Commentary: Ending Capital Punishment is a Core Component of Reconceptualizing ​‘Public Safety’ in an Era of Punitive Excess

As the United States under­goes an awak­en­ing on racial injus­tices in polic­ing and the judi­cial process, com­men­ta­tors and pub­lic pol­i­cy advo­cates are call­ing for a reimag­in­ing of pub­lic safe­ty and crim­i­nal pun­ish­ment that rejects the reflex­ive impo­si­tion of harsh pun­ish­ment as an instru­ment of social control. 

In an April 9, 2021 op-ed in The Washington Post and a series of April 12 essays by the Brennan Center for Justice, pol­i­cy experts say it is time for the nation to view the U.S. legal sys­tem through a new con­cep­tu­al lens. Ending cap­i­tal pun­ish­ment and the United States’ cul­ture of puni­tive excess, they say, are core com­po­nents of that new vision.

In their Washington Post op-ed, Johanna Wald and David J. Harris (pic­tured), the for­mer direc­tor of strate­gic plan­ning and cur­rent man­ag­ing direc­tor, respec­tive­ly, of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, argue that “[a]bolishing the death penal­ty must be part of reimag­in­ing safe­ty.” Calling the death penal­ty ​“an egre­gious and racist pol­i­cy that has no place in a civ­i­lized coun­try,” they write that the U.S. is at an his­tor­i­cal moment in which death penal­ty abo­li­tion­ists ​“can align with those push­ing for ​‘com­mu­ni­ty jus­tice’ — a future in which cities’ bud­gets and pol­i­tics are tru­ly respon­sive to the community’s evolv­ing health and safe­ty pri­or­i­ties, not stuck in the pun­ish­ment-first approach of the past.”

While death-penal­ty oppo­nents have often regard­ed cap­i­tal pun­ish­ment as an issue unto itself, Wald and Harris link the death penal­ty to oth­er ​“tough on crime” poli­cies like over­polic­ing and mass incar­cer­a­tion and place it in the his­tor­i­cal con­text of ​“our nation’s his­to­ry of white suprema­cy, racial ter­ror and social con­trol.” ​“Capital pun­ish­ment is more than a vis­cer­al and trag­ic indi­ca­tion of which lives mat­ter in our soci­ety,” they write. ​“It vivid­ly and pow­er­ful­ly illus­trates how scarce pub­lic resources and atten­tion are mis­di­rect­ed to sup­port ​‘the machin­ery of death’ instead of poli­cies that will actu­al­ly pro­mote well-being.” They see the ero­sion of the death penal­ty as part of a move­ment that will make ​“invest­ments in hous­ing, edu­ca­tion, jobs, vio­lence pre­ven­tion, health care and civic engage­ment take pri­or­i­ty over polic­ing, pris­ons and prosecutions.”

The Brennan Center’s series broad­ens that point, address­ing the ​“era of puni­tive excess” that has made the United States an out­lier in the world in its use of harsh pun­ish­ments. In three essays by crim­i­nal jus­tice schol­ars and a Brennan Center senior fel­low, the center’s experts detail the shared beliefs that under­lie the cul­ture of puni­tive excess, the racist impact of exces­sive pun­ish­ments, and the ways that the puni­tive mind­set per­vades U.S. policies. 

Jeremy Travis, the exec­u­tive vice pres­i­dent of Criminal Justice at Arnold Ventures and Bruce Western, a Columbia University pro­fes­sor of soci­ol­o­gy, pro­vide social con­text for their con­cept of ​“puni­tive excess.” ​“Today’s land­scape of pun­ish­ment,” they write, is not iso­lat­ed to jails and pris­ons, but ​“includes the exten­sive crim­i­nal­iza­tion of social prob­lems such as home­less­ness and men­tal ill­ness, intru­sive polic­ing poli­cies such as stop and frisk, the impo­si­tion of fines and fees that exac­er­bate pover­ty, the leg­isla­tive­ly defined col­lat­er­al sanc­tions that close off oppor­tu­ni­ties for a full life to mil­lions with crim­i­nal records, and the new tech­nolo­gies that place the entire pub­lic under a form of state sur­veil­lance.” They describe crim­i­nal pun­ish­ment as an instru­ment of social con­trol, and the unequal dis­tri­b­u­tion of pun­ish­ment across race and socioe­co­nom­ic sta­tus as an ​“essen­tial fact” of its existence. 

Travis and Western argue that social inequities can­not be addressed with­in the puni­tive sys­tem, but only by alle­vi­at­ing the under­ly­ing con­di­tions. ​“If the prob­lems of crime, dis­or­der­ly behav­ior, and idle­ness are char­ac­ter­is­tic of the social con­di­tions of pover­ty,” they say, ​“then jus­tice is found through the abate­ment of those social con­di­tions rather than pun­ish­ing those who live in them.”

An essay by Jonathan Simon, a pro­fes­sor of crim­i­nal jus­tice at the University of California – Berkeley, address­es what he calls America’s ​“puni­tive civic reli­gion.” That reli­gion, he says, rests on three myths: account­abil­i­ty, mean­ing that peo­ple who com­mit crimes must repay a debt to soci­ety; the divi­sion of the pop­u­la­tion into the hard­work­ing and the idle and the attri­bu­tion of crime to idle­ness; and ​“the belief that our law enforce­ment insti­tu­tions — judges, police, pros­e­cu­tors, prison offi­cials — are expert at iden­ti­fy­ing the tru­ly dan­ger­ous, whose removal to prison would make soci­ety much safer.” He argues that these three myths ​“need to be rein­vent­ed in light of our evolv­ing com­mit­ment to decen­cy and sub­ject­ed to the kind of exper­i­men­ta­tion and test­ing we demand from oth­er aspects of government.”

Brennan Center Senior Fellow Theodore R. Johnson explores the racial dynam­ics of puni­tive excess, draw­ing a line from seg­re­ga­tion and lynch­ing to the intern­ment of Japanese Americans dur­ing World War II to cur­rent poli­cies of immi­grant deten­tion and mass incar­cer­a­tion. ​“Today, Latino immi­grants and undoc­u­ment­ed denizens are caged in deten­tion facil­i­ties and sep­a­rat­ed from their fam­i­lies, and Black Americans are incar­cer­at­ed at alarm­ing­ly high rates and are over­rep­re­sent­ed in puni­tive excess­es such as soli­tary con­fine­ment and the death penal­ty,” he writes. 

Johnson presents the con­cept of a ​“val­ue gap,” a term coined by African American stud­ies schol­ar Eddie Glaude Jr. encom­pass­ing ​“the idea that the true plague in American soci­ety is that peo­ple of col­or, par­tic­u­lar­ly Black peo­ple in a nation where chat­tel slav­ery fea­tured so promi­nent­ly, are sim­ply val­ued less.” Quoting Glaude, he writes that ​“no mat­ter what law and pol­i­cy is imple­ment­ed with racial jus­tice and equal­i­ty as its goal, if the val­ue gap is left unad­dressed … ​‘our sys­tems will always pro­duce the same results: racial inequal­i­ty.’” Because of this real­i­ty, Johnson argues, ​“Reimagining jus­tice in America requires a col­or-con­scious approach to pol­i­cy, employ­ing mea­sures and tak­ing actions that account for people’s dis­parate paths and experiences.”