When the death penalty was reinstated in New York in 1995, lawmakers included in the statute a little-discussed provision permitting life without parole. A number of attorneys, unaware that this penalty exists or thinking that it became a dead letter when the death penalty was voided, counsel clients to reject 18-to-life or 20-to-life plea offers on the theory that the most the client can get if convicted at trial is 25 to life, the maximum penalty for second-degree murder — only for the client to later learn that the attorney erred. The maximum was life without parole.
The provision is contrary to the concept of rehabilitation, which involves hope for release. And it is unnecessary — with any sentence involving a life term, the Parole Board can keep the individual imprisoned.
Now that the Legislature is considering removing the death penalty from the Criminal Procedure Law and Penal Law, this is a good opportunity to eliminate this provision too.
Andrea G. Hirsch is a New York criminal appeals attorney.