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The Pardon of Alice Marie Johnson

photograph of Alice Johnson being granted clemency at State of the Union in 2018

The 2020 Republican Convention featured dozens of predictable guest speakers, many of whom have been President Trump’s closest allies and defenders. However, a speaker that came as a shock to many was criminal justice advocate Alice Marie Johnson. Johnson, who had her sentence commuted by Trump in 2018, spoke about how President Trump had impacted her life through his compassion. Politico, reporting on her speech, referred to Johnson as being “propped up” by the Trump administration. Many on Twitter criticized Politico’s characterization of Johnson as racist and demeaning toward Johnson as a Black woman.

What should we make of Alice Johnson’s show of support for Trump at the RNC?  And how should we interpret President Trump’s pardoning of Johnson immediately following the convention?

In 1996, Alice Johnson was convicted and sentenced to life in prison for attempted possession of drugs and money laundering. Johnson was a first-time non-violent offender, and many considered her sentencing to be not only harsh, but fundamentally unjust. Under all three of the most common theories of punishment: deterrence, retribution, and restorative, Johnson’s sentencing is clearly immoral. A fundamental principle of retributive justice is that punishment be proportional to the crime. While deterrence seeks to use punishment to discourage recidivism, the charges brought against Johnson and the sentencing that followed were so harsh that there was no true due notice by which she could have been deterred and since she was sentenced to life in prison, she had no opportunity for which to be deterred. Lastly, Johnson’s sentencing is clearly unethical under a restorative justice model since it gave Johnson no opportunity for rehabilitation, to restore the harm that had been caused, or to change her impact on society after release.

While criminal justice reform non-profit CAN-DO had been advocating for Johnson since 2014, the case caught national attention when celebrity Kim Kardashian West became involved in the project to grant Johnson clemency in 2018. In a widely reported meeting at the White House, Kardashian West urged Donald Trump to commute Johnson’s sentence. Merely one week after this meeting, Trump announced he would be commuting Johnson’s sentence effective immediately. On June 6 2018, Johnson was released from prison and reunited with her family. Johnson’s case has been cited as an example of the racial inequity of the criminal justice system toward Black people. Since her release, Johnson has become an outspoken advocate for criminal justice relief and touts a host of academic and cultural accolades.

Johnson’s appearance at the RNC is not her first time publicly associating with conservatives. On March 1, 2020 she appeared as a guest speaker at the American Conservative Union. During her talk, she endorsed “Right on Crime” an organization which calls itself “The Conservative Approach to Criminal Justice.” Right on Crime’s mission argues that “For too long…American conservatives have ceded the intellectual ground on criminal justice.” Right on Crime proposes reforms highlighting values such as public safety, right-size government, fiscal discipline, victim support, personal responsibility, government accountability, family preservation, and free enterprise. Despite her endorsement of the conservative approach to criminal justice, Johnson has also expressed support for more liberal approaches to criminal justice reform, such as ending mandatory sentencing, promoting prisoner education, and abolishing cash bail.

Johnson’s decision to deliver a speech at the RNC and vocalize her support for Donald Trump is especially interesting given the increase in activism spurred by the murder of George Floyd earlier this year. Trump himself has refused to support the Black Lives Matter movement and has actively undermined and demonized many demonstrations over the past few months. He has consistently voiced his support for law enforcement officials during the ongoing protests and calls to defund the police in recent months. Back in July, he ordered National Guard troops to tear-gas protestors outside of the White House for a photo-op. Considering the fact that police reform is a large component of many criminal justice reform doctrines, it is strange that Alice Johnson is choosing to vocalize support for a president who has threatened that if reelected he will “restore law and order to our country.” Johnson’s decision to align herself with Trump might strike some as hypocritical and even dangerous — especially if her continued support is interpreted as proof that President Trump is not racist or is morally righteous in his approach to criminal justice. In an article in The Nation, Elie Mystal argued that “The Republican National Convention has been all about using Black people to convince white people it’s OK to vote for a bigot.” Johnson was one of several black speakers at the RNC, many of whom at least partially undermined the characterization of Donald Trump as racist. In addition to Black speakers, the convention featured a naturalization ceremony for five new American citizens, none of whom knew that footage of them would appear during the convention. This ceremony has also been heralded as ironic considering Trump’s vast record on anti-immigration stances and policies.

