11/11/2009 05:12 am ET | Updated May 25, 2011

Punishing September 11 Culprits: Some Inmates Weigh In

Shouldn't a victim of crime have some say in how his or her attacker is dealt with? What's so wrong with retributive justice? Isn't it possible that there might be just a bit less crime if victims (or their family members) were given the opportunity to decide the fate of, say, an attacker or assailant?

I posed these provocatives to the inmates at a correctional facility where I've taught English Composition, Public Speaking, and Political Science (American government) as part of a community college outreach program.

On reflection, their responses were not at all surprising:

As to whether victims or victims' families should be permitted to determine penalty and punishment, the answer was "No" -- a polite, thoughtful, but nevertheless adamant "No."

As to retributive justice, the response was that there is lots wrong with condoning retribution by those who were still grieving -- and those who were understandably angry and emotional.

As to whether such a provision would serve as a deterrent, the response was "Not Likely."

Understandable: A number of the inmate-students believe they were falsely accused or over-accused; were unfairly charged, maliciously prosecuted, and excessively sentenced. But, in fact, by their own ready admission, many are doing time as a result of bad judgment (being with just the wrong people at just the wrong time) or as a result of bad habits (carrying a weapon while under the influence) or as a result of bad temper (allowing oneself to be provoked and being unable to exercise some crucial self-control at a critical moment). Many are in for dealing drugs. A few are in for dealing physical (and in a few instances lethal) retribution. They've had experience with retribution, and the notion of making something akin to revenge part of an already-distrusted criminal justice system didn't sit well with them. So I tried a different tack -- I posed the following:

If a Guantanamo detainee is found to have been involved in planning, provisioning, or otherwise promoting the September 11 attacks -- if he, in any way, aided and abetted those attacks -- would you advocate for a law that would allow those who lost loved ones in the September 11 attacks to decide that detainee's penalty and punishment?

The inmate-students responded with philosophic (and perhaps pragmatic, self-serving) consistency: The vast majority of the inmates (36 out of 41) were opposed to having grieving family members decide the fate of a perpetrator, even one as venal and heartless as a September 11 conspirator. A particularly intelligent and well-read inmate (serving a 25-year term for involuntary manslaughter) wrote, "As a nation, we cannot allow ourselves to be seen as a country of vigilantes."

While the idea of complete unalloyed unfettered unrestrained uncontrolled retributive justice was off the table, I wondered if victims and their families shouldn't have a bit more input: Should they be permitted to propose a list of punishment options from which the sentencing judge would be obliged to choose? Or, might the sentencing judge propose a list of options from which victims or their families would be allowed to choose?

My analogy to the screening-and-voting process used by "American Idol," "Dancing with the Stars," and other audience-response talent competitions prompted quizzical looks, hesitant smiles, and cautious nodding. I was asked: Who would screen and formulate the list of contending punishment proposals? Would there be a weekly vote to eliminate the least popular punishment proposal? Who would be voting to select the "winner" and could the voting be unduly influenced?

To make the point, I conferred with several inmates and then compiled the following list of punishment possibilities applicable to any Guantanamo detainee (or subsequent prisoner) who is found to have been involved in planning, provisioning, aiding, abetting or otherwise promoting the September 11 attacks:

• Life imprisonment in a super-max U. S. prison, in solitary confinement -- with no chance for release. Some inmates suggested that this lifer be subjected to music that he would find distasteful as well as other unpleasant aural incursions.

• Deportation to his home country on the assurance that he would be subject to the punishment that that country's laws would impose in such circumstances.

• Mandatory service in Iraq or Afghanistan, where he would have to walk alongside convoys that have been targeted with roadside bombs;
he would be obliged to assist in detecting and defusing improvised explosive devices.

• Service as a forward sapper, whose job it is to detect, clear, and remove land mines in war-torn parts of the world.

• Incarceration in a prison located just outside a U. S. military base or embassy, at a perimeter that has been vulnerable to attack from suicide bombers.

• Set afloat on a very very remote glacier or ice-flow, in sub-zero conditions, with food and clothing that he would find abhorrent -- that he normally wouldn't eat or wear.

• Imprisonment in a secure lab where he would serve as a human "lab rat" subjected to any and all manner of bacteria, viruses, and/or toxins in the interests of medical and public-health science.

• Imprisonment in a secure lab where his only food would be items that are being tested for contamination, such as salmonella or E-coli bacteria; or where he would be the subject of research into exposure to certain levels of radiation and radioactive material.

• Imprisonment in a secure lab where researchers would study the effects of experimental drugs and treatments after he had been exposed to
o Tuberculosis
o the AIDS virus
o Cancer
o the H1N1 virus

While two inmates ventured proposals that were still more ghoulish (preceded by unapologetic torture), and while some voted for outright execution, the majority favored a punishment that would yield some benefit to medical science and the public -- as part of a life sentence. I wondered if victims' families might want to see a video of the punishment, but the overriding sentiment was that this would demean the process, even though documented corroboration might prove satisfying to some.

As to whether the Eighth Amendment's bar to "cruel and unusual punishment" should apply, the inmate-students were divided. They all agreed, however, that the September 11 attacks were mightily unusual and undeniably cruel.

One quipped:

"___ , jes drop 'em off in the meanest part of my hood, dressed in the wrong gang colors."

A reserved inmate, who carries his muscle mass lightly, broke his reticence and offered this:

"All of us got hurt by the attacks of September 11, even those of us in prison. Especially those of us who are Muslims. So maybe the punishment should be [exacting] and, somehow, should help reduce
future grief situations. Somehow."