Hola mi gente,
Almost didn’t make it today! This one is an evolving piece.
One of the interesting ways of settling the race problem comes… in this period of unemployment among the poor. In Waterloo, Kentucky, the enterprising chief of police is arresting all unemployed Negroes and putting them in jail, thus securing their labor for the state at the cheapest possible figure. This bright idea… is used through the South and strong sermons and editorials are written against “lazy” Negroes. Despite this there are people in this country who wonder at the increase in “crime” among colored people.
— W.E.B. Du Bois, unsigned editorial (1915)
In order to better understand criminal justice, we can no longer differentiate between prisons and jails and the communities that serve as feeders for the prison-industrial complex. In fact, marginalized communities — mostly black and Latino/a — are de facto open-air detention centers that differ from jails and prisons only in their degree of freedom of movement. Much of what transpires inside “the walls” of detention centers occur inside the walls of housing projects and surrounding ghettos, for example. Housing projects very much resemble prisons in the way they are designed and policed.
Hannah Arendt (2006) proposed the thesis that people who carry out unspeakable crimes, like Eichmann, a top administrator in the machinery of the Nazi death camps, may not be crazy fanatics at all, but rather ordinary individuals who simply accept the premises of their state and participate in any ongoing enterprise with the energy of good bureaucrats.
Doing terrible things in an organized and systematic way rests on “normalization.” This is the process whereby ugly, degrading, murderous, and even unspeakable acts become routine and are accepted as “the way things are done.” There is usually a division of labor in committing and rationalizing the unthinkable, with the direct brutalization and killing done by one set of individuals; and another section of society keeping the machinery (sanitation, food supply, etc.) in order; still others producing the implements of brutalization, or working on improving technology (a better crematory gas, a longer burning and more adhesive napalm, a better prison or isolation cell). It is the function of defense intellectuals and other experts, and the mainstream media, to normalize the unthinkable for the general public. Arendt’s “banality of evil” lends an important dimension to the question of the racialized social control that we call mass incarceration.
In a relatively short period of time, we have moved from a nation that dared to envision a Great Society to a nation that now incarcerates more people than any other. While the United States contains five percent of the world’s population, it accounts for twenty-five percent of the world’s prison population (most of those in US prisons are people of color). At the same time, The U.S. remains one of the most violent and crime-ridden of all economically advanced democracies. How did we get here? Well, it was not by accident and it did not happen overnight. In order to understand how we became a nation of prisons we first have to look at crime and punishment from a historical context. While this would be impossible to fully explore in a few pages, I would like to try to give a brief overview. Lastly, I would like to use this perspective as a point of origin with which to critique criminal justice in the United States.
Sociologist Loic Wacquant (2002) maintains that historically not one but several institutions have been implemented to define, confine, and control African-Americans and other people of color in the United States. The first was chattel slavery which made possible the plantation economy and the caste of racial division from colonial times to the Civil War. The second was the Jim Crow system of legally imposed discrimination and segregation that served as the foundation for the agricultural society of the South from the close of Reconstruction to the Civil Rights revolution which toppled it a full century after the abolition of de jure slavery. The United States’ third mechanism for controlling the descendants of slaves in the Northern industrial metropolis was the ghetto. It corresponded with the Great Migration of African-American from 1914–30 to the 1960s, when it was rendered partly obsolete by the mounting protest of blacks against persistent racism, culminating with the urban riots of the 1960s. The fourth, Wacquant contends, is the institutional complex formed by the leftovers of the black ghetto and the prison/ industrial complex with which it has become joined by a linked relationship with institutional racism.
What this suggests is that slavery and mass imprisonment are intrinsically linked and that we cannot understand one — its timing, composition, and inception as well as the acceptance of its harmful effects on those it impacts — without returning to the former as a starting point. In other words, from a historical perspective, the mass incarceration of mostly people of color in the United States is a direct offshoot from the roots of the institution of racism.
Many African-Americans and other people of color are skeptical about justice in the U.S. and alarmed by our criminal justice system. There is an understandably strong sense in communities of color that racial bias in our criminal justice system undermines the notion of equal protection under the law. Many from these communities openly question whether the historically unprecedented massive effort to incarcerate mostly young black and Latino men serves the purpose of public safety. For people living in largely segregated urban centers, the notion of the public good and retribution appears as a facade for an unjust form of social control that helps maintain a system of privilege for whites.
Residents of communities of color experience social justice in a manner that often serves to strip away the veneer of justice from a system that unfairly targets them. The popular and dominant idea of retribution as a legally sanctioned form of punishment is based on the assumption that criminal acts call for punishment separate from the consequences of punishment, such as permanent disenfranchisement and the enduring collateral consequences of imprisonment (i.e., impediments to employment, education, and housing). From this viewpoint, the ends (retribution) justify the means at whatever societal cost. The point being that justice is served only when wrongdoers suffer. In a lawless context, the line between retribution and self-defense is not so clear, but advocates of retribution (“retributivists”) are not interested in retaliation as a reaction to a perceived threat. They advocate retaliation for wrongdoing as a matter of justice.
