In Spring 2020, a deadly virus pandemic and a rash of police assaults on Black bodies arrived in America with bold synergy, impacting public consciousness, commandeering attention. These phenomena have pushed us out of our nested places in routine systems to look at our nation’s big picture. They have evoked what Dr. King called the “fierce urgency of now.”
The moment of fear and protest last Spring was so singular that, for a time, Texas stopped executing prisoners. Previously, throughout the Twentieth and Twenty-first Centuries, all American disease epidemics partnered with upticks in state homicide. But this time the Texas Court of Criminal Appeals manifested a new reluctance, stopping a few executions in order to protect life, “in light of the current health crisis and the enormous resources needed to address that emergency.”¹
The court’s decisions sheltered the agents of the state that normally would go to Huntsville to observe the executions, the defense attorneys and their agents, the guards who would transport the prisoner and those who would strap down the prisoner, the executioner, the families of the prisoner and the crime victims, the chaplains, and others from exposure to risk of death.
These stays implied that, in 2020, Texas executions might no longer be considered a service so “essential” that they must be continued during a public health emergency. However, the tendency to think this way has now been challenged by Texas officials setting multiple execution dates for 2021, starting in January, when the risk of Coronavirus infection will remain very high. Texas appears poised to move ahead, even though, for example, eight government execution staff personnel contracted Covid19 during the federal executions in November, and at least two defense attorneys were obligated by a December federal execution date to take risks that caused them to be seriously ill with Covid19.²
Instead of taking up business-as-usual again, we should pause to consider what the pandemic and Black Lives Matter protests are showing us about how we are with each other and, perhaps, how we should want to be as we move into a “new normal.” Before we emerge from this informal pandemic moratorium in a damaging way, we should take stock of how executions are not only inessential, but are harmful to our public health, in large part because they are a major component of our society’s domination of Black bodies.³
1. It does not make sense to think of executions as a service, especially for Black Texans.
Texas heretofore has considered executions a service. Prior to 1972, following electrocutions at the “Walls” prison, the prison system warden routinely sent a formal bill “for services” to the county that tried the prisoner. For example, on March 5, 1945, Warden H.E. Moore sent Mr. Rupert C. Reid, Clerk of the District Court for Gonzales County, a formal letter⁴ that stated:
“Dear Mr. Reid: In accordance with provisions of Section 11, S.B. №54, Chapter 51, Legislature of the State of Texas, I am herewith submitting Statement and Warden’s Return after Execution, as provided for in the aforesaid section. FOR SERVICES EXECUTION OF HENRY WILLIAMS…..$25.00. ****** Very truly yours, H.E. Moore, WARDEN. HEM:jb”
Typically, the prisoner’s mother also would receive a cordial letter telling her she could retrieve the body if she so desired. Henry Williams was a Black man, representative of the disproportionate number of Black men Texas has put to death over decades. U.S. Supreme Court Justice William O. Douglas noticed in 1972 that the Texas death penalty was “carried out on the poor, the Negro, and the members of unpopular groups.” He also observed that not infrequently a white co-defendant was given life while “the Negro was given the death penalty.”
Black men are about six or seven percent of Texas’ current population, but they account for thirty-eight percent of Texas executions in the Twenty-First Century. Texas juries have dramatically slowed sending men to death row. But if death row were now emptied by executing all of the men currently housed, about forty-four percent of those executions, almost one out of every two Texas executions, would be of a Black man.
Can we tolerate this disproportionate imposition anymore? Is our post-Coronavirus, post-Black Lives Matter “new normal” going to continue to embrace this? Please put yourselves in my shoes in regard to these things that I, only one white Texas death penalty habeas attorney, have experienced:
— the Black mother of a death row inmate with an imminent execution date, slumped over a desk in my office while I, across the room, am whaling away on a legal brief, and she is in an apparent state of catatonia or complete dissociation, surrounded by a cadre of family members, who are rubbing her arms, running hands in her hair, futilely calling her name.
— the Black mother new to death row who told me how she became distraught when her son wasn’t brought out to visit her and began pleading with the guards, causing the warden to come; how she had a panic attack in front of the warden and how, right then, he expelled her from the prison and told her she could not return.
