President-elect Biden proposes to work to end the death penalty. Will he do so retroactively for those already sentenced and lingering in prison? Who knows.
Anyway, a New York Times story on Dec. 21 reported that at least 14 of the 50 people on death row in the U.S. Penitentiary at Terre Haute, Ind., have tested positive for COVID-19, indicating a bad spread of the virus. What does that mean for those outside the prison? For the survivors of those who were murdered, actually nothing. For death penalty abolitionists and lawyers for death row inmates, a lot.
For the rest of us, probably not much. After all, we are all potential victims of a viral spread. Just consider occurrences in nursing homes and elsewhere around the country, where the elderly or infirm, the most vulnerable among us, aren’t convicted murderers. Maybe that’s why few people talk about the virus’s spread in prisons. After all, there’s a lot more on society’s plate about COVID-19 to trouble us, isn’t there?
These are trying times for the death penalty bar. Big picture, the nation is awash in COVID-19, with the Centers for Disease Control and Prevention (CDC) wrestling with whom to prioritize for vaccine distribution. Front-line workers first, of course. But then who? The youthful, who are not completely invulnerable and haven’t yet lived their lives? The middle-aged, weakened by severe comorbidities? The elderly, who have lived long lives but probably are the most vulnerable?
But death-row inmates in a prison with a dramatic COVID-19 outbreak — who really cares? No chance for favorable consideration on a priorities list. So, if you’re a death penalty proponent, this is a no-brainer, right? Death row inmates should be last on anyone’s list. They typically live on borrowed time. Many believe they should die, period, and preferably sooner than later. So why care how the virus affects them?
Well, think about it. What if the death row inmate is actually innocent? We’ve observed an increasing number of death-row inmates who later are deemed innocent of the crimes that imprisoned them. Maybe he had a terrible trial lawyer or terrible trial judge. His death row stay may last many years, even if he is innocent. Those “innocence” exonerations occur too often — meaning many wrongful convictions — and typically after long spells. “The law’s delay” often somehow works in the inmate’s favor. Should COVID-19 be allowed to cut it short?
Prioritizing coronavirus vaccine shots may well present a “Sophie’s Choice”: Who will live and who might die? Consider, then, the mindset of the death-penalty inmate's defender. Her client is in his early 20s and sits in a virus-laden cell block. Maybe there’s a decent chance that he’s actually innocent. Should he get a vaccine early in the distribution process just because he is so urgently exposed? The answer is, it’s unlikely that any medical ethicist would choose to give him the vaccine over anyone else.
But is that the end of the story? Dostoyevsky famously said, “A society should be judged not by how it treats its outstanding citizens but by how it treats its criminals.” One might quarrel with that, but Dostoyevsky was arrested for belonging to a literary group that discussed banned books critical of Russia and was sentenced to death; when the sentence was commuted, he spent four years in a Siberian prison camp. Was Dostoyevsky speaking about convicted murderers? Maybe he was simply talking about anyone involved in the prison process — including the people who must deal with a prison’s population.
So, put aside the health concerns of the Terre Haute death row inmates themselves, even though many of them may be sitting ducks to an extremely contagious virus. They are an impossible lot for whom to advocate these days. What about those who participate in the processes of death imposition? They lie at the intersection of COVID-19 and the death penalty. It appears that staffers who come in and out of institutions are literally bringing the virus into prisons, making it a “super-spreader” venue. Needn’t the Bureau of Prisons address the safety concerns of staffers, witnesses and others?
In addressing COVID-19 in a responsible manner, medical and other ethicists must face the intersection of the virus and the need to protect society. There is simply no societal “need” to impose death on a criminal and risk more lives who are in the vicinity of, or dealing with, death row, even now. Society indeed may expend too much effort and resources to preserve life for those on the bottom rung who have little hope of exoneration (likely because most are guilty). But should we enable the risk of death from the virus for those on death row and those around them?
Maybe the pandemic can be an “excuse” — lacking a better word — to save or preserve lives when, as a far broader issue, the means for punishing even murder is widely seen as no longer warranted in a civilized society. If delaying executions may help halt executions, even vaccinating against COVID-19 should be called upon to lend a helping hand. Wouldn’t Dostoyevsky have been on the same page?
Joel Cohen practices white-collar criminal defense law as senior counsel at Stroock & Stroock & Lavan. He is an adjunct professor of law at both Fordham and Cardozo Law Schools, and the author of “Broken Scales: Reflections On Injustice.”