Prison and Death

Guest Blogger

For the Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).

Carol S. Steiker

Judith Resnik has produced a magisterial, learned, and deeply humane work of history, law, and policy that takes us deep within the deeply flawed institution of the American prison.  As a scholar of American criminal justice who focuses on the death penalty, I found many resonances in Resnik’s book to my own primary preoccupation.  Capital punishment makes only the occasional, peripheral appearance in Resnik’s account of the prison (this is not a criticism, as the book is a mammoth doorstopper as it is).  But reflecting on the interplay between these two penal practices is a worthwhile extension of Resnik’s work, as it both amplifies and complicates some of her key themes.

The relationship of the prison to the death penalty has always been complex.  In some ways, their fates often seem inextricably linked, like those of conjoined twins.  In other ways, the two practices seem more like rival siblings locked in a zero-sum battle.  Consideration of four key time periods—the early to mid-nineteenth century, the Progressive Era, the 1960s and ‘70s, and the first decades of the twenty-first century—sheds light on many of the key convergences and divergences of the two practices and may suggest some important questions for their future.

Many of the same reformers who endorsed the new American prisons also supported the death penalty abolition movement that swept through the Northeast and Midwest in the same period.  Present-day Europeans are often surprised to learn that several American states were among the first jurisdictions in the world to abolish the death penalty, with Michigan abolishing the death penalty for murder in 1846, followed by Rhode Island in 1852 and Wisconsin in 1853.  Many other states introduced and vigorously debated abolition bills, with some coming quite close to success and with others producing substantial reforms in lieu of wholesale abolition.

In some respects, these parallel reform movements represent an example of the “conjoined twins” relationship of prison and death, as nineteenth-century penal reformers took a holistic approach to modernizing punishment practices.  The two reform movements also echoed one another in that they both enjoyed only partial success, with the new prisons employing often brutal practices that even at the time engendered criticism and with the anti-death-penalty movement achieving only a few full abolitions.  But this period also clearly exemplifies the “sibling rivals” aspect of the two modes of punishment as well.  The anti-death-penalty reformers made this relationship quite explicit.  They argued that the new prisons reduced the need for reliance on capital punishment and that the new penology of redemption through penitence and labor was inconsistent with the punishment of death.  As Resnik herself succinctly puts this “lesson” more broadly, “[T]o bring a punishment to its end has entailed promoting replacements” (p. 578).

Fast forward to the Progressive Era, the next major period of reform in penal practices.  This period, too, saw reformers taking aim at carceral and capital practices alike.  With regard to prisons, Resnik describes the many important reforms that were born during this era, including “conditional release programs such as probation and parole” and the building of “‘open prisons’ without perimeter barriers” (p. 608).  However, reformers’ penal objectives did not stop at prison innovation.  With regard to capital punishment, the Progressive Era was one of most significant periods of abolition in American history, with 10 states repealing their capital statutes between 1897 and 1917.

But as was the case earlier in the nineteenth century, this period of reform had its dark legacies and failures.  The same Progressives who touted prison reform also often embraced the racially inflected “science” of eugenics, a legacy that Resnik explains would dog the primary transnational organization of prison administration (the IPPC) through the Nazi era and into the post-War period (pp. 103-48).  With regard to the death penalty, eight of the 10 states that achieved abolition during the Progressive Era ended up reinstating the death penalty, often within only a few years of abolition.  Why?  This era was also the most active era of race-based lynching in the United States.  Many political leaders were dismayed by such incidents in their states, which they viewed as representing the deterioration of the rule of law and the weakness of their own political authority.  The death penalty was reinstated as a more benign substitute for the chaos and violence of lynchings.  In the case of both prison reform and death penalty abolition, transformative change in the Progressive era was blighted by the continuing taint of racism—a theme that runs throughout Resnik’s account.

Although the fates of prison reform and death penalty abolition in this era were linked by the pernicious pall of American racism, they also diverged in the opposite way from earlier in the century.  The birth of the prison enabled a robust mid-century abolition movement by providing a plausible substitute for the death penalty.  But it was precisely prison’s perceived failure as a substitute for death—especially in cases of Black men accused of raping white women—that led death penalty abolition to founder during the Progressive era.  In such cases, many legislatures concluded that death and only death would be sufficient punishment to forestall mob violence—and even then, only when the death penalty was speedy and certain.  The practice of what historians have called “legal lynchings” was born in this period, as many Southern jurisdictions sought to contain mob violence by promising swift executions after the most minimal judicial process possible—a legacy that lived on until well into the twentieth century.

It was not until the 1960s that the nation began dealing in earnest with its long and ignoble history of racial discrimination, with repercussions for both carceral and capital practices.  As Resnik recounts, the first time that a form of prison discipline was ruled unconstitutional was in 1968, when Judge Harry Blackmun (then a judge on the Eighth Circuit) held that whipping violated the newly incorporated “cruel and unusual punishments” proscription of the Eighth Amendment (p. 2).  On the capital side, the Supreme Court struck down the death penalty as it was then applied across the country in 1972 in its landmark decision of Furman v. Georgia, 408 U.S. 238 (1972).  Once again, the prison and the execution chamber were joint targets of reformers, this time of judicial regulation under the constitution. 