— the Black mother of a death row prisoner who told me she is so upset over her death row son’s situation that she frequently contemplates suicide, but cannot do it because she has another child and it would not be “fair” to that child.
— the Black mother who tells me she’s too emotionally destroyed over her son on the row to even talk to another mother with a son on the row about how she feels, much less get any other help.
— the Black mother who tells me that, two decades after her son’s execution, she cannot talk about it with anyone for fear of disintegrating.
— the Black father who, in my presence, routinely calls his surviving son by the name of his other son killed by Texas.
— several Black male children with fathers on the row or in prison who have fallen into the intergenerational trap of dream-killing hopelessness, causing their own incarceration.
I do not believe these scenarios are unusual. Texas’ death row houses a multi-generational hell for Black families. Why must that go on?
2. The incalculable costs of executions far outweigh the extreme calculable costs, especially for Black Texans.
Imagine a post-execution “bill for services” from the Director of the Texas Department of Criminal Justice (our contemporary Texas Prison System) to the county of conviction today. Such a letter would be fictional, of course, as capital punishment expenses now are thoroughly bureaucratized in a diffuse system. But this could be a starting point to consider all of the costs — not just the substantially greater monetary costs today, but also the non-monetary costs, or, what I suggest that we call the incalculable costs imposed by the death penalty’s alleged service.
Some of the calculable costs are often raised by abolitionists who believe that the comparative raw expense difference between death and life sentences should be persuasive. These include a few hundred dollars per execution for each of the intravenous drugs and a few thousand dollars’ payment per execution to the warden, the chaplains, the hidden executioner, the guard transport team that transports the prisoner to the event, the guard tie-down team that escorts him into the chamber and carries his body out, and the physician who declares him dead. Add at least a thousand for burial or cremation. The major cost, of course, is the special housing for the prisoner on death row from trial to death, a figure usually about three times that of a completed forty-year general population sentence; in other words, roughly about $700,000.00 times three.
The calculable costs should be hard to justify. But I want to stress that we ignore the incalculable costs that result from our retributive system’s economics. I believe those costs should disturb us over all others and, yet, we fail to grapple with them at all, because the retributive system in which we live and think pays them no heed. Retributive punishment thrives in a governmental structure that stresses order over welfare, individualism over interconnectedness (or individual responsibility over corporate responsibility). It considers crime and justice a fairly simple transaction in which the state punishes offenders who have committed crimes against the state. It tries to distribute that punishment equitably, and inevitably fails because of other powerful forces, such as race and class. But most importantly, even if it could equitably distribute executions as an expensive “service,” retributive punishment avoids discussion of the externalities, or byproducts, that the same “service” creates — broad and deep harms that overwhelm any possible benefit from its alleged salutary purposes.
These incalculable costs spread horizontally throughout the punishment system. In every instance in which the retributive system delivers pain to a prisoner, it radiates pain to all those who are a part of the system — most profoundly to the prisoner’s family, but also to the jurors, judges, prosecutors, guards, wardens, and other officials who deliver the pain on behalf of the state, to the victims of the prisoner’s crime, and to all those aligned with the prisoner trying to prevent or assuage the pain. The retributive system intends for the threat of punishment — particularly with death — to induce trauma as a general deterrent to crime. But this myopic vertical system ignores that its threat and delivery of pain affect far more than would-be criminals. Innocent individuals and families are damaged by it on a vast scale.
For a Black family, the incalculable emotional costs begin long before their loved one’s arrest. Unlike many other American families, the Black family usually has been denied some degree of present-day social privilege, usually has experienced instances of invidious, damaging, direct racial discrimination, and in every case has inherited the compound interest of America’s failure to make good on its promise of liberty and equality. This American failure shows itself in the Black community’s unique transgenerational trauma or what trauma professionals call Post-Traumatic Slavery Syndrome, a cauldron of emotional, psychological, and moral injury.⁵
One of my clients, a Black youth, killed a rich white man in a botched carjacking.⁶ My client’s father went to consult the best trial attorney he could find, a white man who told him, “You know they’re going to kill your son.” How many white fathers in the same situation would be told that? That because of the color and status of the victim and the color of his son’s skin, his son is as good as dead? The father was crestfallen, in part because he already knew that. The court appointed a lawyer. The father, at trial every day, felt powerless when the prosecutors formed an all-white jury. Consider how it felt to the boy (and his father and the extended family) when he was denied a jury of peers. Consider that our law endorses such a jury, so long as the defendant is unable to show any juror has an actual bias. Let me repeat: so long as the defendant — manifestly without the power and resources of the state — is unable to prevent the sitting of an unfair jury against him.
