Radical life extension would give humans the power to create an artificial hell for criminals. Should we?
This piece has come across my desktop 3 separate times in the past 24 hours. The answer to its central question is very obviously “No,” but I think the premise requires some discussion.
This notion that criminals don’t suffer enough or get off too easily, especially when they die, really speaks, I think, to the basest part of us, the part that longs to see other people — those who we prefer to think of as monsters — suffer as much as possible.
[A]t 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.
Rather than seeking to rehabilitate offenders and keep us safe from those who might try to harm us, we want our prisons to be the most god-forsaken places; we want our punishments to vent all of our rage at crime and criminals; and now, it seems, some of us want to consider creating “a living hell” for criminals we deem not to be able to suffer sufficiently through more conventional means of punishment. Of course, this desire to devise, implement, or marvel at the most awful possible punishments for offenders isn’t anything new. As Nietzsche argues:
Dante, I think, committed a crude blunder when, with a terror-inspiring ingenuity, he placed above the gateway of his hell the inscription “I too was created by eternal love”—at any rate, there would be more justification for placing above the gateway to the Christian Paradise and its “eternal bliss” the inscription “I too was created by eternal hate—provided a truth may be placed above the gateway to a lie! For what is it that constitutes the bliss of this Paradise?
We might even guess, but it is better to have it expressly described for us by an authority not to be underestimated in such matters, Thomas Aquinas, the great teacher and saint. “Beati in regno coelesti,” he says, meek as a lamb, “videbunt poenas damnatorum, ut beatitude illis magis complaceat” (On the Genealogy of Morals: A Polemic in Basic Writings, 485).
In his footnote, Walter Kaufmann translates the Latin: “The blessed in the kingdom of heaven will see the punishments of the damned, in order that their bliss be more delightful for them.” He notes, also, that this is not quite what one finds in Aquinas’ Summa Theologiae; to be exact, Aquinas writes, “Ut beatitude sanctorum eis magis complaceat, et de ea uberiores gratias Deo agant, datur eis ut poenam impiorum perfecte intueantur.” In English: “In order that the bliss of the saints may be more delightful for them and that they may render more copious thanks to God for it, it is given to them to see perfectly the punishment of the damned.” While the original differs from Nietzsche’s rendering of it, the spirit is clearly unchanged. The lengthy quotation that Nietzsche employs following Aquinas, while also in Latin, is even more faithful to its author, Tertullian. Here is a short sample, in English:
Yes, and there are other sights: that last day of judgment, with its everlasting issues; that day unlooked for by the nations, the theme of their derision, when the world hoary with age, and all its many products, shall be consumed in one great flame! How vast a spectacle then bursts upon the eye! What there excites my admiration? what my derision? Which sights gives me joy? which rouses me to exultation?—as I see so many illustrious monarchs, whose reception into the heavens was publicly announced, groaning now in the lowest darkness with great Jove himself, and those, too, who bore witness of their exultation; governors of provinces, too, who persecuted the Christian name, in fires more fierce than those with which in the days of their pride they raged against the followers of Christ.
Devising ghastly punishments for others is old hat for human beings. But it’s something we can and we ought to outgrow. Focusing on restorative rather than retributive justice is better for us, both psychologically and also societally. We’re simply not doing ourselves any favors by continuing to insist that the only — or the best — vision of justice is one that centers on making offenders suffer and then devising more and more types of suffering to heap on them.
Instead, we would do well to start thinking more seriously about restorative approaches to justice, which, as David Cayley defines them, “seek noncustodial settlements; they allow both the offender and the victim much more initiative; they are oriented more to peacemaking than punishment; and they try to mobilize the capacities of families, friends, and local communities in correcting offenders and holding them accountable” (10). This would, of course, require a radical reimagining of our criminal justice system and a full-scale rejection of the knee-jerk policies of the “Tough on Crime” crowd. We’re a long way from really integrating restorative practices into our thinking about criminal justice, but at least we can begin by vocally rejecting the arguments of those who want to consider whether we can find a way to ethically embrace a biotech hellscape for criminals. Clearly, we cannot.
