After yet another terrifying botched execution, questions about whether the death penalty constitutes “cruel and unusual punishment” once again fill the air. Perhaps, though, now may be time to pose even more radical questions about criminal justice.
The particular incident sparking national attention this time was a lethal injection in McAlester, Oklahoma that failed to immediately kill its intended victim. Instead, convicted murderer and rapist Clayton Lockett died — of a heart attack — after 43 minutes spent writhing in pain and struggling to get out the words “Man,” “I’m not,” and “something’s wrong.”
Unsurprisingly, Amnesty International calls it “one of the starkest examples yet of why the death penalty must be abolished.” Even the White House — headquarters of worldwide mass drone assassinations — made a point to publicly state that the execution “fell short” of the standard for humane executions.
We might ask ourselves, though, why we find such a horrible death for such horrible crimes repugnant. If we think punishment should be retributive and proportionate to the crime committed, we ought to welcome particularly cruel punishments for particularly cruel crimes. If we think punishment should serve as a deterrent, we ought to welcome such gruesome, excruciating deaths in hopes that they make crimes like those committed by Lockett less likely.
In fact, we arguably passively accept more cruel punishments already.
As jokes in popular culture reveal, it’s socially understood that a prison sentence involves condemning a convict to a hell of constant abuse from both guards and fellow inmates. This looming threat lasts much longer than the 46 minutes of pain Lockett experienced, leaving permanent psychological damage. Even when sentences end and inmates leave with their bodies, they don’t always escape with their souls.
None of this is to downplay what happened to Lockett in McAlester, especially considering that his time on death row ensured he went through the torture of prison as well.
The problem is not just that what Lockett experienced was cruel and unusual. The problem is that the all too usual practice of punishment itself — the process of intentionally inflicting harm on another human being for the purpose of inflicting harm — is irredeemably cruel.
If this is where punishment has brought us, to systematic killings and mass incarceration, then it’s time to reexamine punishment. We must reflect on what it is we really want out of punishment, and whether or not we can achieve it some other way.
One of the most basic things we want out of punishment is a way to restore respect for victims and their dignity. When a murderer escapes conviction, our anger comes out of solidarity with the victim.
What better way to respond to crime, then, than by demanding restitution for victims or their loved ones? The focus there is placed firmly on showing respect for those harmed, and away from bringing new harm to the criminal.
The most obvious objection to such a proposal is that no amount of monetary compensation will ever bring back the dead, or undo an assault, making full justice impossible under restitution. While this is unfortunately true, it is also true of punishment — even if Lockett had suffered for three hours, his victim would still be just as dead.
The difference is that with a restitutive model of justice, we can at least go some way toward healing the wounds of crime. With a punitive model, no steps are taken in that direction at all and new injustices are committed.
When we look back at the history of criminal justice, most of us mark progress by the abolition of the cross, the rack and the guillotine. We take it as a mark of our humanity that our modern debates about lethal injections are about how we can punish with the least additional pain possible. When we fail in that goal, as Oklahoma did with Lockett, we are repulsed. Those who oppose capital punishment take it as a reason to abandon the practice altogether.
Each of these steps that we praise backs away from the principles used to justify punishment.
When we are disgusted by the unnecessary pain inflicted even on those who’ve inflicted unnecessary pain, we are disgusted with retribution. When we are outraged by the horror of a botched execution, we are outraged by the use of punishment to make an example out of its victims.
It is time to take the final steps on the path we’re already taking.
It is time to abolish the crime of punishment.
Citations to this article:
- Jason Lee Byas, Why Abolishing Capital Punishment is Not Enough, Counterpunch, 05/02/14
- Jason Lee Byas, Abolishing Capital Punishment is Not Enough, Before It’s News, 05/01/14
How would an anarchist society deal with burglars, murderers and rapists etc? You can't just ask them to cough up compensation then leave them to run around to cause more misery. I apologise if this comes across as a straw man argument but I read a lot about anarchist plans to abolish prisons etc and there isn't much emphasis on what to do with genuinely nasty people who need restraining. Gary Chartier's Anarchy and Legal Order barely touched on it except in very vague terms. What would you actually do to these people to stop them causing harm?
Richard,
My own answer to your question is: I don't know, but I don't NEED to know.
The existing system does not work to prevent or deter burglary, murder, rape, etc.
In fact, there's good evidence that the existing system certainly encourages by example and almost certainly increases, perhaps even maximizes, burglary, murder, rape, etc.
