Smith, David Livingstone. Less than Human: Why We Demean, Enslave, and Exterminate Others. New York: St. Martin’s Press, 2011. 326 pages. ISBN: 9780312532727.
Humanizing our client in the eyes of factfinders is the primary goal of mitigation.1 In part, mitigation is showing that the client possesses vulnerabilities and susceptibilities to biological, social, and psychological influences, which may have had some effect during the alleged crime.2 But also, it is presenting our client’s strengths, capabilities, and potentials so that the jury or judge realizes that our client’s life continues to have value. In light of this understanding, is there some overarching mindset that may help guide us as we collect, sort, choose, and present this information so that we can effectively humanize?
Indeed there is. To better help ourselves in reaching the goal of humanization, defense team members must consider David Livingstone Smith’s antithetical study, Less than Human: Why We Demean, Enslave, and Exterminate Others. By first internalizing the theories, practices, and effects of dehumanization from this illuminative book, we can instill the proper compass within us, which will guide us to our primary goal. Furthermore, Smith’s book can help us reconsider the dynamics of the courtroom, guard against the rhetoric of argument, and better understand factfinders.
Smith relies on a basic postulate: Unless one is a sociopath, a psychologically disturbed person devoid of moral empathy and feeling, a human being has a robust inhibition to killing other human beings and even has difficulty treating other human beings inhumanely.3 However, dehumanization provides dehumanizers with a psychological lubricant to strip away others’ humanity, acts as permission to imagine these others as sub-human and even animal-like, and empowers the dehumanizers to perform acts against these others that would, under other circumstances, be unthinkable—like violence, slavery, and extermination. Dehumanization is common practice that transcends geography, culture, and ethnicities. “If you still believe that you are the exception, and are immune from these forces,” Smith declares, “I hope that by the end of this book you will have embraced a more realistic assessment of your capacity for evil.”4
Next, Smith surveys the theoretical works of philosophers, scholars, and behavioral scientists and the historical experiences of warfare, colonialism, slavery, and genocides, and he builds a theoretical model of the dehumanization process. Dehumanization is not mere name-calling; it is a way of thinking. Humans have developed an intellectual and spontaneous penchant to compare, sort, and categorize their world. They become dehumanizers when (1) they employ their folk-based knowledge (note: not scientific knowledge) to parse the biological world into natural kinds (species) and then make inferences about these kinds; (2) similarly, they use their folk-based knowledge to categorize people into natural kinds (sub-populations based on ethno-races) and then make inferences about these kinds; (3) they reflect on where they, themselves, fit in relation to these natural kinds they have made; (4) they imagine that natural kinds are distinguishable because their members share common essences that are passed down through the bloodline of parents to children; (5) and they rate the value of these natural kinds into a hierarchy of intrinsic worth known as “the great chain of being,” with human beings located on top.
From this process, dehumanizers target and summarily deal with those sub-populations of ethno-races that are most radically different and alien from themselves. Dehumanizers attribute non-human essences of the species to these others, likening the others to those species further down the great chain of being, pushing them further away from their own selves, aligning them with the less appealing on the hierarchy—most often with creatures that are unclean, dangerous, predatory, or prey—and making them sub-humans.
This twisted logic leads dehumanizers to rationalize how best to handle the sub-humans. They manage the dehumanized just as they would manage lower biological species to which the dehumanized share similar essences. Therefore, if slaves are like beasts of burden, then we must chain them, brand them, and whip them; if an ethnic minority is imagined to be a microbial disease, then we must avoid it, contain it, and eradicate it; if radicals are viewed as predatory animals, then we must protect ourselves against them, round them up, and kill them in self-defense; if our battle enemies are likened to prey, then we must hunt them as objects of sport, capture them, and display them or their body parts as trophies.
Critical to Smith’s work are the concepts of race, essences, and quasi-humans. Race and dehumanization are always bound together because race separates and categorizes human beings in the eyes of the dehumanizers and begins the slippery slope toward dehumanization. “The notion of race,” Smith warns, “is sometimes indistinguishable from notions of ethnicity, nationality, or even religious or political affiliation.”5 Despite the fact that racial categories seem to make empirical sense, are compelling, and find support from ideology, culture, and politics, there is no biological basis to support the categorization of human beings into racial categories. Racial categories lose further credence when considering how people can move in and out of such categories based on sociopolitical views and needs of the times. For examples, in early 20th-century America, dominant white ideology eschewed Jews, Irish, Slavs, Arabs, and Italians as non-white and considered them as posing serious threats to white hegemony. Eventually, however, they were incorporated into the white racial category and provided access to American citizenship.
