, then pass on to the state a (much higher) bill.

Do I expect any current Texas leader to seek to reverse this trend? Probably not. The public may even support handing out more life sentences, in theory, even if in practice they don't favor paying for the costs of a bloated prison system. healthcare for elderly inmates, or for that matter passing those costs onto their grandkids 40 years from now. But as a Johnny-come-lately to the LWOP entourage, Texas still has the option of dissociating itself from this ill-conceived corrections fad before the nascent policy, as it has in California, gets seriously out of hand. With Corrections Chair Jerry Madden and several other reform-minded legislators headed out the door, I don't know who might emerge as a champion on that score. But the state could sure use one.

RELATED: From October, see "Bubble in expanding life sentences, LWOP driving TDCJ health costs for older inmates." ALSO: See a comprehensive report (pdf) from the Sentencing Project from 2009 on the explosion of life sentences nationwide.)