3. Our death penalty system is structured to cause moral injury, especially to Black Texans.
In its 1987 decision McCleskey v. Kemp, the United States Supreme Court accepted racially discriminatory imposition of the death penalty as an “inevitable part of our criminal justice system” by announcing that it would ignore irrefutable statistical proof of that discrimination and, instead, would burden all Black defendants or prisoners to prove that any racial discrimination they may have suffered leading to their death sentence was deliberately inflicted by a known actor.⁷ To be relieved from his own homicide, therefore, the Black prisoner must prove that the boot on his neck, the death sentence, was deliberately placed there by the prosecutor because of his race. He has to show not only pattern and practice, but read, and lay out for everyone to see, the prosecutor’s mind.
Meanwhile, at trial a Texas prosecutor routinely tries to dehumanize the defendant in the jurors’ esteem, identify that defendant with the worst things he has ever done, while a defense attorney tries to reel in the jurors to recognize the defendant could be like them, that, but for X [crimes] or because of X [human frailties] he could be them — a hard thing to do when the jurors are all white and, at best, have an incomplete idea of what it’s like to be Black in America.
Prosecutors try to get jurors to disengage themselves from the idea that they’re making a personal moral choice. A warden once wryly observed that if jurors were to draw straws over who would start the lethal injection, there would be very few death sentences. But prosecutors draw such sentences out of them by misleading them into minimizing their personal responsibility. The prosecutor’s instinctive or cultural preference for white juries, in particular, is supported by the statistical fact that white jurors demonstrate higher moral disengagement in relation to the death penalty than either Blacks or Hispanics.⁸
Prosecutors convince jurors to look past their own participation in homicide by contemplating that they are only providing a difficult service. They urge the jurors to believe in the ends of the punishment. Investing their conduct that could lead to an execution with a high moral purpose, prosecutors disengage jurors’ moral qualms and lead them to feel self-approval. This is a surprisingly easy step. Social scientists Alan Fiske and Tage Rai recently have shown in their research that virtually all homicide — conducted by criminals or the state — is morally motivated.⁹ People don’t kill for what they consider immoral reasons, so the challenge merely is to help them feel as though what they’re doing is moral.
Prosecutors also minimize jurors’ individual sense of moral responsibility by displacing their action on others and speaking of their action euphemistically. They tell the jurors they merely make findings relevant to sentencing and the judge, not they, hand down the sentence (based unwaveringly on their findings). Sometimes, they argue that the nature of the state’s killing will be different because the system will have afforded the prisoner all kinds of “due process,” whereas the prisoner’s crime victim got none. This encourages the jurors to take a fatalistic view — the acts of the defendant fit the law, he has brought his destiny on himself, another set of twelve people in their place would make the same rote finding, almost as though their participation is a look-through process straight from crime to execution. Not only are they morally disengaged, they are not there. Later, they realize that they were there, and must deal with the pain of that self-revelation.
In the case I describe above, we discovered late in the appellate process that one of the all-white jury members had concealed that she was the office secretary for the victim’s business partner and was the local President of the United Daughters of the Confederacy, a group recognized by the Southern Poverty Law Center to be populated with white supremacists. Although the trial court had been left in the dark as to these facts, fellow Daughters observed in their monthly bulletin, just after trial, that the young Black defendant had been blessed to have the juror’s participation which guaranteed that he had been given the best jury of his peers:
“Mrs. ____ has been on jury duty. We all complain about this task. But we are all truly blessed to be in a country where we will be judged by a jury of our peers. We can only hope that if an occasion should occur, we are judged by the likes of Mrs. ____.”
My client’s father had to endure the white prosecutors’ unrelenting attack upon his child, an honor student without a prior criminal record. This was a mere seventeen-year-old boy who had driven his mother’s Ford subcompact, without her permission of course, to the crime scene where, under the influence of two older young Black men, he had used a pistol given him by a relative to kill a rich white man while completely botching theft of the man’s car. There were no justifications for this intentional murder. But the co-defendants later said that the boy cried all the way home and that they had to tussle with him to get his pistol, so he wouldn’t shoot himself.
