The Good, the Bad, and the Ugly, pt.I

Hola Everybody,
I once tried a writing project in which I would take on a range of systemic issues that I labelled the Good, the Bad, and the Ugly. The first part, The Good, would be an attempt to address the issue of justice. The Bad was meant to address moral reasoning, and The Ugly an attempt to address aesthetics. Today it’s about Justice.

The Good

Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.
 -- John Rawls, ATheory of Justice

The idea that justice is more than a virtue good government should possess is something most people take for granted. Justice is fundamental factor in transforming a simple mass of individuals into a political community. Justice binds citizens to one another, and then all of them together to government. Justice, as long-standing tradition has it, is central to the justification of political authority. To paraphrase, what are kingdoms without justice but great gangs of thugs?

Saying that justice is central to good government is one thing; attempting to define justice is quite another, and that is what this post will attempt to address. Also, I am jumping to social justice rather quickly, and my starting off point will suffer somewhat; but how can I address the whole issue of justice in a two-page MS Word document?

My father used to like to say that yes, Justice was blind, but if you took her blindfold off, you would see she had dollar signs for eyes... LOL

Let’s start with the basics. My father’s characterization notwithstanding, justice, we might all agree, has something to do with punishment and reward, and something to do with equality, but how to define it? Let’s start with an old definition, by the roman Emperor Justinian, who stated that justice “is the constant and perpetual will to render each his due.”

I know: Whoop-dee-doo! Taken by itself, this definition doesn’t take us very far, but perhaps it points us the right direction -- a good place to start. First, it stresses that justice is a matter of each individual person being treated in the right way; it’s not a matter of whether society in general is rich or poor, culturally rich or culturally barren, and so forth. This doesn’t mean that the idea of justice for groups can be dismissed -- I will look more in depth at that aspect in a later post -- but the primary concern of justice is with how individuals are treated (and yes, this is a cultural bias).

Secondly, the “constant and perpetual will” part of the definition reminds us that a central idea of justice is that people must be treated in an evenhanded way (“justice is blind”). There must be consistency in how an individual is treated over time, and there must also be consistency between people, so that if my friend and I have the same qualities, we should receive the same benefits, or the same punishment, depending on the situation.

Consistency explains why acting justly is often a matter of following rules or applying laws, since these guarantee consistency. However, consistency alone is not enough for justice: imagine a law that required that all white people be considered three-fifths of a human being, or that all people of color should be put to death. These examples show that justice also requires relevance; if people are going to be treated differently from one another, it must be predicated on grounds that are relevant to the question of justice. This also shows that where there are no relevant grounds on which to discriminate, justice requires equality. Essentially, justice demands everyone should be treated the same way. This gives us a second requirement beyond mere consistency: justice demands that people should be treated equally unless there are relevant reasons for treating them differently.

One final caveat to my definition: the idea of proportion. This guides a society when people are treated differently for relevant reasons, the treatment they receive should be proportionate to whatever they have done that justifies the inequality. Many would agree, for example, that if people work harder at their jobs, that is a relevant reason for paying them more. But, for the sake of justice, there must be proportionality: if Yippie works twice as hard as Yappie, he should be paid twice as much, but not ten times as much.

As you see, I have squeezed a fair amount of mileage from Justinian’s take, but I have not been able to say what it is that people are owed as a matter of justice, nor on what grounds we are justified in treating them differently. In fact, there are no easy answers to these questions. This is in part because people will disagree about what justice requires and because the answer given will depend largely on who is applying the treatment, what treatment is prescribed, and under what circumstances. To a great extent, our ideas of justice are contextual, meaning that before we can decide what is fair, we have to know about the situation in which it is being applied. Allow me some room here... 

Let’s suppose that I have been given $500 to distribute between five people. What does justice tell me to do? So far, very little. It tells me that I should treat them consistently, that if I treat them differently, it should be for relevant reasons and that my allocations should be proportionate. Now, let’s fill in some details in different ways and see what distributions suggest themselves. The five people might be my employees, and the $500 might be the bonus they have earned this week, in which case I should consider each individual’s contribution and reward them proportionately. Or, I might be I might be an aid worker charged with distributing the cash to allow people to buy food, in which case I should try to surmise the relative needs of the five and give more to those in greater need. Or perhaps the $500 is a small lottery windfall, and the five people and I are a syndicate, in which case the money should be distributed evenly.

