Ending the Death Penalty and the Mindset Behind It

I’ve been very fortunate to write a monthly column for the Daily Nebraskan this year in which I’ve been able to make arguments and try out ideas that relate to politics, social justice, and human rights.

I began, back in August, with a long piece about my personal experience of getting to know Ronnie Frye, an inmate on North Carolina’s death row who was executed ten years ago. I want to close out the academic year with another column that considers the human face and the human cost of our death penalty system.

I write at a pivotal moment: Connecticut has repealed its death penalty statute, becoming the seventeenth state to do so and, in November, California will consider a ballot initiative to do the same. With five states abolishing the death penalty in five years and several more states seemingly poised to do the same, the dominoes have clearly started to fall. Opponents of the death penalty have found ways to persuade legislators — if not the general public — that the system is expensive, biased, and horribly flawed.

But this is as good a time as any to begin a difficult conversation.

In particular, I want to suggest that we need to think critically about the trade-off we’re making when we do away with the death penalty and condemn people to life imprisonment without the possibility of parole. We should make no mistake that this too is a death sentence and it’s one actually considered to be worse by some of the people who currently sit on death row.

This isn’t to diminish the difficult and important work done by death penalty abolitionists or to discourage anyone in the work that remains to be done. It is only to note that, in our desire to end the death penalty and save lives, we have allowed our opponents to continue to shape the conversation about crime, justice, and human rights. I’m not convinced we need to yield this ground.

In writing about the ballot initiative in California, death row inmate Kevin Cooper argues:

We who are on death row will also lose our legal habeas and habeas appeal process that we have and are currently entitled to under the law. So we are in fact taking a step backwards in our ability to challenge our convictions. We are also having to take our fight for our collective human rights to another level. What I mean by this is, Level IV prisons within the State of California are some of the worst prisons in the world! They are worse than death row in the violence that takes place, in the lack of programs, including educational programs, they stay on lockdown, and many families cannot get to these isolated prisons to visit their loved ones.

Interestingly, many death penalty supporters will see this as a good sign. If we have to do away with the death penalty, then at least we can be consoled by the knowledge that we’re replacing it with a punishment that’s also terrible. This is something death penalty opponents, who often make forceful moral arguments about the dignity and human rights of death row inmates, need to consider carefully.

Indeed, at the heart of the idea of both the death penalty and life imprisonment without parole is the notion that the offender is completely and utterly devoid of humanity. With this in mind, prison isn’t about correction and rehabilitation; it’s about punishment and revenge. If the death penalty is too expensive, if it risks the execution of an occasional innocent, and if it doesn’t cause all that much suffering, then it can be jettisoned in favor of a punishment that’s cheaper, that we can correct when we err, and that — if done properly — might be even worse for offenders.

Why are we committed to making life as terrible as possible for some people? Why isn’t it sufficient to remove someone from society, to restrict his or her liberty, and to keep ourselves safe while continuing to respect the inherent human dignity of the person in question? In large part, it’s because we’ve convinced ourselves that these people — those we say deserve to die — are not like us in the most decisive respect.

When we say someone deserves to die, what we’re saying is that an offense has been committed that is so far beyond the range of normal behavior that we can’t even begin to imagine the worldview of the offender and we can’t imagine continuing to occupy the same plane of existence.

I don’t want to be read as saying these feelings are abnormal. Indeed, it’s quite normal to want to express our solidarity with the families of murder victims, make clear our outrage at the terrible crime that has been committed, ensure our safety, and punish these offenders for what they’ve done. But I think there’s a disconnect between these normal feelings and the desire to punish in a manner that causes the most suffering and that strips the offender of his human dignity.

I’m also not arguing against life imprisonment without the possibility of parole; I’m simply suggesting that the way in which so many people are currently thinking about it — as an opportunity to for society to inflict a lifetime of brutality on offenders — is both troubling and a missed opportunity. Why not, instead, think about life imprisonment as an ongoing opportunity for rehabilitation in an environment that protects the public and restricts liberty as a consequence of bad actions? Changing our outlook in this way would likely mean changing the way we think about prison more generally, and it would cause us to take a long, hard look at prison conditions in this country. But this is long overdue.

In the end, I want to suggest that there’s a middle ground to walk … if only we can begin to look for it. This is a line between toughness and softness on crime, which allows us to stand with victims and co-victims of violence without jettisoning the idea that all human beings are the bearers of dignity. It ultimately recognizes the humanity of even those whose actions have made them the objects of our hate and fear. After all, it’s in treating decently those who have harmed us that we most distinguish ourselves from them.

This will be difficult for us, to be sure, but that’s why we need to begin the conversation now. As we recognize that the death penalty is cruel, unusual, and simply doesn’t work, we ought to also start thinking about what prison terms can and should mean for offenders, for victims, and for society at large.[1]