© 2018 by J. Eric Thompson

Welcome to the Monkey Cell

“The only purpose for which power can be rightly exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”

“Over himself, over his own body and mind, the individual is sovereign.”

– John Stuart Mill, On Liberty

Brief Considerations of Evil, Vengeance, Isolation and Love

For a nation built upon the hypocrisy of declaring every man equal while 1 in 5 were slaves, we’ve really straightened ourselves out. For example, murder is illegal in our country. Except, of course, when we have to punish a murderer. Torture is forbidden, too, unless the victim is sick, and you love them.

Imagine awaking one morning and you can’t find your 7-year-old daughter. After scouring the house you call the police. Hours later they find her broken body in a field several miles away. When she should have been sleepily eating Fruit Loops, she was being raped, beaten, and strangled by a middle-aged man who had stolen her from her room while you slept.

Someone soon captures the killer. He confesses his guilt. They alert you, saying they’ll detain him, and even invite you to share a windowless room with the man who brutalized your little girl. Now begins the real helplessness. When you arrive with your meathooks and blowtorch you realize that the man is not only protected, but has been given additional security – as is the norm in child molestation cases – and the windowless room is a court of law, not a soundproof garage with a floor drain for all the blood.

That helplessness – the laws preventing you from avenging your murdered child, as well as the empty satisfaction you’re supposed to feel when an indifferent third party metes out what they deem “justice” – is the very reason our government should not have the right to kill him.

 

 

There are more sympathetic reasons for the death penalty’s abolition, but they stick in my throat like campfire fumes when defending the rights of child killers.

Nor is my argument for abolishing the death penalty rooted in the physical wellbeing of the criminal. I doubt that the parents of Alyssa Maria Vasquez – the young victim of the aforementioned murderer, who was executed in Texas in 2011 – felt any more than a hint of appeasement from watching the killer take several easy breaths and then lie still. What satisfaction or closure could possibly be obtained through seeing him drift away to sleep, the same humane ending you’d give the beloved family pooch?

Alyssa’s father would’ve happily killed him, no doubt. And I would argue against anyone who’d claim they wouldn’t have such a compulsion. But wanting to kill someone – be it paternal retaliation or otherwise – isn’t the same as wanting them dead. So I couldn’t allow anyone else to do it for me. It would give me neither satisfaction nor a feeling of appropriate justice. You can’t sate your hunger by watching someone else eat.

The death penalty should be abolished for its improper channelling of revenge. The criminal didn’t rape the executioner’s daughter, so why is he allowed to exact revenge? Obviously, the court can’t permit Alyssa’s parents to flay and mutilate the killer as they please; an explicitly revengeful system of justice is no base for civil society. So the court is permitted to murder because they do it “humanely”? Dispassionately?

I suppose, too, that I should exhale the campfire fumes: the death penalty is also irrevocable in light of new evidence, wasteful of millions of tax dollars per year, and arbitrarily sentenced (disproportionately to minorities who kills whites). It demonstrates to American citizens that murder is occasionally acceptable (even of the mentally ill), and demonstrates to the American government that its citizens have granted it the power to kill them when necessary. It also has traumatic effects on the executioners, and has been repeatedly proven ineffective as a crime deterrent. It is the very definition of premeditated murder and, hypocritically, a punishment handed down most often to criminals convicted of premeditated murder. The Ouroboros of American Justice must have taken lessons from Linda Lovelace.

We proclaim American Exceptionalism, but consider the company we keep: in 2013 we sat in the top five in number of executions with China, Iran, Iraq, and Saudi Arabia. Hell, without Texas, we’d be ranked down near those sentimental saps in Sudan.

So if we nix the death penalty because it flaunts our hypocrisy and poorly sates our vengeance, what punishment, then, should we reserve for the vilest of the hellhounds?

