Justice as Retribution

¡Hola! Everybody...

The most challenging aspect of blogging is the art of adequately articulating complex issues in everyday language in a short amount of space. I often miss the mark in this regard. Following this, I will post the second part on justice as social control.

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-=[ From the Plantation to the Bing ]=-

“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, “Logic,” The Crisis, Vol. 9 (January, 1915), p. 132

Some of the poorest Brooklyn city blocks are also some of the priciest. You couldn’t tell by the surroundings or by the people who live there -- mostly people of color most of whom live below the poverty line. They are called million dollar blocks by criminal-justice experts who study this phenomenon: In Brooklyn last year, there were 35 blocks that fit this category -- city blocks where so many residents were sent to state prison that the total cost of their incarceration will be more than $1 million.

At the same time, a quick look at the surrounding schools and other social institutions in the area would bring shame to any right-thinking American, regardless of color.

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 we have 5% of the world’s population, yet we account for 25% of the world’s prison population (most of those in US prisons are people of color). At the same time, we remain the most violent and crime-ridden of all advanced democracies. It’s not even close.

The following is an attempt to articulate a problem from a civil rights perspective with a hip hop sensibility.

How did we get here? Well, it wasn’t by accident and it didn’t happen overnight. In order to understand how we became a nation of prisons we have to look at crime and punishment from a historical context. A task I couldn’t possibly hope to do in a one or two-page Word document. Still, before I move on, I have to at least try.

Sociologist Loic Wacquant (2002) maintains that historically not one but several institutions have been implemented to define, confine, and control African-Americans 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 abolition. America’s third mechanism for containing the descendants of slaves in the Northern industrial metropolis was the ghetto. It corresponded with the African-American Great Migration of 1914–30 to the 1960s, when it was rendered partly obsolete by the mounting protest of blacks against continued 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 silent ignorance and acceptance of its harmful effects on those it affects -- without returning to the former as a starting point. In other words, from a historical viewpoint, the mass incarceration of mostly people of color in the United States is a direct offshoot from the roots of the institution of racism.

Now, you might be wondering what I mean by a “hip hop sensibility,” and if you bear with me, I’ll try to explain. I cannot, in all good conscience, profess to know much about contemporary hip hop. As a Nuyorican born and raised in the ghettos of New York City, I was there at its inception, long before MTV, and long before hip-hop culture was co-opted by the mainstream. I will be honest and say I stopped listening to hip hop before it made its way (via Yo! MTV Raps) or BET. Through the years, I have maintained an interest in some groups that I felt offered a powerful social message -- groups such as Public Enemy, A Tribe Called Quest, and some others, but I don’t know jack about contemporary hip-hop, nor do I like much of it. For me, hip-hop was more than a musical genre; it was a ghetto scream for recognition, combining several elements of modern and traditional culture, not the least of which was technology. Hip-hop was an urban folklore expressing the gritty reality of life in the black and Puerto Rican ghettos of New York City.

I think hip-hop is relevant to a discussion of mass incarceration because its attitude and moral stance is often called into question and vilified by both black and white conservatives. I contend that hip-hop informs this discussion and has the potential to give it a proper philosophical framework.

Hip-hop as the dominant chosen form of entertainment and instruction of gifted young people, has both good and bad effects. If we look beyond the polemics, hip-hop also serves to resist (and sometimes reinforce) the effects of a postmodern world steeped in free-market fundamentalism, aggressive macho militarianism, and the increasing privatization of the social sphere (think BP). The racial dimension of hip-hop is unavoidable, and it is here where, if looked at as more than mere black cultural expression, it can inform and illuminate the discussion.

