What if John McCain had been a prisoner in this country?
As eulogies and elegies for Senator John McCain pour in, one of his achievements is lauded over and over: the Detainee Treatment Act of 2005. This measure, which he sponsored, barred “cruel, inhuman and degrading treatment” of prisoners in U.S. custody anywhere in the world. It grew from the revelations about prisoner torture at the now-notorious Abu Ghraib prison outside Baghdad. McCain said that although intelligence is needed to fight terrorism, “the intelligence we collect must be reliable and acquired humanely, under clear standards understood by all our fighting men and women.” Torturing prisoners lets “the cruel actions of a few to darken the reputation of our country in the eyes of millions.” When confronted with the claim from right-wing politicians that those very prisoners might commit the same atrocities if given the opportunity, McCain responded, “But this isn’t about who they are. This is about who we are. These are the values that distinguish us from our enemies.” He added, “What we are is a nation that upholds values and standards of behavior and treatment of all people.” [CNN]
The values that animated the legislation resonate today, even though some have argued, persuasively, that McCain later allowed politics to water down the law. McCain’s motivation stemmed from his experience as a prisoner of war in Vietnam, and came during the presidency of George W. Bush and the war on terror. It therefore focused on how the U.S. treats enemy combatants at home and abroad. But what if McCain had been incarcerated in this country? What if he had been similarly motivated to ensure that the U.S. treats every human in its custody with dignity and respect, including people incarcerated at home? What if we took to heart his willingness to possibly forego intelligence for the sake of our values? Would that mean that we would be willing to soften our stance against those who commit crimes, even violent crimes, to uphold our values? If we want to treat McCain’s legacy with respect we might start by listening to his words: “This is about who we are.”
Originally, the term “dignity” meant only high social status and accompanying respect. The first president known to have used the term in the modern sense was Franklin Delano Roosevelt, who in 1939 warned that democracies risked a descent into dictatorship if they denied their people “as large a share of material success and of human dignity as they have a right to receive.” After the Nazis “exposed the desperate need for a universal commitment to humanity’s intrinsic worth, dignity became a staple of international human rights discourse,” writes professor Joseph Margulies. The first sentence of the UN’s Universal Declaration of Human Rights proclaims that “all human beings are born free and equal in dignity and rights.” The following year, Germany adopted a constitution that announced in its first article that “Human dignity is inviolable.” [Joseph Margulies / Verdict]
This commitment to dignity has informed the way Germany runs its prisons. Laws, staff culture, and a shared mission make dignity more than a legal abstraction. When a delegation of people concerned about the U.S. criminal justice system including academics, activists, and corrections leaders, toured German prisons in 2015, what they found amazed them: “The men serving time wore their own clothes, not prison uniforms,” wrote Nicholas Turner and Jeremy Travis upon their return. “They lived one person per cell. Each cell was bright with natural light, decorated with personalized items such as wall hangings, plants, family photos and colorful linens brought from home. Each cell also had its own bathroom separate from the sleeping area and a phone to call home with. The men had access to communal kitchens, with the utensils a regular kitchen would have, where they could cook fresh food purchased with wages earned in vocational programs.” [Nicholas Turner and Jeremy Travis / New York Times]
The Supreme Court, in holding that California prisons were unconstitutionally overcrowded, said that the state was forcing people to live under conditions that deprived them of “the essence of human dignity inherent in all persons.” [Brown v. Plata]
Margulies argues that unlike liberty, which can be compromised for pragmatic reasons, dignity cannot be compromised. “The State cannot deprive someone of her dignity. It cannot—at least not legitimately—degrade her, or treat her as some might an animal,” he writes. “Unlike with liberty, the State cannot invoke the seductive language of imminent catastrophe to justify behavior that tramples on human dignity, nor may it say restrict dignity to some but not others—to the citizen, for instance, but not the visitor.” It extends “to all people, at all times, under all circumstances.” This is why dignity and only dignity “mitigates the most pernicious impulse in American history—viz., the frenzy to dehumanize, to construct mythical monsters who do not so much walk the street as haunt the imagination, and whose specter is invoked to justify yet another round of repression.” [Joseph Margulies / Verdict]
If Americans took dignity seriously, our prisons would look more like Germany’s. We would grant aging and infirm people compassionate release. Corrections staff would never refer to their charges as “bodies,” as they regularly do today. We would never let a criminal conviction get in the way of safe housing or meaningful employment. As Pope Francis made clear earlier this summer, we would not have the death penalty, because it is, in his words, “an attack on the inviolability and dignity of the person.” We would focus on restorative justice, and honor the dignity of the victim as well. When incarceration is found to be necessary, it would not be for a day longer than needed, and the deprivation of liberty would be the only punishment. Then we could say, proudly, as McCain had hoped, “This is who we are.”