• • •

Veal pens of the criminal justice system, the average size of a solitary confinement cell is 7’ x 10’, where inmates are confined for days, months, or even decades, often with no clocks, books, television, darkness, or human contact. They are given only one hour per day to exercise, usually alone. There is a higher rate of psychopathologies, suicide, and recidivism in inmates placed in isolation compared to those placed in the general population. The cells are also more expensive, both to house inmates and to construct. Like the death penalty, the punishment is handed out arbitrarily, for arbitrary lengths of time, for violations such as possessing money or contraband, cursing, fighting, testing positive for drugs, ignoring orders, self-mutilation, as protection because an inmate is gay or transgender or Muslim or politically radical, or if they’ve reported rape or abuse by prison staff.

According to some studies, up to 1/2 of the approximately 80,000 inmates in solitary at any given time in America – it’s hard to gauge since specific records aren’t kept – are already mentally ill, ripe for deterioration in such conditions. There have even been suggestions that such severe isolation causes a specific type of psychoses characterized by hallucinations, panic attacks, obsessive thinking, paranoia, and loss of impulse control (thus the higher recidivism rate than inmates in gen pop). So begins the downward spiral of the isolated mentally ill; as their condition worsens and they start hurling shit at CO’s or castrating themselves to decorate the cell door, they are punished for such behavior by being sent to a strip cell or padded room, or having time added to their isolation, all of which merely forces them deeper into the hellish nightmares of their own minds.

How many of those 80,000 are so diabolical as to truly deserve such a sentence? Is the “compassion” of solitary confinement (as opposed to death) better for the inmate? For the integrity of the justice system? Is entombment more virtuous than execution? The clouded answer relies heavily on one cloudier question:

Is it torture?

• • •

Your mother is strapped to a table, the smell of excrement thick in the air. She’s emaciated and bald. She hasn’t the strength to close her jaw or speak, yet her wrists are lashed to the cage around her so she can’t flail at the man stabbing her. They slice her throat open and jam things into the hole. She lives, but the gurgling doesn’t stop. This began four days ago. They zap her each time she tries to die, smiling and high-fiving each other, giving you the thumbs up once her corpse is gurgling again. They’ve brought her back to life because they made a vow to stab her and shock her and slice her open as many times as they have to. Sweet of them to allow you to watch, to listen to the gurgles and silence where her screams would be, had she strength to scream.

I can’t fool you. Were you not so acclimated to the 700,000 hospitalized deaths in America every year, you’d assume I was describing a witch in old Salem, the good Christians just having a little fun while the firestarter gathered kindling.

Nope. Just Mom. Suffering for months with cancer or a necrotic heart, nauseated and agonized from chemotherapy, she was ready for death the first time she tried to slip away earlier in the week. She doesn’t have an advanced directive, though, nor a DNR, so the doctors are forced to resuscitate her every time her exhausted body attempts to squirm from under life’s weight. They took an oath, after all.

Seems cruel, doesn’t it? It certainly isn’t unusual.

Had she only raped and murdered a young child, she’d be given such a peaceful end.

Well.

The Degradation of Human Dignity

Criminals should not be the only members of our society protected under the 8th Amendment, which prohibits the federal government from imposing excessive bail, excessive fines, or cruel and unusual punishments, including (presumably) torture. In the 1972 ruling of Furman v. Georgia, Justice William Brennan – who opposed the death penalty – outlined “four principles by which we may determine whether a particular punishment is ‘cruel and unusual.’” Those principles forbade any punishment that is:

“…obviously inflicted in wholly arbitrary fashion.”

“…clearly and totally rejected throughout society.”

“…patently unnecessary.”

“…by its severity degrading to human dignity.”

That last one he deemed his determination’s “essential predicate.” However, the subjectivity of the language, both of the Amendment itself and Justice Brennan’s ruling, have always been their hindrance; What is excessive? Who determines what’s unusual? The death sentence isn’t handed out wholly arbitrarily, as the judges aren’t in their chambers with a dart board. Nor is it totally rejected throughout society; a whopping 60% of Americans feel virtuous in determining which lives are disposable. And what makes something patently unnecessary, as opposed to merely unnecessary?

Our nation’s criminals have more regulations protecting their dignity than our elderly and terminally ill. Why isn’t their humanity preserved and their suffering capped, should they want it so? What crime have they committed to be forced to stay alive through the injections, tubes, and electrodes of our life-prolonging technologies which, during the fierce agony of a drawn-out death, seem no more humane than iron maidens and brazen bulls?

