With The White House set to include a proposal for the death penalty for drug dealers in their plan to fight the opioid crisis, it is worth revisiting Justice Breyer’s dissent in Glossip v. Gross and the question as to whether or not the death penalty is constitutional at all.) Like the initial imposition of the Travel Ban, what little we know of the proposal and what we see of the culture it stems from seems to give the appearance of an attempt to seek an outlet through which certain parties can express their desire to punish others — and not even for reasons through which we can potentially point to a string of rational actors on a chessboard, as if this were only about the pursuit of some kind of sober-minded model of ‘unfortunate but necessary’ deterrence; instead, what we know of the proposal gives the appearance of being an attempt by some to give legal shape to sadism. It’s in this proposal where we can draw the line from bored bourgeois violence to an actual act of violence.
This is why — beyond the legacy through which the country should think of its war on drugs (and the easy mistakes we could avoid but nevertheless continue to make) — it’s worth looking at the death penalty and asking ourselves if it is constituted as Breyer described — namely —
Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose.
There is a case on the books where the death penalty was imposed as a ‘tie-breaker.’ There are multiple cases on the books where innocent people were executed — let alone how many more we can include if we broaden the context here to include all the innocent people who have been murdered in the Philippines in the name of a war on drugs, an unfolding scenario where the current occupant of The White House reportedly took inspiration from — and — more to the point — we keep getting numerous applications of the death penalty wrong —
The Federal Bureau of Investigation (FBI), for example, recently found that flawed microscopic hair analysis was used in 33 of 35 capital cases under review; 9 of the 33 had already been executed … In light of these and other factors, researchers estimate that about 4% of those sentenced to death are actually innocent.
If “capital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution,” as was written in Roper v. Simmons, then what does that make someone like Eric Garner? What is the specific definition of what constitutes a drug dealer worthy of execution here? A cigarette? A few pages later as he continues to survey the research, Breyer provides something of a potential an answer —
82% of the 28 studies conducted between 1972 and 1990 found that race of victim influences capital murder charge or death sentence, a “finding . . . remarkably consistent across data sets, states, data collection methods, and analytic techniques.”
If there is something fundamentally awry in the legal argument for the death penalty, then what can we say about the question of deterrence? What information exists detailing the impact the death penalty has on criminality? Per John Donahue at Stanford Law School —
… operating a death penalty regime — at least in the United States — has been incredibly costly, as each case resulting in a death sentence will spend years in various types of legal appeals, eating up the valuable time of judges, prosecutors, and defence lawyers, overwhelmingly at government expense. [Which — again — brings to mind how money is being misspent dealing with certain immigration laws — EMF]
… A panel of the National Academy of Sciences addressed the deterrence question directly in 2012 and unanimously concluded that there was no credible evidence that the death penalty deters homicides.
So — if there is something fundamentally awry in the legal element for the death penalty and the information that exists regarding deterrence points fairly overwhelmingly towards one particular conclusion, then what can we collectively point towards as a model to emulate? As Nick Turner and Jeremy Travis wrote (and we can thank The Fair Punishment Project from bringing it to our attention) —
The men serving time wore their own clothes, not prison uniforms… They lived one person per cell. Each cell was bright with natural light, decorated with personalized items such as wall hangings, plants, family photos and colorful linens brought from home. Each cell also had its own bathroom separate from the sleeping area and a phone to call home with. The men had access to communal kitchens, with the utensils a regular kitchen would have, where they could cook fresh food purchased with wages earned in vocational programs.” They did not say that recidivism rates were zero but rather that “they think about recidivism differently…. If, after release, an individual were to end up back in prison, that would be seen as a reason for the prison staff members to ask what they should have done better.”
And we can do better.