39 Now one of the criminals hanging there reviled Jesus, saying, “Are you not the Messiah? Save yourself and us.” 40 The other, however, rebuking him, said in reply, “Have you no fear of God, for you are subject to the same condemnation?41 And indeed, we have been condemned justly, for the sentence we received corresponds to our crimes, but this man has done nothing criminal.” 42 Then he said, “Jesus, remember me when you come into your kingdom.” 43 He replied to him, "Amen I say to you today you will be with me in Paradise." 23:39-43
And of course, my favorite Biblical passage, Matthew 25:34-40:
34 Then shall the King say unto them on his right hand, Come, ye blessed of my Father, inherit the kingdom prepared for you from the foundation of the world: 35 For I was an hungered, and ye gave me meat: I was thirsty, and ye gave me drink: I was a stranger, and ye took me in: 36 Naked, and ye clothed me: I was sick, and ye visited me: I was in prison, and ye came unto me.
37 Then shall the righteous answer him, saying, Lord, when saw we thee an hungred, and fed thee? or thirsty, and gave thee drink? 38 When saw we thee a stranger, and took thee in? or naked, and clothed thee? 39 Or when saw we thee sick, or in prison, and came unto thee?
40 And the King shall answer and say unto them, Verily I say unto you, Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.
Nobody—nobody—is more so the “least of these” than the incarcerated. Christopher Glazek put it best in his prescient article, Raise the Crime Rate:
Prisoners are not the victims of poor planning (as other progressive reformers have argued)—they are the victims of an ideological system that dehumanizes an entire class of human being and permits nearly infinite violence against it. As much as a physical space, prisons denote an ethical space, or, more precisely, a space where ordinary ethics are suspended.
This ethically exceptional space has created a nightmarish carnival show in corrections facilities across America that has been conveniently shut off from the rest of the world. The absolute horror that gets inflicted upon human beings in prison is the single greatest human rights catastrophe in the First World. And it has been going on for decades. In United States v. Bailey(1980), Justice Blackmun wrote in a dissenting opinion:
The atrocities and inhuman conditions of prison life in America are almost unbelievable; surely they are nothing less than shocking…And the Government concedes: “In light of prison conditions that even now prevail in the United States, it would be the rare inmate who could not convince himself that continued incarceration would be harmful to his health or safety.” […] A youthful inmate can expect to be subjected to homosexual gang rape his first night in jail, or, it has been said, even in the van on the way to jail. Weaker inmates become the property of stronger prisoners or gangs, who sell the sexual services of the victim. Prison officials either are disinterested in stopping abuse of prisoners by other prisoners or are incapable of doing so, given the limited resources society allocates to the prison system. Prison officials often are merely indifferent to serious health and safety needs of prisoners as well.
In Brown v. Plata (2011), the Court described conditions in California’s overcrowded prisons:
Prisoners in California with serious mental illness do not receive minimal, adequate care. Because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone-booth sized cages without toilets. A psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. …Wait times for mental health care range as high as 12 months.
Prisoners suffering from physical illness also receive severely deficient care. A prisoner with severe abdominal pain died after a 5-week delay in referral to a specialist; a prisoner with “constant and extreme” chest pain died after an 8-hour delay in evaluation by a doctor; and a prisoner died of testicular cancer after a “failure of MDs to work up for cancer in a young man with 17 months of testicular pain.”
In the United States, sexual abuse by guards in women’s prisons is so notorious and widespread that it has been described as ‘an institutionalized component of punishment behind prison walls. …[And] although rape by guards is commonplace in U.S. women’s prisons, most custodial sexual abuse takes forms other than outright rape. Prison officials report that “[m]ost allegations involved verbal harassment, improper visual surveillance, improper touching, and/or consensual sex.” More specifically, women prisoners are subjected to sexual comments, groping, and threats of rape; male guards watching them on the toilet or in the shower; physical searches by male guards; demands for sex in exchange for goods or privileges or under threat of sanction; and guards taking advantage of their position to have “consensual” sex with prisoners without overt material exchange.
The saddest part is that everybody knows this is going on. As Andrew Cohen said recently, “It’s fairly easy to get judges to find unconstitutional conditions inside our prisons. The hard part is getting government to do anything about it.”
Ironically, many “law & order” Conservatives often complain about the collapse of Christian values in America. I’m admittedly not a Christian, but according to Christians I know, the single most Christian value is forgiveness. It is embodied in the concept of Grace, which Theologian Robert Farrar Capon described as "indiscriminate compassion." Those who are concerned about the collapse of Christian values in America could reinvigorate Christian values by working to reform our criminal justice system and inject that same “indiscriminate compassion” into our prisons, rather than a system constructed as a living monument to one of the Seven Deadly sins: "a love of justice perverted to revenge and spite.”
Gawker recently published a letter from Ray Jasper, a death row inmate who was convicted of killing a man named David Mendoza Alejandro. David’s brother, Steven, then published a response to Ray’s letter, which, as you can imagine, casts the contents of Ray’s letter in a decidedly less positive light.
