Abstract

Excerpted From: Angela Dixon, Equalizing Disproportionate Death and Punishment in Black and Brown Communities: An Emergency Shutdown on Death, Inequality, and Deliberate Indifference, 36 Journal of Civil Rights & Economic Development 611 (Spring, 2023) (366 Footnotes) (Full Document)

According to an old saying, “death is the great equalizer.” But is it? It may be in the sense that absent a contravening force, it is an appointment that all must keep. Yet data indicates that all do not die equally. Socioeconomic status (“SES”), which includes levels of occupation, education, income, and wealth, all delay or advance mortality. People of a higher SES outlive, generally, people of a lower SES; moreover, such disparities continue to widen as trends of income inequality intensify.

Perhaps predictably, race, just like class, exacerbates inequities. Black Americans in the United States remain the pivotal example. Some scholars theorize that stemming from the brutalizing institution of American slavery, Blacks “die” twice. In life, they die a “social death,” before experiencing a physical death--a death that may shrink their longevity in comparison to their white counterparts as a direct result of the “social death” they experience because of societal oppression. Arguably, other marginalized populations suffer a similar fate. While this Article does not explore the concept of social death in its layered complexities, at least mentioning social death remains critical to underscoring the larger point: that is, the strata of inequity, the layers of dehumanization, ultimately, prove to be strenuously stifling. With the 2020 global COVID-19 pandemic, a larger swath of the global population realized what it was like to have the possibility of a premature death be more imminent. Having experienced the deadliest pandemic in over 100 years, anyone could be a casualty. Humanity found its fate linked in a way that it had not in quite some time. Regardless of race, class, or even incarceration status--yes, the “free” found its fate linked to the “incarcerated” in ways it had not been previously.

To go back to Billy: “[N]ow the world knows what it feels like to have a death sentence ....” Surely, if the world now knows what it is like to have a death sentence, then the world knows what it is like to be Black or Brown. In a 2019 Pew Research Center article, John Gramlich conveyed Bureau of Justice Statistics findings revealing shrinkage in the sheer numbers of incarcerated Blacks versus whites but lingering disproportionate imprisonment of Blacks and Hispanics. These non-white racial groups occupy both prisons and death row in greater numbers.

As cruelty of fate would have it, these groups suffered disproportionately from COVID-19 and fatalities as well; because these populations feared for their lives, at least nonviolent prison offenders turned to the courts for relief by way of prison release, but they found little respite there. In a series of cases during the COVID-19 pandemic, prisoners sought relief by way of release or transfer alleging a violation of their constitutional rights. More specifically, they argued that remaining in prison during the pandemic could be a death sentence, thus constituting cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. In several instances, such arguments met with success in federal district courts before ultimately being either vacated or reversed.

Complicating matters, prison laborers became essential workers helping the larger society survive the pandemic; simultaneously, the society they helped sustain betrayed them through continued exploitation of their labor for pennies on the dollar and, in some instances, no pay at all. Moreover, for the most part, prison officials fared poorly in providing prison workers the protections they needed to help shield them from the spread of COVID-19. Stated another way: they did the dangerous work for little or no pay while facing higher risks for disease and death.

Admittedly, prison and prison-related issues arising out of the global pandemic are numerous, with each issue deserving of in-depth individualized attention. This Article focuses on “using constitutional death penalty jurisprudence to argue that the behavior of the carceral state during the pandemic presented instances of 'cruel and unusual punishment’ (imposing needless suffering) as well as 'disproportionate’ punishment violating the Eighth and Fourteenth Amendments.” It argues that the stringent legal standard of “deliberate indifference” perpetuates a devaluing of the prisoner, disproportionately Black and Brown, generally; that a very restrictive interpretation of this standard during the global pandemic led to unnecessary deaths of prisoners; and that this interpretation also led to unnecessary deaths of particularly Black and Brown prison workers as well as Black and Brown persons in the surrounding community. Further, failure to respond to prisoners' cries for release rested on too restrictive a definition of “punishment”; a more restrictive definition of punishment, in effect, leveled death sentences at prisoners; and racial bias may have sentenced correctional workers and nonincarcerated persons to death as well.

Unfortunately, the dehumanization of prison laborers and the subconscious disregard for Black and Brown communities perpetuate the continued capitalistic exploitation of Black and Brown workers charged with dutifully caring for an unreciprocating society. Part I of this Article paints a portrait of the colossal crash of prisoners and prison conditions with the pandemic. It discusses “official” death sentencing, which lays the foundation for the “unofficial” death sentencing resulting from the mishandling of the COVID-19 pandemic. Further, it provides insight into the harsh experience of the prisoner as a participant in a longstanding continuum of involuntary servitude that does not prioritize the prisoner's health or life, as exhibited by low vaccine prioritization in contrast with the Centers for Disease Control and Prevention (“CDC”) recommendations. Part II explores the data depicting the disproportionate impact of disease and death on non-white prisoners. Part III connects this unofficial death sentencing to bias in actual death sentencing, focusing on how the U.S. Supreme Court “abdicated responsibility for racially disproportionate death sentences.” In lieu of using the objective measure of death penalty studies depicting racial discrimination, the Court deferred to an intent requirement, thereby perpetuating racially discriminatory death sentencing.

Similarly, the Eighth Amendment relies on the intent requirement of deliberate indifference for prisoners, resulting in unreasonably excessive punishment and death. While the pandemic prisoners may not be murder victims literally, their predicament analogizes well to death penalty jurisprudence via the connecting thread of devaluation of non-white lives, lives of the poor, or both. During the pandemic, the courts ceded their authority to the CDC, largely turning cases on the CDC's recommendations or guidelines. Doing so abandoned the Court's role in determining what constitutes cruel and unusual punishment in society. Further, the implicit biases of judges and other players may have led to less likelihood of relief. Alternatively, the use of scientific and statistical evidence may help the Court reclaim its authority and avoid implicit biases. The Court may accomplish this goal by applying a modified approach of the Helling v. McKinney standard during states of emergency. In addition to focusing on scientific and statistical data, the Court should remove the subjective element of deliberate indifference.

Thereafter, Part IV discusses the role of implicit bias thereby justifying the need for more objective standards. It should be noted that several approaches might be workable in addressing the stringent intent standards that hinder prisoners, but the focus on objectivity helps to eliminate the effects of subjective biases while simultaneously offering a more conservative approach that might allay at least some of the charges of judicial activism. By not examining the culpability of prison officials, courts will remove the legal impediments that help perpetuate destruction in Black and Brown communities otherwise disproportionately impacted by such stringent legal standards.

[. . .]

As gleaned from ongoing lessons from the 2020 COVID-19 pandemic, definitions of punishment and, to a degree, sentences, can be too limiting. A death sentence may result outside of the corridors of a courtroom and beyond the bodies of the convicted. Too often discounted and devalued, Black and Brown communities may be sentenced to death too easily and unnecessarily. Such was the case when many courts blocked prison “state of emergency” prison release or other prisoner relief based on “deliberate indifference.” So, does the whole world really know what it is like to have a death sentence? Perhaps only when they find true kinship with those individuals most vulnerable and unprotected.

Angela Dixon, Assistant Professor of Law, Mississippi College School of Law. J.D., Vanderbilt School of Law; MPH, Emory University; MDiv, Emory University, B.A., cum laude, Vanderbilt University.