In neither context did the courts describe their motivation as addressing racial injustice, though the subtext was clear.  In the Arkansas whipping case, the trial record “established that the state forced prisoners to pick cotton, okra, and cucumbers six days a week, ten or more hours a day” (p. 2).  And in Furman, the court used phrases like “wanton and freakish” and “struck by lightning” to describe the application of the death penalty, in what many read as only slightly veiled code for racial discrimination.

But the Eighth Amendment did not prove to be a robust palliative in either context.  Resnik describes how the Supreme Court weakened the power of constitutional prison litigation over time, requiring that suffering be “extreme” and “unnecessary” to state a claim for relief (p. 500), and she draws an explicit connection to the Court’s rulings about modes of execution, which upheld methods that “were not designed to ‘superad[d] . . . terror, pain, or disgrace’” (p. 501).

The two contexts also shared a similar trajectory over the next quarter century, as prison populations soared and execution rates reached highs not seen since the 1950s.  The “tough on crime” politics of the 1980s and 1990s continually upped the ante with regard to both incarceration and death.  With regard to both carceral and capital practices, the U.S. held—and continues to hold—itself apart from a growing consensus among our peer nations that punishment practices should be constrained by a commitment to fundamental human rights to dignity and life.

Starting at the turn of the millennium, however, a sharp divergence emerged between the trajectories of incarceration and capital punishment.  The use of the death penalty, whether measured by executions or new death sentences, went into freefall.  Today, those numbers are down 80 or 90 percent of their 1990s highs.  Mass (or “massive” in Resnik’s terminology, p. 10) incarceration eventually began to recede as well about a decade later but has shrunk considerably less.

One explanation for this divergence lies (again) in the “sibling rivals” account of the relationship of prison to death.  Opponents of the death penalty welcomed the introduction of the sentence of life without parole (LWOP) because capital jurors and opinion poll respondents overwhelmingly reported themselves more willing to forgo a death sentence when LWOP was an option.  But LWOP spread well beyond its initial promulgation as an alternative to death for capital crimes, driving up prison populations even as it drove down capital sentencing.  Now LWOP is available in many non-capital contexts, part of what Resnik terms an overall strategy of “aggressive incarceration” (pp. 584-86).

Another explanation lies in the different way that Eighth Amendment regulation has played out in the two contexts.  With regard to prison conditions, few would say that constitutional litigation has fundamentally reshaped the contours of American incarceration.  Yet that is exactly what happened with regard to the death penalty.  Yes, the Court scaled back its initial promise to reform and rationalize the practice of capital punishment under the Eighth Amendment.  But no one would argue that the federal courts are not a—or even the—central player in shaping capital practices.  Which offenders and offenses are eligible for death, what is permitted and required in capital representation and capital trials, and how executions may be conducted—all of these questions are regularly presented to and decided by federal courts.  The growth of constitutionally mandated mitigation practice, along with the lengthy delays and high costs driven (unintentionally) by constitutional regulation, have contributed to the dramatic decline in the use of the death penalty.  Capital punishment is much more a creature of the judicial process than is the prison, which more resembles schools, hospitals, and other large-scale institutions that are resistant to effective judicial oversight.  American prisons are shaped much more by politicians and administrators than by courts.

Ironically and disturbingly, the lengthy delays driven by constitutional regulation of capital punishment have led to the greatest single greatest convergence between prison and death.  In the American capital system, sentences of “death” have become in reality sentences of extremely lengthy incarceration that most likely will not be followed by execution.  Only a minority of those sentenced to death in the past several decades have been executed.  In California, which houses the nation’s largest death-sentenced population, execution is not the leading cause of death on death row.  It is not even the second leading cause of death.  Rather, execution comes in third, after suicide and natural causes.  The average length of time on death row nationwide now tops more than two decades.  And death row conditions are often among the harshest that prisons have to offer, with inmates frequently held in solitary confinement or other extremely restrictive conditions.  Meanwhile, the primary alternative to punishment by death—the sentence of life without possibility of parole, looks increasingly similar to a death sentence.  Indeed, advocates opposed to life without parole highlight that similarity by referring to LWOP as a sentence of “death in prison.”  In our current system, prison has become death and death has become prison.   

Against this backdrop, what can we predict or propose for the future of the prison and the death penalty?  In the present moment of weaponized fear mongering and the return of tough-on-crime rhetoric (even at a time of historically low crime rates), Resnik’s call for a principle of “anti-ruination” shines a needed spotlight on the risks that punishment practices—non-capital and capital alike—pose for the future of democratic governance.  Posited as a moral and political obligation, anti-ruination helpfully builds on concepts like dignity and autonomy to offer a bulwark of rights-based protection against ruinous punishments.  Brutal prison and death row conditions, capital punishment, sentences of life without possibility of parole, lengthy solitary confinement, and lengthy prison sentences imposed on juvenile offenders are all potential candidates for such a designation.  Resnik’s conceptualization offers a framework for policymakers to use to assess these and other practices.  And though she does not go this far herself, Resnik’s framework offers a blueprint for human rights lawyers and constitutional litigators to try to convert her compelling vision into binding law.

Carol S. Steiker is the Henry J. Friendly Professor of Law at Harvard Law School.  You can reach her by email at steiker@law.harvard.edu.