Content Warning: Death, state sanctioned violence.
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Brandon Bernard & the New Death Penalty
On December 10th, Brandon Bernard, a 40-year-old Black man from Indiana, was executed via lethal injection in Terre Haute penitentiary. In 1999, at 18 years old, Bernard was sentenced to death by an all white jury after being charged in relation to the murder of Todd and Stacie Bagley. At 40, he was the youngest person on death row to be executed by the federal government in almost 70 years. In recent months, his case re-entered the public eye as several of the jurors and the prosecutor involved in the case had changed their minds about Brandon’s fate and hoped to have his sentence commuted (reduced). Many high profile celebrities, including Kim Kardashian West, also used their social media platforms to bring attention to Bernard’s case and persuade Trump to call off the execution. Despite these efforts, Brandon Bernard was murdered. According to a reporter present at the execution, his last words were directed at the Bagley family: “I'm sorry. That's the only words that I can say that completely capture how I feel now and how I felt that day."
Bernard was one of countless people who have been put on death row in the US prison system, and the ninth person to be executed under the death penalty this year. In November, Orlando Hall, a 49-year-old Black man from Indiana, was killed via lethal injection. One week before this, Christopher Vialva was executed in front of his mother and aunt in a Texas prison. Though the death penalty has been law in America since the 1970s, until recently federal executions were a more rare practice: the last execution in a federal supermax prison before this year occurred in 2003 when Louis Jones was killed in Indiana. This changed in July, when Attorney General William Barr announced that the Trump administration would be restarting federal executions after more than 15 years. According to reporting from Sojourners, the Trump administration has four more executions scheduled between Bernard’s death and January 15th, which is the most executions ordered under one president in over a century.
The death penalty is a cruel and inhumane practice, and the increasing number of people facing federal execution illustrates that our government views incarcerated people, many of whom are Black or poor, as disposable and less than human. But 2020 has brought about yet another method of killing people in prisons. A December 5th report from Sentencing Law and Policy notes that there have been 1,527 federal executions in the United States from the 1970s through today. However, according to data from The Marshall Project, 1,657 people have died from COVID-19 inside US prisons as of Monday, December 14th. This means that in nine months, the coronavirus has killed more people in US prisons than capital punishment has in over fifty years. For this reason, many have begun to call covid-19 “the new death penalty.”
For many Americans, this past year has forced us to become uncomfortably familiar with death; most people in this country know someone who has COVID-19, who lost their healthcare, or has come closer to dying in some big or small way. This reality, and the subsequent apathy from our government, has caused many to embrace more radical frameworks that prioritize community safety––such as abolishing prisons or defunding the police––in the hopes that these changes will help create a culture where human life has more value. Cases like Brandon Bernard’s help illustrate how getting rid of the death penalty, and abolishing prisons as a whole, are critical steps in building this new world.
Incarceration as a Death Sentence
To some, it might seem like a stretch to compare the coronavirus to the federal death penalty as covid has killed thousands of people outside of prisons and jails as well. However, recent data demonstrates that living inside a US prison, particularly during the covid-19 pandemic, essentially equates to a death sentence. On October 12th, an investigation from USA Today found that “the biggest source of coronavirus infections in Illinois are federal, state, and county prisons and jails,” with “the largest count of any single outbreak” occurring at Cook County Jail. In April, more than half of Rikers Island, New York City’s main jail complex, was locked down for quarantine due to exposure to the coronavirus. Three incarcerated people died at Rikers during the spring, and more than 1,400 correctional officers reportedly caught the virus, illustrating the magnitude of its spread. There are many reasons incarcerated people face higher risk of contracting covid-19: reports from several prisons indicate that incarcerated people are often not given masks to protect against the virus, and hand sanitizer is still considered “contraband” in many prisons and jails across the country. It is difficult for incarcerated people to social distance, as most living quarters inside prisons are very small, with beds as close as three feet apart in some facilities. And if people do get sick, there are extremely limited options for healthcare.
