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Death, Taxes, and Alcatraz
(The following piece has been adapted from a talk given at Alcatraz in January, 2012.)
I find it more than a bit serendipitous that we gather here today in the immediate wake of FOX’s inauguration of Alcatraz, the TV drama. The program --whose rights are owned by Warner Brothers, a company that paid not a single cent in federal corporate income tax from 2001-2003—further mystifies an already mysterious and misunderstood place.
Alcatraz’s plot revolves around one detective’s incorrigible quest to find a barbarous flock of killers that were said to have escaped from the facility in the 1960’s. Amidst the pursuit of merciless serial murderers audiences also discover that the U.S. government has been surreptitiously renovating “the Rock” since its closure in 1963 with plans of revival imminent. I’m convinced that were the late German philosopher Friedrich Nietzsche alive today he might wish to describe FOX’s fictionalized rendering of Alcatraz as ideological. Nietzsche once famously wrote that “ideology is the lie we call truth.” That is, peppering a mythical TV drama with dispatches from history smudges the ink and blunts the link between fact and fiction. Tethering a counterfeit tale to an actually existing historical site renders credible a story that does little to transgress our taken-for-granted assumptions about the relationship between retribution and justice, crime and punishment, and social symptoms and diseases.
As curators, educators, and interpreters of the U.S. carceral system we’re obligated to challenge our most deeply held beliefs about justice and criminality by acknowledging that what we once assumed to be nothing more than a neutral form of entertainment is anything but impartial on questions of crime and punishment. Paradoxically, traditional political conceptualizations of criminality are reinforced for us most powerfully at precisely their apex of invisibility. After all, what’s the difference between propaganda and knowledge if not consciousness? Escapism, I’m convinced, is the language that that ideology speaks. Therefore, as stewards of these sites we must force our curiosities to lay bare questions which have been hidden by conventional answers. We must gently and in concert with inquiring minds frame traditional questions in non-traditional packages. If we can manage this, then we will in good measure have repositioned the parameters of acceptable discourse on crime and punishment.
Now, because incarceration is a social phenomenon, it’s marred with many of the same political asymmetries that plague our social worlds. As critical educators inhabiting sites of containment we’re civically bound first to transform commonplace explanations of crime and punishment into complex questions and second, to demand that they be addressed squarely and honestly by those tugging on levers of power. Alcatraz inherently pries open space for unorthodox debates over the propriety of justice and thus invites us to link the sensational to the structural by de-linking crime and punishment.
I propose beginning this conversation with a few high altitude comments on the scope, purpose, and latent assumptions undergirding incarceration in the United States. I will then peel back the layered political implications of U.S. capital punishment—that is, the death penalty—in order to challenge the perceived causal linkages between crime and punishment.
Please allow me to introduce some figures that I believe will convincingly demonstrate the scope and depth of our predicament. Although the United States represents less than 5% of the world’s population, we harbor over 25% of those incarcerated.
In fact, we’ve incarcerated more people in absolute terms than China, whose population is four times the larger. Despite these sobering figures, few thinkers, however—even those of avowedly “progressive” persuasion— have sharply critiqued the well-worn diptych of “crime and punishment.” But we must, and here is why. If increased crime leads to increased punishment, as traditional pundits would have us believe, then why has the U.S. rate of incarceration increased by 400% from 1975-2010 despite a flat to declining crime rate during the same time?
Why, for instance, has the black population behind bars burgeoned by nearly 900% during this same time period? And further, why has it been that since 1975 black men have experienced incarceration at rates at least seven times that of white men despite roughly equivalent rates of imprisonment between 1930--1960? And if crime is distributed evenly, as posit criminologists, then why are LGBTQ citizens— and in particular, the transgendered population –locked up at rates three times higher than gender normative individuals? And finally, if punishment is the consequence of a crime committed, then is it a crime to be poor? From 1995-2005 over 60% of those incarcerated in medium security facilities were living at or below 50% of the poverty line at time of their arrest.