As I was reading through Steven’s letter, several things jumped out at me. First, there was this passage, about when Steven testified at trial regarding his brother David:
After I was sworn in and sat in the chair, the prosecutor handed me a picture of David. It was a postmortem picture. It was a close up of David’s face from the neck up. His eyes still open. The gash from Jasper’s knife visible. I let out a gasp and when the Prosecutor asked me what the picture was of I told him, “it’s my brother, David.” Through tearful testimony, I tried my best to bring my brother back to life in that courtroom. When I got off the stand I reached for my father’s embrace and sobbed as I had never before and have not since.
This is a good example of how prosecutors manipulate the emotions of witnesses in order to inflame the jury. Here is a guy whose brother was recently killed, and the prosecutor, with zero scruples whatsoever, shows the witness a photograph of his brother’s freshly murdered corpse. The prosecutor then proceeds to ask him to talk about his brother while holding the same gruesome photo of his brother’s corpse in his hand. This is outrageous conduct by the prosecutor. There was absolutely no legally compelling reason whatsoever to show Steven a picture of his brother’s murdered corpse. But the prosecutor did it anyway. Because he knew it would upset Steven and make him an emotional mess on the stand. That of course, would make the jurors more likely to convict based on emotion, rather than the evidence.
Another part of the letter that jumped out at me was Steven’s vacillation over the death penalty. When the defense called him to the stand, they tried to get him to testify that he was opposed to the Death Penalty, but he refused to admit it, even though he actually does oppose the Death Penalty. David wrote the following after recounting his testimony:
After everything, I’m still opposed to the death penalty. I have no intention of witnessing Jasper’s execution but I have no intention of fighting to stop it either. Does this make me a hypocrite? Maybe, but that’s for me to live with. I harbor no illusions that Jasper’s ceasing to exist will ameliorate the pain I feel daily from the loss of David. The truth is I rarely think of Jasper or the other defendants. I think of David more. Those thoughts are more important to me than anything else. Certainly more important than any last statement from Ray Jasper. Though I purposefully skipped reading Jasper’s statement, I did read through the comments. I have to say to my fellow death penalty opponent friends: Keep up your fight. It is an honorable one. But do not use this man, Ray Jasper, as your spokesperson, as your example of why the death penalty should be abolished. The death penalty should be abolished because it is wrong to kill another human being. Not because a Medical Examiner said your knife wound did not cause immediate death. Ray Jasper is not worthy of your good and kind hearts. He has never accepted culpability or expressed remorse. He is responsible for viciously ending the life of “the nicest man he ever met.” Responsible for ending the life of the nicest man my family ever met, David Mendoza Alejandro.
As the family member of a murder victim, Steven Alejandro is certainly entitled to feel whatever way he feels about his brother’s death, and about Ray Jasper’s fate. But I think he’s making a categorical error in reasoning when he tells us that it’s wrong to kill another human being, and also says that Ray Jasper is not worthy of our good and kind hearts.
There are two types of arguments against the Death Penalty. One of them is procedural, and the other is ethical. The procedural argument against the Death Penalty is that human beings are flawed, and thus, so are human institutions. Even if we agree that some people deserve to die, the State is incapable of reliably making those determinations. So procedurally, the Death Penalty can never be effectively implemented without an intolerable risk of injustice.
The ethical argument against the Death Penalty is different. The ethical argument claims that even if we could reliably determine the guilt of persons accused of Capital Crimes, the Death Penalty should still be abolished, because all human beings have fundamental human dignity and inherent value. Nobody is capable of forfeiting their inherent value through their actions or omissions. As Steven Alejandro said in his letter, “The death penalty should be abolished because it is wrong to kill another human being,” i.e. it is wrong no matter what the circumstances. Even if the person you are killing has murdered someone you care about.
That’s the fundamental difference between someone who supports the Death Penalty, and someone who wants it abolished on ethical grounds. A person who wants the Death Penalty abolished needs to be able to look the killer of a loved one in the eye with a straight face, and say “you don’t deserve to die.” It is certainly difficult to maintain this conviction when faced with the violent loss of a loved one. And it is completely understandable that a person’s conviction might flag when a prosecutor is manipulating your emotions on the stand.
