This is the second part of a two-part series on the resumption of federal executions in the U.S. by the nation's most prominent retributivist advocate for the death penalty, New York Law School professor Robert Blecker. Part one can be read here.
After three executions last week, the federal death penalty has provoked an avalanche of criticism. Opponents attack it as arbitrary—we can neither define nor determine who make up the worst of the worst. Besides, death penalty critics claim, life without parole (LWOP) offers a much better, morally satisfying alternative—punishment as bad, or even worse, than death itself.
Yesterday's opinion piece rebutted the first attack. Now for the second.
Let the punishment fit the crime. People have mouthed this for millennia, and seemingly still embrace it. Can the punishment of death be the only morally adequate response?
In reality, a prisoner's actual experience inside prison—those countless more or less pleasant or painful moments, day to day—constitutes his punishment. Justice requires that those who commit the worst crimes experience the most unpleasant punishment; also, that those who commit the least serious crimes experience the mildest punishment. Distinct from revenger, retribution also acts as a limit on punishment—no less nor more than deserved. Let the punishment fit the crime. Keep punishment proportional to the gravity of the offense, or the moral depravity of the offender.
Life inside Lorton Central, and every prison I have visited since, mocks that goal.
Unaware of lifers' actual experience, an instinctively retributive but uninformed public often opposes the death penalty as "too good" for the worst of the worst, imagining life in prison as a living hell.
But day to day, hour to hour, moment to moment, inside prison a lifer's life in no way reflects the greater seriousness of his crime. In Lorton and most prisons across the United States, those who most deserve it suffer least. The toughest criminals who committed the worst crimes often have it best: Lifers move up to the favored supervisory positions in industry—earning the most money for the least work. They have the best hustles—the best-established contacts for drugs, weapons, etc. By contrast, the timid, short-term first offender, who deserves it least, often suffers the most.
Officers intentionally ignore the prisoners' crimes. "What a man is in here for is not our concern," explained Captain Frank Townshend, a well-respected, tough-but-fair Lorton officer. Inside the joint, prisoners further help cut that connection between the crime and punishment. With the exception of rape, which they scorn, and child molestation or crimes against the elderly, whatever a person did on the outside is his own business.
"My day?" explained David Keen, who raped little Ashley Reed, then strangled the eight-year-old child with a shoelace, dumping her, still living, into the Wolf River. "Do my arts and crafts, or go to the yard, play cards—spades and rummy. If we win, we win. Just going out to have fun," Keen continued. "Some people play Scrabble, pinochle, monopoly, handball, basketball. Some lift weights. I do push-ups and sit-ups in my house. We joke around, tease the officers; the officers tease us. It's pretty laid back, for the most part."
In the old days, fellow convicts routinely attacked child molesters like Keen. Today, afraid of losing their privileges, convicts mostly leave them alone. In the old days, prison staff too might have given Keen the cold shoulder. No longer. "When I come to work, every day I 'flip a switch' that says: 'These people are human beings; it doesn't matter what their crime is," explained Cameron Harvanik, Oklahoma State Penitentiary's good-natured Deputy Warden. Lee Mann, a warden's assistant, summed up best the laid-back lifestyle prison administration provides those serving LWOP: "We want to make the time as easy for them as we can because it makes it easy for us if it's easy for them."
"A better name for [LWOP] might be, 'death by incarceration,'" abolitionists have declared, using artful but misleading rhetoric to support the substitution of life for death. True, almost all aggravated murderers sentenced to LWOP will die in prison. But almost none will die because of prison. We all live, condemned to die somewhere. Some of us will die in old age in our sleep, or watching television, or taking a bath. Should we call these closing scenes "death by sleep," "death by television," "death by bathing?"
The question of justice—whether LWOP can morally substitute for the death penalty—depends not on where these vicious killers die, but on how they live before they die.
A retributivist would link the experience inside with the severity of the crime outside. The quality of the food, the number and nature of visits, access to popular programs, telephone privileges—every aspect of life inside would, and should, relate primarily to the criminal's past crime. But by severing the crime committed outside from the quality of time spent inside, both prisoners and prison administrators undermine any justice or proportionality attaching to life without parole.
Life without parole is worse than death, some abolitionists will insist, hoping to mollify an angry, if ignorant, public. Really? Why then do so few lifers kill themselves? Of course you can find exceptions, but perversely, as Howard Wiley, a death row prisoner, explained, "Life in the penitentiary preserves you. Besides," Wiley soothingly summed it up, "as long as you're six feet above ground and not six feet under, you got a chance."
"Nobody enjoys serving life," observed Watson Gray, a former death row condemned now serving life, "but it depends on how you live it."
"So life, even in a maximum security prison significantly beats—"
"Being dead," Gray laughed heartily. "Significantly."
As long as a prisoner's daily experience inside is either severed from or perversely connected to the crime committed on the outside, prisons can, and will never become an instrument of justice. This perverse and utter failure of LWOP destroys its claim as the better alternative to the death penalty.
Thousands of hours inside Lorton prison severely tested my belief in equal protection and equal justice. Those of us who still believe in justice must face up to fundamental class bias in the criminal justice system. We are only beginning to understand that the U.S. vastly over-punishes relatively trivial crimes, and criminals. It banishes and marks them for life, and then releases them, unprepared, into a cold or hostile world.
We detest arbitrary and haphazard over-punishment. Ironically, however, the death penalty probably constitutes the least arbitrary or haphazard part of the criminal justice system.
Boundaries may be subtle and difficult, but I still feel certain that rapist murderers, serial killers, mass murderers, absent compelling mitigating circumstances, do deserve to die and we have the moral obligation to execute them. I am convinced that a humane society, by making their lives miserable before blotting them out, more nearly approaches justice than if it provides them movies to stream, sports to watch, arts and crafts and lots of free time to play.
If they really want to eliminate arbitrariness, state and federal governments should review in-depth condemned killers on death rows. Instead of allowing the vagaries of appellate delay to determine who lives and who dies, they should release many of the least bad condemned to the general population and execute the remaining—worst first.
On July 17, 2020 the United States executed Dustin Lee Honken, who shot and killed five people—two men who planned to testify against him and a single, working mother and her daughters, six and ten.
With its first three choices for execution so far, the federal government seems to have gotten it right.
Robert Blecker, New York Law School professor of criminal law and author of The Death of Punishment, has been creating a TV series, Itchy, set inside Lorton Central Prison.
The views expressed in this article are the writer's own.