Because of some very harsh mandatory minimum sentencing laws, the U.S. incarcerates a huge number of people, many of whom are serving life without the possibility of parole. This country now has about one quarter of the world’s prison population, which is remarkable, if you consider that we’re not even 5% of the total world population. And our prison population is also rapidly aging, which means that it’s a population with more and more health issues. Of course, prisoners don’t exactly get the best healthcare in the world. So, many end up dying in terror, alone in their cells, from cancer, heart and lung disease, diabetes, and other chronic illnesses.
This strikes me as “cruel and unusual punishment,” which the Eighth Amendment prohibits. Well—it’s certainly cruel, albeit all too common in these times when politicians love to be seen as “tough on crime.” So, even if it’s not unusual, the most sensible interpretation of the Eighth Amendment is that it prohibits any punishment that is either cruel or unusual (Justice Antonin Scalia be damned!).
Of course, there is a philosophical question as to what kinds of actions ought to count as “cruel” and exactly how this prohibition is to be interpreted over time. Our own John Perry does an excellent job digging into this thorny issue and showing why Scalia’s interpretation of the Eighth Amendment is simply unreasonable and, moreover, incoherent.
Meanwhile, we need only consider how our view of certain punishments has changed over time. We no longer hang people in this country because that is deemed “cruel and unusual.” Ditto for the electric chair. Now, the raging debate is over whether certain drugs that are administered in death penalty cases constitute “cruel and unusual punishment.” I fail to see how there’s any controversy here. How could anyone sincerely believe that administering a drug that paralyzes an inmate while he dies a slow and painful death is anything other than cruel and unusual?
Clearly, I’m not a fan of the death penalty, in any form. So does that mean I ought to endorse life without the possibility of parole because at least it’s less cruel than the death penalty? No, this is just a false dilemma. There ought to be other options.
Consider a case. Imagine there is a young man in his twenties who commits a terrible crime and murders someone. He is tried and gets convicted to life in prison without parole. Now, forty years later, he has spent most of his life behind bars. Like any person forty years later, he is a completely different person than he was when he committed the crime in his youth. At some point during his sentence, he becomes seriously ill and is given just a few months left to live. What is the most humane thing to do here?
If it were up to me, I would simply release him to let him die in peace and dignity with his family. He’s already paid the price for his crime—anything else would just be cruel. In theory, inmates who find themselves in this situation can apply for compassionate release. However, because of the huge backlog of applications, in practice, many prisoners still end up dying alone in their cells before their cases are even processed.
To confound the problem further, just consider who is getting these harsh sentences in the first place. Many are non-violent drug offenders, who we know are disproportionately young men of color. Or they’re often mentally ill. Here’s a crazy fact for you—there are actually more mentally ill people in prisons in this country than there are in psychiatric facilities. Hospitals are being closed while more prisons are being built to incarcerate those already marginalized in society. And imagine what kind of care they get once inside. If they weren’t mentally unstable going in, they’ll probably be coming out. That is, if they don’t die inside first.
Our prison system is broken and needs to be completely overhauled. Denying someone their liberty is punishment enough. To deny them their human dignity, especially as they are dying, is simply cruel and unusual punishment.
Our guest this week is Edgar Barens, who made the 2013 Academy Award nominated documentary Prison Terminal: The Last Days of Private Jack Hall, which I highly recommend (bring tissues). He’ll be joining John and Ken to talk about how we can restore human dignity in the prison system.