Sanchez on Adelsberg and Guenther and Zeman, 'Death and Other Penalties: Philosophy in a Time of Mass Incarceration'

Geoffrey Adelsberg, Lisa Guenther, Scott Zeman, eds.
Michael Sanchez

Geoffrey Adelsberg, Lisa Guenther, Scott Zeman, eds. Death and Other Penalties: Philosophy in a Time of Mass Incarceration. New York: Fordham University Press, 2015. 424 pp. $35.00 (paper), ISBN 978-0-8232-6530-5.

Reviewed by Michael Sanchez (Florida Gulf Coast University) Published on H-Florida (November, 2015) Commissioned by Jeanine A. Clark Bremer

Death and Other Penalties is an anthology of politico-philosophical critiques of the modern American justice system. The authors apply various philosophical perspectives on death, consciousness, and incarceration to the political issues of the death penalty, life imprisonment without parole, and prison life, and in the process critique the schools of thought themselves. The authors are to be applauded for their ambition, but their analyses suffer from a lack of clarity, questionable logical progressions, and the acceptance of alleged facts without proving their veracity or relevance. Meditations on death, incarceration, and criminality are necessary given the obvious problems concerning the modern American justice system, and while the application of age-old questions to modern problems has all the potential to make convincing cases for reform or at least for engrossing philosophical discussions, many of these analyses suffer from severe problems. Admittedly, philosophers are not, and arguably should not, be obligated to ground their arguments in the same manner as mathematicians or physicists, but that does not allow for reliance on some of the authors’ problematic assertions, especially since these philosophers, by their own admission, wish to effect change within the criminal justice system. Rather than review this anthology chapter by chapter, this review will instead focus on broad themes brought up repeatedly through this anthology.

One theme is the legacy of slavery brought into the present time, and its negative effects on blacks and other minorities. Brady Heiner claims that the Constitution’s Thirteenth Amendment contained a loophole authorizing slavery upon criminal conviction in order to perpetuate blacks’ enslavement, not by deliberate design, but by the transfer of prejudices across the space-time continuum (Heiner refers to it as a functional continuum); slave-owners, no longer owning slaves directly, could still avail themselves of human labor even with the otherwise abolished enslavement practice (p. 14). This statement is emotive but impossible to prove rigorously. Heiner points to the statistical overrepresentation of minority group members within the American penal system. This is indeed anomalous--we must ask why minority group members are overrepresented--but Heiner chalks it up to racial bias carried from an earlier time. Given the racial violence America has been party to, this is equally emotive but also difficult to prove rigorously. It is not enough to chalk prison overrepresentation up to simple racism or memetic transfer--other factors must also exist.

The idea of the penal system being predicated on racism, while only partially correct, nevertheless forms the basis of other chapters’ critiques as well. Kelly Oliver claims that the death penalty is “so racially skewed as to resemble a legal version of lynching” (p. 129). Such hyperbole cannot be excused--extraordinary claims require extraordinary evidence--and the lack thereof indicates either shoddy scholarship at best or deliberate disingenuousness at worst. The idea that the death penalty, especially for blacks, functions as a form of state-condoned terrorism in the way that lynching did, is impossible to prove in a rigorous manner. Lynching has been proven by historians such as Larry Rivers in his work on antebellum Florida as a form of state-condoned terrorism because those who lynched blacks often did so from outside the legal system, starving blacks of their constitutionally guaranteed rights of fair trials, competent counsel, jurors who weren’t idiots, and so forth, whereas the modern death penalty takes place inside the justice system, which affords greater protections. These protections are of course not universally afforded to all persons within the system, but this cannot be construed to allow the state to murder people on racial prejudices alone--such a claim is absurd, and is otherwise unprovable.

This leads to the theme of state violence as a whole, a case, curiously enough, proven adequately well by the same Kelly Oliver as well as Geoffrey Adelsberg and Matt Whitt. In these three chapters, notwithstanding Oliver’s lynching claim, the authors present their strongest cases against not only the death penalty but against the state prison system itself. Oliver takes a phenomenological approach to the death penalty and claims that since we cannot prove that death is the end of suffering, we must refrain from killing people as part of our justice system, otherwise we unnecessarily add to their suffering. The idea of death being the final point in a person’s existence, rather than a transition to another form of existence--debates over the existence of a soul come into play--is still a point for contention among philosophers, so this is a sound point to make, although by playing the devil’s advocate, we can sidestep this problem.