But it is wrong to say that you oppose the Death Penalty, while also stating that the people most likely to benefit from abolishing it (e.g. Ray Jasper) are not worth the good and kind heart of abolitionists. Ray Jasper is a far more realistic version of the type of people who will benefit most from Death Penalty abolition than the unspoken alternative Steven Alejandro has in mind. Indeed, Jasper does not seem to be the same selfish, violent 19-year old that participated in the robbery and murder of Steven Alejandro’s brother, demonstrating that even murderers are not beyond change and redemption. But even if this wasn’t true, Jasper would still be an acceptable spokesperson for Death Penalty abolition. If the ethical argument against the Death Penalty doesn’t hold up in Ray Jasper’s case, then it really doesn’t hold up at all.
Imagine you’re a young white guy facing capital murder charges where you can receive the death penalty… the victim in the case is a black man… when you go to trial and step into the courtroom… the judge is a black man… the two State prosecutors seeking the death penalty on you… are also black men… you couldn’t afford an attorney, so the Judge appointed you two defense lawyers who are also black men… you look in the jury box… there’s 8 more black people and 4 hispanics… the only white person in the courtroom is you… How would you feel facing the death penalty? Do you believe you’ll receive justice?
As outside of the box as that scene is, those were the exact circumstances of my trial. I was the only black person in the courtroom.
— Ray Jasper, Texas death row inmate who will be executed this month.
"The Supreme Court cannot allow a rule that forces capital defense attorneys to become agents of the state—and consultants about which lethal injection procedures are better than others—to the detriment of their clients."
Andrew Cohen, discussing a recent 8th Circuit decision that forces defense attorneys to propose “alternative” executions for clients when they challenge an existing execution method as Cruel & Unusual. He adds:
The best answer here, naturally, is the simplest one. Make the injection process more transparent, and give attorneys access to the information they seek, so that they can challenge state action based upon facts and evidence and not merely by allegation.
SDS asked a while ago whether I agreed the Bible laid a groundwork for capital punishment—in principle if not in practice. I do not.
Pretty much every example of capital punishment in the New Testament is negative. Jesus is crucified. John the Baptist is beheaded. “Let he who is without sin cast the first stone.”1
Then there’s the Old Testament—where things are a bit more … violent. In most of the specific cases, capital punishment is still viewed in a negative light. Cain kills Abel but is not killed himself. The books of Daniel and Ester include threats of capital punishment—but the protagonists avoid it. (David’s killing of Uriah is more about murder than punishment, so I’m not sure that counts.) Capital punishment is described as the punishment for a variety of offenses—but it’s unclear whether this is proscriptive or descriptive. There’s also the “thou shalt not kill” thing.
It’s even less clear whether those verses would be applicable in the same manner today. Did the New Testament announce new rules? Or should we apply the same rules differently when we have things like a functioning prison system. If you’re quasi-nomadic, maybe sentencing somebody to 20 years in prison isn’t really a possibility.
Without going through things verse by verse, I think it’s safe to say the following:
The totality of the New Testament should make us extremely uneasy with capital punishment.
Although capital punishment is described in the Old Testament, we should be mindful that there are significant distinctions betweeen ancient Israel and the contemporary United States.
One of the important distinctions is that the contemporary United States is not a theocracy and claims no divine mandate.
When in doubt, it’s appropriate to err on the side of not killing people.
I don’t think the argument that the Bible categorically forbids capital punishment is water tight. But I think it’s far stronger than the inverse.
Anonymous asked: Are you aware that the condemned Ohio inmate was charged with raping and stabbing a woman to death?
For some reason, many people have difficulty understanding the fact that state-sponsored execution is not a simple, straight-forward ethical dilemma. People often bring up the disturbing nature of the crimes of death row prisoners as if it is a sort of common sense ethical trump card. ”Who cares if he suffered during his execution! He was convicted of *horrible thing X!”
This might be a stronger objection but-for the myriad ethical and practical issues with State-sponsored execution. When it’s the State doing the killing, ethical relationships between the parties change. The sort of straight-forward “eye-for-an-eye” justice that makes sense on paper breaks down very quickly when it gets applied in a Constitutional republic that attempts to safeguard the rights of the accused while also upholding the rule of law. In a world where innocent people confess to crimes that they did not commit at alarming rates, Hammurabi’s Code is not a good guide for how to dole out justice.
Legal philosophers have long understood that State-sponsored execution is neither straight-forward nor ethically “easy” to justify. One of the most coherent attempts to grapple with this issue was laid down on paper by Cesare Beccaria, an italian jurist, who wrote in 1764:
The death of a citizen cannot be necessary [as punishment] but in one case: when, though deprived of his liberty, he has such power and connections as may endanger the security of the nation; when his existence may produce a dangerous revolution in the established form of government. But, even in this case, it can only be necessary when a nation is on the verge of recovering or losing its liberty, or in times of absolute anarchy, when the disorders themselves hold the place of laws: but in a reign of tranquillity, in a form of government approved by the united wishes of the nation, in a state well fortified from enemies without and supported by strength within, and opinion, perhaps more efficacious, where all power is lodged in the hands of a true sovereign, where riches can purchase pleasures and not authority, there can be no necessity for taking away the life of a subject.