On the other hand, Johnson’s decision to speak at the RNC could be either out of a perceived personal obligation to the president or in an attempt to ‘reach across the aisle’ and generate more support for criminal justice reform. President Trump quite literally changed Johnson’s life when he commuted her life sentence. Even consistent critics of Trump, heralded his decision as compassionate and progressive. But some have suggested that Johnson might feel a personal obligation toward Trump, influencing her decision to accept an invitation to speak at the RNC. Others might argue that commuting her sentence was not an act of kindness, but rather morally obligatory, considering how the stark injustice of her sentencing, discussed above. Therefore, Johnson does not owe anything to Trump and is under no obligation to support him.

Johnson has also been very vocal about her desire to make criminal justice an apolitical issue. Perhaps her decision to support President Trump is to appeal to Republicans and potentially inspire them to advocate for social justice reform. During her speech, Johnson declared, “there are thousands of people just like me, who deserve the opportunity to just come home.” She also referenced the First Step Act, signed into law by Trump in 2018. Johnson indicated that this was important, but that is only a stepping stone. If Johnson’s speech at the RNC encouraged even a few Republicans to reconsider their views on the criminal justice system, it is arguably ethically justified. Additionally, some criticisms of Johnson’s speech are clearly unethical. Politico’s aforementioned characterization of Johnson as a “prop” disacknowledges her as an individual with political and moral agency. It might also imply that she is only speaking in support of Trump’s administration for selfish or opportunistic reasons. This type of objectification and suspicion of Black women has a very long history and is unfortunately still quite common in American culture and politics.

While Trump’s pardon of Johnson seems morally justified from multiple viewpoints, his timing raises troubling questions about his motive. Why not officially pardon Johnson when he commuted her sentence? Considering the fact that Trump was recently impeached for attempting to partake in “quid pro quo” behavior, it would not be irrational to interpret his pardoning of Johnson as a way of rewarding her for supporting him at the convention. The case for this interpretation becomes stronger when one considers Trump’s history of pardoning his political allies. Though some might argue that there is nothing inherently wrong with quid pro quo politics, the president’s record of such behavior is not of making deals with peers, but rather, bullying those who he holds power over into submission. It’s arguable that this type of strong-arming is more characteristic of a tyrant than of a democratic leader.

Despite speaking in support of Trump during the RNC, Johnson refused to use the word “endorse” when speaking about her support for him as president. The day after she was pardoned, Johnson refused to officially endorse Donald Trump, while admitting that she supports Donald Trump as a president and hopes to work with him more in the future on criminal justice reform. What we should make of Johnson’s support is not an easy question to answer, but Donald Trump’s decision to pardon Johnson immediately after her show of support adds to a troubling pattern of opportunistic exertion of presidential powers.

Cruel and Unusual Reasoning? Some Recent SCOTUS Decisions on the Eighth Amendment

Yellow and white corridor with metallic doors of cell rooms in old prison

Between October 2 and October 24, 2002, ten people were killed and three others injured by John Allen Muhammad and Lee Boyd Malvo. This series of attacks, referred to as the D.C. Sniper Attacks, were executed within the I-95 corridor around Northern Virginia, Baltimore, and Washington, D.C. While John Allen Muhammad was executed by lethal injection in 2009, Lee Boyd Malvo was sentenced to life without parole in Virginia and six life sentences in Maryland.

Malvo, however, is now appealing his Virginia life sentences in the Supreme Court of the United States (SCOTUS), relying on that court’s 2016 ruling that recent constitutional bans on mandatory life-without-parole sentences for juvenile offenders are to be applied retroactively. The constitutional ban on such sentences was itself enacted in 2012 as an extension of a 2010 ruling that found mandatory sentences of life without parole for juvenile offenders to be in violation of the Eight Amendment ban on cruel and unusual punishments.

The SCOTUS ruling that mandatory sentences of life without parole, as well as death sentences, constitute cruel and unusual punishment for juvenile offenders, but is not cruel and unusual in general, brings up an interesting question: What does the court consider cruel and unusual? We should also ask, regardless of the SCOTUS opinions on the matter: What do we consider cruel and unusual?