The prosecutor made this boy out to be a Super Predator, emphasizing the obvious humanity and dignity of the white victim while divesting the young Black defendant of all his humanity in front of the all-white jury who knew, like birds migrating home in spring, that describing the boy in animal-like terms as the prosecutor did was racial code for permission to kill. “He’s not an adolescent. . . . he’s a predator. . . an armed predator hunting down prey. . . . falling in behind them like some animal falling in behind their prey . . . human prey.” Shortly after the trial, a defense investigator talked to another juror, a man, who boldly endorsed the death sentence because “the n — — r got what he deserved.”
Consider that, around this same time in the same city, three young white men with a “Hitler fetish” committed a depraved crime against a Black man. One of them summoned the other two and told them that he had just purchased a shotgun and was thinking of killing himself with it. One of the others said, Don’t do that. Let’s go and “just kill a n — — r .” They wandered around one night looking for an easy victim and, at about four in the morning, they found one, a homeless Black man on a street corner near a convenience store. They verbally abused their victim before they blew a hole in his abdomen and left him to die. One of these murderers soon died in an auto accident. The other two were apprehended and the same prosecutor charged them only with a simple murder. In Texas, although murder in the course of stealing a car is a capital offense that can lead to a death sentence, murder indisputably motivated by racial hate is not.
The two white men were given sentences (one by plea, one by jury) that could allow them to be released from prison in about twenty years.¹⁰ U.S. Supreme Court Justice Harry Blackmun said in 1994 — the same year as my client’s offense and two years before the white men committed their random hate assassination — when issuing his pronouncement that he would “no longer tinker with the machinery of death”:
“The arbitrariness inherent in the sentencer’s discretion to afford mercy is exacerbated by the problem of race. Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die.”¹¹
The courts refused to give the evidence of racial discrimination we unearthed a hearing and our client was executed in 2002.
White supremacy — which was reflected in the structure and conduct of our client’s trial as well as the prosecutorial, judicial, and executive choices that were made in the context of the case — oversimplifies complex systems of relationships, interactions, and responsibilities in the pursuit of linear goal-oriented solutions, requires the donning of blinders, a lack of full seeing, a kind of structural dissociation. We think our blinkered linear solutions to problems — such as the “law and order” solution to crime — should be one-size-fits all, because we do not actually see the “other,” we do not see how the other is impacted by our solutions. If we perceive our system as not working (as folks say these days, “broken”), we think the problem is not in our solutions. The problem is that the other has not assimilated sufficiently to be like us.
Black Texans experience life in this structure as a constant moral injury. The United States National Center for PTSD describes moral injury as occurring “in traumatic or unusually stressful circumstances, [in which] people may perpetrate, fail to prevent, or witness events that contradict deeply held moral beliefs and expectations. Guilt, shame, disgust and anger are some of the hallmark reactions of moral injury.”¹² Consider, please, the traumatic stress placed upon Black families by our violent punishment system, reinforcing white supremacy, and then the addition of another layer of debilitating guilt, shame, disgust, and anger to their experience of helplessness in the face of a great threat.
4. Moral injury is the most profound incalculable cost of our death penalty, harming everyone involved in its practice.
At one time or another in law school, many lawyers read Robert Cover’s famous essay about the essence of the law being violent.¹³ The essay is enlightening, but I disagree with its implication that there is no difference between the violence of execution and that of appropriation of property or even of imprisonment. Cover notes that, “as the judge interprets, using the concept of punishment, she also acts — through others — to restrain, hurt, render helpless, even kill the prisoner.” Judges, he says, “do deal death, and pain. From John Winthrop through Warren Burger they have sat atop a pyramid of violence.” Yes. True. Cover even compares the vertical power of judges to that of the experimenters in Stanley Milgram’s famous study who used mere hierarchical organization to motivate people to torture others. Point taken. True. And the vertical structure of white supremacy, within which our law is enmeshed, also does this same thing.
