In 2010, the philosopher Gregory Fried and I explored some moral problems implicated in the war on terror. The opening chapter of Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror sought to account for the intuition — shared by popes and Abraham Lincoln’s code for the conduct of war — that torture in all circumstances was wrong, a moral line we must never cross. The icon of our thesis was the biblical statement that God made man in His image. Expanding this icon into the beginning of an argument, our thought was that respect for humanity in our own person entailed respect for humanity in the person of all others, and torture was action on the person of another designed to override that person’s capacity for choice, to turn him into an entity for a time at least into an animal body constituted by pain. And this argument, as it was elaborated, to our surprise entailed a similar condemnation of the death penalty: that we, society, ultimately disrespect the other by killing him, destroying once and for all of his capacity for choice, understanding, and the return of respect.
Now consider this: A person charged with selling drugs, say in his early 30s, is sentenced to 40 years in prison for setting up an extensive network of other sellers, obtaining the product in large quantities, and allocating it to a network of small street vendors. That sentence deprives him of the most fruitful years of his life. He cannot create a family, enjoy friendships, develop skills and knowledge, build a community of his choice or join one, enjoy a routine of hard work followed by periods of relaxation. Is this not a slow-motion death sentence?
Or take the case of Bernard Madoff, who cheated scores of victims of several billion dollars. For this, he was sentenced to several terms of imprisonment that inevitably meant he would die in prison. What is the difference between that and a death sentence? Replies often include that he should have thought of the consequences when he embarked on what was a years-long criminal endeavor. And as for the unnamed person charged with drug distribution, he left in his wake a trail of ruined lives, both among his customers and the street sellers who were the cogs in a machine. What respect did these people show their victims?
As many say, these prison sentences at least deprive the offenders of the enjoyment of the fruits of their crimes and serve as an example to others that “crime does not pay.” They often add that these people have shown by their acts that unless stopped, they are disposed to repeat their depredations. These are some of the standard justifications of imprisonment as a general and specific deterrent — that is, both example and restraint, and as retribution. But all these are likewise offered in defense of the death penalty, and they do not suffice. Both are life-destroying, but in different degree.
There is this difference: A death sentence changes the offender into a corpse, while imprisonment at least gives the offender a chance to reflect, to learn and become useful to himself and others, to rejoin the free community. This is the goal of what the state likes to call rehabilitation; this is why prisons are often called penitentiaries. And in the overwhelming proportion of instances, the enterprise fails sensationally.
The reasons for this failure are well known and often rehearsed. But common to them all is the impossibility of collecting and controlling large numbers of men and women under close control, in small spaces — spaces they cannot leave, in which they know they must spend a large portion, if not all, of the rest of their lives, and expecting something positive to come from it. Taken one at a time, this is not what we would decide to do for or to any individual: to restrain in order to seek to reeducate or to attempt to repair the damage that individual has done.
It must be admitted that the awfulness, the endless monotony, the restriction if not the elimination of any control of one’s existence certainly could be a powerful deterrent to many — not all — from risking that fate. But we don’t confront them one by one; we do so in large masses. That is our failure. And for several hundreds of years we have let it continue — at great financial expense, and worse: at the cost of millions of blasted lives. In this it is like war and preparation for war: It is an utter failure of imagination. Let us hope that the inauguration of this forum, Inquest, may stir imaginations to propose some better alternatives to this dreadful system.