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On Monday a federal judge sentenced three white men—Greg McMichael, Travis McMichael, and William Bryan—for the racially motivated murder of Ahmaud Arbery in Georgia in 2020. The McMichaels received life sentences, while Bryan received thirty-five years. The sentences will run concurrently with life sentences handed down by a Georgia court earlier this year—the McMichaels without the possibility of parole, and Bryan with the possibility of parole after thirty years. The McMichaels will therefore die in prison, and it is very likely Bryan will too.
As a civil rights and criminal defense lawyer, I have worked within—and sought to change—the staggeringly unjust U.S. criminal justice system for more than thirty years. I spoke and wrote in support of both the state and federal prosecutions of Arbery’s killers, and I think they ought to be in prison. But I also think the sentences they have received are excessive.
Granted, their sentences are far from the longest on record, and people of color disproportionately receive very long or fatal prison sentences. But I think those sentences are excessive too—and I have seen their effects firsthand. Over the course of my career I have defended people charged with the most vicious crimes whom others called monsters and refused to see as human; all were poor, most were people of color, and many faced the death penalty. I think the right response to all this injustice is to reduce sentences across the board—including by releasing hundreds of thousands of people, mostly Black and Hispanic, now incarcerated for violent offenses—and to work for systemic change, rather than to seek compensatory vengeance when the defendants are white.
I recognize my criticism of the sentences in the Arbery case may not be popular. But it is not unprecedented. Last June, amid reactions to the sentencing of Minneapolis police officer Derek Chauvin to 22.5 years for the murder of George Floyd, Keeanga-Yamahtta Taylor—a professor of African American studies at Princeton who has written extensively about racial inequality, Black politics, and abolitionist movements—tweeted what she acknowledged was an “unpopular post.” “Only in America,” she wrote, “could anyone think that a prison sentence for more than twenty years is not harsh enough. . . . I hope that we can move beyond the relentless desire for punishment.”
Because I share that hope, I believe we must speak out against extreme sentences even when doing so is unpopular. Condoning these sentences, much less endorsing them, has insidious consequences. It nurses the myth that punishment equals justice. It reinforces the power of law-and-order ideology and buttresses the carceral state, justifying investment in the largest prison-industrial complex in the world. It occludes the social roots of criminal behavior, accepting the terms of a myopic liberalism that sees only individual responsibility. It lends credence to the discredited notion that punishment deters—and that harsher punishment deters even more. It denies the reality that people change. And it blunts demands for the sort of social transformation that would radically revise the place of prisons and policing in American life. In fact, by doing all these things, it ultimately only rewards wealth and whiteness.
This is not at all to say that serious crimes should not be met with serious consequences. Arbery’s killers committed a heinous, racist act, and they should be accountable to society. But the consequences we impose should not collude in the ideology that underwrites the cruelest and most racist system of incarceration on the planet. Nor should it license the treatment of some individuals as beyond the pale of humanity, even when they have treated others that way. These defendants did a horrific thing, but condoning their extreme sentences out of punitive anger only supports the carceral state.
The circumstances of the federal trial shed light on the temptation to seek vengeance in the name of justice. Bryan and the McMichaels were arrested on felony murder and kidnapping charges in May 2020 and tried in state court late last year. In Georgia the mandatory minimum penalty for murder is a life sentence with a possibility of parole after thirty years. In January the state court judge sentenced Bryan to the minimum term—he can seek parole in his eighties—while the McMichaels received twenty years on top of their life sentences without the possibility of parole.
Then came the federal prosecution. The United States charged the three men with a hate crime, alleging they killed Arbery because of his race. The McMichaels agreed to plead guilty in exchange for a sentence of thirty years to be served in federal prison prior to serving any state sentence. Yet the federal judge rejected the plea, at least in part because the Arbery family opposed it. According to press accounts, the family wanted the defendants to serve their time in state prison because they believe, probably correctly, that the defendants will suffer more there than they would in federal prison. (Conditions are so dire in Georgia prisons that they are under investigation by the Justice Department.)
