Crime and different punishments

Last month, the state of Arkansas, which had executed nobody since 2005, put to death Ledell Lee for the crime of murdering Debra Reese in 1993. Why now—11 years after the last execution, 24 years after the crime? Because the chemicals used for lethal injection were about to expire.

Reasonable people can disagree on the death penalty, but everyone should recognize the dark absurdity of an execution timetable set by a drug’s expiration date. And that absurdity provides a useful opening for this week’s entry in my ongoing series of implausible proposals: Our modern way of punishment should be reconsidered, and punishments long dismissed as inhumane should be pondered as alternatives to medicalized executions and “civilized” incarceration.

That phrasing sounds too reasonable, so here’s the more outrageous version: Bring back the stocks and the firing squad.

The tendency in modern criminal justice has been to remove two specific elements from the state’s justice: spectacle and pain. During the 19th and early 20th centuries, pillories and stocks and whipping posts became museum pieces, the hangman and the firing squad were supplanted by more technical methods, and punishment became something that happened elsewhere—in distant prisons and execution chambers, under professional supervision.

All of this made a certain moral sense. But the civilizing process did not do away with cruelty and in some ways it could exacerbate it. With executions, the science was often inexact and the application difficult, and when it went wrong the electric chair or the gas chamber could easily become a distinctive kind of torture. During the last century lethal injection, now the execution method of choice, had a higher “botch rate” by far than every other means of killing the condemned.

Few prisoners face execution, and anti-death penalty activists may yet reduce that number to zero. But botched injections are not the only ways in which we pile cruelties on the condemned. Our prison system, which officially only punishes by restraint, actually subjects millions of Americans to waves of informal physical abuse—mistreatment by guards, violence from inmates, the tortures of solitary confinement, the trauma of rape—on top of their formal years-long sentences.

This is the (deliberately provocative) argument of Peter Salib, a judicial clerk on the 7th Circuit, in his new paper, “Why Prison?: An Economic Critique.” Salib’s claim is radical: “We should not imprison people who commit crimes.” Instead we should force criminals to work, under monitoring, in the highest-value available jobs in order to make financial restitution, while adding additional deterrence in the form of “nonmonetary sanctions.”

The idea that a combination of financial sanctions and corporal punishment could replace imprisonment seems insane. There will always be a group of offenders sufficiently dangerous to require long-term separation from society. And most of our prisoners, contrary to certain convenient myths, are not nonviolent offenders; they have been convicted of robbery, assault, rape and murder.

But not every offender is equally dangerous. So there would be room to experiment with Salib’s proposal, to offer some of the convicted the stocks followed by supervised labor, without leaping to the abolish prison stage.

We tell ourselves that we have prisoners’ good in mind, and the higher standards of our civilization, because we do not offer them this choice. But those standards may be less about preventing ourselves from becoming like our sinful ancestors, and more about maintaining the illusion of clean hands—while harsh punishment is still imposed, but out of sight, on souls and bodies not our own.•

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Douthat is a New York Times columnist. Send comments on this column to ibjedit@ibj.com.