The combination of the coronavirus crisis and increased executions under the Trump administration has brought the issue of the death penalty-–and a larger conversation of prisoners’ rights––to the forefront of our cultural conversation. However, a look into the history behind the “criminal justice” system in America illustrates that prisons have served as instruments of mass death and disenfranchisement since long before 2020. At the end of the Civil War in 1865, the 13th ammendment abolished slavery “except as a punishment for crime.” So when the United States created a federal prison system in 1891, it’s original purpose was to replace the economic and social practice of slavery by oppressing, disenfranchising, and murdering Black people under a different name. (To this day prisons, like the slave trade, rely on Black bodies for unpaid or severely underpaid labor, outsourcing work from incarcerated people to companies like Walmart, AT&T, Whole Foods, and Victoria's Secret for wages as little as $0.86 per day.) During the trans-Atlantic slave trade, which took place from approximately 1619-1865 in the United States, an estimated 17 million people were enslaved according to data from the United Nations, though other estimates place the number at closer to 60 million. During this time, countless enslaved and freed Black people were killed either directly or indirectly by the state through rape, starvation, hangings, malnourishment, suicide, and other methods. The modern US prison system has continued this practice of operating as a mass death machine, and one that disproportionately affects Black Americans. Although Black people make up only 13% of the US population, 40% of the 2.3 million people in American prisons are Black. A February 2020 report from the Bureau of Justice Statistics indicates that from 2015-2016, the number of deaths in U.S. state prisons increased from 296 to 303 per 100,000 people. This means that approximately 0.3% of the incarcerated population dies while in jail every year, and that’s excluding COVID-19.
Aside from the death penalty and refusing to address the pandemic, the US prison system is murdering people in a number of other ways. Prisons in Illinois and Massachusetts are serving moldy and expired food, which has caused some people to get sick, or feel starved and malnourished. In Tarrant County Jail in Texas, where over 31% of the prisoner population is Black despite the county itself only being 16% Black, 13 people have died this year alone with little explanation: according to The Star Telegram, two were due to “natural causes,” three were due to COVID-19, one was a suicide, and authorities have not released a cause of death for the other six people. In some facilities, people are locked in their cells for at least 23 hours a day due to coronavirus isolation, which has contributed to an increased number of prison suicides.
The racialized history behind the birth of our federal prison system helps explain the real life implications of how incarceration will impact a person’s quality of life. Not only must incarcerated people face violent and dehumanizing living conditions while on the inside, they face these conditions after release as well: in most states, people with a criminal record cannot vote (a 2020 estimate stated that this precluded about 1 in 44 eligible voters from casting a ballot in the recent presidential election), and are often denied opportunities for employment or public housing. These statistics further illustrate that incarceration is always a death sentence: if prisons can’t kill you while you’re inside, they will ensure you can’t have a meaningful life even after you leave.
On “Crime” as Criminalized Poverty
Though the concept of prison abolition has reached the mainstream this year in a way that’s unprecedented in our nation’s history, many are still wary at the thought of a world without jail. A common argument against abolition is the fear of violent crime––if we do away with prisons or the police, how will we punish those who murder or rape, for example? This framework, though occasionally well intentioned, is flawed for two reasons: first, it fails to recognize that a good portion of rape and murder in America is carried out by law enforcement itself, and second, it ignores the way that “crime” has been constructed in America to penalize Black and low-income people for state-sanctioned poverty.
Many things that the United States has deemed a “crime”––the use or sale of drugs, the purchase or sale of sex, loitering, theft––specifically target and harm non-white and low income communities. For example, sex workers, many of whom are Black, queer, and poor, have historically been targeted, harassed, and murdered by the police and correctional officers in prisons. According to data from the Sex Workers Outreach Project, 41 sex workers were murdered in the United States in 2015; 17 were Black and 12 were transgender women. These statistics, combined with the criminalization of drug and sex sales, indicate that for many Black and low-income peope, interaction with law enforcement automatically equates to a death sentence. By refusing to provide it’s population with essential services like food and housing, the United States forces millions into poverty. And when people take necessary measures to survive––such as sell drugs or steal––the US criminalizes them, incarcerates them, and sentences them to death.
