We are very excited to feature Prof. Michael B. Mushlin’s latest law review article in which he compares Kafka’s fictitious world of punishment to the current state of solitary confinement in the United States. Prof. Mushlin has extensive experience in the field of prisoner’s rights work and specific issues such as solitary confinement.
POST WRITTEN BY: Erica Danielsen (’16), J.D. Pace Law School
Franz Kafka lived in the Austria-Hungarian empire, in what is now Czech Republic, and wrote fiction stories in German during the 20th century. In 1914 Kafka wrote In the Penal Colony, a story describing a torture and execution device used in a mythical prison’s operation system. The machine would carve the sentence of a condemned prisoner on his skin before killing him over the course of twelve hours. The use of this machine only came to an end when a “Traveler,” an outsider invited to the penal colony, condemned its use by expressing, “I am opposed to this procedure.” Without the Traveler having been allowed to enter and observe what occurred in the penal colony no change to the system would have taken place.
For the 100th Anniversary of Kafka’s work, Prof. Muslin wrote, “I Am Opposed To This Procedure:” How Kafka’s In the Penal Colony Illuminates the Current Debate About Solitary Confinement and Oversight of American Prisons. The article, which is published in the Oregon Law Review, compares the use of the penal colony’s machine to the current use of solitary confinement in American prisons. Both the penal colony’s machine and solitary confinement inflict great psychological and physical pain on the people subjected to it. Additionally, both are seen as essential to the operation of the prison system yet neither would see change without an outside perspective into its use.
This article first recounts Kafka’s story In the Penal Colony and describes how Kafka’s professional life as an attorney might have influenced his story. It then provides a description of the American prison system focusing on two important aspects: the massive use of solitary confinement and the lack of meaningful oversight. The article is then brought together with a discussion of how Kafka’s profound insights, so powerfully set out in In the Penal Colony, can help society today understand why prison doors must be opened to outside scrutiny and why the rampant use of solitary confinement in the United States must end just as the penal colony’s machine was put to an end.
In the Arias murder trial, the jury deadlocked eight to four in favor of the death penalty. Arizona is just one of two states that permit a retrial where a jury deadlocks on punishment in a death penalty case. The other states provide that a post-deadlock sentence be one of life imprisonment.
The U.S. Supreme Court has long held that a hung jury in a typical criminal case does not prohibit retrial. Briefly, the theory behind that holding is that the first, initial jeopardy does not terminate with a hung jury, so the prosecution can simply continue. Presumably, although the situation is a bit ghoulish, the same theory would likely apply to permit the Arias prosecutor to retry the penalty phase of the trial.
Still, does it make sense to retry the death penalty case? Aside from the time, expense, and anguish associated with a retrial, a new jury would have to be selected and some of the evidence the original jury heard during the guilt phase of the first trial would have to be presented to the second sentencing jury, which would never have heard it. The judge has the option of sentencing Arias to life without parole or 25 years to life in place of a retrial.
For further information about the jury’s deliberations, read here.
Pace Law School Professor – an expert in the field of international law and its application in the U.S. courts – Thomas M. McDonnell shares his view on the debate of whether to impose the death penalty in the Boston bomber case. Where do you stand on the death penalty?
BY THOMAS M. McDONNELL
Dzhokhar Tsarnaev, the surviving Boston bomber, has been charged with using a weapon of mass destruction, a capital offense. Given the enormity of his crimes, many have called for the imposition of the death penalty. Below is the conclusion to an article, The Death Penalty: An Obstacle to the War on Terrorism?, I wrote in connection with imposing the death penalty on those responsible for the 9/11 attacks. Some of the arguments therein likewise apply to Tsarnaev’s case.
The thundering weight of the crimes of September 11 inevitably demands the maximum punishment that our judicial system allows. If anyone deserves the death penalty, then those who planned and actively participated in the September 11 conspiracy do. The United States will almost certainly execute those, like Mohammed Shaikh Khalid, Ramzi bin al-Shibh, and Abu Zubaydah, assuming, as expected, they are found responsible for the attacks. Yet as we enter the third year in the “war on terrorism,” the euphoria of the seemingly quick victory in the largely unilateral war against Iraq is beginning to give way to recognition that we need the United Nations, the help of our allies, and respect for the rule of law.
Similarly, the natural demand for retribution after a terrorist organization has committed mass murder and other heinous crimes needs to be tempered by the fact that carrying out the death penalty may strengthen the terrorists. Given the perceived and actual grievances that the Arab and the greater Islamic worlds have towards the West in general and the United States in particular, carrying out such executions will probably tend to inflame the Arab and Islamic worlds, increase their support of terrorist movements and thwart cooperation with our allies, almost all of whom have abolished the death penalty. In addition, assuming the evidence at trial fails to show that Zacarias Moussaoui directly participated in the conspiracy to carry out the September 11 attacks, executing him may be contrary to our current death penalty jurisprudence and would appear unjust to our allies and the Islamic world alike. Even if the evidence shows that Moussaoui directly participated in the September 11 conspiracy, executing him will, as the Kasi case so well illustrates, almost certainly make him the twentieth martyr for Muslims.
Because, however, we routinely carry out executions on individuals such as Paul Hill, the anti-abortion killer, who murdered two persons, a physician and his bodyguard, how can we not execute one who, at the very least, was actively involved in an organization that killed over three thousand innocent people? We should, however, learn from the mistakes and the successes of Great Britain in fighting the IRA, that executing politically motivated agents of terror is likely to spawn greater terrorism. Such restraint is a surer path towards isolating al Qaeda and its allies in the lands of the aggrieved and the repressed. The death penalty is a luxury that we can ill afford in this international struggle.