Death sentences are not generally held to be cruel and unusual by the SCOTUS, nor is a death sentence held to be cruel and unusual even in instances when the sentenced person may suffer tremendously. In Bucklew v. Prescythe the court ruled that Russell Bucklew could not demand his death sentence be executed via gas chamber instead of Missouri’s standard pentobarbital lethal injection. Bucklew requested an alternative means of execution due to a rare condition he has which could cause him to drown in his own blood during execution. However the majority opinion, delivered by Justice Neil Gorsuch, argued that the State of Missouri’s interest in concluding pronounced legal sentences in a timely manner outweighed Bucklew’s claims. More specifically, the court stated that Bucklew’s case did not meet the standard set by the so-called “Baze-Glossip test,” which requires that an appeal identifies an available and easy alternative execution method that is very likely to ameliorate what would otherwise be significant suffering.

The court struck a seemingly different tone in Hudson v. McMillian when they opined that a prisoner being beaten by a guard may count as cruel and unusual punishment, even when the prisoner does not suffer lasting injuries. Justice Sandra Day O’Connor, writing for the majority, stated that it was not only the extent of a prisoner’s injury and suffering that mattered, but also the attitude with which the punishment was inflicted by state agents. Despite the apparent differences between the decisions in Bucklew v. Prescythe and Hudson v. McMillian, there is a common thread. Writing for the majority in Bucklew, Justice Neil Gorsuch argued that the mere fact of significant suffering on the part of inmate did not automatically make a punishment cruel and unusual. Rather it is whether the inmate’s suffering is directly intended by the agents of the state. In two separate decisions the attitude of state agents was the predominating consideration over the extent of a prisoner’s suffering.

In the case of death sentences and mandatory life without parole for juveniles, however, the court’s reasoning is that such punishment is cruel and unusual. The 2010 decision in Graham v. Florida stated that sentencing juveniles to mandatory life without parole for non-homicide crimes is cruel and unusual because it doesn’t allow any possibility of releasing convicted people, even when they have demonstrated a commitment to their own rehabilitation. This reasoning was extended to juveniles convicted of homicide in the 2012 Miller v. Alabama ruling. Hence the state of SCOTUS opinion at present is that it is cruel and unusual to foreclose on the possibility that a juvenile offender may reform enough that they should be considered for parole; but that it is not cruel and unusual for an offender to be executed in a fashion that may cause extreme suffering; but that it is cruel and unusual for an offender to be beaten in a way that does not cause lasting injury. Can these views be squared with each other?

To probe this question it is helpful to look at two prominent theories of punishment: utilitarianism and retributivism. The utilitarian theory considers the advisability of punishing a particular offense, or type of offense, in terms of the balance of social benefit to social harm. Questions about whether a punishment will sufficiently deter, incapacitate, or rehabilitate an offender are balanced against the needfulness, efficiency, and cost of that punishment. A punishment may be considered cruel and unusual under such a theory if the social costs outweigh the benefits. For example, sentencing minor offenders to death would greatly erode general freedom and the populace’s acceptance of the legal system. Punishing thieves by chopping off their hands may be effective, and people might even accept it, but less harsh punishments could achieve the same effect. Marijuana possession may be against the law, but it may not be worth trying to deter people from obtaining and using the drug.

Retributivist theories, on the other hand, focus on the concepts of moral desert and fittingness. That is, ensuring that punishments are proportional to offenses. In such theories the concern is more that offenders get what’s coming to them, rather than balancing benefits and detriments to society. In the extreme a retributivist theory promotes the idea of “an eye for an eye.” Hence a person who has killed someone may themselves deserve to be killed. However pronouncing a death sentence for forgery or speeding is not fitting—not proportional—to the offense. Under a retributivist theory a punishment would be cruel and unusual if it were grossly out of proportion to the offense.

In the few cases noted above, clear signs of the utilitarian view are manifested in the state of SCOTUS opinion on capital punishment. In cases like Lee Boyd Malvo’s, the court brings to bear considerations of whether a sentence allows for the possibility of rehabilitation, even when that sentence clearly fulfills deterrent and incapacitating purposes. At the same time cases like Russell Bucklew’s show that the court is also concerned with cost and efficiency. Whether a punishment is cruel or unusual turns out to be a function of a calculation balancing numerous different values. If the final tally in the eye of the court seems out of balance, even grossly so, the example of weighing a variety of factors and decided on a case-by-case basis is a good one.