Many currently incarcerated people are in prison due to non-violent offenses. According to data from the Prison Policy Institute, 1 in 5 people in US prisons were arrested because of a drug crime, and drug offenses account for the incarceration of almost half a million people each year. This is particularly offensive as even after marijuana was legalized or decriminalized in several states including Colorado and California, people who were arrested for possession or distribution of marijuana were not released from prison in most cases. Further, many incarcerated people were once victims of a crime themselves: up to 88% of women in prison experienced sexual or physical abuse before incarceration. These statistics demonstrate that while the prison system may purport itself to be one of rehabilitation, it’s true purpose is to punish people for being poor or unemployed, or experiencing abuse. The counterargument that prison abolition would be dangerous because of rampant violent crime is also largely based in misinformation. In recent years, the number of homicides in the US has decreased significantly while factors like suicides, poverty, and drug overdoses are skyrocketing. In 2017, there were 14,542 firearm homicides; that same year, there were more than 70,000 overdose deaths. By one estimate, being uninsured also leads to at least 35,000 unnecessary deaths per year in America. These numbers indicate that inequality, not violent crime, is what’s causing the most deaths in this country, and if our government was truly concerned with protecting life, they would fund social programs to ensure everyone has their basic needs met, rather than arbitrarily penalizing “crimes” that are often born out of poverty. What’s more, while the prison system is purportedly meant to deliver “justice,” national survey data indicates that most victims of crime do not push for incarceration: instead they argue for violence prevention, social investment, and alternatives to incarceration that address the root causes of crime, rather than investment in carceral systems that cause more harm.
While it’s true that homicides do happen, research shows that Americans have many misconceptions about how violent crimes are categorized in this country. For example, “murder” is an extremely serious offense, but that category is legally a broad one which also includes offenses that the average person may not consider to be murder at all. The felony murder rule says that if someone dies during the commission of a felony, everyone involved can be as guilty of murder as the person who pulled the trigger. This means that a person acting as lookout during a break-in where someone was unexpectedly killed can be charged with murder in the U.S, and even sentenced to the death penalty. Brandon Bernard’s case is a key example of this: at age 18, he and several friends took part in what was meant to be the robbery of a couple. One of Bernard’s friends shot the couple without consulting Bernard or any of their other friends. Ultimately, Bernard helped get rid of the evidence. Despite the fact that Bernard was a teenager when this happened, and did not shoot anyone, he was still charged with murder, and then killed by the state. Undoubtedly, murder is a very serious offense that should not be minimized; however, Bernard’s case is a helpful illustration on how the prison industrial complex is the wrong mechanism to properly handle violent acts like homicide. In fighting for prison abolition, we are asserting that we must create a better system for not only addressing the aftermath of death but actively working to prevent it, and further insisting that no one deserves to be murdered by the state, no matter what crimes they’ve committed.
The United States has a long history of punishing poor people with an early death while rewarding the wealthy with a long and healthy life. According to data from the Center for Disease Control, white people have a significantly longer life expectancy than Black people. This makes sense because on average, white people have access to better food, education, and air quality than Black folks do. Though these disparities remain even in 2020, the coronavirus has begun to expose a much greater number of people of all races to facing death at the hands of the state. On December 9th, deaths from covid-19 hit a new record in America, with more than 3,000 people dying in a single day. (New data also shows us that 1 in every 500 residents has died in New Jersey alone). Not only is the US government not doing anything meaningful to curb the spread of the virus––such as enforcing masks in public or providing free healthcare––they are also not providing people with their basic needs so that they can stay home and remain healthy for the duration of the pandemic. According to recent data from Feeding America, more than 50 million people will experience food insecurity during covid-19 in 2020, and recent reporting from The Washington Post indicates that this food insecurity has resulted in increased theft of food goods and baby formula from grocery stores. A study by Princeton University also reported that there have been 11,000 deaths caused by evictions during the pandemic, with over 155,000 eviction notices given in America since March. Throughout the pandemic, the United States has sentenced countless people to die by allowing rampant spread of a deadly disease with little to no federal funding for essential services like food, housing, or health care, all of which should be free. As a result, more people are being made homeless, jobless, or being forced to steal: qualities that disproportionately lead to incarceration. This increase in America’s poor population also helps explain why this year has brought on an increased investment in abolition and public outrage over the murder of Brandon Bernard: though we might not face the federal death penalty, more Americans than ever understand how it feels for their government to leave them for dead.
