Saturday, April 6, 2013

Retribution as Justice

¡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. Some of the following will serve as the basis of my discussion at Columbia University this morning.
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From the Plantation to the Bing: Retribution
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

            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 dollarblocks by criminal-justice experts who study this phenomenon: In Brooklyn at one point, 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 exceeded more than $1 million.

            At the same time, a quick look at the surrounding schools and other social institutions in these areas would bring shame to any right-thinking American, regardless of color. The following is an attempt to articulate a problem from a civil rights perspective with a street-smart sensibility.

            In a relatively short period of time, we have moved from a nation that had the audacity to envision a Great Society to a nation that now incarcerates more people than any other. While the U.S. has 5% of the world’s population, it accounts 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

            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 happen along 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 “street-smart sensibility,” and if you bear with me, I’ll try to explain. I cannot, in all good conscience, profess to know much about present-day urban street culture. As a Nuyorican born and raised in the ghettos of New York City, however, I was raised during hip hop’s inception (an articulation of the street if there ever was one) long before MTV got hip to it, and long before hip-hop culture became mainstream. I will be honest and say I stopped listening to hip hop before it made its way to the mainstream of U.S. popular culture (via Yo! MTV Raps or BET). However, 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 calling out 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 mostly 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, as the main vehicle for a philosophy of the street, 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 increasing privatization of the social sphere. The racial dimension of hip-hop is unavoidable, and it is here where hip-hop, if looked at as more than mere cultural expression, can inform and illuminate the present dialog.

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 at the hands of others. 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 way 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 strenuously question whether the historically unprecedented massive effort to incarcerate black men serves the purpose of public safety. For them, 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. From this perspective, the ends (in this case, 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 film noir 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, emphasized in Discipline and Punish: The Birthof the Prison (1995). Some recent retributivists, as in Jeffrie Murphy’s Getting Even, 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, it is claimed, vengeance leads us to justice. However, rappers and street poets tell us a cautionary tale -- the retributivist’s conditions aren’t met. For many people living in marginalized communities, the overriding sentiment is 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 (Eight Amendment); people should be equally protected by the law (Fourteenth Amendment).

            Many street artists and activists 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 Latino/as.
Consider the ongong trail regarding the racially inspired stop and frisk policies of the NYPD. 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 U.S., 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 retributivist 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.

            Statements such as this should give us cause for alarm. The lack of a shared basis for moral judgment in a multicultural, multiethnic, multi-religious America dooms the justification of punishment. In the U.S. the system of punishment costs about 60 billion dollars per year. It destroys families and communities, and it deprives those caught in its maws their most basic liberties, often 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.

            The main justification or rationale for punishment is in actuality about social control, not desert. Many artists, activists and just plain people from besieged communities know this all too well through often humiliating personal experience. The philosophical roots of punishment as social control come from what is known as the “consequentialist” school who argued that punishment can only be justified when it has good consequences for society. Particularly, punishment is rationalized by considerations of deterrence, rehabilitation, or incapacitation.

Deterrence is achieved when, through punishment, people who commit crimes or might potentially commit crimes are discouraged from doing so. Rehabilitation is achieved when a person who has committed a crime no longer has the desire to commit crimes and that desire is replaced by a respect for the social contract. Incapacitation is achieved when those who have committed crimes can no longer do so because they are incarcerated. Artists, activists, and people from the streets rightfully express skepticism about whether anything but incapacitation is achieved by punishment.

            I have shown that the moral standing of a criminal justice system becomes precarious when the rights of members of groups that are considered outsiders are not protected. This makes it difficult to secure respect for the law, which lessens the prospects for rehabilitation. Deterrence is similarly undermined when the conditions outside of prisons resemble a jungle. When people are poor, unemployed, without hope, locked out of educational and economic opportunities, and subjected to the trauma of violence and police abuse, prison becomes something less foreboding. I would submit that the separation between prisons and the largely black and brown communities that feed them is a delusion. People move from medium and maximum-security communities to medium and maximum-security prisons and back again. And we call this “reentry (another fallacy).

            Of course, prison is in many ways worse than life on the streets, but the point here is that people in difficult social circumstances are more willing to take risks, especially when, to paraphrase Langston Hughes, the “dream explodes.” This fact, which is part of the trauma of living in the ghetto, weakens the effectiveness of punishment as a deterrent.

            What we’re left with here is incapacitation and it is the wholesale incapacitation of mostly black and brown men…

“The Bing” is slang for prison and/ or solitary confinement
Unless otherwise noted, all statistics are from the Bureau of justice Statistics
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.


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