With the plea deal nixed, the case proceeded to trial. The prosecutors introduced a great deal of evidence that the defendants were unapologetic racists and argued that the crime was motivated not by any claimed interest in corralling a burglar but by anti-Black racism. The jury found all three men guilty in February.
Some maintain that the federal prosecution was overkill, given the prior conviction and sentence in state court, but I disagree. Targeting Arbery because of his race was a separate moral and legal wrong, and there is value in proving this fact in a court of law for all the world to see. It is the sentence, not the trial, we ought to find unconscionable. To appreciate this it helps to recall the monstrous scale of long-term punishment we now inflict as a society—and that it has not always been this way. More than 200,000 people in the United States are currently serving life sentences, two-thirds of whom are people of color. That figure amounts to more than one in seven people who are currently incarcerated and more than the entire U.S. prison population in 1970. And the problem is getting worse; 29 states had more people serving life sentences in 2020 than they did just 4 years earlier.
Sociologists describe penalties meant to denigrate or humiliate someone as “disintegrative shaming.” We might extend this concept to speak of disintegrative punishments: practices that treat wrongdoers as qualitatively and irreversibly beyond the pale of humanity—as moral monsters who have no capacity for remorse or rehabilitation and therefore deserve to suffer horribly.
In the United States there is no shortage of disintegrative punishment. Some practices—torture, prolonged solitary confinement (really a form of torture itself)—are disintegrative because of their effects on the individual. But punishment can also be disintegrative because of the effect it has on others, not simply on those who are punished. Stigmatizing punishments, particularly those that permanently brand an offender as intrinsically evil or irreversibly unworthy of membership in society, are disintegrative even if the person is not otherwise made to suffer. Lifetime sex offender registration statutes are disintegrative, for example, because they effectively empower—if not outright encourage—other people to treat offenders as permanent outcasts.
Prison in the United States—especially as sentences get longer, conditions become more severe, and prisoners grow more isolated—tends inevitably to be disintegrative, both in the effect it has on the prisoner and on society. Long prison terms in the United States treat a human being as a monster and communicate to society that he must be a monster. The harm, in other words, is not simply in what these sentences do to those punished but what they do to those on the other side of the walls. Life imprisonment is not only sadistically long and penologically excessive; it nourishes the shameful belief among the rest of us that people sentenced to die in prison are the incarnation of evil. For that reason a life sentence—to say nothing of a death sentence—is disintegrative.
Yet the punishments meted out to Arbery’s killers are disintegrative not simply because they are too long. They are disintegrative in another, far more important respect: the illegitimate benefit they confer upon white society.
Critics of our justice system have long pointed out that criminal trials in the United States foist responsibility onto individuals without regard to social reality. The myth is that society is blameless. The criminal trial pretends, for example, that when a poor person steals, his economic or racial marginalization is irrelevant to his guilt. But this is foolish; social immiseration influences behavior. As Taylor wrote last May in a profile of Mariame Kaba, a leading organizer in the movement for police and prison abolition: “To approach harm systemically is to imagine that, if people’s most critical needs were met, the tensions that arise from deprivation and poverty could be mitigated.” A society that systematically marginalizes so many, by contrast, will cause some of those people to commit serious crimes. Yet this extenuating reality is assiduously excluded from criminal trials, replaced by a fantasy that society is innocent.
This fantasy is equally foolish when it comes to men like those who killed Arbery. Racial violence is simultaneously perpetrated by individuals and produced by society. Just as the fact of marginalization moderates our righteous impulse to punishment, so, I think, the fact that society plays a role in perpetuating racism should moderate punitive anger directed at Bryan and the McMichaels. To be sure, these men are members of America’s dominant identity group. They benefit from white supremacy in ways that bear on their moral culpability. But our “obsession with ‘personal responsibility,’” as Taylor puts it, is ultimately distracting. The problem is not only that people make terrible, harmful choices but that a deeply unequal society—beset by stereotype and prejudice and riven by class and race divides—systematically encourages them to do so. Extreme punishment of these individuals does nothing to fix that.
