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Abolish the Death Penalty and Supermax, Too—A Commentary by Judith Resnik and Jonathan Curtis-Resnik

The following commentary was posted on on June 19, 2012.

Abolish the Death Penalty and Supermax, Too
By Judith Resnik and Jonathan Curtis-Resnik

This month, some of Slate’s legal eagles are proposing their favorite constitutional amendments, in the service of our effort, with Me the People author Kevin Bleyer, to rewrite the founding document. Here are proposals about the right to trial by jury, protecting informational privacy, amending the Constitution by national referendum, electing the attorney general, moving up the date of the presidential inauguration, restoring the balance of war powers, Supreme Court term limits, forcing Congress to fix the rules of congressional procedure, a right to health care, a right to vote, victims’ rights, campaign finance, and elections.

Cruel and Unusual Punishment (Eighth Amendment)

The Eighth Amendment currently speaks of a ban on the infliction of “cruel and unusual punishment.”

We should expand the text to read:

“The prohibition on the infliction of cruel and unusual punishment requires that neither the state nor the federal government shall impose the death penalty, execute those who have been sentenced to death, or place individuals in prolonged solitary confinement. Further, no person, whether citizen or not and whether held awaiting trial, convicted, or in detention for other reasons, shall be subjected to cruel, unusual, or degrading treatment that violates human dignity. When determining whether such a breach is or has taken place, all branches of the government shall consider evolving standards, both national and international, of human decency.”

We need this amendment because the Supreme Court, which once seemed on the way to understanding the Constitution to prohibit the death penalty and prolonged isolation, has retreated. The United States stands alone among democratic nations in its use of the death penalty, and it also has pioneered a new and alarming kind of prison—the Supermax.

The death penalty saga is familiar. Between 1967 and 1977, no one was executed in the United States, in part because the Supreme Court found that some state laws gave jurors either too much or too little discretion in deciding about whether to send someone to death. A second abolitionist argument was that in light of the world-wide rejection of the death penalty, the Eighth Amendment should incorporate evolving standards. A third abolitionist argument pointed to study after study showing that black defendants accused of killing white victims were more likely to be sentenced to death than when black victims were killed.

But in the fall of 1976, and over objections that Utah’s death penalty statute was unconstitutional, the Supreme Court declined to stay the execution of Gary Gilmore, and capital punishment returned to the United States. Since then, 1,298 people have been executed.

The picture has shifted somewhat lately, as some states (recently Connecticut) have repealed their death penalty statutes. The Supreme Court has also held that executing the mentally disabled or those who were juveniles when they committed murder is unconstitutional. But those decisions don’t go far enough, especially given the ongoing evidence of wrongful convictions (with 101 people who have been sentenced to death exonerated since 1989), and of ongoing racial disparities. A constitutional ban is the only solution.

The Supermax story begins in 1890. Back then, the Supreme Court objected to the solitary confinement of a murder felon, explaining that “after even a short confinement,” such detention made a prisoner unable to “recover sufficient mental activity to be of any subsequent service to the community.” Almost a century later, in the 1970s, the court said that Arkansas’ use of indefinite punitive isolation violated the Eighth Amendment. In that case, an “average of 4 ... prisoners were crowded into windowless 8x10 cells containing no furniture other than a source of water and a toilet that could only be flushed from outside the cell”).

During the same decade, however, the federal government developed the Supermax, built to hold people in extreme isolation for extended periods of time—more than 25,000 people, by 2000, in more than 30 facilities. Mental health professionals detailed the harms and other countries rejected this U.S. model. The Supermax experience is like living in a “hellhole,” as one doctor called it, describing the hallucinations, compulsive behaviors, and psychoses produced when humans, who are innately social, are deliberately deprived of contact.

In 2005, the Supreme Court heard a case about how prison officials decide whom to put into a Supermax. Was this an “atypical and a significant hardship,” as the question before the justices was framed? The court’s description of the Supermax itself gave a chilling answer. “Inmates must remain in their cells, which measure 7 by 14 feet, for 23 hours per day. A light remains on in the cell at all times ... and an inmate who attempts to shield the light to sleep is subject to further discipline.” Also, “cells have solid metal doors ... which prevent conversation or communication with other inmates. ... It is fair to say inmates are deprived of almost any environmental or sensory stimuli and of almost all human contact ... for an indefinite period of time, limited only by an inmate’s sentence.”

It should have been “fair to say” that such conditions are not just a significant hardship, but unconstitutional. Instead, the justices unanimously described these harsh conditions as likely “necessary and appropriate in light of the danger that high-risk inmates pose both to prison officials and to other prisoners.”

Supermax isolation degrades humans, as a first-ever congressional hearing on solitary confinement will outline this week. We should abolish these terms of confinement along with abolishing the death penalty: The Supermax should never be its alternative.