The most articulate modern legal observer on the death penalty was, in my view, Justice Brennan, who wrote in 1976:
The fatal constitutional infirmity in the punishment of death is that it treats “members of the human race as nonhumans, as objects to be toyed with and discarded. (It is) thus inconsistent with the fundamental premise of the [8th Amendment] that even the vilest criminal remains a human being possessed of common human dignity.” … As such it is a penalty that “subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Eighth Amendment].” I therefore would hold, on that ground alone, that death is today a cruel and unusual punishment prohibited by the Clause. Justice of this kind is obviously no less shocking than the crime itself, and the new ‘official’ murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first.
Even so—the Death Penalty “feels” just to us when inflicted on horrible criminals. It feels like deserved payback, and it’s satisfying on a superficial level. But the game changes when it’s the Government putting people to death. That was, in part, the insight of Thomas Paine, who wrote in 1795:
An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.
Killing people who do terrible things is a straightforward ethical prescription when all you have to think about is the evil act and the punishment. But when you have to think about how that punishment is carried out, and how limitations on human knowledge present problems for a criminal justice system that tries to eliminate uncertainty (it can’t) while also serving as an efficient proxy for ethical relationships between people (it can’t), the death penalty is no longer easy to justify.
We also see a more complicated picture when we look at the judges who must sentence convicts to death. History shows that judges who oppose the death penalty rarely, if ever, become pro-death penalty later in their careers. It’s always the other way around: jurists who used to support the death penalty change their mind after seeing just how impossible it is to ensure that it is carried out reasonably free of bias, mistake, or incompetence. This is what happened to Justice Blackmun, who wrote in Callins v. Collins:
The basic question—does the system accurately and consistently determine which defendants “deserve” to die?—cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, relevant mitigating evidence to be disregarded, and vital judicial review to be blocked. The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.
But even if we had a situation where we knew with 100% certainty that the accused committed the terrible acts they were convicted of, it doesn’t solve the ethical dilemma of State-sponsored execution. As a Canadian legislator put it in 1914:
I wasn’t—but I didn’t particularly consider it relevant. People aren’t sentenced to death for minor offenses. A criminal conviction is society’s declaration that the convicted has done something awful.
Why muddy the moral clarity of something like that by doing gross medical experiments on the convicted. How sick is it that that we choose such a gross punishment that the question of whether society has lost the moral high ground in a case like this actually comes up?
We can argue all we like, but if capital punishment is being inflicted on some man, we are inclined to say: ‘It serves him right.’ That is not the spirit, I believe, in which legislation is enacted. If in this present age we were to go back to the old time of ‘an eye for an eye and a tooth for a tooth,’ there would be very few hon. gentlemen in this House who would not, metaphorically speaking, be blind and toothless.
"The death of a citizen cannot be necessary [as punishment] but in one case: when, though deprived of his liberty, he has such power and connections as may endanger the security of the nation; when his existence may produce a dangerous revolution in the established form of government. But, even in this case, it can only be necessary when a nation is on the verge of recovering or losing its liberty, or in times of absolute anarchy, when the disorders themselves hold the place of laws: but in a reign of tranquillity, in a form of government approved by the united wishes of the nation, in a state well fortified from enemies without and supported by strength within, and opinion, perhaps more efficacious, where all power is lodged in the hands of a true sovereign, where riches can purchase pleasures and not authority, there can be no necessity for taking away the life of a subject."
"If you spend any time at all studying the death penalty in America today you eventually come across an immutable truth: No one who digs deeply into these grim cases ever seems to evolve from being a staunch opponent of capital punishment into being a fervent supporter of the practice. The movement, over the past 40 years anyway, has almost always been in the opposite direction: The closer one gets to capital punishment, the more dubious it appears to be."
"[The] sole motivating factor behind the death penalty is vengeance, not justice, and I firmly believe that a government that forbids killing among its citizens should not be in the business of killing people itself."
— Larry Flynt, who has filed a motion with the help of the ACLU to force the state of Missouri to reveal more information about the execution of the man who shot and paralyzed Flynt several decades ago. Flynt opposes the death penalty for his attacker.