In this way, condoning or endorsing such sentences colludes in the use of criminal punishment as purification ritual. In a paroxysm of righteousness, we exonerate society by permanently ridding it of evil people like Bryan and the McMichaels—a punishment precisely as disintegrative as human sacrifice. Criminals are the problem, and we solve that problem by purging them from our ranks.
Worse still, this ritual only serves the interests of wealth and whiteness. In the United States, only the wealthy and white can pretend that systemic injustice doesn’t exist. We should not be surprised, for instance, that after the verdict in the Arbery case Georgia Governor Brian Kemp tweeted his hope that everyone could now “move forward down a path of healing and reconciliation.” We know all too well where this path leads. Georgia’s legislature responded to Arbery’s murder by repealing part of the Civil War–era citizens’ arrest law invoked by his assailants. But the state did nothing to encourage a wider examination of the social structures and institutions that facilitate racist violence, much less to actually dismantle them. Instead the state established February 23 as Ahmaud Arbery Day and invited Georgians to honor Arbery’s life by jogging 2.23 miles. And no other state even repealed its citizens’ arrest statute, let alone its gun laws or its stand-your-ground self-defense statutes. In most places the law and social context is exactly the same as it was the day Arbery was murdered.
Thad Williamson has written in these pages of “the almost inevitable failure of justice.” The phrase crystallizes the immense, seemingly unwinnable challenge of restructuring our society. Last year’s countermobilizations against the specter of “critical race theory” are only the latest evidence that the efforts of reformers and radicals alike to achieve transformative change across society—from health care and housing to jobs and community safety—are so often undermined and undone by backlash.
One might be tempted to think that if systemic change isn’t forthcoming, at least we can take comfort in the knowledge that three racists will die in prison. As abolitionist lawyer and activist Derecka Purnell has observed, we tend to “measure justice based on the current system that we have.” Historian Jemar Tisby, for example, argued in January that “when full justice proves elusive . . . accountability must be pursued. Barring the death penalty, the life sentences handed down in the Arbery case are the maximum allowed; the legal system’s highest form of accountability.” All of us who are “concerned about racial justice” should welcome the sentences in this case, he concludes: “Even as the work of honoring the human dignity of all people remains unfinished, we can still acknowledge accountability is a form of the justice we seek.”
I agree wholeheartedly that accountability is an essential component of justice. But I reject the assumption that accountability should take the particular form of extreme individual punishment and lifetime incarceration. The “work of honoring the human dignity of all people” is not, in fact, advanced by disintegrative incarceration; it is properly done only through systemic change, what Purnell calls “a process where people decide to create the conditions that will help us all thrive.” Martin Luther King III may have expressed this sentiment best when he tweeted, after the verdict against Bryan and the McMichaels in state court: “Holding one person accountable doesn’t solve the systemic injustice we face—it doesn’t treat the root of hatred. People must be held accountable for their actions but the only way we have real change is through a revolution of values and the replacement of a broken justice system.”
The Sentencing Project, a nonprofit criminal justice reform organization, has long campaigned to cap all criminal sentences at twenty years. I support that effort. At one time conservatives did, too: in 1973 President Richard Nixon’s crime commission recommended that sentences for the great majority of offenses be capped at five years and that the maximum allowable sentence be twenty-five years. Far from being radical, the Sentencing Project’s proposal would restore some moderate sanity to America’s sentences. Just as essential, sentences of any reasonable length should communicate to both offenders and to society that they were, are, and will remain one of us; that the state punishes them because they have wronged but in the expectation that they can and will do right in the future; and that society will equip them with the tools to achieve that future.
No criminal sentence in the United States today meets this standard. Every day, in nearly every courtroom and every prison in the country, people are subjected to disintegrative punishments. And, cruelly, people like the men who killed Arbery tend to support these punishments and would fight tooth and nail to retain them, just as they have fought to preserve the racist structures these punishments only reinforce. But we make no inroads against all this injustice when we condone the ideology on which so much of it depends.
Joseph Margulies is Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in Geren v. Omar and Munaf v. Geren (2008), involving detentions at Camp Cropper in Iraq. His books include Guantánamo and the Abuse of Presidential Power and What Changed When Everything Changed: 9/11 and the Making of National Identity.
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