Therefore, the existing system has to go.
What to replace it with? Well, first and foremost, freedom in general, which is the environment that allows us to solve problems.
Asking what precise solutions freedom will deliver is like asking Charles Babbage in the 1820s to predict what the most popular game for the Apple II would be in 1984. He proposed the programmable computer in principle, but it had to actually be invented before he (or anyone else) could know what it could and would actually do.
"You can't just ask them to cough up compensation then leave them to run around to cause more misery."
Compensation, if proportional & reasonable, can serve as a good economic incentive for offenders not to offend again. Of course, in an anarchist society there shall exist no prison, but that NEVER mean that people will not be wary of & will act very cautiously around somebody with criminal records (by crimes here I mean those which violate a person's body or properties, not 'victimless crimes'). What about self-defense, anyone?
People would be free to exclude criminals from their property, including streets etc. If a convicted criminal, especially one who has been found guilty in many cases by different arbitration associations, is found roaming around, he would get thrown out. Insurance agencies may offer such protection in contracts with their customers – i.e. no convicted criminal by this list of judges is permitted to enter their property.
Also, there is a possibility of voluntary "prisons" for certain people as outlined by Bob Murphy: https://www.youtube.com/watch?v=SzYJYSm-MfI
Ultimately, we cannot say what market mechanisms would be employed, no single mind can predict what will happen. Different regions might choose different approaches based on custom, diversity, resources etc.
My prediction is that certain communities would probably still employ prisons but not anywhere near the scale State does now, not many people would be willing to voluntarily pay for someone's imprisonment, especially if it generates little to no economic value for them. Market would try to find a more creative and efficient way of dealing with crime.
The problem with compensation is that it assumes the aggressors will have sufficient funds to afford it. If they're skint or are never likely to earn enough to pay compensation for their crimes (which I imagine would be significant in the case of murder for example) then I'm not sure how much help this is.
Richard: You can't just ask them to cough up compensation then leave them to run around to cause more misery. . . .
Why not?
I'm asking this in all seriousness. What is the specific problem you're trying to solve?
My recent post Shocking results
1. Is it a practical problem with the likelihood of misery being caused? Then we can talk about how individual people can defend themselves against possible, or plausible, threats and reduce the likelihood of misery, without locking people in cages or exacting additional force on them to punish them. I'd argue that there are some options.
2. Is it a problem with the idea that there's no guarantee that people who've caused misery in the past won't cause more misery in the future? I agree that there is no guarantee. But of course putting them in prison doesn't guarantee that either — people in prison can still cause misery, and some do (mostly against other prisoners). And people in prison get out of prison eventually. You could say, "Ah, but the death penalty guarantees that that prisoner won't ever hurt anyone again." If you're willing to accept the death penalty, that offers a certain kind of guarantee. If. But of course, even if you're willing to accept the death penalty, that offers no practical advice for how to deal with burglars or rapists or even most murderers, unless you're also willing to revive the code of Draco. In general: it seems to me that the demand for an absolute guarantee against recidivism is an unreasonable demand. Prison and punishment do not fulfill this and could not reasonably fulfill it under any possibly acceptable circumstances; so why should a restitution-based justice system be expected to?
3. Is it a sense of indignance or outrage at the very idea that once someone has caused misery, they might be left with a significant freedom of action afterwards, and not subjected to punishment — regardless of the likely practical effects, regardless of the relative probabilities of whether a convict might cause more misery in the future, and regardless of how much people might be able to defend themselves adequately without punishing? If so, then I don't have an answer to that indignance or outrage, because the indignance already presupposes that punishment is desirable and seems to amount to a flat-out claim that if a justice system doesn't lead to imprisonment for criminals, it's ipso facto failing to do something it ought. Restitution can't help with that. But then we should be clear that that's what we are arguing about.
My recent post Shocking results
I'm disappointed that I only just got around to reading this article and the comments. Very good stuff. I think parts of Jason's article, and your point #3 really highlight the unanswered question, "What is the point of "criminal law"?"
I think, unfortunately, most people in the world would view retribution as their most important goal. And though I haven't read much about a restitution-based system and how it'd work, my fear would be that retribution would end up being the form that restitution takes. Rothbard advocated a restitution-based system in Ethics of Liberty (I'm pretty sure) and said something like, "If your neighbor plucks your eye out, you should be able to pluck his eye out as your restitution".