Cancer appears almost wholly arbitrarily, save for cigarette smokers and 9/11 responders, and 100% of our nation is anti- heart disease. When an elderly citizen or terminally ill patient begins the throes of an inevitably painful death, the prolonging of that pain is patently unnecessary. And there is no human dignity involved in slowly dying from a blocked colon, regurgitating fecal matter into a bedpan beneath your chin until your body finally poisons itself. There is no human dignity in writhing for days while your family watches you suffer.

The subjectivity of the 8th Amendment’s language should be cited in order to persuade our government to allow its citizens autonomy over their own deaths. Forcing them to endure such torture is cruel and unusual, at least according to Justice Brennan’s principles.

Our government has never been reluctant to force death upon its criminal citizens, at least on paper. In execution, however, there have been a few…hiccups.

• • •

Can you botch a guillotining?

What peculiar times are these, when America has trouble killing. No, not civilians. Those are easy, what with all our bombs and drones and joysticks. In 2012 alone we killed more Afghani civilians by accident than we did US criminals on purpose. Normally, we have no compunctions about murdering unarmed black men, but try it with a needle! All those wiggly veins and untested drugs that the untrained executioners must contend with, and all while the man they’re murdering lies there staring at them between convulsions. It’s much tougher than exploding grey specks from above or shooting weaponless teenagers in the head. Anyone who’s played a video game can do that. See, the America of today is having a hard time killing people humanely.

(Ahem.)

We don’t hang people anymore. We rarely shoot them, unless they ask for it, nor electrocute them, because no one asks for that. And we never, ever lop off their heads. Our delicate American sensibilities simply can’t tolerate such gruesomeness, unless it’s a movie or TV show or comic book or video game.

Oddly enough, as America’s murder methods became more humane (i.e. more palatable for witnesses), they became more botchable. According to Gruesome Spectacles – Botched Executions and America’s Death Penalty, the method with the highest percentage of botches from 1900-2010 was lethal injection (7.1% of all injection executions), and it wasn’t even introduced as a method until the late 70’s after our methods “evolved.” It is also, hopefully, the only practice we’ve adopted from the Nazis, who were the first to experiment with it in the 40’s, albeit more vehemently. They were better at it, though, if only because they weren’t kidding themselves.

There has not been a historical slew of botched hangings or guillotinings or firing squads because we had no pretense about what we were doing. We held no uncertainty that killing was the appropriate measure, so kill we did, good and hard. We did not attempt to mask our vengeful brand of justice behind a less grizzly veneer. We realized and righteously spurned the hypocrisy of giving some foul beast a “humane” death. But we’ve matured, right? The angled necks and piss-stained pants of hangings we find uncouth. We place hoods over the heads of the electrocuted so we don’t have to watch their eyeballs burst. And perish the thought of catching a head in a basket, for we’re infinitely more refined than those Dickensian savages.

There’s a reason, too, that 1 of the 5 rifles in a firing squad is loaded with blanks. Even dismissing the victims of flubbed executions as deservedly mangled, we must consider their revolting spectacles and the psychological wellbeing of not only the witnesses, but the executioner. As aggressively as we exterminate evil, we must as aggressively protect the innocent. No correctional officer should have recent memories of hard-boiled eyeballs while he’s reading his daughter to sleep, especially considering that he makes about $15 an hour.

But what of the prison official who botched the Oklahoma execution of Clayton Lockett, whose name you probably remember due to the media-inflated martyrdom he received after shooting 19-year-old Stephanie Neiman and burying her alive. Did you remember her name? His previous convictions included forcible oral sodomy, rape, assault, and first-degree murder among others, but that doubtfully gave any pleasure to the man responsible for missing the veins in both arms and both sides of the inmate’s groin. During his 43-minute demise, the inmate writhed and groaned and even attempted to sit up as a golfball-sized swelling rose where the femoral vein had been missed. I imagine every prison and government official (and probably every witness) were secretly wishing someone would put a pillow over his face or a bullet in his head, just to get the damn thing over with. The debacle sure as hell makes the guillotine look humane, if only for its efficiency. And I would imagine it still haunts the executioner, lest the prison employs sociopaths.

