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The Death Penalty Is Part Of A Larger System Of Punishment

Opposition to it should lay the groundwork for opposition to the system of which it is a part.

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

Colorado’s Senate took a critical vote on Thursday that put the state on the pathway to abolishing the death penalty. The body voted 19-15 in favor of a bill to repeal capital punishment. Around 11:30 a.m. local time today, Denver Post reporter Alex Burness wrote on Twitter to report further progress: “The Colorado Senate has given final passage to the bill to repeal the death penalty. This was expected, but still a huge moment. Colorado may now be just weeks away from becoming the 22nd state to repeal the death penalty.”

The expected victory in Colorado is a victory for death penalty opponents everywhere and other Western states may soon follow, as Liliana Segura and Jordan Smith of The Intercept chronicled last year. What is also crucial, as the number of people on death row shrinks and the number of people serving life sentences has ballooned, is to think about how a victory over capital punishment can either serve or undermine future victories over the larger system of punishment.

Colorado’s death row is representative of capital punishment nationwide in two ways. First, the three men on death row, all Black, were from the same county, products even, of the same high school in the city of Aurora. In this way, Colorado is emblematic of the hyperlocal nature of the death penalty today—the product, overwhelmingly, of a small number of outlier jurisdictions and prosecutors rather than of geographically broad use of the penalty.

Second, capital punishment has been on the wane in the state for a long time. The last execution was in 1997. Nationwide, there were fewer than 50 death sentences and fewer than 30 executions last year, for the fifth year in a row, according to the Death Penalty Information Center.

But even as its reach contracts, the death penalty continues to command particular attention in U.S. jurisprudence, national media attention, and international coverage of the U.S. legal system. The Supreme Court has said death is different and developed a jurisprudence that set capital cases apart from all others, with heightened (although still insufficient) protections. Conversations about the death penalty also have a particular moral valence, focused on the ethics of the taking of a life.

But that focus and that moral language can and should encompass the broader system of punishment. As we celebrate every single life that is not ended in an executioner’s chair, we can draw attention to the thousands of people in prison who will die far from their homes and families, and decades after the acts for which they were condemned to death. The death penalty is gruesome in how it dismisses the humanity of the condemned person and diminishes the humanity of those imposing and carrying out those sentences. But many other aspects of our system do the same things.

In the past month alone, 13 people in Mississippi state prisons have died. Jamelle Bouie of the New York Times wrote today about the ways in which that violence is coded into the DNA of the state’s prisons and the multiple failed attempts at reforms. “But no amount of change has been able to break the cycle of brutality,” he writes. “And why would it? The history of Parchman is a prime example of how dehumanization and neglect are intrinsic to separating people from their freedom.”

Many of the reasons to oppose capital punishment are reasons to end other harsh punishments: a belief in the inherent dignity of every human being, a belief that the state should not take a life even in exchange for a life, an understanding that the system of punishment we have is premised on racism and delivers on it, or an acknowledgment that our system is riddled with errors.

But there are other arguments against the death penalty that may entrench the larger system of punishment. These are the arguments that say the death penalty is too expensive because of the greater protections afforded those charged with capital crimes, when those greater protections should be extended to more people. Or the arguments that the death penalty should be done away with in favor of life in prison without hope of release. Ben Miller and Daniel Harawa wrote in Slate this month, speaking of the Democratic candidates whose (historical) opposition to the death penalty relies on an embrace of life in prison sentences: “We will solve nothing if we think the answer is to substitute one cruel punishment with another.”

This pairing of opposition to capital punishment with an embrace of life without parole sentences bears some responsibility for where we are today, with over 53,000 people sentenced to die in prison. In 2015, Ashley Nellis of the Sentencing Project and an author of the “The Meaning of Life: The Case for Abolishing Life Sentences,” explored the tensions between death penalty abolition work and efforts to end extreme sentencing in a law review article. The “rapid rise in LWOP [life without parole] sentences” she wrote, “can partly be attributed to a desire for a reliable, terminal punishment to replace the death penalty after it was declared unconstitutional in 1972.” But, Nellis said, it does not have to be this way: “Strategies to abolish the death penalty can be improved upon by viewing the successful elimination of the death penalty as just the first step on the road to the reformation of extreme sentences altogether. In this view, the efforts to eliminate the death penalty are not in conflict with efforts to eliminate LWOP.”

What is important, she wrote, was not just whether the death penalty is abolished but why. “The reasons why American society will eventually decide to eliminate the death penalty as a punishment are as important as the outcome—maybe more so.”

Kenneth Hartman, sentenced to life without parole in California, wrote in 2016: “Why not abolish the death penalty and life without the chance of parole? The assumption would be that it is possible for human beings to become better than their worst act.” Hartman described his own sentence as just a different kind of death: “Though I will never be strapped down onto a gurney with life-stopping drugs pumped into my veins, be assured I have already begun the slow drip of my execution [which] won’t come to full effect for 50, maybe 60 years.”