Recently, we here at Abnormal Use were invited to review The Death of Punishment, a new book by Professor Robert Blecker of New York Law School that deals with the philosophy of punishment in the American criminal justice system. We were somewhat surprised by this opportunity because, as our reading faithful know, our humble blog typically reports on civil product liability cases, which is a substantial part of our bread-and-butter at Gallivan, White & Boyd, P.A. We usually aren’t involved in the criminal side of the bar, except on those all-too-frequent occasions when our editor in chief tries to supplement his income by making bootleg copies of major motion pictures. In any event, we were intrigued by the concept of Professor Blecker’s book and flattered by the request.
First, a note about the author. Professor Blecker has taught criminal and constitutional law courses at New York Law School for more than 35 years. He identifies himself as a retributionist, which – admittedly – is a term I had to look up. Generally, a retributionist believes that society’s primary response to crime should be a proportionate punishment experience. To say it another way, when fashioning a criminal sentence, society should not be as concerned with rehabilitating the criminal, or with deterring other, future crimes, as it should be with imposing punishment against the criminal in an amount commensurate with his offense.
Professor Blecker is probably best known for his reputation as an outspoken advocate for the death penalty. But to be clear, The Death of Punishment is not about capital punishment—at least not exclusively. Instead, The Death of Punishment is an explanation of Professor Blecker’s philosophy on how society should incarcerate the “worst of the worst”—the individuals whose crimes are so morally reprehensible that they deserve a unique punishment experience. So, what’s wrong with how we’re incarcerating prisoners now? In contemporary thought, there are three central objectives of incarceration: (1) punishment of the criminal; (2) deterrence for the criminal and others for committing other, future crimes; and (3) rehabilitation of the inmate for re-introduction into society. After spending years in prisons around the United States meeting with inmates, learning about their crimes, their thoughts on justice, and their individual experiences during incarceration, Professor Blecker has concluded that none of these are being met. To begin with, rehabilitation and re-socialization are largely mythical. Professor Blecker briefly explores the challenges that inmates face upon their release. Job prospects are dim, and very often, inmates do not have positive support networks to facilitate their transition into ordinary, lawful life. Consequently, former inmates very often fall back into criminal behavior and end up not in rehabilitation, but in re-incarceration. To paraphrase one inmate quoted extensively in The Death of Punishment, twenty-five years of rehabilitation is forgotten after twenty-five days on the outside.
Deterrence is also largely an illusion. Many of the individuals who populate our prison system were born into an environment where criminal behavior was just behavior; this is simply how you were taught to act. Consequently, individuals are raised in circumstances where the threat of incarceration was just the cost of doing business. Prison isn’t really a threat; it’s just an opportunity cost. Furthermore, in Professor Blecker’s experience, life inside prison was no worse than life on the outside; all too often, it was better. On several occasions, Professor Blecker met with inmates who confessed to committing crimes in order to return to prison. In some cases, the subsequent crimes were more serious so that the offender could get a longer prison sentence in facilities that offered more privileges to its inmates.
Professor Blecker also concludes that punishment is an illusion. It is not sufficient to presume that incarceration in and of itself is punitive. It may be, if you have something to lose on the outside. But if life inside is no different than—if not better than—life outside, then time spent in prison is not really lost and it’s not really punishment. At least in prison, inmates have nutritious food, shelter, medical care, diverse recreational opportunities, and other privileges. These are things that America’s unincarcerated poor struggle with obtaining; things which inmates struggled with obtaining before they were incarcerated.
In sum, Professor Blecker concludes that the American prison system is failing at administering justice. Crimes are not being addressed with incarceration that provides a truly punitive experience, particularly for inmates who are convicted of committing the worst of the worst types of crimes.
What is Professor Blecker’s solution? The criminal justice system should create a separate institutional structure for the worst of the worst; that is, those individuals who commit the most morally outrageous crimes and who will never be capable of re-socialization. For these inmates, rehabilitation is irrelevant. Additionally, because of the morally outrageous nature of their offenses, they should be incarcerated in an environment that provides a uniquely punitive prison experience—permanent punitive segregation. Here, there would be only limited physical contact with other individuals; no television; no internet access; and no recreation. There would be hard labor. For food, only a bland nutrient-rich loaf would be available, just enough to sustain the inmate’s health but lacking any flavor from which the inmate could derive pleasure. For medical care, the inmate would receive only as much as the poorest members of our society routinely do. If this sounds harsh, Professor Blecker intends it to. Because these inmates—the worst of the worst—have deprived other individuals, their victims, of their lives and their opportunities to enjoy life’s simple pleasures, these offenders must be punished to the same extent. In fact, Professor Blecker would say that society has a moral obligation to do so. Anything less deprives justice from being served.
Now here’s the minor tie-in with product liability. Professor Blecker argues that the worst of the worst do not consist solely of those who commit violent crimes. It could also describe white-collar executives who make morally outrageous business decisions that harm others. For example, the Ford executives who green-lighted the Pinto knowing that there was a significant risk of fire presented by the gas tank’s design. In Professor Blecker’s opinion, the color of the collar on your shirt is irrelevant. There is no principled moral distinction between the manufacturing executive who knowingly authorizes the distribution of an inherently dangerous product capable of causing consumers’ disfigurement and death and the common thug who fires a weapon into a crowd of innocent by-standers. Justice demands that each be punished based on their offenses against common morality.
Where does the death penalty fit into all this? Although Professor Blecker is an advocate for capital punishment, he does not take the position that death can only be atoned with death. Not everyone that commits a murder, even if premeditated, should qualify for the death penalty. Capital punishment must be reserved explicitly for those who kill in connection with sufficiently aggravating circumstances as to justify the imposition of the harshest sentence available to civilized mankind. Professor Blecker’s philosophy is rooted in the belief that life – an individual’s life – has incalculable value. And if that life is terminated by another’s morally indefensible conduct, then society has a moral imperative to punish the offender with death. Not because society doesn’t value life; but because society values life so much that it must take the lives of those who don’t exist in the same moral universe. For everyone else, Professor Blecker argues, permanent punitive segregation is enough.
So what did you think of the book? I enjoyed it. While I appreciated Professor Blecker’s philosophy of criminal punishment, the parts I liked the most – and which I believe make The Death of Punishment appealing to a wider audience – are the sections recounting the conversations that Professor Blecker had with inmates. All too often, people talk about inmates, punishment, and justice as abstractions, as if they don’t really exist. The Death of Punishment breaks this mold by presenting specific discussions about punishment and justice as understood by inmates who have been sentenced by our justice system, have experience with “punishment,” and are serving out their periods of incarceration. These conversations provide insight into a world that is absolutely foreign to most – certainly to me. Particularly noteworthy are Professor Blecker’s conversations with convicted murderers awaiting the execution of their death sentences. In a strange twist, at times, Professor Blecker becomes the law student of the death row inmate, sparring in an intellectual game of cat-and-mouse about the philosophy and justice of capital punishment with the very individuals whose fate is death by state execution. Perhaps the most compelling take-away from The Death of Punishment was the sense of humanity I felt for the death-row inmates, people who I and society routinely condemn as the worst of the worst and not worthy of further consideration. Professor Blecker demonstrates that these people, maybe more than most, have a story to tell – a story that’s worth listening to, even though the storyline ends with the main character’s execution, as it justly may. I recommend The Death of Punishment to anyone who would appreciate thoughtful discussion of the philosophy of punishment, particularly from the perspective of the “worst of the worst,” in the American criminal justice system.