REGARDING THE OTHER DEATH PENALTY

Introduction

In his compelling new book, Invisible Atrocities, Professor Randle DeFalco explores the function of the aesthetics of violence in international law. 1 1 Randle C. DeFalco, Invisible Atrocities (2022). ... Close In particular, he questions international law’s preference for sanctioning spectacular demonstrations of violence rather than more banal, bureaucratic actions that cause massive scales of suffering and misery. 2 2 Id. at 249. ... Close The book resonated with us because we’ve seen the same dynamic at work in U.S. criminal law with respect to society’s views on two forms of the death penalty: capital punishment and life without parole (LWOP).

Two of us, Kempis Songster and Terrell Carter (affectionately known as Ghani and Rell), intimately understand the invisibility of the harm DeFalco describes. Our sentence—a sentence of life without parole—was sold by the anti–death penalty movement as the more humane alternative to capital punishment. 3 3 See, e.g., Note, A Matter of Life and Death: The Effect of Life-Without-Parole Statutes on Capital Punishment, 119 Harv. L. Rev. 1838, 1838 (2006) (“Abolitionists have blitzed both legislatures and the media with pleas to adopt life-without-parole statutes in order to reduce executions . . . arguing that ‘[t]he sentence of life without parole is a stronger, fairer, and more reliable punishment.’” (second alteration in original) (footnote omitted) (quoting The Death Penalty: Questions and Answers, New Jerseyans for Alts. to Death Penalty, https://web.archive.org/web/20060716161349/http://www.njadp.org/
gdabout&what=faqs (on file with the Columbia Law Review) (last visited July 16, 2006))). ... Close Yet, since our miserable state of existence serving life without parole tainted a word so full as “life,” we believe that this sentence “is more aptly called death by incarceration” (DBI). 4 4 Terrell Carter, Rachel López & Kempis Songster, Redeeming Justice, 116 Nw. U. L. Rev. 315, 318 (2021). ... Close Taking inspiration from DeFalco’s book, we aim to bring visibility to the slow but fatal violence of death by incarceration.

I. The Invisibility of Death by Incarceration

DeFalco’s book spoke to us because, like other visible atrocities he describes, the death penalty is a horrific spectacle of violence. 5 5 See, e.g., The Case Against the Death Penalty, ACLU (Dec. 11, 2012), https://www.aclu.org/other/case-against-death-penalty [https://perma.cc/FD3M-5H2R] (documenting the barbarity of execution forms used to effectuate the death penalty, including the ostensibly “humane” lethal injection, for which “there is ‘substantial and uncontroverted evidence . . . that [it] poses a serious risk of cruel, protracted death’” (first alteration in original) (quoting Chaney v. Heckler, 718 F.2d 1174, 1191 (D.C. Cir. 1983))). ... Close Its harms are obvious to observers, who have a visceral reaction to its execution. 6 6 Chiara Eisner, Carrying Out Executions Took a Secret Toll on Workers—Then Changed Their Politics, NPR (Nov. 16, 2022), https://www.npr.org/2022/11/16/1136796857/death-penalty-executions-prison [https://perma.cc/DMV6-LCBP] (“Most of the workers NPR interviewed reported suffering serious mental and physical repercussions.”). ... Close By contrast, the violence of death by incarceration extends over an extremely long period of time 7 7 See Sentencing Project, Nothing but Time: Elderly Americans Serving Life Without Parole 8–10 (2022), https://www.sentencingproject.org/app/uploads/2022/10/Nothing-But-Time-Elderly-Americans-Serving-Life-Without-Parole.pdf [https://perma.cc/CA4E-9DUJ] (“Prisons are a particularly hazardous place to grow old. The carceral system is largely unprepared to handle the medical, social, physical, and mental health needs for older people in prison.”). ... Close and remains largely unseen because prisons are often in remote locations and visitation is limited. 8 8 See Sonya R. Porter, John L. Voorheis & William Sabol, Correctional Facility and Inmate Locations: Urban and Rural Status Patterns 12 (Ctr. for Admin. Recs. Rsch. & Applications, Working Paper No. 2017-08, 2017), https://www.census.gov/content/dam/Census/library/working-papers/2017/adrm/carra-wp-2017-08.pdf [https://perma.cc/J7X7-QQ2N] (finding that correctional facilities are disproportionately in rural areas, while a disproportionate share of prisoners are from urban areas). ... Close They are hidden harms.