A central inquiry in the book is this: How can we look at a person standing right in front of us and fool ourselves into seeing him as something other than human? This can happen because we believe that natural kinds (things we believe to naturally belong together) possess “essences,” or inner properties, that make them the kind of beings they are, and that are not always reflected in the way they look. We can think of these essences as souls, spirits, or distinctive genetic signatures within natural kinds; we judge them as good, benign, dangerous, or evil; and we imagine these essences as running through bloodstreams, imbued through the breast milk of their mothers, or prescribed within their DNAs.
We intuitively believe that essences run so deep that they are permanent conditions, which may at times lie dormant but still remain inside the kinds. Since we have a natural tendency to think that there are essence-based natural kinds, people who lack or are denied human essence become quasi-humans or counterfeit humans: creatures that look like people, but are not human inside. Since essence trumps appearance when we judge, we see these people as less than human and inimical to humanity. Without that human essence, a person is human only in form, and he cannot be considered a member of humanity. Hence, to dehumanize a person is also to deny him his human essence.
Think of Nazi propaganda against the Jews as just one example of how dehumanizers speciate, racialize, and deny human essence within others. Nazi ideology sorted people into racial categories (Jews, Slavs, Gypsies) and reflected on its own people as belonging to a separate category (Aryan). The Nazis imagined that the members of these natural kinds shared a common essence of predictable and immutable traits, behaviors, and appearances, which were radically different from their own, and passed such essences through the bloodlines of parents to children. And the Nazis believed that they could place these natural kinds onto a hierarchy of utility, desirability, and righteousness—assigning themselves on top.
In its notorious 1940 film, Der Ewige Jude (The Eternal Jew), the Reich Ministry of Public Enlightenment and Propaganda argued the connection between the Jewish race and rats, and helped lubricate the unthinkable: Just as one must exterminate rats, one must exterminate Europe’s Jewish populations. Smith quotes an SS expert as saying, “One does not hunt rats with a revolver, but with poison and gas.”6 In the film, a swarm of rats appears on screen, emerging from sewers, infesting bags of grain, and scampering around corners. Closely following these scenes are scenes of Jewish people in the streets of Lodz. Meanwhile, the narrator explains:
Wherever rats appear they bring ruin, by destroying mankind’s goods and foodstuffs. In this way, they spread disease, plague, leprosy, typhoid fever, cholera, dysentery, and so on. They are cunning, cowardly and cruel, and are found mostly in large packs. Among the animals, they represent the rudiment of an insidious and underground destruction, just like the Jews among human beings.7
However, Nazi propaganda is just one of many dehumanization examples in Smith’s book. Smith also looks at how dehumanization played a role in the violence, slavery, and extermination of indigenous peoples by the Spanish conquerors, of Native Americans by the American colonists and westward expansionists, of Africans by European slavers, of ethnic Vietnamese by the Khmer Rouge, and of Tutsis by Hutus, just to name a few of his inquiries.
Smith’s theory has an important connection to mitigation. First, we must recognize that the culture and ceremony of the courtroom assists in separating out our client as a natural kind unto himself: He is not among the lawyers who have the right to speak, the judge who rules with the voice and accoutrements of state authority, the staff who administrates during the proceedings, or the jurors who separately sit together in the box and the jury room. In many ways, our client exists as different and alone. And once he is convicted for the crime and recognized as criminal, the rift between him and the rest of the courtroom becomes a chasm. We must preserve his humanity in the face of these inherent obstacles.
