I want to share some musings I had about what criminal punishment means right now in America. I don’t really write about the basics of criminal law and procedure much – it’s not my focus, and I’m not well-read in it, so please excuse my fumbling discussion of the following concepts.
As first-year law students learn, one of the central goals of the criminal justice system is retribution: making the defendant suffer, proportionate to the gravity of the crime. One of retribution’s purposes is to satisfy society’s need for vengeance, to feel that the wrongdoer got his just deserts. Punishing the defendant restores balance after his crime threw things off-kilter; it fills a hole the crime created. Put simply, punishment slakes society’s thirst for blood.
What does retributive justice mean right now, with the U.S. in the throes of the current (unnecessarily severe, wholly avoidable) COVID-19 pandemic? For one thing, it means that the specter of prison (already dire, given how horrific U.S. prisons are) holds newfound dread. There have been outbreaks of COVID-19 at multiple prisons across the country. A prison sentence now carries the distinct possibility that – in violation of retribution’s core tenet of proportionality – a sentence to a term of confinement will be converted into the death penalty.
Understandably, then, we are seeing privileged, well-connected, ably-represented, white male, criminal defendants trying to avoid prison on the grounds that they could catch COVID-19 in there. Michael Cohen and Paul Manafort, criminal cronies of a criminal President, already received the special treatment (which most federal prisoners do not get) of being sent home from prison. Roger Stone likewise asked for his prison term to be delayed (now a moot point since said criminal President commuted his sentence). Most recently, after pleading guilty to criminal trade secret misappropriation, Anthony Levandowski is seeking home confinement instead of prison, where, he argues, he would be at heightened risk were he to catch COVID-19.
To restate that core precept of proportionality: No one deserves to die of COVID-19 in jail. (No one deserves to be executed by the state, period; the death penalty is a barbaric and antiquated practice and a stain on America. But I digress.) “Die of a lethal disease” is not something you will find in any judge’s sentencing order. It certainly isn’t proportionate to the single count of criminal trade secret theft to which Levandowski pleaded guilty. And yet a common response I have seen to Cohen, Manafort, Stone, and now Levandowski – even, perhaps especially, among my progressive friends and colleagues – has not been one of sympathy. It has been one of Schadenfreude: joy in another’s suffering.
Even as the prison abolition movement picks up steam, in part due to COVID-19, we as a society have a long way to go in finding some method that serves the retribution purpose of criminal punishment – of fulfilling society’s collective need to feel a wrong has been avenged – that isn’t quite so… bloodthirsty. Much of American society’s collective satisfaction in notorious wrongdoers’ punishment seems to derive from eagerly anticipating/imagining the defendant suffering from second-order aspects of imprisonment, such as beatings, prison rape, and now, thanks to COVID-19, death. None of these is necessarily an aspect of imprisonment, but due to the particular barbarity of U.S. prisons, we expect them to be.
Why, then, do some of my progressive friends jeer at Cohen’s and Levandowski’s requests, although they understand that the U.S. criminal justice system is broken? In fact, I think it is because they understand that to be the case.
We live in a country where wrongdoers typically don’t face consequences for their actions – as long as they are male, white, rich, privileged, connected, and powerful enough. For every Weinstein or Epstein who went to jail, there is a Stone commuted or Arpaio pardoned. Our criminal justice system holds that wrongdoers will be held responsible for their actions, and yet that same system has failed, again and again, to live up to its promises. We can see plainly that there is no equal justice under law: there is one system for the Roger Stones, and another for everyone else. The retribution machine is broken.
That makes it a more understandable impulse to grumble, “I hope that jerk catches COVID in prison before the President gets around to pardoning him.” We know the system won’t work the way it pretends it will, and so we have to hope for punishment from some alternative source instead, be it vigilantism or a deadly disease. We want wrongdoers to suffer consequences; that’s what retribution means. But we understand that, for privileged defendants, our broken criminal justice system won’t fulfill that need. Thus, we probably want people like Levandowski to suffer even more because we suspect they won’t be penalized effectively through the usual channels.
This is why we have social tools such as ridicule and ostracism. They are ancient, extra-legal mechanisms of punishment. We as individuals may not have the power to ensure some mobbed-up crony does his time in prison, but we can at least stop inviting them to Christmas parties (if you are a fancy person in D.C. or New York) and make fun of them on Twitter. Or yell at them in restaurants. Being yelled at in restaurants is what you get when you know, and the rest of us know, that you will never, ever be formally punished for the horrible things you did to people and to the nation. Of course, these kinds of social tools are only powerful against people who feel shame, but that’s what we’ve got, short of outright vigilantism.