The role that the global anti-death penalty and human rights movements played in painting LWOP as more humane than capital punishment is often not discussed. 9 9 See Christopher Seeds, Death by Prison: The Emergence of Life Without Parole and Perpetual Confinement 4 (2022) (“Support for life without parole among members of the anti–death penalty movement and capital defense bar inspired greater use of the sentence while simultaneously curbing left-wing opposition.”); Dirk van Zyl Smit, Taking Life Imprisonment Seriously in National and International Law 56–57 (2002) (explaining how “many abolitionists have adopted a conscious strategy of supporting life without parole and other harsh crime-control measures as a deliberate way of neutralising claims that abolitionists are ‘soft on crime’”). ... Close The abolitionist focus on the barbarity of the death penalty rendered the harms of LWOP largely “invisible” as a site of concern for human rights activists. This strategy was “remarkably successful.” 10 10 Note, supra note 3, at 1838–39 (“The result has been a strange pairing of death penalty abolitionists with pro-incarceration activists and legislators, joining to push life-without-parole statutes through state legislatures. Working together, they have been remarkably successful.”). ... Close So, while the death penalty was abolished or declined in most states, LWOP ballooned to a level unparalleled in human history. 11 11 Charles J. Ogletree, Jr. & Austin Sarat, Introduction: Lives on the Line: From Capital Punishment to Life Without Parole, in Life Without Parole: America’s New Death Penalty? 1, 6 (Charles J. Ogletree, Jr. & Austin Sarat eds., 2012) (“[F]rom 1992 to 2003, the number of prisoners incarcerated for life without parole jumped from 12,453 to 33,633. Over the same period, the number of Americans on death row increased from 2575 to 3374. . . . [W]hile the death row population grew by 31%, the [LWOP] population . . . grew 170%.” (internal quotation marks omitted) (quoting Note, supra note 3, at 1852)). For more recent statistics comparing LWOP to death sentences, see Professor Christopher Seeds’s analysis showing that 55,945 people in the United States were serving LWOP sentences in 2020, whereas fewer than one hundred people were sentenced to death in 2019. Seeds, supra note 9, at 5–6 figs.4 & 5; see also id. at 4 (“Over the past decade, US states have abolished the death penalty at regular clip, and in each instance life without parole has been inserted in its place.”). In fact, many of the most prominent early thinkers on criminology, like Cesare Beccaria, John Stuart Mill, and William Tallack, considered a life sentence to be harsher than a death sentence. For instance, Tallack came to understand life sentences without the possibility of release to be cruel and unusual punishment and recommended that the maximum sentence for any criminal offense be a twenty-year term of imprisonment. See Craig S. Lerner, Life Without Parole as a Conflicted Punishment, 48 Wake Forest L. Rev. 1101, 1107–10 (2013). ... Close

With the death-penalty-abolitionist movement’s success, not only did the use of LWOP grow—the nature of the sentence changed as well. 12 12 See Seeds, supra note 9, at 6 (overviewing how LWOP sentences changed over time in a way that minimized the possibility of release); van Zyl Smit, supra note 9, at 57–58 (recounting various arguments abolitionists made supporting LWOP, including that it allowed “little chance of release”); Note, supra note 3, at 1839 (“Life in prison has never really meant life in prison—at least not for the last century.”). ... Close To assuage the public, advocates explained that it was not necessary to execute those who committed murder—we could perpetually incarcerate them instead. 13 13 See Seeds, supra note 9, at 71–87 (recounting how LWOP sentencing evolved as a substitute and complement to the death penalty following the invalidation of many death penalty statutes by the Supreme Court). ... Close It was this concurrence of the anti–death penalty movement with the age of tough-on-crime laws of the 1990s that trans-formed life sentences into death by incarceration, which, unlike the life sentences of the past, provided no prospect of release. 14 14 Id. at 6. ... Close

Those serving LWOP sentences were confounded by the anti–death penalty movement’s role in their condemnation and suffering. As Ghani explains:

One of the most challenging phenomena in the landscape of the struggle to end life sentences is that some of the strongest advocates of life sentences were opponents of the death penalty. They argued to the world that LWOP is a more “humane” and “less expensive” alternative to the death penalty.