Most here would find my decisions on how to allocate the money under the varying circumstances self-evident, and it shows that though justice is a complicated affair we already have a grasp of what it involves in practice. Justice is not so much a way to measure than it is a box of tools. Faced with a decision, we know in most cases which tool to use. What is harder to express is a theory of justice. But we need to create a theory because there are going to be cases in which our intuitions will conflict, situations in which the decisions will not be so clear-cut. This is more so the case when it involves social justice -- justice not only between individuals, but also across a whole society. I shall explore this idea in a later post, but I first need to explore the general principles of justice.

Justice often has more to do with process than actual treatment. Let’s look at criminal justice before I end this post. The current status quo, dominated as it is by the retributivist school, asserts that guilty people should be punished in proportion to their crime, and that innocent people go free but it is also important that proper procedures (process) are followed in arriving at a verdict. For instance, it matters that both sides are allowed to state their case, that the judge has no stake that would impede his impartiality. This process is important not only because it tends to ensure the right verdicts, but because it affords individuals the respect and right to be heard properly. The main dynamic in the OJ Simpson trial fallout wasn’t so much that he was black (though race certainly was a factor in how people reacted to his case), but that he could afford to rely on resources not often available to those less privileged. For blacks and other people of color, this wasn’t something new: criminal justice has often been an injustice. My father’s admonition is relevant here. For whites, who often experience social institutions from a more advantaged or benevolent position, the OJ case was a travesty of justice.

The above is a poor substitute for beginning a substantive discussion on social justice, but I’m already at one page, so I must move on and hope this suffices for the rest of the discussion.

My name is Eddie and I’m in recovery from civilization…

The Death Scalia and the State of Criminal Justice

Hola mi Gente,

If you haven’t already, get your behind to a theater near you and watch Michael Moore’s latest, Where to Invade Next. I would do a review, but I don’t want to spoil it for you. Suffice it to say that I think you should see it and that it will remind you of why we could be a great country…

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The Death of Scalia

 In the Era of The Collapse of U.S. Criminal Justice System

Before I move on to the significance (or lack thereof) of Scalia’s demise, I would like to share an anecdote. If you bear with me a moment, I think you will be able to see the connection I am trying to make.

Years ago, I stood in front of a judge, the future of my life in the balance. What that judge most likely did not know about my appearance says a lot about our criminal justice system. First, I was incarcerated though I had not been convicted of any crime. Because I could not afford bail, I was remanded to one of the most notorious penal colonies in the world, Rikers Island.

The following is called “Bullpen Therapy,” by those like me who have had to endure it every time we appeared before a court… 

Before I appeared before a judge (usually late in the afternoon), I was awakened at four in the morning. I was served breakfast in the mess hall (I was once served oatmeal that had maggots in it) and then, after maybe 10 minutes allotment time for eating, I was taken and put into a cage, generously called a holding cell or bullpen,  meant for 25 that contained maybe 50 people. The sole toilet was overflowing with feces and there was no room to lie down.

After about four hours, around 8:00 AM, the names began to be called. Once your name was called, you were shackled and put on a bus. Once the bus was filled, you taken to the county court where your alleged crime occurred and then put in another holding cell or bullpen, this one even more crowded than the one before. There you waited hours. The stink of the place was nauseating enough, but what they fed you for lunch was worse: usually slimy pieces of bologna between slices of barely edible white bread. Greasy cups of tea or sometimes Kool-Aid in Styrofoam cups was offered. 

If you were lucky enough to see your court-appointed attorney, it was for one or two minutes at the most. Oftentimes, they spoke to you while walking from the door to the front of the court, sometimes never even bothering to look at you in the eyes. You stood before the court and your public defender, assistant district attorney, and the judge would discuss your future as if you were not there. This would last maybe two-three minutes at the most. Sometimes, you would go through this process and if your defender was absent or the assistant district attorney was not prepared, you would be sent back without even seeing a judge or getting your date adjourned.

As soon as your court appearance was over, the court officer would escort you back into the bowels of the system where you would wait for hours until a bus would come and take you back to Rikers Island. The whole process I have described here could take anywhere from 20 hours or more. The same process was repeated every time you appeared before the court. By the time you were returned to the dorm and the hard bunk you slept on, you would be so physically and psychologically exhausted that you would promise yourself not to do it again. Indeed, I know of scores of people who, rather than go through the process of a court appearance again, would plead guilty to crimes they had not committed instead. 

If you think this process was the exception rather than the rule, imagine what I have just described happening tens of thousands of times in courts across this nation every day. Our criminal justice system is a conveyor belt of human bondage and has nothing to do with any high ideals of justice of fairness. The vast majority of the people on this conveyor belt are Black and Brown people -- mostly young men from the poorest communities in our land.

