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The Crime of Punishment

Why Abolishing Capital Punishment is Not Enough

by JASON LEE BYAS

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.

Jason Lee Byas is a writer and activist living in Norman, Oklahoma. He is a fellow at the Center for a Stateless Society (c4ss.org), a contributor to the independent media outlet Liberty Minded, president of the University of Oklahoma Young Americans for Liberty, a co-founder of the University of Oklahoma Students for a Stateless Society, and a campus coordinator for Students For Liberty.