Our undercurrent of bloodlust, though, runs deep; we still have some atavistic desire for vengeance for most heinous of criminals, but our proclamations of moral acuity and exceptionalism won’t allow us to revel in it. We can’t take pride in our official murders as other, more terroristic societies do. We don’t gloat. We like to claim that we meted out justice and didn’t spill a drop of blood. Aren’t we noble?

If we take no moral pleasure in these executions, then, are we murdering out of a sense of duty? Or lack of imagination? Are we forced to declare certain life unworthy? By what, or whom? It isn’t the welfare of the criminal for which I advocate; Lockett was a murderous, raping swine and a danger to our society and all of humanity in general, and should have been punished as severely as our laws would allow – as long as they don’t require us to become murderous swine along with him. Shouldn’t we be more concerned with the psychological wellbeing of his executioner and the witnesses than we are the comfort and dignity of a murdering rapist? Shouldn’t we be more concerned with our national sense of humanism? With our precious exceptionalism, at least?

If yes, then what? America will always need a severest penalty, if only to assuage our collective moral conscience that we’re not giving the few savages the same treatment as the myriad swindlers. Nobody considered executing Bernie Madoff. Nor should Stephanie Neiman’s murderer be permitted the freedom and leisure to play pinocle with a drug dealer in gen pop. Somewhere between Dante’s Inferno and the socialization of punishment lies our dilemma; if a sentence cannot be catered to each crime in one of Nine Circles of Supermax, we at least need varying degrees – other than duration – of punitive severity. There has to be a worse punishment than simply living in a community of criminals. We need a punishment that allows us to tell ourselves that 1) we really showed him (the criminal), by giving him the worst punishment our morals and laws will allow, but at the same time 2) we aren’t barbarians.

Ironically, though, we will use almost anything to justify punitive murder, including semantics. See, the Constitution doesn’t explicitly grant the government the right to kill, it only forbids its punishments from being cruel (um…) or unusual, a term that has been historically defined as “arbitrary” in American courtrooms. Antonin Scalia has cited the 14th Amendment, which prohibits the government from depriving “life, liberty, or property, without due process of law,” as the Constitution’s inherent acceptance of the death penalty, claiming it was phrased specifically in order to allow the deprivation of life, if warranted via due process.

Those rascally semanticists. It seems the fathers of our great nation have declared, albeit indirectly and discreetly, that government sanctioned murder is, in fact, constitutionally lawful. I wonder what other moral dilemmas we might answer by interpreting the legalese of slaveowners.

Someone should ask them about guns. Or women.

But say we stopped basing our collective principles on those of racists, misogynists and imperialists, and in fact declared that it was in our national interest to abolish the death penalty and implement a less barbaric form of capital punishment. That persnickety “unusual” clause, however, will hinder our disciplinary creativity. (Although at some point we allowed a New York dentist to invent an electrified chair, and nobody called that unusual.) Even if our new supreme punishment isn’t barbaric – hard labor or a daily hour of forcible tickling, say – it will inevitably be deemed unusual (this time defined as “not habitually or commonly occurring or done”), and thus unconstitutional. If we’re not already doing it, in other words, we’re sure as hell not going to start now. America is a land of tradition, after all.

Our correctional imagination stymied, then, we’re inevitably forced to fall back on something we already use. Solitary confinement isn’t unusual (i.e. uncommon) in the sense that it consists of being in a room by yourself. Most of us do it at some point everyday. Parents call it “time out.” In its present form, however, its lack of regulation leads to arbitrary use which should, by Justice Brennan’s definition, deem it unusual, and therefore unconstitutional. But regulations make for an easy remedy.

Among other nuances (like turning the lights off at night and allowing access to books, at least), there should be two levels of solitary confinement. Light Isolation would be highly regulated – with limits on duration and frequency, the use of psych evaluations, and predetermined sentences for every infraction imaginable – and where most of the approximately 80,000 American inmates in isolation today would reside, though the residencies would be shorter and more humane. Such regulations would make it more ethically palatable, the rules assuring us that we aren’t driving inmates insane to the point of self-caponizing for decoration. It’s hard to defend the human dignity of a severed scrotum.