During one particular arduous Bullpen Therapy session (what many call justice), my judge refused to adjourn my case. I had come twice before him and due to various reasons (absent legal defender, ill-prepared ADA, etc.) and had to be turned away. So this is what the judge did: He became judge, defender, and prosecutor. In an instance he turned to my public defender and instructed her on what she needed to say and do. The he became a judge again and addressed the ADA. When the ADA demonstrated cluelessness, the judge became the prosecutor and instructed the ADA (who was busy picking up legal papers he had dropped on the floor) on what he had to do. Then the judge became a judge again and set another date for my case. What was hanging in the balance? Possibly 15 years of my life.

This is our criminal justice system. It is a system in which the rule of law has vanished. Prosecutors stand at this assembly line and decide whom to punish and how severely. Almost no one accused of a crime will ever face a jury. Inconsistent and abusive policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced a gigantic prison population, with Black and Latin@ citizens the primary defendants and victims of crime.

What is interesting is that many years later, I was describing this incident to a group of lawyers who thought the judge’s actions were an example of legal genius. And this is where Scalia comes in. It is this unflinching reverence for authority that scares me. I am sure that the same people heaping praise on the most bigoted Supreme Court justices will no doubt do the same for war criminal, Henry Kissinger. It is this slavish adoration of authority that really makes, pardon the expression, my dick itch.

I am sure Scalia had no clue about the underbelly of the system he personified or represented. I doubt very much he was aware of “Bullpen Therapy” as I experienced it. In fact, I doubt the judge that eventually sentenced me knew what was going on in the bowels of his own court. Well, I come to bury Scalia, not praise him. For me, Scalia personified the essential evil of our failed criminal justice system. I do not wish to join in the now widespread and hypocritical praise for Antonin Scalia, one of the worst Supreme Court justices in living memory.

Scalia was not merely a conservative, which was bad enough, he was a reactionary authoritarian, whose only desire was to form and advance a theory of justice that was outdated by 1860. Scalia was an imperceptive, bigoted, factually knowledgeable but dogmatic thinker who had shut the world out of his awareness long before he had come to the bench. Fortunately for the rest of us, the world is rid of him. Scalia, for all his deep knowledge of law, remained devoutly oblivious to the changing reality around him and to the whole complex history of dissent from traditional ideas that had been going on since the 18th century. His was an ideology that facilitated the kind of justice that I, and many other Blacks and Latin@s, were subjected to.

My name is Eddie and I’m in recovery from civilization… 

Ron Paul and Social Justice

¡Hola mi Gente!

Today is the first day at my new gig…

Many people have rightly criticized Ron Paul’s perspective on social justice (while many others, from right and left, have sucked on his cock), but what many don’t understand is that in Ron Paul’s looney libertarian vision of a society, government has no business in advancing social justice. Paul’s perspective leaves him incapable of envisioning social justice.

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We were taught... that man’s business on this earth was to look out for himself. That was the ethic of the jungle... Take care of yourself, no matter what may become of your fellow man. Thousands of years ago, the question was asked, ‘Am I my brother’s keeper?’ That question has never yet been answered in a way that is satisfactory to civilized society.

Yes, I am my brother’s keeper. I am under a moral obligation to him that is inspired, not by any maudlin sentimentality but by the higher duty I owe myself. What would you think me if I were capable of seating myself at a table and gorging myself with food and saw about me the children of my fellow beings starving to death?

-- Eugene V. Debs, 1908 speech

In previous posts, I have looked at justice in general terms, not the role that governments play in promoting it. For the rest of this post, I will explore the idea of social justice -- the idea that we can create a set of social and political institutions that ensures the just distribution of benefits and costs throughout a society.

The idea of social justice first emerged in the late 19th century, and stood at the heart of political debate throughout the 20th. It requires that the state become much more involved in justice than earlier times. It was also a controversial idea: whereas only a few extremists have attacked the idea of justice, social justice has been ridiculed, mainly by critics from the libertarian right, who view it as a transgression against personal freedom, especially the economic freedom they feel a market economy requires. This is what Ron Paul calls liberty. In Paul’s demented social view, Jim Crow and slavery would have been done away with by The Market.