We saw the opponents of the death penalty as our allies. We rooted for them to be victorious, because the death penalty is wrong. But we believed that they could win the moral, philosophical, and legal battle against the death penalty without throwing people condemned to life without parole under the bus. So why would they do that to us? Are we not just as condemned to die in prison as people sentenced to death row? Is not death the aim of both sentences? Do opponents of the death penalty not care that “life” sentences are just as final and fatal as death sentences?

To Ghani’s questions, DeFalco’s book provides at least a partial answer. DeFalco traces a reticence to understanding forms of harm that are “slow, attritive, or otherwise appear banal in nature as human rights violations.” 15 15 DeFalco, supra note 1, at 53. ... Close As DeFalco outlines, when we think of atrocious acts, we expect them to be visually horrifying, outrageous, and “utterly revolting.” 16 16 Id. at 41 (internal quotation marks omitted) (quoting Atrocious, Oxford English Dictionary (3d ed. 2023)). ... Close To use the words of international criminal law, they must “shock the conscience.” 17 17 Rome Statute of the International Criminal Court pmbl., opened for signature July 7, 1998, 2187 U.N.T.S. 3. ... Close

Viewed under this light, the aesthetics of suffering death by injection delivers, lingering in the corners of our minds. 18 18 See Eisner, supra note 6 (describing the emotional effects on carceral-system employees of witnessing and assisting in lethal injections). ... Close Unlike the invisible atrocities depicted in DeFalco’s book, onlookers are horrified to hear the stories or see the images of capital punishment that “assault their eyes.” 19 19 DeFalco, supra note 1, at 204 (internal quotation marks omitted); see also William W. Berry III, Life-With-Hope Sentencing: The Argument for Replacing Life-Without-Parole Sentences With Presumptive Life Sentences, 76 Ohio St. L.J. 1051, 1061–62 (2015) (“[M]odern executions have become secret, medical procedures that occur in the middle of the night away from public sight. . . . [T]his shift reflects the growing queasiness and uncertainty Americans have about the idea of the state executing criminals.” (footnote omitted) (citing David Garland, Peculiar Institution: America’s Death Penalty in an Age of Abolition 52 (2010))). ... Close In line with what DeFalco describes, there is a “discomfort factor” at work. 20 20 DeFalco, supra note 1, at 203–04. ... Close An uncharitable view would be that their opposition to the death penalty is more about them than those of us who suffer the worst harms of the carceral system. 21 21 Berry, supra note 19, at 1061 (“LWOP sentences thus increasingly allowed jurors skeptical of the death penalty to have a clean conscience in not having chosen execution.”). ... Close But the truth is that our sentence was difficult for even us to comprehend. Like other invisible atrocities, such sentences are a slow burn, with their true essence only revealing itself over time.

Even Rell describes how, as a young man sentenced to death by incarceration, he too struggled to comprehend the finality and fatality of the sentence:

It was an ironic existence: a man convicted of causing someone death, who was condemned to die in prison, but could not conceptualize what death was. My youth blinded me to that part of reality. I was stuck, trapped in this superficial understanding, far removed from its impact. My younger brother was murdered at the age of twenty-three. A few years later my father died suddenly. And with time, all my grandparents passed on too. But time, space, and circumstance removed me from fully understanding these losses. I found myself existing in a plane of detachment. Time and space created a distance that made my loved ones feel like strangers to me; circumstances facilitated this feeling because I felt forced to tuck away my vulnerabilities, which effectively arrested my capacity to grieve. I became a shell of my emotional self as I marinated in this plane of existence for decades.

Rell would not come to fully understand the nature of his death-by-incarceration sentence until much later—when his friend got sick.

If those of us sentenced to life without parole could not fully understand the reality of the sentence, then how could we expect others to do so? We thus settled on the belief that their reliance on life sentences as the way out of death sentences was not born from not caring but from not knowing. We believe they just did not perceive the finality and fatality of life sentences as equal to those of the death penalty. And it is not just prominent death penalty abolitionists who approve of LWOP sentences. We began to learn that most Americans do too. 22 22 van Zyl Smit, supra note 9, at 56; Brenda Vogel, Support for Life in Prison Without the Possibility of Parole Among Death Penalty Proponents, 27 Am. J. Crim. Just. 263, 271 (2003); see also Ogletree & Sarat, supra note 11, at 3 (describing how a recent poll found that seventy percent of Californians favored the death penalty but when offered LWOP as an alternative only forty-one percent favored it for first-degree murder). ... Close

We and others like us in the movement to end death by incarceration realized that society would remain forever blind to our suffering unless we provided them a window into our existence of being condemned to die in prison. Through this review of DeFalco’s book, we aim to reveal the true nature of LWOP sentencing, explaining why we experienced it as no more humane than a death sentence. Indeed, for many we know, it was a death sentence—one from which two of us narrowly escaped. As Rell describes it:

A[n] [LWOP sentence] in the state of Pennsylvania means you get out of prison in a pine wood box; there is no parole, no second chances. You only get out of prison when you die.