Second, we must protect against the prosecution’s dehumanizing rhetoric meant to seal our client’s isolation. Take, for example, the prosecutor’s arguments in the sentencing phase of the infamous case of State of Texas v. Kerry Max Cook (1978). Michael Thompson separated Kerry Max Cook, diminished Cook’s human essence, by saying he lacked a moral understanding between right and wrong, and placed him down low in the “great chain of being”:
Somewhere in his mental programming, somewhere at some point in his life, that was not programmed into him to the extent that it was programmed into each of you. In our reliance or in our dependence upon that very minimum programming that separates us from the lower family or lower portions of [the] animal kingdom, that basic distinction wherein we stop through our programming and ask ourselves is that right or wrong. That is totally absent from the mind of Kerry Max Cook.8
Then Thompson dehumanized Cook further, likening Cook to an undesirable animal:
[I] have hunting dogs myself, occasionally something happens to that animal that you have no alternative but to put them to sleep. That is a situation in this case. Kerry Max Cook has a disease, it is a sociopathic and psychopathic disease and the young man must be put to sleep.9
Finally, we can gain a certain comfort in knowing that factfinders, as human beings, should have a robust aversion to killing or harming our client—as long as they see him as another human being. Our work must recover, restore, and protect the human essence of our client. Without awareness of his human essence, factfinders can exclude our client from the universe of their moral obligation. Smith states,
Thinking of a person as a member of the same species as yourself, as sharing the same essence, automatically evokes a sense of oneness with [him]. You perceive [him] as a fellow member of the human community. By conceiving of a person in this way, you conceive of [him] as a member of your in-group and this triggers inhibitions against harming them.10
Smith points out that we can overcome dehumanization by educating dehumanizers and appealing to their feelings instead of offering them dry theoretical arguments. We need to help human beings get to know one another by telling them passionate, sentimental, and resonating stories about others so they will expand the reference of the terms “our kind of people” and “people like us.” We grant moral standing to creatures to the extent that we believe that their essence resembles our own. In other words, our aim is to expand the reference of the term human to include everyone, including our accused client.
ABA Guideline 10.7 for death penalty cases is a well-established norm giving us a direction toward humanizing. It instructs us that mitigation can include anything to militate against the appropriateness of the death penalty. Furthermore, it tells us that mitigation must at least include an investigation into the client’s history of education, employment and job training, medical treatments and diagnoses, family and social backgrounds, military service, and juvenile and adult criminal records.11 However, we must recover such history not only because this practice is the norm of our profession, but also because we want to employ it in order to restore our client’s human essence—we want the factfinders to see our client as human inside and out, and not dismiss him as quasi-human in the courtroom. And so, ploys of dressing our client in cardigan sweaters, suits, or eyeglasses to impress the factfinders become secondary vis-à-vis the priority of protecting our client’s human essence with well-researched stories, moving testimonies, and persuasive data. Through the theory and examples of dehumanization, Less Than Human teaches us that the client’s human essence must be the guiding beacon in reaching our mitigation goal.
1. The Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases cite Gary Goodpaster: “Goodpaster observed that ‘the defense advocate must establish a prima facie case for life.’ To meet ‘[t]he heavy burden of persuading the sentencer that the defendant should live,’ according to Goodpaster, ‘counsel must portray the defendant as a human being with positive qualities.’” Sean D. O’Brien, The Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, 36 Hofstra L. Rev. 693, 722 (2008)(citing Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 335–37 (1983)).
2. Craig Haney, Evolving Standards of Decency: Advancing the Nature and Logic of Capital Mitigation, 36 Hofstra L. Rev. 835, 879–81 (2008).
3. Smith shares this postulate with two other studies: Lt. Col. Dave Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society (2009), and S. L. A. Marshall, Men Against Fire (1978).
4. David Livingstone Smith, Less than Human 131 (2011).
5. Id. at 185.
6. Id. at 145.
7. Id. at 139. There was an estimated 230,000 Jewish residents in Lodz when the German troops marched into the city in September 1939. Six years later, when the Russians liberated the city, fewer than 900 were left alive.
8. Transcript of Record at 1246–47, State of Texas v. Kerry Max Cook (1978) (No. 1-177-179).
9. Id. at 1274. Cook’s jury returned with a death verdict and thus began his long and arduous journey to save his life, gain his freedom, prove his innocence, and reclaim his human status. See Kerry Max Cook, Chasing Justice (2008).
10. Smith, supra note 4 at 247.
11. Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 10.7: Investigation cmt. (2003).