But we’re in the middle of a pandemic! There is no more eating in restaurants or having big fancy holiday parties. Pandemic-related stay-home orders reduce the opportunities for social punishment; so, perversely, wrongdoers who avoid prison will face even fewer consequences. (What happens if you SWAT somebody who’s on house arrest, during a broadly-applicable stay-home order? Let’s see if modern-day vigilantism progresses to the point where we find out!)
Thanks to the pandemic – again, an unforced error, an unnecessary own goal, a wholly avoidable tragedy – there is a sense in which actual prison is arguably one of the only tools of punishment right now that does differentiate people who are free from people who are currently paying their debt to society. How much less utility does society derive from punishing a defendant in the form of house arrest, when the rest of us basically have to stay home too? I don’t mean to make light of house arrest: it is obviously very different from staying home voluntarily. But if part of the retributive purpose of punishment is depriving the convict of freedoms the rest of us enjoy, then perhaps house arrest is less effective as retribution now than it was prior to COVID-19.
Ditto international travel. Oh, your passport got taken away because you’re a flight risk? Gosh, I can’t imagine what it feels like to be effectively unable to leave the country right now. Ditto employment woes. Oh, you got convicted of a crime, so social stigma and discrimination now mean you can’t find a job? Well, join the club: the U.S. has an 11% unemployment rate at present. Ditto voting. Disenfranchised due to felony conviction? There are fears of mass disenfranchisement this November: an overwhelmed U.S. postal system may be unable to deliver a high volume of mail-in ballots in time, while voters in areas where mail-in voting is difficult may have to decide whether to go vote in person and risk catching COVID-19.
In short, there is now far less distance between free people and those serving criminal sentences than there used to be pre-COVID. And I suspect that undermines the effectiveness of non-prison punishment as retribution. This makes it even more understandable that, despite the growing popularity of prison abolitionism, so many people nevertheless want to see wrongdoers such as Levandowski go to prison instead of being allowed to serve out their sentences at home. The promise of the justice system is not only that the guilty will be punished but also that the innocent won’t. But the pandemic, and the botched governmental response to it, makes the rest of us innocent folks feel like we’re being punished too. We know in our guts that the system is broken on both ends of that promise.
Because both ends are broken, we innocents are being punished and yet we can reasonably expect that the guilty will not be punished. In 2020 America, the entire idea of retribution is turned on its head. We know in our guts that Anthony Levandowski and Roger Stone enjoy a separate and unequal system of justice from that of the garden-variety car thief, who doesn’t want to go to prison either, for the very same – and entirely sensible – reason as Levandowski and Stone: they want to avoid a COVID-19 death sentence.
And yet we do not feel the same Schadenfreude about the car thief as we do about the autonomous-car engineer Levandowski. We do not delight to think of the car thief swept up in a COVID-19 outbreak in prison. The car thief did not ruin the world economy in 2008 or negligently kill 150,000 Americans (and counting) in 2020. Privileged, well-connected, wealthy, white male defendants convicted of white-collar crimes, however, remind us of the element of American society that caused the unnecessary mess we’re all in – and that typically gets off scot-free. On an unconscious level, I suspect that we are blaming the failures of the whole system on these particular defendants, as proxies for the whole rotten crowd of rich, privileged white guys whom we view to be responsible for everyone else’s current suffering.
What does retribution mean in these circumstances? What is the appropriate penalty for those who have screwed up the entire country… when we have stopped believing that the criminal justice system will punish them adequately… and the pandemic has stripped Americans of both the usual social tools for punishment (ridicule, ostracism), and the everyday experiences (freedom of movement, employment, voting) that we relied upon – whether justly or unjustly – to distinguish our lives from convicts’?
Viewed thusly, the Schadenfreude at these white-collar defendants’ fear of death in prison by COVID-19 finally becomes legible. When the justice system has stopped fulfilling its promises to both the innocent and the guilty, and society itself has gone topsy-turvy, this kind of severe extra-legal punishment is just about the only means of retribution we still see available. Defendants such as Levandowski are effigies. And we want them to be burned.