II. The Harm of Death by Incarceration

Those sentenced to death by incarceration experience the double-edged sword of the U.S. carceral state. On one hand, they often do not have access to the same medical care and programming as prisoners who have opportunities for release. 23 23 Seeds, supra note 9, at 2; Rachel López, The Unusual Cruelty of Nursing Homes Behind Bars, 32 Fed. Sent’g Rep. 264, 268 (2020). ... Close On the other, they do not have the same constitutional protections guaranteed to those sentenced to capital punishment, such as heightened due process, automatic proportionality review, and bifurcated individualized sentencing. 24 24 Seeds, supra note 9, at 2. ... Close

The result is a languishing that is hard to describe if you don’t see it with your own eyes. Ghani explains:

If only people had witnessed what we were witnessing at [the State Correctional Institution, commonly known as] SCI Graterford—almost every week someone being wheeled off the cell blocks on gurneys, never to return. People who I had grown up with, worked out with, prayed with, studied with—people who mentored me—losing the battle to hold on to their life force behind the walls. While the last execution in Pennsylvania was in 1999, people serving “life” sentences were dying regularly. Just at Graterford, which was only one prison among the state’s twenty-eight at the time, over one hundred people died during the thirteen years I was confined there. A large percentage of those deaths were people serving “life” sentences. It could be argued then that “life” sentences have been more fatal than death sentences, at least in Pennsylvania.

What these numbers alone cannot convey is how death by incarceration has become standardized—“a matter of routine.” 25 25 Id. at 3, 7 (emphasis omitted). ... Close Once a practice that was met with skepticism, at times even with staunch opposition, it has now become widely accepted. 26 26 Id. at 7. ... Close Even as the political will to end mass incarceration grows, LWOP sentencing has not let up. 27 27 Id. ... Close In its current instantiation, what characterizes the bloat of LWOP sentencing is not “toughness” on crime—that instinct has faded—but complacency and disregard. 28 28 Id. at 9. ... Close The invisibility of the sentence, along with its banality, allows us to forget those locked away in rural prisons across the United States.

Rell explains the realities of his DBI sentence like this:

It was dark, always dark, the only light a pale glow flickering off the walls emanating from the forty-inch TV mounted on the wall. Then there was the smell, a pungent stench of decay and disease, always there, not overpowering but just enough to stay with you always. An extremely lonely place filled with a fear and an expectation of being alone forever. I had been a hospice volunteer for a few years at this point, called to duty to serve my brothers in need. Our numbers had grown over the years from a handful to over a couple dozen, which was good because it gave us time to decompress. We were guardians against fear, ushers to the unknown. It was a difficult post because it called for us to provide comfort to people we knew and loved who were making a transition from this life to whatever lies beyond. I had no way of knowing at the time I signed up for this program that it would allow an opening out of the unemotional plane that I had been hiding in. But it would still take a little time for me to totally extradite myself from its sphere.

Being a hospice volunteer in the bowels of the beast exposed me to human frailty laid bare by disease. I had to sit by while the people I loved slowly began to break down, their physical and mental selves withering away to nothing. But even after being witness to all of this, I still couldn’t quite remove myself from my plane of detachment. I could not allow myself to be completely vulnerable, because to do so would shine a light on how wretched and hopeless a death-by-incarceration existence is. But then Art got sick.

Art, my brother, my friend, my oldhead, a man who watched me grow up in the penitentiary, a man who like myself was condemned to a sentence of death by incarceration. A man who, despite his condemnation and a terminal illness, found in himself enough compassion that he maintained his service as an usher to the unknown until it was physically impossible for him to continue.

