Capital Trifurcation

The death penalty is disappearing in the United States. Annual executions remain under 25 per year, and new capital sentences per year have not exceeded 75 in over a decade. Over the past two decades, however, a new kind of death sentence has emerged—life without parole (“LWOP”). In practice, LWOP and death sentences are functionally equivalent, as most death row inmates die of natural causes in prison, not execution. For both economic and moral reasons, most states are not actively executing prisoners. Therefore, capital sentencing proceedings that focus on life versus death neglect the more consequential question—life without parole versus life with parole. That decision shapes whether one has a chance at life after prison or will die in prison, two very different outcomes. But the capital sentencing process obscures this reality at best, and at worst does not even give the jury a choice. It makes little sense to focus the jury on a hypothetical question of life and death while ignoring the real dilemma. To that end, this Article argues for a rethinking of the sentencing procedure in capital cases. First, the Article explains why mandatory LWOP sentences violate the Eighth Amendment, and why even if they don’t, states should abolish them. Then, the Article advances its central proposal—the trifurcation of capital trials. In short, states should split the sentencing phase of capital cases into two parts. In the first, the jury decides between life and death. If the jury chooses life, a second sentencing phase ensues, with the jury choosing between life with parole and LWOP. Part II of the Article describes the LWOP problem of capital sentencing— that the procedures either (1) obscure the choice between life with parole and LWOP or (2) remove that decision from the jury’s discretion altogether. Part III addresses the central barrier to capital trifurcation—mandatory LWOP sentences. To that end, it argues for the elimination of mandatory LWOP sentences, either by constitutional or statutory means. Finally, in Part IV, the Article proposes capital trifurcation, explaining the procedural nuances of and the theoretical justifications for this approach.