Is Death Forever?: The Case of Benjamin Schreiber

photograph of defibrillator practice on a CPR dummy

On Wednesday, November 6th, an appeals court confirmed a lower court’s ruling that a death row inmate had not fulfilled his sentence when his heart stopped in a medical procedure in 2015. The inmate, Benjamin Schreiber, was convicted of murder in 1996 and sentenced to life without parole. Shreiber had argued that his sentence ended when his heart stopped during a medical emergency four years ago, even though he was later revived.

There are cases that blur the line between life and death, either because it is difficult to determine death or define it. In 2018, a woman in South Africa woke up in a morgue after mistakenly being declared dead. Paramedics at the scene found no heartbeat and detected no signs of life, but were later flummoxed when they spotted the patient breathing.

Cases like this are obviously uncommon, but they do happen. At least 38 times since 1982, patients have been recorded as experiencing “Lazarus Syndrome,” or autoresuscitation, after failed cardiopulmonary resuscitation. In such cases, medical intervention failed to restart a patient’s heart but nevertheless the patient’s heart restarted.

Definitions of medical death have changed with advances in possible medical interventions. Globally and historically, people have looked to circulation and breathing as standards for life and death. Schreiber’s standard here, therefore, the lack of a pulse, or circulation of blood throughout the body, is not without precedent. These standards became complicated the more we learned about the brain and its connection to our lives as individuals.

In 1968 the medical community came together to try to address definitions of death as organ transplants became more successful. Removing organs from patients who still had circulating and oxygenating blood increased the probability of successful transplant, but insured the death of the donor patient. According to our legal and moral standards of wrongful harm, there are reasons to only perform such procedures on patients formally pronounced dead. New understandings of the importance of brain functioning for identity and personhood provided useful distinctions to inform this pronouncement.

We know now that blood can continue to circulate without there being any hope of meaningful interaction with the world again on the patient’s part. Neuroscience, meanwhile, shows that certain brain function is necessary for personhood and when particular lacks of brain function occur, doctors can determine that death in the sense of loss of personhood has also occurred. Thus patients can be pronounced dead while their organs are still viable for transplant.

When deciding whether or not to harvest organs, the permanence or irreversibility of the state of the patient is a crucial consideration. As philosophers, we can wonder whether the finality of death is a crucial aspect of the concept for other applications, and potential applications in the future.

Using this ambiguity behind our evolving definition of “death,” Schrieber claimed to have served his time. He accepted his initial sentence of life without parole, but would not accept “life plus one day” (Schreiber claims to have been revived from septic shock against his wishes). The court found Schreiber’s claim original, but refused to side with him on the grounds that he was “unlikely” to be dead, having represented himself legally and signed his own documents.

While definitions of death today include some criterion of finality (such as the cessation of life or the permanent loss of a human’s personhood), the discussion in this case leaves open an interesting possibility: If Schreiber is present to represent his interests in court, then could he nevertheless have been dead, thus fulfilling his sentence? In other words, is a death penalty meant to shorten someone’s life or ensure they experience death?

If we can imagine a future where someone exists after a period of cessation of life that we currently understand as death under some medical criteria, then Schreiber’s case may be a relic of our stage in medical technology (just as pronouncements of life while brains lacked functioning were relics of previous centuries’ understandings of life and death). Say technology advances to the point where we can map the complicated and dynamic connections that make you who you are. If we have the ability to produce such an intelligent mapping, then your physical body could cease to live according to our current medical definitions, but there is the possibility that we could recreate a physical foundation for the map to run so as to support your conscious existence in the world once more.

If this possibility existed, there are two important questions related to Schreiber’s case. First, would we continue to use “death” in a sufficiently close enough way so as to say that if he experienced this process, he would qualify as “dead” at one time? If so, then the legal system could declare his sentence fulfilled if they understand it in a particular way (until death), or not if they understand it differently (for all of Schreiber’s life).

Second, if we had the technology described above, would the person brought into existence with the dynamic mapping of Schreiber be Schreiber? If the original person in the original body ceased to exist, then creating a supporting body for the dynamic mapping may bring in as exact a copy as possible, but this may not count as the original Schreiber. If this is the case, then it would be wrong to apply the legal punishment to the created Schreiber.