I didn’t notice the weight loss myself, at least not at first. I only noticed it after people kept commenting on how good he looked because of it. Little did we know that the barely noticeable would quickly turn drastic and that it was a precursor to something deadly. It took a couple months before he knew that he had terminal cancer of the liver and that he only had a few months left to live. Art put on a brave face when he told us the news—he even told a few jokes, but we were devastated that now one of the ushers would be ushered. When Art revealed to us that he was sick, it was different. I had sat with a lot of men, each of them taking a piece of me with them, but Art was like an older brother; he slept next door to me; he gave me advice and food to eat when I was hungry. To watch him wither away, to witness the light die in his eyes as he fulfilled the promise of his condemnation killed my hope and allowed the voice of despair to gain a foothold in my consciousness. It was also the thing that dissipated that unemotional plane of existence that I had been living in.

Nobody wants to die alone. There is a palatable fear that exists when a human being knows that the end is near and there is no one there to see them through. I’ve held hands, I’ve sang songs, I’ve sat quietly, my presence just enough to provide a little solace. But what happens when there is no one, what happens when human beings are alone, hidden in dark rooms that smell of rot and death, knowing that they are going to die and the only people around are strangers who don’t care.

Prisons are not places for the elderly. Even the federal government acknowledges that most of its facilities are ill-equipped to meet elderly inmates’ basic health, emotional, psychological, and physical needs. 29 29 López, supra note 23, at 268; see also Jalila Jefferson-Bullock, Quelling the Silver Tsunami: Compassionate Release of Elderly Offenders, 79 Ohio St. L.J. 937, 977 (2018). ... Close Partly for this reason, research suggests that incarcerated people “age at a rate of five-to-10 years faster than their chronological age.” 30 30 John E. Wetzel & Michael L. Green, Pa. Dep’t of Corr. & Rehab., FY 2016/2017 Budget Request 8 (2016), https://www.cor.pa.gov/About%20Us/Statistics/Documents/Budget%20Documents/Budget%20Testimony%202016-17.pdf [https://perma.cc/8JAN-5RYJ]. ... Close Due to this process of “accelerated aging,” the health of a fifty-year-old person in prison is similar to that of a sixty-five-year-old person on the outside. 31 31 Stephanie C. Yarnell, Paul D. Kirwin & Howard V. Zonana, Geriatrics and the Legal System, 45 J. Am. Acad. Psychiatry & L. 208, 208 (2017). ... Close For this reason, incarcerated people fifty-five years old and older are often considered geriatric. 32 32 Brie A. Williams, Karla Lindquist, Rebecca L. Sudore, Heidi M. Strupp, Donna J. Willmott & Louise C. Walter, Being Old and Doing Time: Functional Impairment and Adverse Experiences of Geriatric Female Prisoners, 54 J. Am. Geriatrics Soc’y 702, 708 (2006). ... Close In addition, those who have no hope of release fare much worse than other incarcerated people serving lengthy sentences. A recent study found that “those with life sentences are more likely to experience functional impairment, depressive symptoms, and suicidal ideation as compared with those who are expected to be released.” 33 33 Amanda Li, Brie Williams & Lisa C. Barry, Mental and Physical Health of Older Incarcerated Persons Who Have Aged in Place in Prison, 41 J. Applied Gerontology 1101, 1108 (2021). ... Close Much like other invisible atrocities described by DeFalco, death by incarceration manifests as a “slow process of annihilation that reflects the unfolding phenomenon of mass murder . . . rather than the immediate unleashing of violence and death.” 34 34 DeFalco, supra note 1, at 106 (alteration in original) (internal quotation marks omitted) (quoting Sheri P. Rosenburg & Everita Silina, Genocide by Attrition: Silent and Efficient, in Genocide Matters: Ongoing Issues and Emerging Perspectives 106, 107 (Joyce Apsel & Ernesto Verdeja eds., 2013)). ... Close Incarceration kills, not all at once, but steadily over time.

III. Giving New Meaning to Life

The right to life in human rights law, too, is frequently understood as the absence of death, but that can’t be all there is to life. Perhaps what is missing in all of this—in this analysis of whether harm is invisible or seen—is a more complete understanding of what life is. This was the realization that Ghani and Rell came to:

As we came to terms with the reality of our sentence, we began searching for explanations for why others could not. Why were our friends who were fighting to end the death penalty perceiving life sentences as more humane? A word continued to throb in our conversations like a collective toothache: “life.” The word for the most beautiful phenomenon, from which everything that matters to human beings flows: life. How could a word like “life” be used to name a sentence so associated with death? We reasoned that perhaps the way we (and society at large) talk[ed] about the sentence we [had been] condemned to may [have] be[en] shaping the way we were thinking about it, and vice versa. To appropriately describe a penalty such as we [had been] condemned to, the word “life” was too innocuous—if not all-out misleading. So, we realized we would have to use language that conveyed the gravity of the sentence. That’s when we started referring to our legally codified condemnation as “death by incarceration.”

