Golan Levin: Welcome back to Shall Make, Shall Be. Next up, we’re pleased to be joined by Danielle Isadora Butler, whose project con­sid­ered the Eighth Amendment, exces­sive punishment. 

Danielle Isadora Butler designs expe­ri­ences, instal­la­tions, and objects that cre­ate new oppor­tu­ni­ties for emo­tion­al con­nec­tion. She has designed and pro­duced play­grounds that teach about coop­er­a­tion, multi-sensory poet­ry archives that encour­age deep lis­ten­ing, and large-scale games that con­nect par­tic­i­pants to their locales. Her skills in human-centered design extend from a back­ground that com­bines arts edu­ca­tion, cre­ative tech­nol­o­gy, and restora­tive jus­tice. Butler believes that build­ing rela­tion­ships is the key to engag­ing peo­ple in issues that feel too large or abstract to com­pre­hend. She is espe­cial­ly pas­sion­ate about improv­ing access to water and using cre­ative inter­ven­tions to deep­en New Yorkers’ rela­tion­ship to their har­bors. She’s cofounder of both the Tideland Institute and the Awesome On The Water orga­ni­za­tion, which sup­port cul­tur­al ini­tia­tives on New York waters. 

Folks, I’m pleased to wel­come Danielle Isadora Butler. Hi Danielle.

Danielle Isadora Butler: Hello!

Levin: Welcome. Take it away.

Butler: Thanks Golan. And thank you for those who are watch­ing these talks.

My name is Danielle Butler. I use she/her pro­nouns. And I’m join­ing you from the Lenape land of Brooklyn, New York. I’ll be telling you about my inter­ac­tive piece on the Eight Amendment and how I arrived at this design. I’m an artist and design­er. Most of my work is cen­tered on relationship-building. I’m specif­i­cal­ly inter­est­ed in how to cre­ate expe­ri­ences that allow us to emo­tion­al­ly con­nect to top­ics that are large and over­whelm­ing. Much of my cur­rent work is cen­tered on the water­ways of New York and build­ing cre­at­ed ecosys­tems that enable us to make a more inte­grat­ed and con­nect­ed future on the water and the sys­tems that allow our city to func­tion. I’ll tell you about a few of my past projects as a way of ori­ent­ing you to the design philoso­phies that I used in mak­ing this Eighth Amendment project. 

I believe that one of the hard­est things about engag­ing peo­ple in a large com­plex issue of puni­tive jus­tice or place in the envi­ron­ment is find­ing the right way in, find­ing a small but mean­ing­ful piece of the sto­ry to con­nect to. This piece I co-created in 2020, New York’s Most Socially Distanced Office. It uses humor, visu­al­ly telling a joke that because of our shared trau­ma we now all get. And in doing so, it is a lit­tle bit of a release valve.

In New York, there is a bound­ary around the water. We look at it but we rarely ques­tion why there aren’t more ways to get to it and on it. By putting the familiar—an office com­plete with com­put­er, desk, fil­ing cab­i­net, and water cooler—on the water, we are gen­tly break­ing a per­ceived bound­ary and sug­gest­ing that the water is a place. 

Bringing peo­ple phys­i­cal­ly onto the water takes this one step fur­ther. These are images tak­en at the Lost Island con­cert series at a place where Mussel Island once was. The island was dredged out in the 1920s to make the Newtown Creek more nav­i­ga­ble for indus­tri­al­ized uses of the canal. We held a paddle-in con­cert over that spot. A sixteen-person brass band used the decks of a his­toric tug­boat as a stage and over forty canoes and mis­cel­la­neous craft pad­dled in. The Lost Island con­cert series cel­e­brates New York Harbor while also invit­ing peo­ple to con­sid­er our com­pli­cat­ed rela­tion­ship with the water. When you arrive in your phys­i­cal body at a place that is both pol­lut­ed and teem­ing with life, you are sud­den­ly more pre­pared to engage in the com­plex­i­ties of New York’s his­to­ry and future on the water. 

Exploration and sur­prise is a device for cre­at­ing mean­ing­ful moments. When I was asked by the cre­ator of Universe in Verse, a live per­for­mance series that show­cas­es poems about sci­ence, to cre­ate a phys­i­cal archive for their record­ings, I thought about how to make an expe­ri­ence that gets you ready to lis­ten to a poem. 

I made a minia­ture nat­ur­al sci­ence col­lec­tion in a type tray and put a door inside it. It was not for every­body to dis­cov­er. But if you did, if you took a chance and pulled open a small door, your curios­i­ty would be reward­ed with a periscope up to the heav­ens and a poem pulled at ran­dom just for you. The lights would dim, a sub­tle breeze would blow, and make a moment of calm focus for you to receive your poem. 

You know that we feel some­thing is more mean­ing­ful when we dis­cov­er it or learn it for our­selves. I employed these meth­ods of phys­i­cal­i­ty, explo­ration, and find­ing a small part of the sto­ry to tell in my work for Shall Make, Shall Be. 

The Eight Amendment is the short­est of all of the amend­ments. Excessive bail shall not be required, nor exces­sive fines imposed, nor cru­el and unusu­al pun­ish­ment inflict­ed. Just six­teen words. But what does it mean? What does ​“exces­sive” mean? And why does some­thing have to be both cru­el and unusu­al for it to be unconstitutional?