To be inculpably clear, incarceration in the United States has never fundamentally been premised on punishing those who “commit crimes” but rather on 1) managing marginalized populations previously excluded from U.S. political life, broadly construed and 2) satisfying the ever-changing requirements of global capitalism. I term socially marginalized populations as those individuals and groups that have been systematically excluded from “mainstream America” and I define “mainstream America” as white, Anglo-Saxon, Protestant, classically Liberal, heterosexual men. The processes of “insiderism” and “outsiderism” inherent to the American mainstream produces forms of exclusion based on race, ideology, religion, gender, national origin and sexuality which are cemented in the carcercal system. I argue that one’s inability to embody the narrowly fashioned categories of “mainstream America” itself constitutes a crime whose justification is redundant. To be “othered”—that is, to be anything other than a white, Anglo-Saxon, Protestant, classically Liberal, heterosexual man— is already to be criminalized.
And secondly, U.S. prisons—both public and private varieties—have been and continue to be utilized to satisfy the ever changing requirements of global capitalism. In this sense prisons offer us imaginary resolutions to very real capital contradictions. I argue that the proliferation of U.S. prisons beginning in the mid-1970’s emerged in part as a solution to dwindling high-return investment opportunities lost through the outsourcing of manufacturing jobs. Beginning at this time many U.S. corporations had overaccumulated capital and needed to find markets for its full realization. If this weren’t the case then why over the last thirty-five years has the number of private corrections facilities burgeoned by 4000%? And why would Bank of America, Goldman Sachs, and Morgan Stanley – three of the largest six U.S. financial institutions— have underwritten and purchased over $2 billion in lease-revenue bonds for public prison construction in California from 1991-2007.
We must remain aware of the fact that although financial institutions like Bank of America, Goldman Sachs, and Morgan Stanley do not profit directly by exploiting prison labor or by operating private penal facilities, they nonetheless realize exorbitant annual revenues by propping up a “prison industrial complex” through financing.
Moreover, I contend that the fractures, asymmetries, and interconnections of U.S. forms of crime and punishment find acute manifestation in the practice of the death penalty. There are at least five reasons why the death penalty in the United States doesn’t conform to the causative logic necessary to meet the minimum qualifications for justice: 1) exceedingly high rates of innocence among death row inmates, 2) unashamedly patent racial disparities in sentencing policy, 3) ineffectual deterrence for violent crimes, 4) arbitrary application of law, and 5) hemorrhagingly high costs.
Since the death penalty was re-authorized in 1976, after a four year moratorium mandated by the U.S. Supreme Court, there have been 1,278 executions. Currently, the death penalty is allowed in 34 states. California houses the most death row inmates at 725, which is more than the next two states, Florida and Texas, combined. Though not to be outdone in its pugnacious vulgarity, of course, Texas reigns supreme as the state that has executed the most U.S. citizens—477—since 1976. Virginia, ranked second in executions, has performed 109. The United States is the only so-called developed country that still executes its citizens and according to Amnesty International, 154 out of 195 recognized sovereign states do not support capital punishment. And so we must ask: how did we arrive at this place?
Although the U.S. Constitution expressly allows for the taking of life (5th Amendment) and safeguards executions on at least the federal level (8th Amendment), citizens have vigorously resisted its application since at least 1845 when the American Society for the Abolition of Capital Punishment was chartered. And in 1846, in no small part because of the Abolition Society, Michigan became the first U.S. state to abolish capital punishment except for crimes of treason. Six years later Rhode Island became the first state to outlaw the death penalty for all crimes and over the next 120 years nearly 20% of the union would come to abolish the death penalty. But activists found that trying to eliminate capital punishment on a state-by-state basis was tedious and temporary at best, so death penalty abolitionists turned much of their efforts to the courts beginning in the early 1970’s.
And on June 29, 1972 a divided U.S. Supreme Court ruled on the unconstitutionality of the death penalty in Furman V. Georgia and commuted nearly 600 death sentences. The Court found that the death penalty as then currently administered violated the Eighth and Fourteenth Amendments. Of the five
Supreme Court Justices, Justices Brennan and Marshall were alone in declaring the death penalty unconstitutional as a form of punishment entirely but all five justices concurred on the grounds of arbitrariness. Specifically, Justice Stewart proclaimed that recommendations for the death penalty decisions were random as if “being struck by lightning.” Above all, the U.S. Supreme Court halted the death penalty in 1972 because the Court found that death sentences were being too frequently applied in an unpredictable and arbitrary way. The Furman decision invalidated the death penalty statutes in several states but the majority of states responded to this ruling, however, not by abolishing capital punishment, but by using Furman as a guideline for developing a constitutionally acceptable statute.