We then asked ourselves what is needed to fully realize our humanity—to live life in a way that is not just defined as the opposite of death. One answer for all three of us is the existence of hope—a belief that things can get better. There is some precedent for hope being a bedrock of human rights. For example, the European Court of Human Rights has recognized hope as a “constitutive aspect of the human person,” and has based its censure of life without parole on the lack of hope it instills. 35 35 Adriano Martufi, The Paths of Offender Rehabilitation and the European Dimension of Punishment: New Challenges for an Old Ideal?, 25 Maastricht J. Eur. & Compar. L. 672, 676 (2018); see also Vinter v. United Kingdom, App. No. 66069/09, 54 (July 9, 2013) (Power-Forde, J., concurring), https://hudoc.echr.coe.int/eng?i=001-122664 [https://perma.cc/A6BD-S68X] (“The judgment recognises, implicitly, that hope is an important and constitutive aspect of the human person.”). ... Close

Still, hope is also illusive. It is hard to conceptualize or explain. In the last days before his release from prison, as he waited for Governor Tom Wolf to sign his commutation papers, Rell explained his compli-cated relationship with hope like this:

Hope can be a strange thing in the penitentiary, especially if you’ve been condemned to die there. It can be two things existing in the same space and time. It is the audaciousness of struggle when your circumstance is completely despondent—it is that shining light in the midst of darkness that guides you with purpose, but at the same time it can be the thing that you fear the most.

For thirty years, I’ve remained hopeful—hopeful that if I continued to do the things that have allowed my transformation, then one day I’d have an opportunity to live outside of prison. There is this persistent thought, though, that lurks at the edge of my awareness. It is a constant whisper, “Terrell, give up. What are you fighting for, you’ll never get out of prison. This is the place where you die.”

Hope is what keeps these thoughts from overwhelming me. It is what keeps me from falling into a black hole of despair.

Hope found Rachel again when Rell, who was being represented by her clinic at the time, received a unanimous vote from the Board of Pardon:

I remember feeling an inexplicable ache when I talked to Rell’s family before his release. They were so sure that he was coming home. Having seen so many deserving of a second chance at life on the outside denied, and knowing the odds that he would get through to the other side, I worried their hope would only heighten their despair. I didn’t want to extinguish hope, but it felt risky to raise hope too high. The day the Board of Pardons voted on Rell’s case, I was surrounded by my students and the community members on the outside who supported his release. When the vote came down, we all embraced. Grown men and women cried. Others stood shocked in disbelief. I remember someone saying, “She’s shaking,” and realizing they were talking about me. Everything I had been holding back just came out all at once. One of my students looked at me and said, “It feels like anything is possible now.” Somewhere along the way I had lost that feeling, but I am trying to hold onto it again.

For Ghani, hope came in the form of catalyzing a movement to challenge death-by-incarceration sentences:

On June 6, 2015, we launched a coalition made up of grassroots organizations to take the fight to end LWOP to a whol­e new level. We called ourselves the Coalition to Abolish Death by Incarceration (CADBI). The campaign for second-chance legislation has grown considerably ever since. Now, opponents of DBI head out annually from Philadelphia in a convoy of four full charter buses to meet up with caravans and convoys of people coming from Pittsburgh, Reading, Allentown, Delaware County, Chester County, Lancaster County, and other parts of the state to converge at the state capitol to demand an end to death by incarceration.

Each of us has found hope in our own way, giving us new meaning to life. In making our search for hope more visible, we want to start a process of defining life as something more than the absence of death. We, as a human species, and as human rights advocates, are so drawn to the horrors, building entire legal systems around them. What we propose here is that, instead, we start to build them prospectively around what makes human life flourish.

So this is where we depart from DeFalco. Our vision for the future of law is one less centered on making invisible atrocities visible by punishing them but rather by building legal systems around protecting the potential that human life holds—maybe that’s the best way to prevent all atrocity, visible or invisible.