Our sys­tem for hold­ing, pun­ish­ing, and killing peo­ple is large and com­plex. It harms mul­ti­tudes of peo­ple and com­mu­ni­ties, and is a place for instilled racism to play out legal­ly. It felt daunt­ing to find an entry point small and suc­cinct enough for peo­ple to engage with this top­ic, do jus­tice to the small plat­form that I have, and respect the peo­ple that were harmed by the lies that’re defined by this amend­ment, all with­in the con­text of a game. But I’ll tell you a lit­tle bit about my process. 

In the court case Trop v. Dulles in 1958, a poten­tial inter­pre­ta­tion is laid out. The Amendment must draw its mean­ing from the evolv­ing stan­dards of decen­cy that mark the progress of a matur­ing soci­ety. This bench­mark is deter­mined by courts exam­in­ing pre­vail­ing opin­ions of state leg­is­la­tures, sen­tenc­ing juries, judges, and the American pub­lic. I find this phrase deeply fas­ci­nat­ing for many rea­sons. It sug­gests an under­stand­ing and even an accep­tance that we are not oper­at­ing at our best, and that we are not as decent as we could be in the future. 

Two, words like ​“evo­lu­tion” and ​“matur­ing” sug­gest a lin­ear­i­ty to this progress. 

Three, it car­ries hope and the belief that we are evolv­ing toward some­thing better. 

And four, if the stan­dard is based on who we vote for and what we cul­tur­al­ly accept, it shifts the onus of this change away from the vagaries of intractable bureau­cra­cies and onto us, the public. 

Despite the unwieldy con­cept of mass cul­ture change, I find this empow­er­ing. I was curi­ous to know where the evo­lu­tion has tak­en us so far. I read most of the Supreme Court deci­sions that deal with Eighth Amendment cas­es. I pulled out cas­es that felt like they demon­strat­ed this evo­lu­tion­ary shift. 

In exam­in­ing them, a few things came for­ward. One, what was once nor­mal is now abhor­rent. It is astound­ing how recent­ly laws con­doned things that now seem abhor­rent. For exam­ple, when do you think we stopped exe­cut­ing chil­dren? 2005 is when in Roper v. Simmons the Court deter­mined that the major­i­ty of Americans now oppose sen­tenc­ing chil­dren to death. That seems very recent to me. 

Three, that evo­lu­tion is not lin­ear. For four years in the 1970s, the death penal­ty was uncon­sti­tu­tion­al. It was then rein­stat­ed in 1976. Another exam­ple: gen­er­al­ly laws around sen­tenc­ing chil­dren have been trend­ing away from manda­to­ry sen­tences and life with­out parole, yet just last year the Court decid­ed that it was again okay to give chil­dren life with­out parole. 

So it is this inquiry that is the con­cept behind my game. These are the con­straints that I thought would make it suc­cess­ful. I want­ed to be self-directed. I want peo­ple to be able to walk up and be able to play with­out any instruc­tion. I need it to be respect­ful to those harmed by the puni­tive sys­tem. I did­n’t want to make a game that made light of bona fide prison or sen­tenc­ing. I want­ed any con­clu­sions to be arrived at by the user and not pro­scribed by the piece. 

Justice is so often envi­sioned by the metaphor of scales and bal­ance. I’m mak­ing a gim­baled mar­ble labyrinth. The gim­bal allows for bal­ance, but it is set by the user. The gim­bal allows play­ers to tilt the sur­face of the maze in all direc­tions and use grav­i­ty to con­trol the mar­ble with­in the path­ways of the labyrinth. 

The lay­out is inspired by seat­ing arrange­ments of the Senate and House. The mar­ble’s path begins by trac­ing the words ​“The Amendment must draw its mean­ing from the evolv­ing stan­dards of decen­cy that mark the progress of a matur­ing soci­ety.” This frames how I want play­ers to con­sid­er the cas­es that fol­low. Beginning with the sign­ing of the Bill of Rights, the play­ers shift the sur­face of the table to guide a mar­ble through major Eighth Amendment cas­es. The goal of game­play is to stay on the path and not fall into the holes which rep­re­sent the areas of the puni­tive sys­tem that are not pro­tect­ed by the Eighth Amendment, like immi­gra­tion jails or pre­tri­al jails. 

Each case is dis­tilled into a suc­cinct state­ment. All legal terms that enable us to remain dis­tanced have been revert­ed to the sim­plest lay­man terms. For instance, ​“juve­nile” and ​“minor” are instead called ​“chil­dren.”

The feel of the game will be fair­ly insti­tu­tion­al. CNC’d ply­wood will be paint­ed black, gray, and white; holes to avoid will be rimmed with red. The doc­u­ments of the Supreme Court are only allowed to be in cer­tain fonts: Century Schoolhouse or slight vari­a­tions. And so the game and the accom­pa­ny­ing mate­ri­als will also fol­low those rules. 

Overarching goals of the game for me the design­er, are to essen­tial­ly slow a play­er down enough to give them an oppor­tu­ni­ty to exam­ine this infor­ma­tion in jux­ta­po­si­tion and invite inquiry into the cru­el­ty that is normalized. 

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I would like to thank Robin Reid, Olwyn Conway, Keramet Reiter, Paul Grotas, Lea Rosen, Marty Tankleff, Marc M. Howard, Sara Bennett, and Alec Karakatsanis for gen­er­ous­ly shar­ing their exper­tise. Thank you Golan for host­ing these presentations.

So, you will all be able to play this game in Federal Hall three months from now. And I have so many legal schol­ars and peo­ple to thank, and thank you Golan for host­ing these presentations.