Let’s look at these attacks more closely. When Ron Paul recently yelped, “We’re all Austrians now,” he was referring to the works of critics such as the Austrian economist Friedrich von Hayek who argued that there was a fundamental error involved in talking about social justice in the first place. According to Hayek (and many self-loathing neocons that call themselves “libertarians”), justice is a consequence of individual actions. An action is unjust when it violates a general societal rule that allows members of a society to interact with one another. For example, theft is unjust because it violates a rule protecting property. If we look at how resources -- money, property, employment opportunities, and so forth -- are distributed across a society, we cannot describe this as either just or unjust, say libertarians, since it is a consequence not from the actions of a single mediator, but from the actions and decisions of millions of separate individuals, none of whom intended to create this or any other outcome in particular.

To be fair, Hayek is right to point out that “social distribution” cannot be attributed to any single distributing agency or entity, given the complexity of any contemporary postmodern society. But Hayek’s fundamental error -- what he overlooks -- is that the distributive pattern we observe around us does, generally speaking, depends on the institutions that have been socially created , consciously or not. For example, the rules governing property and contracts, the system of taxation, the level of public expenditure on health care, education, housing, and employment policies, etc. -- these are all institutions that have been shaped and can be changed by political decision, and so if we leave things as they are, that is the same as accepting the existing distribution of resources. In addition (let’s not get all “new”), we can certainly understand what the effect of a proposed institutional change would be.

To that extent, the distribution of resources across society -- who gets what benefits, how wide the spread of incomes will be, etc. -- is something that, at least in a democracy, is under our collective control. It is perfectly reasonable, then, to ask what social justice would ask us to do.

But Hayek isn’t done yet. His criticism begs the question of whether social justice is something we should pursue. Hayek’s second claim is that, in attempting to make the distribution of resources match up to justice, we would destroy economic freedom and in that way kill the goose that lays the golden eggs. For the sake of argument, let’s assume Hayek is right when he claims that a market economy is the most effective way of organizing production and trade (this is not an a priori, by the way), and that any alternative would involve a reduction of the living standards in economically advanced societies. The question then is whether striving for social justice means turning our back on the market economy, or whether it’s possible to pursue social justice through a market economy, one shaped in the right way and that has other social institutions working alongside it.

These questions, my friends, and how they have been answered, are at the core of today’s “Great Recession.”

In this respect, we need to look at different ways of interpreting the idea of social justice. The most radical version, touted by Marxists and some communitarian anarchists, reduces social justice to the principles of equality and need. A just society, from this perspective, is one in which each member contributes to the best of his or her ability, but resources are distributed according to need, with any resulting surplus distributed evenly. There is no consideration here for the idea that people need incentives, or deserve material rewards for making their contribution. The question here becomes, could such a society exist?

On a small scale, it undoubtedly has. In addition, China has definitely put a crimp on the notion that communism has died. Still, the question remains whether a large society could successfully practice social justice in this form. On a tangential note, the next time your Ron Paul robot starts blabbering about this kook, ask him to name one instance in which a society has ever existed under libertarian principles.

::crickets::

There is, however, a less radical view of social justice which has been embraced by many democratic socialists and contemporary liberals. From this point of view, social justice requires the equal distribution of some social benefits -- especially equal rights of citizenship such as voting and freedom of speech. It requires that some benefits be distributed on the basis of need, so that everyone is guaranteed an adequate income, access to health care and housing, etc. However, it also allows for other resources to be distributed unequally, so long as there is equal opportunity for people trying to acquire a larger share. These inequalities may be justified on the grounds of merit (“desert”), or on the grounds that by giving people material incentives to work hard and produce goods that other people want, all of society benefits.

Arguably, the most influential interpretation of this form of social justice was developed by John Rawls who argued in his Theory of Justice that a just society must fulfill three conditions. First, it must give each member the most extensive of basic liberties that is consistent with the same liberty for everyone else. Second, social positions possessing greater advantages, higher paying jobs, for example, must be open to everyone on the basis of equality of opportunity. Third, inequalities of income and wealth are justified when they can be shown to benefit the least advantaged members of society -- in other words when they provide incentives that raise society’s productivity and in that way allow more resources to be channeled to those at the bottom of the heap.

Rawls’s theory of justice obviously makes room for a market economy. Rawls’s third principle allows for the possibility for people to keep at least part of the gain they make through producing goods and services for the market if they are going to be sufficiently motivated to work hard and use their talents in the most productive way. This demolishes Hayek’s claim that social justice and market freedom are mutually exclusive. On the other hand, a market economy governed by Rawlsian principles would look completely different from the economic systems of modern liberal democracies.

