Who Gets to Be Human?

Posted in: Criminal Law

In recent columns (here and here), I have discussed the role of dignity as a condition of a legitimate criminal justice system. It is not the only such condition, but it is undoubtedly first among equals. Dignity declares that all among us may demand certain protections, an entitlement that depends on nothing more than our shared status as humans.

The simplicity of this declaration should not blind us to its significance. To embrace the dignity of all is to repudiate the demonization of some. A lofty ambition, but easier said than done. Demonization is the Siren whose song we cannot resist. Resisting the call to demonize is the vow we make but never honor, our perennial New Year’s Resolution.

Is it different now? Consider the rhetoric of criminal justice reform. Many have decided that the key to reform is to cut the prison population by some more or less arbitrary amount. #Cut50, for instance, describes itself as “a national bipartisan initiative” whose goal is “to safely and smartly reduce our incarcerated population by 50 percent over the next 10 years,” while JustLeadershipUSA says it is “dedicated to cutting the US correctional population in half by 2030, while reducing crime.”

To achieve this goal, reformers argue on behalf of a particular subset of the criminal justice population. Children should not be tried as adults, for instance, and the mentally ill should not be held in solitary confinement. The ultimate refinement of this divisive strategy is the search for the elusive low-level, non-violent drug offender.

Ultimately, the defect common to these proposals is to reinforce the notion of an imagined other. They say, unapologetically, that the criminal justice system has exactly the right design but has mistakenly swept in some of the wrong sort. Shed those few, and the rest can be forgotten, treated as the monsters we imagine them to be. In short, these proposals do not embrace dignity as much as tinker with the boundaries of demonization in order to bring a few more people inside the magic circle. But a genuine attachment to dignity means there is no circle.

If the commitment to dignity in criminal justice is tentative, it is bold by comparison to a related domain. Even as the nation becomes more concerned with the abuses of the criminal justice system, it becomes less concerned with the abuses of the 9/11 era, as though the two were zero-sum.

There is, for instance, a gathering and welcome attention to the destructive horror of long-term solitary confinement in U.S. prisons. Among many who have condemned the practice, the U.N. Special Rapporteur on Torture has warned that prolonged solitary confinement threatens “the inherent dignity of the human person,” and President Obama recently asked whether it “makes sense” to lock people up “alone in tiny cells, sometimes for months or even years at a time?” Yet millions of Americans are quick to justify the grotesque physical torture embraced by the CIA after 9/11, in which years of solitary confinement was only one of its many dimensions.

Likewise, many people are finally beginning to question the moral bankruptcy of imprisoning people for so many years despite convincing judgments that they represent no threat to the community. Yet most Americans are oblivious to the fact that many prisoners in the war on terror have been cleared for release by every agency in the country with a stake in national security. And let us recall, the inmates in U.S. prisons are serving sentences imposed after a lawful trial, whereas most prisoners at places like Guantanamo have never been charged or tried, and never will.

Comparisons like these can be readily multiplied. Mass incarceration of black communities, for example, is rightly all the rage, but mass surveillance of Muslim communities is generally met with yawning indifference. A growing number of people justly demand accountability for police violence, but even the most timid calls for accountability for the violence of the 9/11 era are met with derision. In short, the pathologies of the carceral state are condemned with increasing vigor, but the comparable excesses of the national security state are accepted with increasing apathy.

Far from embracing dignity, therefore, perhaps all we have done is transfer our animosity to a new demon. Sometimes this transference is made explicit, as when the Senate debated whether alleged terrorists should be prosecuted in military commissions rather than regular criminal courts.

Senator Lindsey Graham (R- SC), for example, described the 9/11 conspirators as “warriors bent on our destruction,” not remotely comparable to “a guy who robbed a liquor store.” His colleague Mitch McConnell (R- KY) thought it was preposterous to treat alleged terrorists as “somehow on the same level as a convenience store stick-up man.”

And Senator Saxby Chambliss (R- GA) insisted that Congress had a special duty to make sure the prisoners at Guantánamo—“who get up every day thinking of ways to kill and harm Americans”—“are never subjected to the process that is developed in [federal] courts for average, ordinary criminals.” Here is a man who has not given up his love affair with demonization.

In the final analysis, dignity is a value of transcendent significance. But paradoxically, its beneficence is its burden. Dignity saves us from the divine conceit that we may decide who gets to be human. Sadly, too many of us are not yet ready to give that up.