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.
The early to mid-nineteenth century saw the birth of the modern prison. As Resnik explains, its supporters saw themselves as forward-thinking reformers who rejected many of the punishments that had dominated in the eighteenth-century, such as “whipping, executions, branding, confinement, or exile to colonies” (p. 20). But the new prisons brought their own horrors. The Quaker-inspired Eastern State Penitentiary, which opened in Philadelphia in 1829, insisted on strict solitary confinement in order to induce repentance, employing a form of psychological torture that has continued into the present day. The new prisons also imposed coerced labor, a requirement they enforced through severe corporal chastisement. Coerced labor and physical violence are again legacies that can be traced to this founding moment.
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.