Like many people, I was shocked to hear about the death of Justice Scalia. After several days, I realized how complicated his death is from a legal standpoint, and the more I read and hear about him, the more contradictions I find. It has been heartening to hear about his friendship with Justice Ruth Bader Ginsberg and how it has endured across a huge political divide. I keep hearing about his charm, his wit, his humor, his writing ability and his legal brilliance. He served on the court with distinction for decades. I am sorry about his death, but I am relieved that he will no longer negatively effect so many people, particularly people on death row with his vociferous defense of the death penalty. Asked about what it was like to rule on death penalty cases, he responded, “The death penalty? Give me a break. It’s easy.” Given our horribly broken criminal justice system and its accompanying racist policies, I do not understand how anyone could be so cavalier about anything as serious and tragic as capital punishment. In my last blog, I wrote about people in the “tall tower” and how often they are disconnected from the world of impoverished communities and people of color. Wealth, power and privilege create these disconnections. Misinformation, prejudice and judgment often follow. It seems to me that Antonin Scalia lived in the tall tower—far removed from the realities of people in prisons and on death row.
Two of my heroes are Bryan Stevenson and Michelle Alexander. Stevenson wrote Just Mercy: A Story of Justice and Redemption, and he created The Equal Justice Initiative where he represents people in Alabama on death row, many who are innocent. He represents children who are incarcerated, sometimes as young as nine or ten, and who have been sentenced to life without parole. Many of his stories are chilling. Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, gives us new language and understanding about the tragedy of the United States becoming the world’s biggest jailor, and how our prison populations reflect the new form of racial control. She sheds light on how our prison system is creating an American caste system. They both work tirelessly for justice.
Bill Moyers interviewed Stevenson and Alexander together.
Moyers asked Stevenson, “Why is it that capital punishment has become so symbolic of what you see as the crisis in American justice and American life?” Stevenson replied,
“It shapes all of criminal justice policy. It’s in the only country where you have the death penalty that you can have life without parole for someone who writes bad checks. Somebody else who steals a bicycle. And so it shapes the way we think about punishment. You know, we’ve gotten very comfortable with really harsh and excessive sentences. And I think the death penalty permits that. But I also think it really challenges us, if we will really execute innocent people. We’ve had 130 people in this country who’ve been exonerated, proven innocent while on death row. For every 8 people who have been executed, we’ve identified one innocent person. If we will tolerate that kind of error rate in the death penalty context, it reveals a whole lot about the rest of our criminal justice system and about the rest of our society.”
Allowing the death penalty makes our society more punitive. Our prison policies are not based on the assumption that people are basically good and make mistakes. We don’t use prisons for the sole purpose of rehabilitation. We punish. We punish severely. We still have more than 80,000 people in solitary confinement, many of them children. Women and children are especially vulnerable to rape, and pregnant women are treated horribly in many cases. At this point, we make it very hard for people to put their lives back together when they are released by restricting access to federal housing and food subsidies, restricting licenses and student loans and by providing inadequate support for finding sustainable jobs. There is talk of reinstating Pell grants for people behind bars, but far more needs to be done about more comprehensive education. I taught in the only high school completion program beyond GED in the federal system. Without the right kind of support, returning citizens are vulnerable to homelessness, unemployment, debtor’s prison and what Michelle Alexander calls “a lifelong underclass.” Many states prohibit these citizens from serving on juries or even voting. They are vulnerable to recidivism.
When I was writing a blog about one of my students on June 15, 2015 called A Ruling Passion: Abolishing the Death Penalty, I learned about a national organization called Conservatives Concerned About the Death Penalty. It was reassuring to read about their concern and political action. Helen Prejean wrote in Dead Man Walking, “Government…can’t be trusted to control its own bureaucrats or collect taxes equitably or fill a pothole, much less decide with of its citizens to kill.” The death penalty is not only complicated, but it results in tragedies of immense proportions, especially among minorities. It is devastating to the families of people who are killed. It provides a slippery slope into more and more damaging and punitive policies, and it should never be described as easy in any context.