If we as a nation insist on having a capital punishment – and it seems we do; America is not a land of pussyfooters – Light Isolation would be too lenient a sentence for the menaces deserving our harshest deprival of rights. As for the 3,000 inmates in America currently scheduled for execution, their death sentences could be lifted and they could be placed in Capital Isolation: solitary confinement as it is known today, without darkness and only minimal stimulation or human interaction, for the rest of their lives. If we as a nation insist, those fiends in Capital Isolation will rot, thinking about their vileness with every breath in their foul and lonesome lungs. We’ll force their minds to warp and their worlds to collapse, their own gnarled fingers the only company they deserve. If we as a nation insist.

Crueler than death, you say? Too true. Fifty years from now, had Stephanie Neiman’s murderer been so entombed, we’d find ourselves ashamed to look upon him, and would no doubt keep him hidden. Because if our grandchildren, whom our sons and daughters will arm with the love and empathy we instill in them, were ever to see him – smearing shit like warpaint across his brow and shrieking like a banshee at his lunch tray – they’d smell the stink of the cage and his noxious soul and wonder what he could have possibly done to deserve such an existence. They’ll be ashamed of us, too. When they inspect us through the prism of history we’ll seem no better than our own enslaving American ancestors, whose actions we are ashamed of. They’ll understand that murder is wrong, because we’ll imbue them with humanistic compassion. But they’ll also understand that condemning someone to a lifetime of imposed depravity is worse.

They’ll wonder why we didn’t at least allow him to kill himself.

The Merciful Justice for Stephanie Neiman Act

In a sweeping pledge to abolish the death penalty and legalize self-administered, highly regulated euthanasia, our nation could begin to shed the hypocrisy it has for so long perpetrated in our simultaneous condemnation and practice of murder. We could elevate our morals two-fold from those of the medieval nations with whom we constantly war by proclaiming our unwavering respect for the human dignity of not only our sick but our vicious. We could grant our own individual citizens sovereignty over their bodies and minds, a right which has heretofore been proclaimed inalienable, yet also impeded. More vengefully, we could sate our hunger for capital punishment via good old-fashioned loophole. We could begin the process of becoming less shameful to our descendants.

Sanctioned and self-administered euthanasia has been lawful in America since 1997, and it’s spreading. Oregon’s Death with Dignity Act has been used as the basis for bills introduced in at least seven other states, since it effectively grants merciful autonomy and, by way of regulation, is designed to deter terminally ill patients from requesting it. Only available to patients diagnosed as having less than six months to live, Nembutal prescriptions also require multiple written and verbal requests, witnesses, self-administration (in most cases), and psychological tests, among other failsafes. The topic has seen a resurgence in the media since Brittany Maynard decided to end her life on November 1, 2014 before a stage 4 glioblastoma could make her life insufferable.

There are only two adjustment needed for evolving Oregon’s Death with Dignity Act into the Merciful Justice for Stephanie Neiman Act, and both simply expand the pool of individuals eligible for the Nembutal.

First, all individuals over a certain age, perhaps 80, should be eligible for the prescription under all of the same regulations save the diagnosis of impending death. There are many cases of individuals suffering from a single disease or a combination of maladies who experience unbearable daily pain with no diagnosed end. Are they, too, like our machine-fed loved ones, doomed to tough it out? Their suffering should not be invalidated because they don’t know when a welcomed death will find them.

Also, with lifespans lengthening every year, overpopulation won’t be an issue of room, but of resources. All 7 billion people currently on the planet can physically fit inside Rhode Island with room to spare, but when our food resources are overhauled because we have too many livestock farting holes in our atmosphere, and we’re knifing each other over processed grass nuggets and sawdust cakes while wars are fought over fresh water, we’ll be looking for all the relief we can get.