We know that death is a universal condition--given enough time, all persons will die--and it is natural for a person to be in a state of fear, or at least uncertainty, about their impeding death, whether it is from a death penalty, a disease, or advanced age. Is thus follows that all people will be in a negative, or at least doubtful state of mind at their moments of death, and this is especially true for those condemned to die on their assorted death rows. In recent years, the practice of execution by nitrogen asphyxiation has been explored as a humane method of capital punishment. Unlike every other method, such as the firing squad, being crushed by rocks, or being thrown off a cliff, the process of death by nitrogen asphyxiation is painless. If a state can execute people in a truly painless manner, there is no additional suffering related to one’s impending death, save for everyone’s preexisting universal fear. It also has a side effect of meeting the Eighth Amendment’s ban on cruel and unusual punishment. Since death is not in itself unusual, and because nitrogen asphyxiation is painless, it fits the bill well.

Geoffrey Adelsberg continues this line of thought, albeit in a more practical way. Using Derrida’s philosophy, Adlelsberg argues the death penalty should be abolished for the same reason the state justice system as a whole should be abolished--it is morally illegitimate for the state to wield such power at all, and furthermore the nation-state in itself is predicated on violence and racism. Matt Whitt comes to the same conclusion, albeit from a different philosophical school. Both Adelsberg and Whitt, by stating that the nation-state is predicated on violence and racism, imply that there is an extranational solution to administering justice in some more evenhanded way, although neither Oliver, Adelsberg, nor Whitt admit the possibility of a nonstate justice system. Nature abhors a vacuum, so a justice system will be created when people live together in communities. If it is not a state-centric justice system, it will be an extra-state-centric justice system, and this will not necessarily lead to poor outcomes; anarcho-capitalism holds that services traditionally rendered by the state, such as the court systems, can be replaced by private arbitration and security service firms, and given an unfettered market environment, will most likely lead to rational, reasonable outcomes. But the fact that none of the three mention these as reasonable alternatives implies they want to correct state dysfunction with more state involvement. It is left as an exercise for the reader to consider how this will turn out.

A third theme is the all-or-nothing approach to reforming the justice system; the anthology’s authors point out the justice system’s flaws early and often, but when suggesting reforms, there is a mostly indifference, and in Andrea Smith’s chapter, overt hostility to reforming the system from within the system itself. Smith goes so far as to accuse civil libertarians of not questioning the national security apparatus, and in not doing so, being complicit in the racism present in the criminal justice system. Civil libertarians do question the nature and responsibilities of the national security apparatus, and the aforementioned anarcho-capitalists question the necessity of any national security apparatus at all. And while we may rightly question the reasonability of the positions of those who say there are no problems with the justice system, it is quite another thing to accuse them of complicit racism. Like the legal lynching false equivalency above, this hyperbole cannot go unquestioned. Rather than “playing the race card,” we can instead explain to these people why their positions are unreasonable, and in the event they are actual racists, we can further explain to them why their racism is itself irrational.

The problems in reasoning the authors have is due in part to their practice of having philosophical schools interrogate each other--their arguments do not rely on the inequities of the prison and justice systems per se to arrive at their conclusions, but instead their arguments spend space in pointing out flaws of philosophical systems themselves. This is the philosophical equivalent of historiography--the history of the interpretation of history--and like any meta-discipline, it has its uses, but this is not one of them. It cannot be a purely philosophical, theoretical exercise when it comes to reforms in the real world. Abstractions used to interrogate abstractions do not bridge the real-world rifts between true justice and the parody of justice real-world prisoners face every day. To their credit, the authors point out problems, but their solutions leave much to be desired.

Philosophy has a very important role to play in modern society, and indeed should inform many of the practices within society. The criminal justice system is no exception, and the current criminal justice system has a number of severe problems. No one, including the authors, disputes this general concept. Therefore, it follows that the philosophizing must have some practical application, which the authors seem content to do without. Philosophy applied to contemporary issues has the potential to bring about stirring debates, but this book does not present them.

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Citation: Michael Sanchez. Review of Adelsberg, Geoffrey; Guenther, Lisa; Zeman, Scott, eds., Death and Other Penalties: Philosophy in a Time of Mass Incarceration. H-Florida, H-Net Reviews. November, 2015. URL:

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