Hola mi gente,
Almost didn’t make it today! This one is an evolving
piece.
Normalizing Evil
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, The Crisis, unsigned editorial (1915)
In
order to better understand criminal justice systemically, one can no longer
differentiate between prisons and jails and the communities that serve as
feeders for that particular form of racialized social control. In fact,
marginalized communities -- mostly black and Latino/a -- act as open-air
detention centers that differ from jails and prisons only in the degree of
freedom of movement. Much of what transpires inside “the walls” of detention
centers occur in inside the walls of housing projects and surrounding ghettoes,
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:
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, 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.
.
References
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
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