Punitive Incarceration

If I had my way we would abolish the death penalty in favor of life without parole. Several states already have and I expect more will follow. It isn't that I don't think the worst murderers deserve to die. They do. I think we will be a better society without a death penalty. We don't really need it. The only real justification for executing a criminal is retribution and that is one of our baser human motives. There is no reason a lifetime of incarceration shouldn't prevent a subsequent murder. The death penalty is expensive, more expensive even than thirty or forty years behind bars. And there is the question of wrongful convictions. Is there anyone out there who still doesn't believe we occasionally execute the wrong man? I don't say innocent. Almost all executions involve really bad actors but unsavory character is not a capital crime.

Robert Blecker has an article in City Journal advocating what he calls Permanent Punitive Segregation. He would make life in prison for the worst of the worst as unpleasant as constitutionally allowable. He would put them in something close to permanent solitary confinement with no contact with other inmates, specially trained guards who would avoid unnecessary conversation, no television or other entertainment, pictures of their victims unreachable but on prominent display, a bland tasteless diet, limited exercise, and no possibility of ever touching another human being.

Professor Blecker justifies his proposal primarily on grounds of retribution. The punishment should fit the crime. The guilty should get his just deserts. I don't disagree that some of these criminals deserve harsh treatment but who benefits? The prisoner isn't going to repent and reform. We've already given up on that. Do we really want a public policy based on vengeance? The Texas prison system is run by the Department of Corrections. We aren't going to correct anybody here but do we want a separate Agency for Revenge?

Professor Blecker also suggests his policy would act as a deterrent. I think he is being disingenuous here. He offers no support beyond human nature and common sense. Surely he knows that the prospect of a death sentence has never been a deterrent. It has sometimes led to false confessions in plea bargaining but few murderers commit their crimes in the expectation they will be caught.  Those who do act in passion with little regard to consequences. Human nature and common sense would lead one to believe the prospect of life in solitary confinement would do nothing to alter this basic dynamic.

I don't expect the Becker proposal will gain much traction. Legislators won't want to make life sentences more expensive than they already are. Prison wardens don't want prisoners with no incentive for good behavior because life is already as difficult as guards can make it. And, since the policy makes sense only in jurisdictions with no death penalty, public opinion has already swung in favor of more humane prisons.

I can understand the sentiment behind the idea. If Adam Lanza had survived his rampage at Sandy Hook Elementary School his maximum sentence in a Connecticut court would have been life without parole. Many people would think that was not enough. I might even be inclined to agree. But what good would it have done to put that poor mad soul to death? Would the parents of his victims feel better knowing that he would live out his life in misery? Wasn't he already miserable?

We will continue on our path toward abolishing the death penalty, state by state. It is an anachronism. When it is gone our grandchildren will ask us what took us so long. We aren't going to replace it with another policy based solely on revenge.