May 14, 2014
«**Fortiani» (Observer CAREERS Special,
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Healing the Wounds of Crime
Abolishing capital punishment is not enough
by J ason
L ee B yas
A fter yet another terrifying
botched execution, questions about
whether the death penalty consti
tutes “cruel and unusual punish
ment” once again fill the air. Per
haps, 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, Okla.
that failed to immediately kill its in-
tended 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 Inter
national calls it “one of the starkest
examples yet of why the death pen
alty must be abolished.” Even the
White House — headquarters of
worldwide mass drone assassina
tions — made a point to publicly
state that the execution “fell short”
of the standard for humane execu
tions.
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 wel
come 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 al
ready.
As jokes in popular culture re
veal, it’s socially understood that a
prison sentence involves condemn
ing 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.
■M M M BNHM M HM M M B
Even when sentences end and in
mates 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
w ant out o f p u n ish m en t, 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 res
titution 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 m ost obvious objection to
such a proposal is that no amount
o f m onetary com pensation will
ever bring back the dead, or undo
an assault, m aking full justice im
possible under restitution. W hile
this is unfortunately true, it is also
true o f punishm ent — even if
Lockett had suffered for three
hours, his victim would still be
ju st as dead.
The difference is that with a res-
titutive model of justice, we can at
least go some way toward healing
the wounds of crime. With a puni
tive model, no steps are taken in that
direction at all and new injustices
are committed.
When we look back at the history
o f criminal justice, most o f us mark
progress by the abolition o f the
cross, the rack and the guillotine.
We take it as a mark of our humanity
that our modem debates about le
thal 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 rea
son to abandon the practice alto
gether.
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 retribu
tion. When we are outraged by the
horror of a botched execution, we
are outraged by the use of punish
ment 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 punish
ment.
Jason Lee Byas is a writer and
activist living in Norman, Okla.
HBBMM
Supremely Mistaken About Affirmative Action
A strike against
truly equal
access
by M arc M orial
In a disturbingly
lopsided 6-2 vote,
the United States
S u p rem e C ourt
once again became
a willing accomplice in the recent
onslaught of attacks on 60 years of
civil rights progress.
Less than a year after it effec
tively dismantled the Voting Rights
Act of 1965, the Court ruled on April
22 that voters may ban race as a
factor in college admissions at pub
lic universities.
The Court’s decision curbed af
firmative action and undermined a
landmark 2003 ruling that affirmed
the use of race-sensitive admissions
policies at the University of Michi
gan Law School because of a com
pelling interest in fostering diver
sity in higher education.
In 2006, opponents of that ruling
rallied around and passed Proposal
2, an amendment to M ichigan’s
constitution that gave voters the
right to supersede elected univer
sity trustees and the right to ban the
consideration of race as one of many
factors in the admissions process.
It’s important to note that this
ban only singled out race. Other
selective factors, such as alumni
status, athletic achievements,
and geography remain in place.
A federal appeals court subse
quently ruled that Prop 2 vio
lated the Equal Protection clause
of the 14th Amendment, render
ing it unconstitutional. With
their recent ruling on Schuette v.
Coalition to Defend Affirmative
Action, a majority of the Supreme
Court’s justices allowed the Michi
gan amendment to stand.
Chief Justice John Roberts and
Justices Samuel Alito, Antonin
S calia, C larence T hom as and
Stephen Breyer joined Justice An
thony Kennedy in concurring in the
judgment. Having worked on the
case when she was Solicitor Gen
eral, Justice Elena Kagan recused
herself. The two dissenting votes
were cast by Justices Ruth Ginsberg
and Sonia Sotomayor, the Court’s
most reliable civil rights defenders.
Sotomayor’s written dissent is
an exceptionally scholarly, elo
quent, and impassioned argument
in defense of affirmative action. She
m e th o d ic a lly d isc re d ite d the
majority’s legal justification for its
decision by citing several previous
cases where the Court overturned
attempts to change rules in ways
that were detrimental to minority
voters. She also pointed out that the
Supreme Court bears an obligation
to right historical wrongs and to
expand educational opportunities
for those who have traditionally
been locked out.
“Race matters,” she wrote, “be
cause of the long history of racial
minorities being denied access to
the political process (and) because
of persistent racial inequality in
society — inequality that cannot be
ignored and that has produced stark
socioeconomic disparities.”
Mindful of M ichigan’s shameful
history of segregation in higher
education and of a significant de
cline in minority enrollment and
graduations since Prop 2 took ef
fect, Sotomayor concluded:
“The effect of [the Court's ruling]
is that a white graduate of a public
Michigan university who wishes to
pass his historical privilege on to
his children may freely lobby the
board of that university in favor of
an expanded legacy admissions
policy, whereas a black M ichigan
der who was denied the opportu
nity to attend that very university
cannot lobby the board in favor of
a policy that might give his children
a chance that he never had and that
they might never have absent that
policy.”
We may have lost this affirma
tive action battle. But as long as
there are voices as clear and strong
as Sonia Sotomayor’s on the Su
preme Court, I’m confident that in
the end, equal opportunity, equal
protection and equal justice will
prevail.
Six other justices made clear how
far from over the fight for civil rights
remains in 21st-century America.
Sotomayor shouldn’t need to re
mind her colleagues what the world
looks like beyond their chambers.
Yet she does.
“As m em bers o f the judiciary
tasked with intervening to carry
out the guarantee o f equal protec
tion, we ought not sit back and
wish away, rather than confront,
the racial inequality that exists in
our society,” the first Latina on
the Suprem e Court wrote in her
dissent.
We all need to sit up now.
Marc Morial is the president
and chief executive officer o f the
National Urban League.
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