Yet I must protest that death is different. I must protest that Cover describes how American law is, but not how it can be and, in fact, how it is in the many parts of the world with no death penalty. Death penalty law is the only law in which homicide is the statutory goal. It is the only form of law in which legal actors are incentivized to kill and legal procedures are set up to accomplish killing. Because it is quite terminal in effect, resulting in a punishment that cannot be corrected, the death penalty causes unique and irreparable suffering within the agents who carry it out as well as those who are its objects. I think it inculcates harmful shame in all of the actors it sets in motion, experienced in different ways depending upon our position in the system (defense lawyers, prosecutors, judges, jurors, wardens, guards, governors, etc.) and depending upon our capacities for psychological denial or moral displacement of responsibility.
Moral injury is the largest incalculable cost of the death penalty. A decade ago, trauma scientists sounded an alarm about the inadequacy of PTSD treatment for Iraq and Afghanistan veterans who had been morally injured because they had done something that had transgressed their moral beliefs or had witnessed “intense human suffering and cruelty that [shook] their core beliefs about humanity.” The injury was present in veterans on both “sides” of acts of war violence. A government psychotherapist noted, “If you read the suicide notes, the poems and writings of service members and veterans, it’s the killing; it’s failing to protect those we’re supposed to protect, whether that’s peers or innocent civilians; it’s sending people to their death if you’re a leader; failing to save the lives of those who are injured if you’re a medical professional.”¹⁴
It’s the killing that makes moral injury an unavoidable companion to the death penalty. For all the moral reasons advanced for execution — alleged duties to the law, to morality itself, to the government, to the crime victim and her survivors, to the deity — the killing resists making any ultimate sense and cloaks the effects of psychological trauma with formidable layers of shame and guilt. I see every actor in death penalty cases as morally injured in their own way: myself in the course of trying to save the state’s victim as well as the state actors trying to execute him. The suffering of morally injured guards and executioners is a seldom discussed matter that should be highly concerning to everyone. After executing one of my clients, the guard in charge of the tie-down team fell apart, began seeing a revue of the faces and eyes of men he had killed rolling through his head like a film reel. Shocked at his own prior inability to see what his participation in executions had been doing to him, he immediately renounced the practice.
White supremacy has been called our society’s “original sin.” It also is our original moral injury. Whether we are privileged whites at the top of the system or persons of color mired at the bottom, the white supremacy driving us resists being revealed because we constantly think of it on its own terms — that prioritize public order, hierarchy, hyper-individualism, and the pursuit of simple linear solutions to problems over recognition and tolerance of complex conflicts that can be unresolvable. According to white supremacy’s self-assessment, if racism in America is a matter of concern, it is a fault of isolated bad actors, not (or no longer) a characteristic of the systems through which we order our society. This way of perceiving our social world focuses on a few trees while ignoring and refusing to attend to the health of the entire forest.
5. What can the Covid pandemic teach us about our containment in and possible escape from our violent systems?
U.S. infectious disease experts have told us that the COVID19 pandemic will be with us for at least another year, with a number of disease spikes and dips. Over 20,000 Texas inmates have tested positive for the disease and ninety-three percent of prison units have had active cases. Texas prisons have had more COVID19 cases than the entire federal system and more than any other state. So far, nearly two hundred Texas inmates and over twenty guards have succumbed to the disease. And, yet, Texas authorities have already set new execution dates for the first six months of 2021, with more surely to come to fill in gaps in the first half of the year and to fill out the rest of the year.
America’s Black prophets long ago showed us the way out of this habitual killing — the pursuit of a regenerative (non-homicidal) society that considers none of its citizens acceptable externalities, byproducts to the maintenance of a rigidly hierarchical order. They showed us a non-vertical, democratic order that arises from within, from among, from across, from between. Dr. King dreamed with the prophet Isaiah that every valley would be exalted, every hill and mountain would be made low. Langston Hughes turned this dream into an exhortation, “Let [America] be that great strong land of love where never kings connive nor tyrants scheme that any man be crushed by one above.”¹⁵
The setting of new dates demonstrates a determination to re-establish and maintain the “old normal” vertical order. This action parallels repeated directives coming from our state’s highest offices in 2020 to jump-start our economy by reducing protective social measures despite objectively dangerous disease conditions. Maintaining an economy that provides for necessities is essential to human life. But maintaining executions is not at all essential and, instead, right now sets the stage for additional loss of life during the course of killing — a family member of a crime victim, a guard, a chaplain, a lawyer. Someone may very well die this next year because some Texas leaders apparently believe executions are an essential service when they are not.