Nearly four years-to-the-day later the U.S Supreme Court reaffirmed the constitutionality of the death penalty in its Gregg V. Georgia decision. The question presented to the Court in this case was whether the imposition of capital punishment under Georgia's revised statute was verboten under the Eighth and Fourteenth Amendments. On appeal, the U.S. Supreme Court affirmed Gregg's conviction and death sentence because Georgia's revised statute provided for bifurcated trials (two trials), consideration of mitigating circumstances of the defendant and the crime, and appellate review of capital sentences. The Court affirmed these guidelines because Georgia intended them to prevent arbitrary and discriminatory imposition of the death penalty. However, since 1973, 139 death row inmates have been exonerated on account of their innocence. This accounts for a full 9% of total U.S. executions. From 1973-1999 the U.S. justice system has averaged 3.1 exonerations per year and from 2000-2007, 5 exonerations per year. Does the risk associated with executing the innocent supersede any possible justification for the death penalty?
Further, since the death penalty was reinstated more than 80% of completed capital cases involve a white victim and a black or brown defendant, even though nationally 50% of murder victims are white. That is, jurors are 30% more likely to recommend the death penalty for Blacks and Latinos. For instance, a study in California found that those who killed whites were over 3 times more likely to be sentenced to death than those who killed blacks and over 4 times more likely than those who killed Latinos.
Unfortunately, there is no solid evidence to suggest that death sentencing—white supremacist or otherwise—actually reduces crime. Here’s why: The murder rate the United States is currently three times higher than that of Western European countries, all of whom have abolished capital punishment. (The U.S. murder rate is 4/100,000 and most European countries are 2 or less.)
Administering the death penalty is also far more expensive than imprisoning an “offender” for life. The costs of confinement can be estimated with some precision and based upon one California Department of Corrections study; death row inmates cost nearly $100,000 more per year to cage than confining a general population inmate (34,100). Why does the death penalty cost so much? There are at least two clear reasons. 1) Death Penalty litigation is different than alternative punishment hearings because it requires a double trial (a regular trial and a penalty trial). 2) Death row housing is expensive. California law, for instance, requires that death row inmates be housed alone instead of 2-3 to a cell and enforce a higher level of security than a prisoner sentenced to life without parole. In total, the California death penalty system cost taxpayers some $114 million in 2010 beyond general population expenditures.
The promising news is that in light of these critiques the death sentencing rate has declined rather precipitously since 1995. Whereas in 1995 over 310 death sentences were handed down, 78 were issued in 2011. This marks the lowest annual number of death sentences since the death penalty was reinstated in 1976. Year-end figures released last week by the Death Penalty Information Center (DPIC) show that 11 states are now considering abolishing executions, with many legislators citing high operational costs associated with death row. Executions have also continued to decline, while developments in a variety of states illustrate the growing discomfort that many Americans have with the death penalty.
For example, a 2011 Gallup Poll on the death penalty recorded the lowest level of support and the highest level of opposition in almost 40 years. Only 61% supported the death penalty, compared to 80% in 1994; 35% were opposed, compared to 16% more than a decade ago. In addition, an October, 2011 CNN poll that gave respondents a choice between the death penalty and a sentence of life without parole for those convicted of murder found that 50% chose a life sentence, while 48% chose death. My sense is that prison educators (like you) have contributed in part to the declension in death sentencing by seeing a muddled issue clearly and acting pedagogically.
I’d like to end by challenging you to continue demystifying the supposed linkage between crime and punishment. That is, rather than providing pedestrian resolutions to complex social contradictions, our collective task must be to illustrate how our perception of a problem can itself constitute the problem. To the educator, poorly constructed questions are more lethal than misguided answers. Our first task is to ask the right questions…