The Vision Project

The Criminal ‘Punishment’ System

Editor’s Note: In this BC Law Magazine “Vision Project” series, we are engaged in a lengthy discussion with Boston College Law School faculty about where the Covid-19 pandemic and its attendant medical, economic, racial, and political consequences may lead us. As New York Times op-ed columnist Timothy Egan so eloquently put it recently, “Every crisis opens a course to the unknown. In an eye-blink, the impossible becomes possible. History in a sprint can mean a dark, lasting turn for the worse, or a new day of enlightened public policy.” There are warnings and worries in these professors’ views, but there are also farsighted ideas and strategies for crafting a better future, a more just society, and a world in which each and every human being is equal under the law.


PROFESSOR SHARON BECKMAN

Professor Beckman, codirector of the Boston College Criminal Justice Clinic and director of the Boston College Innocence Program, is an honors graduate of Harvard College and the University of Michigan Law School, where she was Editor-in-Chief of the Michigan Law Review. She served as a law clerk to the Hon. Sandra Day O’Connor of the Supreme Court of the United States.


What has the coronavirus pandemic revealed about our understanding of criminal justice and the system that supports it? The disproportionately devasting impact of the  Covid-19 pandemic on people of color and the poor parallels the disparate impact of criminal punishment on those communities. The confluence of the Covid-19 virus and criminal punishment has been especially horrific: At MCI Framingham, the Massachusetts medium security women’s prison, 46 percent of the women confined there had contracted the Covid-19 virus as of June 21, 2020. The response by the Department of Corrections—placing prisoners on lockdown, allowing them only a half hour a day to shower or make a phone call, canceling all programs, and prohibiting all visitors–has produced too little protection and too much harm. Despite calling on all members of the Massachusetts legal community to think creatively, do things differently, and root racism out of our legal system, for procedural reasons the state’s highest court continues to maintain that it lacks jurisdiction to grant emergency relief to most sentenced prisoners to protect them from Covid-19, even if they pose no danger to the public, and even if there is reason to believe they are factually innocent of the crimes for which they are imprisoned.

The confluence of the Covid-19 pandemic’s disproportionate impact on minority communities and the most recent video recordings of what is in fact a long history of black men, women, and children being brutalized and killed by our system has created a tipping point in our country, making it impossible to ignore the reality that our systems and institutions are not fair or just. In reality, we do not have a “criminal justice system.” What we have is a criminal punishment system. What is unique about the criminal punishment system is not the ends it purports to pursue but instead its distinctively violent and stigmatizing means—police force, public condemnation, and punishment. In America, punishment has never been enforced equally or proportionately on all those who cause harm. The racial disparities are embedded in our national psyche, the direct result of slavery, Jim Crow, and the 13th Amendment, which outlaws slavery “except as a punishment for crime.” Race discrimination in the criminal punishment system is not a thing of the past or something that happens only in other parts of the country. We see the effects of race discrimination here in Massachusetts in our work in the Boston College Innocence Clinic, in our school and home communities, and in ourselves.

What short- and long-term opportunities do you see arising from the pandemic for improving how we define and deliver justice? For people who are not struggling for survival, the pandemic-related shutdown of work and leisure activities seems to have created the time and openness to recognize the reality of racism in our criminal punishment system and in our society more generally. From the streets to social and mainstream media to (virtual) corporate board meetings, there is increasing dialogue about the experience of being a racial minority in America and ways to acknowledge and address racism in all of its forms and effects. Educational institutions like Boston College are not only creating forums for discussing racism; they are reexamining the student experience, the curriculum, admissions policies, and practices relating to faculty recruiting, hiring, training, and promotion, as well as encouraging scholarship and community engagement to address systemic racism. From this dialogue comes the possibility of a richer collective understanding of Justice and the means necessary to move towards it.

What is your vision for a post-pandemic world? What policies and plans would you recommend to guide us toward building and sustaining a stronger and more just society?  Here in the BC Innocence Program clinic we have been working hard throughout the pandemic advocating for the release of our clients who are incarcerated for crimes they did not commit. We have succeeded in securing the release of two clients since March, three in the past fourteen months, all of whom are people of color who were sentenced to life imprisonment for murders they did not commit. We continue to litigate on behalf of our clients and to bring interdisciplinary research to bear in our collaborations with community partners and government officials on law and policy reforms with the potential to remedy and prevent wrongful convictions.

Apart from this work, I have been trying to listen more than speak. My current reflection is that despite the best efforts of well-meaning actors within the criminal punishment system, incremental policy and practice reforms, while important and overdue, are insufficient to prevent the criminal punishment system’s ongoing disparate impact on people of color and the poor. The historical, political, economic, social, and psychological causes of this phenomenon cannot be uprooted by better police training or jury instructions. As a teacher, I believe in the promise of education and in the empowerment of the voices of those most directly impacted by crime and criminal punishment. Beyond that, I would like to see a reduction in governmental deployment of the harmful stigmatizing means of criminal punishment and a reallocation of public resources to housing, health care (including mental health care and treatment for substance use disorders), education, and other public services that research shows can be more effective than criminal punishment in promoting a fair and peaceful society.

Read all faculty Vision Project interviews here.

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