In his novel, The Plague, Albert Camus created a fictional epidemic set in Northern Africa as a metaphor for human violence and its effects. His characters respond to the epidemic in the various ways that types or groups of people react to such challenges. Among them, some are altruists, some are opportunists, and some are fatalists, either religious or secular. The Plague is a kind of map of human responses to large-scale lethal threat.
As Texans have experienced the Coronavirus plague washing over us, a couple of our own types have emerged. About half of us, it seems, have attached ourselves to the market economy as of utmost importance, treating that structure as an externalization of personal freedom. Having identified human thriving with removal of all restraints on market forces, this half has resisted government mandated market shut-downs and wearing of masks designed to prevent spread of the virus. (Public health consequences from this behavior have been devastating.) The other half of us has been wearing masks when around others. This half has chosen public safety, public health, over the market economy, recognizing that the economy also is vital to our health. In essence, this other half has rejected the construction of worlds that must contain either victims or executioners.
Although I believe it is not at all deliberate today, the unrestricted market type of response shares the economics of slavery and Jim Crow. It is designed to remove restraints on the top of the system, leading to great wealth and liberty for a few, while some wealth in the system as a whole may rise, accompanied by creation of a class at the bottom that inevitably is sacrificed to this same construction of freedom. In the Covid pandemic, the bottom classes created have been persons of color and the elderly. Undoubtedly there are a number of reasons why these populations have been most harshly hit by the virus, but a major one appears to be the decision by Texas higher authorities not to regulate the virus, or, put another way, to bestow upon the virus itself freedom to spread by refusing to regulate individual behavior.
Our criminal justice system and its death penalty work on the same kind of free market economy. The refusal to tax individuals and corporations at the top of the system in order to construct an effective public health system of violence prevention across all sectors of our society gives persons at the top an unfair share of liberty and safety compared to those at the bottom who are caused to remain in transgenerational deprivations of liberty and life. Another lens on this is to say that the cycles of violence suffered within Black communities — Black on Black crime, the spike of violent urban crime that has occurred along with this year’s spate of police killings — are the direct result of this economy. Viruses and violence are both exceedingly contagious. Both must be answered by thoughtful measures embedded within prophylactic systems constructed for human protection.
We should not merely be asking whether we trust government to regulate us in relation to our freedoms. Government regulates. That is what government is. The question should be, How and what are we going to regulate? Are we going to seriously regulate the virus and/or violence? Or are we going to take a laissez faire attitude toward either or both and let “God sort us out,” delivering safety to those already privileged with society’s protections and delivering alienation, unfreedom and death to those whom our system pushes to the margins?
The Coronavirus should be teaching us all a few important lessons.
First, our self-constructed systems, not merely nature, are responsible for the levels of safety from disease and violence in our communities.
Second, we are all so interconnected that, for the sake of all, we should be constructing equitable systems of health and justice distributions. Homicide, by omission or commission, is an unnatural choice and act for humans — resulting in guilt, shame, and moral injury — precisely because we know we are interconnected.
Lastly, a proper use of human boundaries is essential to human freedom. When we exercise a good boundary, we respect the autonomy of others, and thereby reinforce our own liberty. Thus, we ordinarily do not steal, do not usurp, do not invade, do not kill — we seek to do no harm, or as little harm as possible stemming from our own presence in the world in part because that reinforces our own freedom. We wear a mask for the sake of everyone’s thriving. Freedom is not merely a consequence of absence of restraints, but an alignment of restraints (inevitable whenever there is more than one human in relationship) so that the fullest freedom — all the way out to the margins of the circle of humanity — is assured.
We, not “nature,” construct the conditions under which life can be brutal and short, while at the same time we possess the wherewithal to construct systems that are regenerative. Regenerative systems restrain and refuse to justify centrifugal forces that marginalize and exclude. We are not simply egocentric and greedy, as the laissez faire system would have us believe, and therefore merely punishable when we breach rules. We also are empathetic creatures with great capacity for altruism or self-giving, especially when that is, as it often is, aligned with our own best interests.