While the pandemic has exposed an increasing number of Americans to the violence of the carceral state, the fact remains that poor Black people, and Black women in particular, are most at risk for being murdered by our government. Black women are statistically more likely to be homeless, jobless, or have a history of abuse than women of other races, and are therefore far more likely to face violence from the police or the federal prison system. One example of this violence would be the death of Oluwatoyin (Toyin) Salau, a 19-year-old Black Lives Matter activist from Tallahassee, Florida. On June 6th, Salau, who was experiencing homelessness after being forced out of her parents house, tweeted in detail about a man who sexually assaulted her after offering to help her. “I was molested in Tallahassee, Florida by a black man this morning at 5:30 on Richview and Park Ave,” she wrote on her public Twitter. “The man offered to give me a ride to find someplace to sleep and recollect my belongings from a church I refuged to a couple days back to escape unjust living conditions.” Salau further said she told the police about the assault, but they refused to help. Mere days after her tweets went viral, Salau was found dead, and it was later confirmed that Salau’s abuser had killed her. Salau’s tragic and completely preventable death illustrates the immediate necessity to abolish America’s policing and carceral systems: the very same people who are meant to “protect” her left Salau, a teenage girl, to live on the streets without food or shelter, where a violent man had immediate access to her. How is this any different than a death sentence?
On Abolishing The Death Machine
Since the colossal amount of covid-related deaths and renewed use of death penalty executions are both happening under the Trump administration, it can be easy to blame Trump and the Republicans for the mass death happening in America, and assume that once Biden takes office, the United States might start prioritizing life. However, this would be a gross oversimplification of the ways that violence towards poor and Black communities is ingrained in the very fabric of this country, no matter which party is in power. (In 2016, for example, many begged Barrack Obama to commute Brandon Bernard’s death penalty sentence, but he refused.) Already as Biden prepares to take office, we have seen a number of very concerning policies from his early proposals. December 10th reporting from The Intercept revealed a leaked audio tape from Biden’s recent meeting with several prominent civil rights activists, where the president elect noted, among other things, “That’s how they beat the living hell out of us across the country, saying that we’re talking about defunding the police. We’re not. We’re talking about holding them accountable. We’re talking about spending money to enable them to do their jobs better, not with more force, with less force and more understanding.” These remarks bolster the President’s earlier claim in June, when he promised to give an extra $300 million dollars to police forces across the country amid national uproar to defund and abolish America’s policing system. While Biden claims that providing police with more money will allow them to do their jobs “with less force and more understanding,” there is a bevy of evidence to underwrite this claim: data from the ACLU reports that as of June 30th, 2020, police officers had fatally shot 511 people so far this year, including Breonna Taylor and Tony McDade. This number does not include police murders such as George Floyd, who was publicly lynched, or Toyin Salau, who was left for dead due to homelessness and sexual abuse despite police officers having knowledge of her living situation. In light of this, Biden’s recent promise to provide more funding to police, a measure that will also lead to higher national arrest and incarceration rates, can only be read as an initiative to kill a greater number of poor Black people. In recent months, Biden and the Democrats have also begun renewing contracts with ICE and created a new cabinet position to find “common ground” with conservatives, two measures which further suggest the new administration has no interest in taking radical measures to save Black lives.
Abolishing the federal death penalty is the first step in insisting that the government should not have the right to decide who lives or dies. But the work goes so much further: if we want to ensure that every person in this country has a shot at a meaningful life, we must provide them with necessary resources––food, water, education shelter––to do so. In doing this, we would be directly addressing the root of many “crimes” that law enforcement only reacts to after they have already occurred: less people would loiter, for example, if nobody was homeless, and no one would be forced to steal if we made sure everyone had adequate clothing and food. In this way, abolition as a framework is a way of recognizing that the state has the resources to meet everybody's needs, and demanding that it does so.
Incarceration is not justice. State-sanctioned death is not justice. If we really want to honor the legacies of Brandon Bernard, Toyin Salau, George Floyd, Breonna Taylor, Tony McDade, and the countless other Black people who have been murdered in cold blood by the United States, we must actively organize to defund the police, abolish the prison industrial complex, and destroy every system that deems Black life disposable. Only then can we create a world where every life is precious.
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