You ain’t gotta be locked up to be in prison / Look how we livin’ / 30,000 niggas a day up in the bing, standin routine / They put us in a box, just like our life on the block -- Dead Prez, Behind Enemy Lines

If we view criminal justice as retribution, then we have to acknowledge that justice as retribution mirrors the sentiment that vengeance is sweet, redeeming those who have been wronged. It is a desire often expressed by rappers themselves. Yet their desire for retribution isn’t proposed as part of a legitimate system of punishment. For one, the situations they portray are oftentimes outside the law. However, lurking under rappers’ desire to settle scores lies a steadfast belief that the law does not (and never did) protect them. If the law doesn’t protect you and won’t guarantee justice, then it follows that you may have to protect yourself from your enemies.

Many rappers are skeptical about justice in America and alarmed by our criminal justice system. Hip-hop lyrics strongly suggest that racial bias in our criminal justice system undermines the notion of equal protection under the law. They also question whether the historically unprecedented massive effort to incarcerate black men serves the purpose of public safety. For rappers, 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. Rap music often aims to strip away the veneer of justice from a system that unfairly targets youth of color.

Circle the block where the beef’s at / and park in front of my enemy’s eyes/ They see that it’s war we life-stealers, hollow-tip busters. -- Nas, Every Ghetto

The popular 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., obstacles to employment, education, and housing). From this perspective, 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 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.

A civilized society, Kant argued, would replace vengeance with retribution. Yet the ideal of retribution carries more than a trace of vengeance, as the French philosopher, Michel Foucault, pemphasized in his Discipline and Punish: The Birth of the Prison (1995). Some recent retributivists, Jeffrie Murphy’s Getting Even, 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:

1. Communication. The penalty must communicate what the offender did wrong.
2. Desert. The punishment must be deserved.
3. Proportionality. The punishment must fit the crime.
4. Authority. A legitimate authority must administer the punishment.

When these conditions are met, retributionists claim, vengeance leads us to justice...

However, rappers spin a cautionary tale -- the retributivist’s conditions aren’t met. In Black Steel in the Hour of Chaos, Public Enemy’s Chuck D implies that the authority of a government that doesn’t care about some of its people can’t claim legitimacy. A legitimate government serves the interests of all its people, including minority groups. A government that fails to provide equal protection for all manages only to exercise power, not legitimate authority. In other words, might does not make right.

The most basic rights guaranteed by the Constitution and 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 rap artists correctly point out violations of these basic constitutional rights -- police and prosecutorial misconduct, lack of access to legal counsel, unfair sentencing policies, and inhumane prison conditions. These are well documented and disproportionately affect African Americans and other people of color.

Consider Mos Def description of racial profiling, “The po-po stop him and show no respect / ‘Is there a problem officer? / Damn straight, it’s called race.” Racial profiling is a policing strategy that is strongly correlated with excessive force and the disproportionate incarceration of minorities (Amnesty International, 2004). Problems such as these undermine not just rights in the US, but international rights as well. In addition, they call into question whether many punishments have been fairly implemented.

Grounds for doubt about punishment as retribution extend beyond racial bias in its application. How could we know whether the desert condition or the proportionality condition for justice as retribution has been justified? Consider the following articulation from a leading retributionist 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]

Statements such as this should give us cause for alarm. The lack of a shared basis for moral judgment in a multicultural, multiethnic, multireligious America dooms the justification of punishment. Our system of punishment costs us about 60 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 the art of morality are woefully inadequate as a justification for a system of punishment. My next entry will deal with punishment as social control.

Love,

Eddie

Notes:

“The Bing” is slang for prison and/ or solitary confinement

Unless otherwise noted, all statistic are from the Bureau of justice Statistics

Resources

Amnesty International. (2004). Threat and humiliation: Racial profiling, domestic security, and human rights in the United States. New York: Amnesty International, USA.

Foucault, M. (1995). Discipline and punish: The birth of the prison (A. Sheridan, Trans. 2nd ed.). New York: Vintage Books.

Wacquant, L. (2002). From slavery to mass incarceration: Rethinking the race question in the US. New Left Review, 13(January-February ), 41-60.