Last Tuesday, Brian Dorsey was put to death by the state of Missouri. His execution served no legitimate penological purpose.
Dorsey had been sentenced to death for a crime he committed in 2006. From the moment he was arrested and charged, he accepted responsibility.
Had he received adequate legal representation there’s a good chance he would not have gotten the death penalty. But that was not the case.
During his time in prison, Dorsey compiled an enviable record. He never violated a prison rule and never caused trouble.
Correction officials gave him privileges and responsibilities reserved for only a few of those under a death sentence. And, in the run-up to his execution, 72 of them, the people who worked most closely with him, asked Missouri’s Republican governor, Mike Parson, to spare Dorsey’s life.
They offered compelling evidence that Dorsey was a changed person and had been successfully rehabilitated. Their testimony on his behalf was genuinely unprecedented and received nationwide attention.
What received less notice was a petition that Dorsey’s lawyers filed with United States Supreme Court that asked them to consider whether the Eighth Amendment prohibits the execution of a death sentence against a person who has demonstrated that he has been rehabilitated. The Court refused to issue a stay of execution and take up the question his petition had posed.
Still the question remains: why execute someone like Brian Dorsey?
Someone might answer that question by referring to the seriousness of the crime that landed Dorsey among Missouri’s death sentence population. He was convicted of killing Sarah and Ben Bonnie with a shotgun and, during the penalty phase, the state contended that Dorsey had raped Sarah Bonnie.
For those who support the death penalty and believe it should be used to punish the “worst of the worst,” the brutal facts of what Dorsey did would be sufficient to justify his execution. They tether their retributivist commitments to that moment in time when a crime is committed. Nothing else seems to matter.
For those who support the death penalty and believe it should be used to deter murder, the Dorsey case might seem easy. But, at the time Dorsey committed his crime, he was not the kind of rational utility maximizer that deterrence theorists imagine.
As his cert. petition explained, “Dorsey, who had a lifelong history of suffering from major depression, and had been on a crack cocaine binge and not slept in about 72 hours. As he was crashing from his binge, he experienced drug induced psychosis. As he drank more beer and vodka, he became suicidal and also experienced hallucinations and paranoid delusions.”
And even if Dorsey fit the profile of someone who could be deterred by the threat of a death sentence, by the time the state of Missouri got around to executing him he was no longer that person.
His petition for a stay of execution and a review of his constitutional claim noted that Dorsey was a member of “a unique class of person sentenced to death who have achieved remarkable redemption and rehabilitation while under sentence of death. He has spent more than 17 years on death row without a single rules infraction. No death-sentenced person has ever had a better prison record.”
“Dorsey lives in the prison’s honor dorm,” the petition continued, “and he has been entrusted as the prison barber to handle potentially dangerous tools and cut the hair of fellow inmates, prison staff, and even wardens….”
The letter from the correctional staff members at Missouri’s Potosi Correctional Center, where Dorsey was incarcerated, said that while they were supporters of capital punishment, they nevertheless believed that “the death penalty is not the appropriate punishment for Brian Dorsey.” Their letter offered testimony that the man that they had come to know was “a good guy, someone who stayed out of trouble, never gotten himself into any situations, and been respectful of us and his fellow inmates.”
It said that “if all of the inmates were like Brian, they would never be a problem in the institution,” and concluded that while Dorsey had been convicted of murder “that is not the Brian Dorsey that we know.”
A few of the correctional officers also wrote individual letters to the governor. One noted “when you spend time around Brian like I have, you can just tell he has changed.” Another said, “I know that he is very sorry for his crime. Brian demonstrates spirit of remorse and regret…. Brian’s remorse is genuine and always present.”
A third correctional officer stated “I have known many offenders who should be executed. Mr. Dorsey simply is not one of them. He stands out from other inmates. It would be a loss for the state if he were executed.”
Dorsey’s cert. petition argued that in his case and those of others who are rehabilitated after being sentenced, carrying out the death penalty would serve no purpose. It noted, quoting Justice Byron White’s concurring opinion in Furman v. Georgia, that an execution “can be barred by the Constitution…when it ‘ceases realistically to further the purposes’ of capital punishment.”
The petition called on the Court to recognize that when “the penological goal of rehabilitation has been satisfied…, the capital punishment goals of retribution and deterrence are not met by an execution.” Again citing Furman, Dorsey told the Court that “[a] penalty with such negligible returns to the state would be patently excessive and cruel and unusual punishment violative of the eighth amendment.”
Generally speaking, a punishment might be considered cruel if it imposes very severe suffering. It might also be considered cruel if it violates human dignity or contemporary standards of decency.
Dorsey’s contention directs our attention to another meaning of cruelty. A punishment is cruel if it imposes more pain than is necessary to achieve a legitimate penological purpose.
Put simply, the Eighth Amendment does not condone or tolerate punishment without purpose.
Dorsey’s cert. petition reminded the Court that executing someone who has been rehabilitated would amount to “the pointless and needless extinction of life.” It reviewed cases in which the Court has recognized “situations where executing a person would not support the goals of retribution and deterrence,” including its “categorical exemptions of classes of people who cannot be executed because the goal supporting capital punishment would not be furthered.”
It boldly and correctly claimed that the small number of people who are rehabilitated while on death row should be subject to such a categorical exemption. It argued that it makes no sense and serves no purpose to execute someone who is “for all moral purposes…not the same person who committed the crime.”
Dorsey sought to persuade the Court that he had lived what amounted to a “second lifetime” on death row and that he was “a very different person than the one who was originally sentenced to death.” And he called on the Court to consider whether the execution of such a person would amount to punishment without a purpose.
Unfortunately for Dorsey and for the rest of us, the Supreme Court refused his request to consider what it means to end the life of someone who had his life changed, and been successfully rehabilitated, after committing a horrible crime. We can only hope that one day the Court will change its mind and say definitively that executing such a person violates the Eighth Amendment.