This led one of the most famous retributivists, Immanuel Kant, to stress the difference between vengeance and retribution (a persistent theme in U.S. popular culture such as the western and noir film genres, by the way). In Kant’s view, vengeance is emotional and personal, reckless and often disproportionate to the crime (Kant, 1996). A civilized society, Kant argued, would replace vengeance with its dispassionate and more rational cousin, retribution. Yet the ideal of retribution carries more than a trace of vengeance, as the French philosopher, Michel Foucault, emphasized (1995). Contemporary retributivists, such as Jeffrie Murphy (2003), for example, urge us to embrace the emotional and the personal value of punishment as retribution. These philosophers accept the connection between vengeance and the justification of punishment. They offer us four conditions that vengeance must meet in order to be considered justice:
- Communication. The penalty must communicate what the offender did wrong.
- Desert. The punishment must be deserved.
- Proportionality. The punishment must fit the crime.
- Authority. A legitimate authority must administer the punishment.
When these conditions are met, retributivists claim, vengeance leads us to justice.
However, the experience of people of color tells a cautionary tale: the retributivist’s conditions are not met. Advocates and activists from communities of color often assert that the authority of a government that does not care about some of its people cannot claim legitimacy. A legitimate government should serve the interests of all its people, regardless of social status. A government that fails to provide equal protection for all manages only to exercise power, not legitimate authority. To state in the vernacular, might does not make right.
The most basic rights guaranteed by the Constitution associated with our criminal justice system are the following: people should not be subjected to unreasonable searches and seizures (Fourth Amendment); people are innocent until proven guilty through due process of the law (Fifth Amendment); people should not be subjected to cruel and unusual punishment (Eighth Amendment); people should be equally protected by the law (Fourteenth Amendment). Many from communities most negatively impacted by criminal justice policies correctly point out violations of these basic constitutional rights. Police and prosecutorial misconduct, lack of access to legal counsel, unfair and racist sentencing policies, and inhumane prison conditions are all examples of these violations. These are well documented and clearly disproportionately affect African Americans and other people of color.
Consider racial profiling, a policing strategy that is strongly correlated with excessive force (sometimes leading to state-sanctioned murder) and the disproportionate incarceration of minorities (Amnesty International, 2004). Such violations undermine not just rights in the U.S., but international rights as well. In addition, they call into question whether many punishments have been fairly implemented.
Grounds for doubt regarding justice as retribution extend beyond racial bias in its application. Important questions include how could it be known whether the desert condition or the proportionality condition for justice has been justified? Consider the following articulation from a leading retributivist (French, 2001) on fitting the punishment to the crime:
“Tailoring the fit appears to depend on the moral sensitivity or intuitions of the punishers. When is the fit right? When does a suit of clothes fit? When it feels right? Yes, but also when it looks right to the wearers and others… Morality is an art, not a science.” [emphasis added]
Such Statements should give us cause for alarm. The lack of a shared basis for moral judgment in a multicultural, multiethnic, multi-religious nation dooms the justification of punishment. The economic cost of our system of punishment stands at 80 billion dollars per year. It destroys families and communities, and it deprives those caught in its maws their most basic liberties, sometimes for a lifetime. Biblical references to the scales of justice, “an eye for an eye,” or vague phrases such as “the art of morality” are woefully inadequate as a justification for a system of justice predicated solely on punishment and serve as a basis with which to challenge the prevailing paradigm of justice as punishment.
Amnesty International. (2004). Threat and humiliation: Racial profiling, domestic security, and human rights in the United States. New York: Amnesty International, USA.
Arendt, H. (2006). Eichmann in Jerusalem: A report on the banality of evil. New York: Penguin
Du Bois, W. E. B. (1915). Logic. The Crisis, 9, 132.
Foucault, M. (1995). Discipline and punish: The birth of the prison (A. Sheridan, Trans. 2nd ed.). New York: Vintage Books.
French, P. A. (2001). The virtues of vengeance. Lawrence, KS: University Press of Kansas.
Kant, I. (1996). A definition of justice (from The Metaphysical elements of justice). In J. Westphal (Ed.), Justice (pp. 149-156). Indianapolis, IN: Hackett Publishing.
Murphy, J. G. (2003). Getting even: Forgiveness and its limits. New York: Oxford University Press.
Wacquant, L. (2002). From slavery to mass incarceration: Rethinking the race question in the US. New Left Review, 13(January-February), 41-60.
i Unless otherwise indicated, all statistics are from the Bureau of Justice Statistics