For one, Rawls’ idea of equality of opportunity is radical. It is not enough that positions of advantage should be given to those who can be shown to be better qualified to hold them. It must also be true that applicants have had an equal opportunity to become qualified. What this means is that from the moment of birth, people of equal talent and motivation should be afforded the same opportunities in education and elsewhere.

Obviously, this is not the case. Furthermore, Rawls’ third principle, often called the difference principle, allows inequalities only when they can be shown to benefit the worst off of society. In actual practice this would mean that governments would set tax rates so that benefits were continually redistributed to benefit all of society. Although most democratic societies have so-called progressive tax structures, they fall far short of Rawls’ requirement.

My own view is that a theory of social justice should retain Rawls’ first two principles -- equal liberty and equality of opportunity -- but replace the difference principle with two others. The first is that of a guaranteed social minimum, understood as a set of needs that must be met in order to assure every citizen a decent life. This minimum is not fixed, but changes over time and within different societies. An enduring and current debate, for example, is the consideration whether health care is a right or a privilege. The second principle is one of merit (desert). Inequalities of income and wealth should be proportional, measured by their success in producing goods and services other people need and want.

As in Rawls’ theory, these principles don’t conflict with a market economy -- at least not in the sense that it entails getting rid of it. However, they do require the construction and maintenance of an extensive web of interlocking social safety nets, as well as a regulatory and flexible legal system within which the market economy works so that there is a real link between what people contribute and what they receive as compensation for that contribution.

Much of the economic turmoil we face today is a direct result of decades of lax governmental oversight combined with an almost slavish devotion toward so-called free market principles. In fact, there is no such thing as a free market. The market couldn’t exist without the social institutions (legal, infrastructure, etc.). Therefore, it is important for people to think about these matters, to question the validity of the apostles of the market.

Of course this would require a real change to the way capitalist countries operate, since the existing rules of property and inheritance allow people to reap huge rewards by virtue of luck, inherited wealth, corporate position, etc. -- factors all unrelated to their contribution to society. What most conservatives and libertarians alike fear is that the pursuit of social justice will take us towards a form of market socialism in which the means are owned by those work in them rather than by outside shareholders, so that the profits can be shared among the actual producers. I don't think this is something to be feared but rather something to be pursued. This is not the communist utopia espoused by Marxists and other radical socialists, since it also allows for harder working and more talented individuals to reap the fruits of their labor. Still, it takes us far away from the failed political agenda of the present, at least as far as liberal democracies are concerned.

Social justice, like democracy, will always be unfinished project. It is up to us to envision what a just society should look like, without losing our pragmatism nor lose ourselves in fantasies. I believe, like many, that the struggle for social justice has been sabotaged by global developments that place the market before the concerns of people -- before the concerns of justice. It strikes me as the ultimate irony to hear others go into the “people are so stupid rants” without paying attention to the larger, more powerful forces at play. What good is intelligence or critical thinking in the face of a global movement in which social justice is scrapped in favor of the bottom line? This is why Ron Paul and many of his conservative brethren are dangerous: they don’t have principles, they are reactionary ideologues.

My name is Eddie and I’m in recovery from civilization…

The Good, The Bad, The Ugly

¡Hola! Everybody...
Contrary to what many many right wing bloggers and would-be pundits would have you think as foregone conclusions (a priori), very little is clearly self-evident...

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-=[ The Good: Justice ]=-

“Take, then, your paltry Christ, your gentleman God. We want the carpenter’s son, with his saw and hod.”

-- Upton Sinclair, quoted in The Cry for Justice

The idea that justice is more than a virtue that a good government should possess is something most people take for granted. Justice is fundamental to the institutions that transform a simple mass of individuals into a political community in the first place. Justice binds citizens to one another, and then all of them together to government. Justice, as long-standing tradition has it, is central to the justification of political authority. To paraphrase, what are kingdoms without justice but great gangs of thugs?

Saying that justice is central to good government is one thing; attempting to define justice is quite another, and that is what this post will attempt to address. Also, I am jumping to social justice rather quickly, and my starting off point will suffer somewhat; but how can I address the whole issue of justice in a one or two-page Word document?

My father used to like to say that Justice was blind, that if you took her blindfold off, you would see she had dollar signs for eyes... LOL

Let’s start with the basics. My father’s characterization notwithstanding, justice, we might all agree, has something to do with punishment and reward, and something to do with equality, but how to define it? Let’s start with an old definition, by the roman Emperor Justinian, who stated that justice “is the constant and perpetual will to render each his due.”

I know: Whoop-dee-doo!

