Crime and Different Punishments

LAST week, the State of Arkansas, which had executed exactly nobody since 2005, put to death Ledell Lee for the crime of murdering Debra Reese in 1993. Why now — 11 years after the last execution, 24 years after the crime? Because the chemicals used for lethal injection were about to expire.

Reasonable people can disagree on the death penalty, but everyone should recognize the dark absurdity of an execution timetable set by a drug’s expiration date. And that absurdity provides a useful segue to the latest in my ongoing series of implausible proposals: That our modern way of punishment should be reconsidered, and penalties long dismissed as inhumane should replace medicalized executions and “civilized” incarceration.

That phrasing sounds too reasonable for the spirit of this series, so here’s the more outrageous version: Bring back the stocks and the firing squad.

The tendency in modern criminal justice has been to remove two specific elements from the state’s justice: spectacle and pain. During the 19th and early 20th centuries, pillories and stocks and whipping posts became museum pieces, the hangman and the firing squad were supplanted by more technical methods, and punishment became something that happened elsewhere — in distant prisons and execution chambers, under professional supervision, far from the baying crowd.

All of this made a certain moral sense. But the civilizing process did not do away with cruelty and in some ways it could exacerbate it. With executions, the science was often inexact and the application difficult, and when it went wrong the electric chair or the gas chamber could easily become a distinctive kind of torture. During the last century lethal injection, now the execution method of choice, had a higher “botch rate” by far than every other means of killing the condemned. Meanwhile, the lowest rate of failure (albeit out of a small sample size) belonged to that old standby: the firing squad.

Few prisoners face execution, and anti-death penalty activists may yet reduce that number to zero. But botched injections are not the only ways in which we pile cruelties on the condemned. Our prison system, which officially only punishes by restraint, actually subjects millions of Americans to waves of informal physical abuse — mistreatment by guards, violence from inmates, the tortures of solitary confinement, the trauma of rape — on top of their formal yearslong sentences.

It is not clear that this method of dealing with crime succeeds at avoiding cruel and unusual punishment so much as it avoids making anyone outside the prison system see it. Nor is it clear that a different system, with a sometimes more old-fashioned set of penalties, would necessarily be more inhumane.

This is the (deliberately provocative) argument of Peter Salib, a judicial clerk on the Seventh Circuit, in his new paper, “Why Prison?: An Economic Critique.” Salib’s claim is radical: “We should not imprison people who commit crimes.” Instead we should force criminals to work, under monitoring, in the highest-value available jobs in order to make financial restitution, while adding additional deterrence in the form of “nonmonetary sanctions.” Writes Salib, “this paper does not endorse any particular nonmonetary sanction,” but he notes that “history presents a startling array of options, including: flogging, pillory, running the gauntlope, tarring and feathering, branding, and many more.”

The idea that a combination of financial sanctions and corporal punishment could replace imprisonment seems insane, even to a columnist floating slightly crazy ideas. There will always be a group of offenders sufficiently dangerous to require long-term separation from society. And most of our prisoners, contrary to certain convenient myths, are not nonviolent offenders; they have been convicted of robbery, assault, rape and murder.

But not every violent offender is equally dangerous — a fact already reflected in sentencing, which releases many prisoners relatively swiftly. So there would be room to experiment with Salib’s proposal, to offer some of the convicted the stocks followed by supervised labor, without leaping to the abolish-prison stage.

I recognize (and Salib acknowledges) a strong historical reason not to conduct such an experiment: because of the memory of slavery, the role that public violence played in maintaining racial hierarchy, and the fear of resurrecting that violence in a country whose prison population is still disproportionately black.

We tell ourselves that we have prisoners’ good in mind, and the higher standards of our civilization, because we do not offer them this choice. But those standards may be less about preventing ourselves from becoming like our sinful ancestors, and more about maintaining the illusion of clean hands — while harsh punishment is still imposed, but out of sight, on souls and bodies not our own.

This argument is powerful, but I still wonder if it is not a little self-deceiving. I would rather face the firing squad than be strapped down and injected into eternity, and I would choose a strong dose of pain and shame over years under the thumb of guards and inmates and the state.