We can have a definition of death that does not include finality. With this caveat, Schreiber’s appeal becomes more compelling if the penalty applied to him is understood as “until death.” Regardless, the case brings out how we mean punishment to apply, and raises theoretical questions about how we may apply them in the future.

Aging and Blaming in the Criminal Justice System

Photograph of a long hall of cells with light and a dome at the end

A recent study in the medical journal The Lancet suggests that, if trends hold, 50% of babies born today will live to be over 100 years old.  Though long life is typically thought of as a good thing, some of our ordinary practices may need to change to track philosophical and practical challenges posed by longer life spans.  In particular, we need to reflect on whether our attitudes about blame and punishment need to be adjusted. For example, last year, John “Sonny” Franzese was released from an American prison at the age of 100.  Franzese was sentenced to fifty years for a bank robbery. The unique challenges and philosophical questions posed by extreme old age cast the moral permissibility of incarcerating the elderly into question.

Arguably, we need to think critically about duration of punishment. The criminal justice system in The United States relies heavily on retributivism as a justification for sentencing.  The concept of blame is central to a philosophy of retributivist justice. As an act of retribution, criminals are often given multiple life sentences or are sentenced to a number of years in prison that far exceeds the amount of time that criminal could reasonably expect to be alive. There is room for debate concerning the usefulness of blame as a moral concept.  Supposing, however, that blame is an important evaluative attitude in our moral lives, there is good reason for reflection on whether and under what conditions other moral considerations are more important than whether an agent is morally blameworthy. As lifespans increase, a life sentence becomes a still more serious proposition. At what point, if any, does respect for human dignity outweigh our retributivist concerns to ensure that a blameworthy agent is held responsible for their actions?

Intuitively, regardless of the nature of the crime, there are some upper limits to how long it is appropriate to punish someone.  For example, in his paper Divine Evil, David Lewis points out that it could never be just to punish a person infinitely for a finite crime.  Of course, in the context of the paper, Lewis is arguing that an omnibenevolent God couldn’t sentence a person to an eternity of torment in hell for a finite sin, but the main point here holds.  If human beings were immortal, it would be unjust to hold them in prison forever with no chance of release as punishment for a single crime or series of crimes.  That suggests that there is a time at which continuing to punish a blameworthy person is no longer morally justified. Some countries, like Portugal, Norway, and Spain, don’t sentence convicted criminals to life in prison at all.  In many other European nations, a life sentence always includes the possibility of parole. The understanding seems to be that a life sentence without the possibility of parole is a human rights violation. Even if the United States does not come around to thinking about the issue in this way, as human lifespans continue to get longer, it’s important to identify the point at which punishment is no longer morally permissible.

For retributivism to be justified, our assessments of blame must be apt.  For our judgments of blameworthiness to be apt, it must be the case that we are blaming one and the same person who engaged in the wrongdoing for which they are being blamed.  Increased lifespans muddy the waters of identity judgment. An extremely elderly person may have little to no psychological continuity with the being they were when they engaged in wrongdoing.  In his paper The Makropulos Case: Reflections on the Tedium of Immortality, Bernard Williams argues that if a being were immortal, or even if that being were to live an exceptionally long life, that being would either become extremely bored or would change so much that they would no longer be justified in judging future experiences as their own experiences.  Living a flourishing human life is a matter of setting goals and completing projects.  The kinds of goals we set goes a long way to establishing who we are as people. If we continue to set goals of the same type, Williams argues, we will inevitably get bored.  If we set different goals, we will eventually become totally different people, unrecognizable to our former selves.

Aging criminals aren’t immortal, but as human lifespans continue to increase, it may well be the case that they resemble their former selves in very few respects.  If this is the case, it is far from clear that our identity judgments are justified or that our assessments of blameworthiness are apt. This recognition should also cause us to reevaluate our goals when it comes to punishment.  As prisoners age, should our philosophy of punishment still be retributivism?

If blame is a useful moral concept, it is, at least in part, because a moral community that makes use of blame has a mechanism for encouraging bad actors to change their behavior in the future.  To successfully bring about this change in behavior, it is important that the behavior in question is a salient thread in the life narrative of the wrongdoer. Once enough time has past such that this is no longer true, it’s possible that continuing to blame a wrongdoer no longer serves this important social function in our moral community.


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