Taken by itself, this definition doesn’t take us very far, but perhaps it points us the right direction -- a gopod place to start. First, it stresses that justice is a matter of each individual person being treated in the right way; it’s not a matter of whether society in general is rich or poor, culturally rich or culturally barren, and so forth. This doesn’t mean that the idea of justice for groups can be dismissed -- I will look more in depth at that aspect in a later post -- but the primary concern of justice is with how individuals are treated (and yes, this is a cultural bias). Secondly, the “constant and perpetual will” part of the definition reminds us that a central idea of justice is that people must be treated in an evenhanded way (“justice is blind”). There must be consistency in how an individual is treated over time, and there must also be consistency between people, so that if my friend and I have the same qualities, we should receive the same benefits, or the same punishment, depending on the situation.

Consistency explains why acting justly is often a matter of following rules or applying laws, since these guarantee consistency. However, consistency alone is not enough for justice: imagine a law that required that all white people be considered three-fifths of a human being, or that all people of color should be put to death. These examples show that justice also requires relevance; if people are going to be treated differently from one another, it must be predicated on grounds that are relevant to the question of justice. This also shows that where there are no relevant grounds on which to discriminate, justice requires equality: everyone should be treated the same way. This gives us a second requirement beyond mere consistency: justice demands that people should be treated equally unless there are relevant reasons for treating them differently.

One final caveat to my definition: the idea of proportion. This tells us that when people are treated differently for relevant reasons, the treatment they receive should be proportionate to whatever they have done that justifies the inequality. Many would agree, for example, that if people work hard at their jobs that is a relevant reason for paying them more. But, for the sake of justice, there must be proportionality: if Yippie works twice as hard as Yappie, he should be paid twice as much, but not ten times as much.

As you see, I have squeezed a fair amount of mileage from Justinian’s take, but I have not been able to say what it is that people are owed as a matter of justice, nor on what grounds we are justified in treating them differently. In fact, there are no easy answers to these questions. This is in part because people will disagree about what justice requires and because the answer given will depend largely on who is applying the treatment, what treatment is prescribed, and under what circumstances. To a great extent, our ideas of justice are contextual, meaning that before we can decide what is fair we have to know about the situation in which it is being applied. Allow me some room here...

Let’s suppose that I have been given $500 to distribute between five people. What does justice tell me to do? So far, very little. It tells me that I should treat them consistently, that if I treat them differently, that this should be for relevant reasons and that my allocations should be proportionate. Now, let’s fill in some details in different ways and see what distributions suggest themselves. The five people might be my employees, and the $500 might be the bonus they have earned this week, in which case I should consider each individual’s contribution and reward them proportionately. Or, I might be I might be an aid worker charged with distributing the cash to allow people to buy food, in which case I should try to surmise the relative needs of the five and give more to those in greater need. Or perhaps the $500 is a small lottery windfall, and the five people and I are a syndicate, in which case the money should be distributed evenly.

Most here would find my decisions on how to allocate the money under the varying circumstances self-evident, and it shows that though justice is a complicated affair we already have a grasp of what it involves in practice. Justice is not so much a way to measure than a box of tools. Faced with a decision, we know in most cases which tool to use. What is harder to express is a theory of justice. But we need to create a theory because there are going to be cases in which our intuitions will conflict, in which the decisions will not be so clear-cut. This is more so the case when it involves social justice -- justice not only between individuals, but also across a whole society. I shall explore this idea in a later post, but I first need to explore the general principles of justice.

Justice often has more to do with process than actual treatment. Let’s look at criminal justice before I end this post. It matters, of course, that guilty people are punished in proportion to their crime, and that innocent people go free but it is also important that proper procedures (process) are followed in arriving at a verdict. For instance, it matters that both sides are allowed to state their case, that the judge has no stake that would impede his impartiality. This process is important not only because it tends to ensure the right verdicts, but because it affords individuals the respect and right to be heard properly. The main dynamic in the OJ Simpson trial fallout wasn’t so much that he was black (though race certainly was a factor in how people reacted to his case), but that he could afford to rely on resources not often available to the less privileged. For blacks and other people of color, this wasn’t something new: criminal justice has often been an injustice. My father’s admonition is relevant here. For whites, who often experience social institutions from a more advantaged or benevolent position, the OJ case was a travesty of justice.

The above is a poor substitute for beginning a substantive discussion on social justice, but I’m already at one page, so I must move on and hope this suffices for the rest of the discussion.

Paz, Amor y Dinero,

Eddie

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.