Why not, then, extend eligibility to all sound-minded adults? Determined individuals will take their own lives, regulations be damned. So is it immoral to officialize and adjust it to include the healthy? For example, by requiring the patient to inform three close friends or family members of their suicidal intentions – who must witness the patient request the prescription – it would effectively amplify any mere “cries for help.” Between the multiple request, each spaced two weeks apart, the patient could be required to undergo psychological evaluation in order to rule out any mental illness. Admittedly, I’m neither intelligent nor philosophical enough to know if clinical depression should be considered a barrier to obtaining a Nembutal prescription. If there is a good chance the depressed will harm themselves in the first place, it seems both humane and compassionate to make them tell someone before they’re given an easier way out.

Oh, relax. Inevitably few people would ever take this path, were it available, especially if its guidelines were designed as a deterrent. There is even the possibility that the suicide rate might drop, with more available channels to amplify and encourage cries for help. If nothing else, it should arguably be an option in the name of enabling individual autonomy.

The other provision I would add to the Stephanie Neiman Merciful Justice Act is extending eligibility to criminals in Capital Isolation, as an earmark and counterpoint to the newly abolished death penalty. This will dampen, at least, the protests that such severe solitary confinement is torture by allowing the inmate to say when they’ve had enough.

Removing the executioner would also negate the guilt (if there is any; the complicity, if there isn’t) from accusers seeking the maximum penalty. It allows the family of the victim to feel morally just, as opposed to merely vengeful. Murderous vengeance is personal, therefore insatiable through delegation. Justice is its societally acceptable form. Thus, when the criminal’s actions have changed his life in such a way that he cannot bear to go on living amid their repercussions, it will force his penitence in the most ultimate sense of the word. We’ll be able to feel removed from his suicide. And Americans are nothing if not good at lying to themselves.

There are also knee-jerk arguments against allowing CI inmates to use Nembutal as their release, claiming that when inmates relinquished their rights as punishment, along with them should go the right to a painless death. To prevent mishaps, then, and to disunite our mercies for the evil and the ill, shouldn’t euthanasia for criminals should be unbotchable, fast, and severe? Like a guillotine?

According to statistics, a firing squad is ideal, but by its nature requires an executioner. Bringing back the guillotine, as coyly suggested in The Atlantic earlier this year, would serve as a more befitting end for our fiercest criminals. But such a gruesome end would only deter CI inmates from volunteering, as opposed to deterring would-be criminals from committing crimes. We’re back to square one if inmates procrastinate until they’re too psychosis-laden to voluntarily self-euthanize. Thus, we should allow inmates an easy death as well. Forcing a grizzly end upon them would go against the empathy and compassion we teach our children, and against the humanistic logic that has brought us this far.

We cannot progress by going backward.

Lethal ingestion is also technically botchable, if dietary restrictions aren’t followed in the hours leading up to it (there one such mishap when an Oregonian chugged six cans of Pepsi first, and regurgitated the Nembutal). Also, in 2005 the EU banned the shipping of “execution drugs” to the US (Nembutal is made in Denmark), to distance itself from our murderous culture. Thus the recent “whoopsies”  in executing criminals with untested cocktails. The ill obviously takes priority over the evil. However, abolishing the death penalty would presumably lift the ban, solving both problems at once.

Maybe after abolishing the death penalty – a baby-step toward an exceptionalism without hypocrisy – and legalizing euthanasia, we might be able to see the empirical results of solitary confinement’s frightening impact on the human mind. It might again force us to examine our culture as a whole. It might drive us to get better, instead of getting even.

As for being a better deterrent than the death penalty -which is no deterrent at all – I doubt anything could. But our Constitution’s “unusual” clause will prevent us from getting creative, from broadcasting the gladiatorial tiger pits on YouTube, Tweeting our beheadings and Instagramming the screaming faces in the pyre. We are too separated from the punishments we sentence, as we are from the food we eat and the wars we fight. We know cigarettes are deadly, yet millions puff away, and rise with feverish indignation at the chance to defend the sovereignty of their blackened lungs. We cannot deter violent men from violent acts, nor can we cure them all. More importantly, the latter is not the government’s responsibility. We as a people must do that. For the incurable, though, for the heartlessly vicious, at least we can politely show them the door.

A nation’s success is measured by its GDP, economy, wealth, and military power. The survival of a culture, though – of a people – relies almost solely on the compassion they show their brothers; including, and most importantly, their poor, their evil, and their ill.