It is possible that we as a society will learn nothing from 2020’s eruptions of disease and violence. But these events should be understood as massive opportunities to learn about how we have constructed our social environments and, how, then, we also are free to create less pathological environments through equitably shared responsibility that leads to equitably shared freedom. A truth of our interconnectedness is that there is no freedom without cost to someone. To be a species destined for success, rather than ultimate extinction, we have to come to grips with sharing the costs. This boils down to recognizing and caring about all of our relationships.
Fiske and Rai, who documented that almost all of our human violence is morally motivated, also found that, from the perspectives of its perpetrators, violence is quintessentially based in various types of human relationships. Violence establishes, breaks, or maintains relationships. They conclude that, because violence is intrinsic to relationships, in order “to reduce violence, people must develop other ways to constitute and regulate their social relationships”:
“Violence will be reduced when . . . models emerge that make violence in one relationship incompatible with many other important, meaningful, rewarding relationships linked to the potentially violent relationship. When violence in any relationship is an intolerable violation of all of the perpetrators’ relationships, most violence will be eliminated.”¹⁶
Another way of putting this is that violence will be most diminished only when we stop ignoring the externalities in our systems — when we refuse to treat humans as ignorable systemic waste — and when we construct systems for human social habitation that reinforce care for all relationships¹⁷ and operate centripetally to pull the margins of the human family toward the center.
When we do that, we will be a society that responds to pandemics better and we will no longer be burdened with the morally injurious practices of systemic racism and the death penalty. A lot of reconstruction is needed. Our health care system must be made available to all on an equal basis. Our criminal justice systems must be expanded to give rights and voice to all stakeholders, including crime victims as well as defendants and prisoners. At the same time, those criminal justice systems need to be reoriented from vertical punishment regimes to horizontal systems that, like our civil law, are directed toward fostering and restoring right relationships in our communities. The same with police departments. For there to be true policing reform, local police departments need to come under representative, diverse citizen review boards with authority, including over police unions. For the most violence diminution, we need to surround ourselves with systems that guarantee basic human needs of food, clothing, housing, mental health care, and education. Other societies have relatively succeeded at all this — notably social democracies in Europe — but we need to find our own way, and it is a complex task, undoubtedly somewhat unique in every culture and polity.
However, the simple first thing to do to begin to construct a less violent society is to stop our killing. I think we’ll be amazed at the spaces that open up for thriving in our society when we do that. By enlarging the social circle of care, where everyone is visible, we will diminish retributivism as policy and practice, and diminish violence. A matter of immense importance: Law itself will no longer be a perpetrator. The rule of law will be restored as an invaluable guide to the maintenance of non-violent just relationships.
Prior to the Coronavirus pandemic, we have trudged from execution to execution because our capacity to imagine, to dream, has been limited, our vocabulary and our capacity to think has been stunted by the vertical, retributive ethos of white supremacy.
The imagination of a Governor at the top has been limited and, so, the Governor has had no disincentive to enactment of more draconian and useless punishments, represented, for example, in the recent announcement by the Texas Governor that he would solve the problem of mass shooters by sponsoring legislation to curtail the length of their appeals before execution.
The imagination in the middle has been limited, so, instead of recognizing that crime and state violence are an interlocking complex system calling us to enhance public welfare so as to reduce both, we have constructed zero-sum “law and order” rituals with what we consider winners and losers, damaging ourselves in the process, prolonging dissociation in those at the top and in the middle (who, us? violent?) and shame in large parts of our society on the bottom.
The imagination at the bottom also has been limited, and so, many a growing Black male child has seen our society as a cage, has resented white supremacy, and has defended his dignity against it by joining a gang, by asserting a warped image of Blackness in self-protection that, ironically but understandably, is the mirror image of the cruel society he resents.
Gang violence in our inner cities is described by clinicians as traumatic repetition. Retributive violence from the top of the system — white supremacy expressed through draconian punishment inequitably distributed — is repeated at the bottom of the system, where disenfranchised individuals, who for generations have been only recipients of the harsh agency of others, strive for a kind of agency — or dignity — that they feel is in a small domain over which they can have some control. It is true that our prisons are full of perpetrators. But we must learn the paradox that many of those perpetrators also are members of the most vulnerable among us on society’s margins.¹⁸ A regenerative system designs so as to bring those margins in, to prevent margins from becoming established and repetitive.
