Who Gets to Be Human?

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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.

  • JB Smith

    The American Reinvestment and Recovery Act and the brain initiative are the worst scams ever perpetrated on the American people. Former U. S. Surgeon General Regina Benjamin Warns: Biochips Hazardous to Your Health: Warning, biochips may cause behavioral changes and high suicide rates. State Attorney Generals are to revoke the licenses of doctors and dentists that implant chips in patients. Chip used illegally for GPS, tracking, organized crime, communication
    and torture. Virginia state police have been implanting citizens without their
    knowledge and consent for years and they are dying! Check out William and
    Mary’s site to see the torture enabled by the biochip and the Active Denial
    System. See Terrorism and Mental Health by Amin Gadit or A Note on Uberveillance by MG & Katina Michael or Safeguards in a World of Ambient Intelligence by Springer or Mind Control, Microchip Implants and Cybernetics. Check out the audio spotlight by Holosonics. The truth is the biochip works like a sim card. It received pulsed modulated laser beams and millimeter wave which it
    converts into electromagnetic waves that your brain interprets into digital
    images and sound. It then takes what your brain sees and hears and converts electromagnetic waves into digital and acoustic waves that a computer translates into audio and video. In other words, it allows law enforcement to see what you see, hear what you hear and communicate directly with your brain.
    “Former Defense Advanced Research Projects Agency (DARPA) director and now Google Executive, Regina E. Dugan, has unveiled a super small,
    ingestible microchip that we can all be expected to swallow by 2017. “A means
    of authentication,” she calls it, also called an electronic tattoo, which takes
    NSA spying to whole new levels. She talks of the ‘mechanical mismatch problem
    between machines and humans,’ and specifically targets 10 – 20 year olds in her
    rant about the wonderful qualities of this new technology that can stretch in
    the human body and still be functional. Hailed as a ‘critical shift for
    research and medicine,’ these biochips would not only allow full access to
    insurance companies and government agencies to our pharmaceutical med-taking compliancy (or lack thereof), but also a host of other aspects of our lives
    which are truly none of their business, and certainly an extension of the
    removal of our freedoms and rights.” Google News
    The ARRA authorizes payments to the states in an effort to encourage Medicaid
    Providers to adopt and use “certified EHR technology” aka biochips. ARRA will match Medicaid $5 for every $1 a state provides. The paper announced today that Medicaid fraud is responsible for the large boost in Virginia’s economy. Hospitals are paid $2 million to create “crisis stabilization wards” (Gitmo’s) where state police torture people – even unto death. They stopped my heart 90 times in 6 hours. Virginia Beach EMT’s were called to the scene.

    Mary E. Schloendorff, v. The Society of New York Hospital 105 N. E. 92, 93 (N. Y. 1914) Justice Cardozo states, “every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages. (Pratt v Davis, 224 Ill. 300; Mohr v Williams, 95 Minn. 261.) This case precedent requires police to falsely arrest you or kidnap you and call you a mental health patient in order to force the implant on you. You can also be forced to have a biochip if you have an infectious
    disease – like Eboli or Aids. Coalition of Justice vs the City of Hampton, VA
    settled a case out of court for $500,000 and removal of the biochip. Torture is
    punishable by $1,000 per day up to $2 million; Medical battery is worth $2.05
    million.
    They told my family it was the brain initiative. I checked with the oversight board, and it is not! Mark Warner told me it was research with the Active Denial System by the College of William and Mary, the USAF, and state and local law enforcement. It is called IBEX and it is excruciating.

  • ingeborg oppenheimer

    the concept of dignity relative to criminal justice has intriguing implications. from a clinical perspective there is the question of the value of dignity for rehabilitation; for example, is it more likely that a convict treated with greater dignity will consider embracing lawfulness as the way to go? but there is a much more important consideration; senator graham hits the nail on the head by pointing out the difference between “warriors bent on our destruction” and “a guy who robbed a liquor store”. the guy bent on our destruction is dedicated to an ideal beyond his own gains – typically considered worthy of dignity, right? the guy who robs a liquor store is dedicated only to his personal gain. put more bluntly, hitler was dedicated to an ideal too. so – from the standpoint of public safety, who is a greater danger, the liquor store robber or the guy quoting leaders who quote religious works to back their beliefs that this or that group must be eliminated? how does the concept of dignity fit in here?

  • Lucinda Halley

    What dignity is afforded our laws? Who recognizes the dignity of our legal system? It seems to me that the problems that you describe in your column are all rooted in a disrespect of our legal system. The use of torture is against our laws but that hasn’t stopped the “justice department” from figuring a justification for ignoring the laws. We have a President who, by executive order, encourages scofflaws to ignore our sovereign borders. What cultures seek to replace the legal system of our nation with a legal system based on their personal religion? What ethnicities represent that they are above legal recourse? What economic groups can buy justice? Isn’t all of this rooted in the denigration of our laws? I think that if we all had more respect for our system of laws, true dignity would flow forth to all who enter the courts of our law.

  • If I had been incarcerated at Guantanamo, I would get up every day thinking of ways to kill and harm Americans.

    That’s what putting someone in Guantanamo does. It BREEDS terrorists, the same as ordinary prisons breed ordinary criminals.