The degree of civilization in a society can be judged by entering its prisons.
—Fyodor Dostoevsky from The House Of The Dead
I hate the death penalty.
I hate the possibility of wrongly putting innocent people to death. But I also hate the idea of the state deciding when to murder an inmate using our taxpayer dollars. I think public safety is important, but I don’t feel safer because there’s a death penalty.
I had been following the case of Lezmond Mitchell, the only Native American on federal death row. There was a lot going on in this case, including Navajo Nation leaders requesting that Mitchell's sentence be commuted to life imprisonment.
Tribal sovereignty was at issue, and some observers believe the federal government took advantage of a loophole to override tribal rights: Mitchell was arrested in connection with the murder of a woman and her granddaughter. The Navajo Nation opposed capital prosecution for the murder charges, their right as a sovereign nation. So the Department of Justice charged Mitchell with carjacking instead, an offense that does not fall under the Major Crimes Act, which requires the consent of the tribe to seek the death penalty. Carjacking, though, sidesteps the Major Crimes Act, and because the carjacking resulted in death, the crime could be prosecuted under the Federal Death Penalty Act.
That's a lot of detail to say that our Department of Justice was ready to dance a complicated tango to put this man to death.
Mitchell's execution was scheduled for August 26, 2020.
In a kind of Schrodinger's Cat move, I didn't check until the morning of August 28 to see what had happened. Mitchell had been executed. Add the execution and the overriding of sovereign tribal rights to the long list of wrongs and disses the federal government has rained on native people since forever.
With all that in play, it was interesting, later that day, when my boss gave me a book that she had just finished reading, Bryan Stevenson's Just Mercy. Stevenson, a lawyer and founder of the Equal Justice Initiative, has dedicated his life to working with the incarcerated, especially those sentenced to death. After decades of this work—and it's clearly demanding, laborious, life-consuming work—Stevenson's reflections on our criminal justice system are meaningful and heartbreaking.
Some facts from Stevenson’s book:
*Between 1990 and 2005, a new prison opened in the United States every ten days.
*Between 1980 and 2010, the number of women incarcerated increased 646%.
*About 75-80% of incarcerated women are mothers of minor children.
*Two-thirds of imprisoned women are incarcerated for nonviolent, low-level drug crimes or property crimes.
*Incarceration in the U.S. costs about $80 billion annually.
*We incarcerate people who are cognitively and/or physically disabled; people with mental illness; and children. These inmates account for a large portion of the prison population.
Much of what's truly horrible in our current system of extreme punishments and mass incarceration has roots in legislation passed over 20 years ago. It's that damn crime bill—The Violent Crime Control And Law Enforcement Act of 1994. This legislation was so far-reaching: It vastly expanded funding for prisons and for increased policing around the country. It spitefully took away inmates' right to receive federal Pell Grants for higher education while in prison, whether they were otherwise eligible for the funding or not. This essentially stagnated the educational level of inmates during incarceration. Who does that benefit?
Rehabilitation and reintegration—earlier ideas about the purpose and possible promise of incarceration—got kicked to the curb by the VCCALEA, replaced by retribution and drastic punishment. The bill financially incentivized building more, bigger prisons and doling out stiff mandatory sentences. Many states took the bait and did just that.
Stevenson's book documents how many incarcerated people have mental illness or disabilities, and what it means for children to be tried as adults and incarcerated in adult prisons. Our “justice” system favors wealth and status, while making it very difficult for poor people to get the legal help they need. You already know the numbers about the disproportionate sentencing of people of color, creating glaring racial disparities in the system. "If you're a black baby born today, you have a 1 in 3 chance of spending some time in prison or jail," says Nicholas Turner of the Vera Institute, a nonprofit dedicated to researching crime policy. "If you're Latino, it's a 1 in 6 chance. And if you're white, it's 1 in 17."
Years ago, I sat in on a counseling class at the Yale Divinity School. The professor talked about how, as a counselor, you might find yourself working with clients who recounted things about their parents that made you furious with those parents. But then, he added, if you had the chance to speak with the parents, you often found yourself furious with the grandparents. Ad infinitum. His point? Violence and poor decision-making have their roots in something, and it’s often something other than a stable home life and conscious parenting. Children are neglected and mistreated and ignored by parents who, as children, were neglected and mistreated and ignored.
It’s important to understand why people commit the crimes they commit. It’s the only way to offer meaningful interventions. As our current system is organized, with a disproportionate emphasis on punitive responses to crime, we rarely seem to offer helpful interventions to people who need them.
I felt a lot of things reading Stevenson's book, but one of the most moving passages for me was about a Vietnam War veteran with mental illness that Stevenson represented. The man, Herbert Richardson, was put to death, and Stevenson was with him just before. Richardson recounted how, since he had woken up that day, so many guards had been asking what they could do for him, how could they help him, could they bring him lunch?
"More people have asked me what they can do to help me in the last fourteen hours of my life than ever asked me in the years when I was coming up," Richardson told Stevenson.
In response, Stevenson wrote: "[I reflected] on all of the trauma and difficulty that had followed this well-meaning man home from Vietnam….Where were these people when he really needed them? Where were all of these helpful people when Herbert was three and his mother died? Where were they when he was seven and trying to recover from physical abuse? Where were they when he was a young teen struggling with drugs and alcohol? Where were they when he returned from Vietnam traumatized and disabled?"
Indeed. It feels to me that our 20+-year experiment in cruelty, thanks in large part to the VCCALEA, has run its course. Can we revisit what we define as serious crimes? Can we make retroactive any sentencing changes that might affect people serving disproportionately long sentences for nonviolent drug-related crimes? Can we try something different and redirect some of the money spent on incarceration into programs that address the issues facing Herbert Richardson and others like him—poor people, with few or no resources, with little or no human or institutional support?
We have evidence-based practices to intervene thoughtfully on all these matters. Why don't we?