Black Lives Matter is demanding that all this killing shall end. And this is my own demand letter for that new normal. We have a stark choice before us: Prolongation and deepening of our own moral injury through a coming spate of executions of Black men in Texas. Or, life. Let’s choose life. Let’s learn from the Coronavirus pandemic’s lessons about our interconnectedness and our need to exercise prophylactic care to eliminate the marginalizations that create poor health and violence, rather than re-commit ourselves to our endless cycles of self-destruction.
¹See, e.g., In re John William Hummel, No. WR-81,578–02 (Tex. Crim. App. March 16, 2020) (“the execution should be stayed at the present time in light of the current health crisis and the enormous resources needed to address that emergency”); In re Tracy Beatty, WR-59,939–04 (Tex. Crim. App. March 19, 2020) (same).
²See, Madeleine Carlisle, How COVID-19 Is Impacting the First Scheduled Federal Execution of a Woman in Nearly 70 Years, Time Magazine, November 20, 2020; Michael Balsamo & Michael R. Sisak, Execution Staff Have Covid19 After Inmate Put To Death, Associated Press, December 8, 2020.
³See, Resmaa Menakem, My Grandmother’s Hands: Racialized Trauma and the Pathway to Mending Our Hearts and Bodies (Central Recovery Press, 2017). (Black Lives Matter has brought us to “an unavoidable time of reckoning. . . . One of two things will happen: Ideally, America will grow up and out of white-body supremacy; Americans will begin healing their long-held trauma around race; and whiteness will begin to evolve from race to culture, and then to community. The other possibility is that white-body supremacy will continue to be reinforced as the dominant structured form of energy in American culture, in much the same way Aryan supremacy dominated German culture in the 1930s and early 1940s.”)
⁴Letter among many in the possession of the Texas After Violence Project.
⁵See, e.g., Joy DeGruy, Post Traumatic Slave Syndrome: America’s Legacy of Enduring Injury and Healing (Uptone Press, 2005).
⁷McCleskey v. Kemp, 481 U.S. 279 (1987).
⁸Michael J. Osofsky, Albert Bandura, & Philip G Zimbardo, The Role of Moral Disengagement in the Execution Process, Law and Human Behavior, Vol. 29, №4, August 2005, pp. 371, 374 (“Higher levels of moral disengagement are exhibited by males, those of lower education, and older individuals. Caucasians exhibit greater levels of moral disengagement regarding the execution of criminals than do either African-Americans or Hispanics. Variation in support of execution closely mirrors the level of moral disengagement by members in each of those categories.”)
⁹Alan Page Fiske & Tage Shakti Rai, Virtuous Violence (Cambridge U. Press, 2015).
¹⁰See, Lee Hancock, 2 Men Indicted in Death of Homeless Tyler Man, Dallas Morning News, Dec. 20, 1996, at 33A; Lee Hancock, Man Pleads Guilty in Race Killing, Friends Helped Pick Black Victim, He Says, Dallas Morning News, April 1, 1997, at 17A; E. Texas Man Pleads Guilty in Racial Death, Houston Chronicle, April 2, 1997; Whitehouse Man Gets 45-year Sentence in Plea Agreement for Murder in Tyler, San Antonio Express-News, April 13, 1997.
¹¹Callins v. Collins, 510 U.S. 1141 (1994).
¹⁴Michael Castellana, psychotherapist, U.S. Naval Medical Center, San Diego, quoted in, David Wood, The Recruits: When Right and Wrong are Hard to Tell Apart, Huffington Post, March 19, 2014.
¹⁶Fiske & Rai, supra, at p. 277.
¹⁷“Prison is not a building ‘over there,’ but a set of relationships that undermine rather than stabilize everyday lives everywhere.” Ruth Wilson Gilmore, quoted in, Samantha Sheppard, A Radically Different Way to Look at Incarceration, The Atlantic, Oct. 17, 2020.
¹⁸See David Freedman & David Hemenway, Precursors of Lethal Violence: A Death Row Sample, Social Science and Medicine, Vol. 50, pp. 1757–1770 (2000); David Lisak & Sara Beszterczey, The Cycle of Violence: the Life Histories of Forty-Three Death Row Inmates, Psychology of Men and Masculinity, Vol. 8, №2, pp. 118, 125 (2007).