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…

Notes:

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

Unless otherwise noted, all statistics 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.

Life 101: Freedom

¡Hola! Everybody...
Ever notice how your perception of the passage of time changes? There are times, for example, when “time flies,” usually when we’re busy doing something. We look up and eight hours flashed by! Other times, when we “feel bored” (feeling bored should be considered a cardinal sin, btw), time drags on forever. The minutes feel like hours. Then there are times, mostly when we’re involved in doing something creative, that time seems to “disappear.” You’re so involved in what you’re doing, so in tune with the moment and your creative energy, that time ceases to be and you’re caught in a flow state where you’re fully conscious, fully present, yet fully at one with everything. 

That state, that experience of flow, is the key. It’s your access to healing and everything else.

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Life 101: Applied Philosophy

What good is book learning? Or rather, what good or practical purpose is there in an academic discipline such as psychology or philosophy? It’s all bullshit, right?

Of course not.

The irony is that even those who claim not to like philosophy, psychology, or reading in general -- what some call “book learning -- make assumptions and form opinions and worldviews that guide their actions. The difference being is that those who fully explore knowledge live life in a conscious manner. Those who pursue knowledge are aware of the past and its application to the present. Those who deny knowledge live as pawns.

And my response to those who question the practicality of philosophy is that it is useless if it isn’t being applied. And it is here where philosophy can help us live in a meaningful manner.

So what good is philosophy?

Well, let’s take the philosophy of nonviolence. Many great men and women over the centuries have expounded on the importance of nonviolence. You wouldn’t believe it by the way they advocate war, but even fundamentalist Christians have to admit that at the very foundation of Jesus’ teaching is the notion of nonviolence.

How does this teaching look when applied? More importantly, can it be applied to contemporary life? Is being nonviolent in a violent world even possible? Can ordinary people practice nonviolence as a way of life? I submit that if a teaching isn’t relevant, if it can no longer be applied to life, then it is no longer worthy. If a philosophy has no practical value, then it is obsolete (bullshit) and should be discarded.

I was incarcerated for a while at the maximum security prison known as Sing Sing. My security clearance was deemed minimum, but because I scored high on intelligence tests, I was sent to Sing Sing because they needed someone smart with a minimum security clearance to work with the civilian personnel in administration.

Great.

I cannot think of a more humiliating, more internally and externally violent experience than prison. The prison environment is structured in a way that it exacerbates everything and foments violence. If you were fucked up to begin with, prison will make you worse. Physical and psychological violence was a reality and everyday possibility in Sing Sing. People often ask me, “How did you survive prison,” and I laugh because I know what they’re really asking is how I avoided being raped. After all, I'm not a physically imposing figure: I stand at 5'7" and at the time of my incarceration, I weighed maybe 130lbs.

The fact is I survived prison the way I survived anything else in my life: by using my intelligence. It was at Sing Sing where I learned to be a free man. I broke out of my inner mental prison at Sing Sing. That’s why I have hard time when people assume that I advocate and attempt to live nonviolently because I am naïve, that I don’t understand, that it was easy for me, but that their lives and problems are unique, somehow.

Bullshit. If I could do it (be free) in prison, you can do it out here.

My cell was my sanctuary and it is there where I first began a regular meditation practice. My first “meditation retreat” was in solitary confinement, where the oatmeal I was served had maggots in it. Sing Sing was also where I took the basic Buddhist precepts, one of which was non-harming. Yeah, if you know me you might be saying about now: Leave it to Eddie to take a vow of peace in one of the most violent places. What can I say? I’m dense.

One day, I got into an argument with a fellow inmate over a game of dominoes. It was a silly argument, but as I stated before, everything in prison is magnified, intensified. We were separated before it escalated, but his last words to me were that it wasn’t over and that we were going to fix this in the yard.

This was really hard because in prison, appearances are extremely important. I didn’t want to fight because I abhor violence, always have. I also wanted to live differently. I wanted to apply these new principles -- principles I felt were necessary for true freedom -- in my life. But I was faced with the reality that being prison meant that I did not have the luxury of giving the impression of “being soft” because then I would become prey to everyone else. The reality of being in prison meant that I had to man-up and fight this motherfucker because if I refused then I would become everybody's bitch. At least this was the common thought process when I was incarcerated.

As the day progressed, everything seemed to get quiet and no one would talk to me. There was a buzz in the air, everyone knew we were going to square off as soon as we were let out for recreation in the prison yard. The tension was palpable. One acquaintance came by my and slipped me a shank (a homemade knife), telling me to watch out for the other guy because he had one too. 

Geez!

Here I was, in a maximum security prison, about to go hand-to-hand with an individual who was serving a 25-life sentence for a murder. Great Eddie, you sure know how to fuck shit up, I thought to myself. People, don’t ever tell me that I don’t understand, that my life isn’t or wasn’t as hard or difficult as yours.

What to do? What would a Buddhist, or a Jesus, or anybody else do? On the one hand, I had to fight, there was no way of backing out and still manage to survive prison. On the other hand, if I hurt this man in a knife fight, I could be convicted of new crime and end up in prison for a long time. Or, he could cut my face and I would be scarred for life. I was actually more fearful of losing my looks than anything else, truth be told. I mean, I may not be the prettiest man, but I had grown accustomed to my face and I liked it the way it was. More importantly, I wanted to live life in a principled way. I wanted to stand for something. Engaging in violence meant betraying what I believed, or wanted desperately to believe.

Without knowing what else to do, I sat down in meditation -- practicing the age-old technique of vipassana or insight meditation. The technique of vipassana uses mindfulness to note our mental and physical experience from moment-to-moment, with an unbiased attitude. According to Buddhism, by practicing mindfulness meditation we can see and eventually remove the causes of suffering, which are within ourselves.

As I sat in this way, I noticed the shifting tides within me. I saw how anger morphed to fear and fear morphed self-righteous indignation and watched the whole thing cycle through again. I realized that the fear within me was irrational. I realized that the danger I was about to face was real, but if I faced it by allowing the fear to control me, I was not truly free. I would react from a fear-based perspective and I had been doing that all my life. Finally, the time came to leave for the yard. I looked at the shank and I decided right then to leave it. I made a commitment to live by the principle of nonviolence (even if it killed me). At that moment I didn’t know how I would do it, or if I would even survive. the only certainty I had was that I was going to do it. I remembered hearing somewhere that freedom is facing death and still committing to live.

I walked out in the yard and my former friend, who was now my “enemy” was across the yard, playing handball against the far wall. One of his friends tapped him on the shoulder and pointed my way and he put on his shirt and started walking along the wall toward me. He had a hand in his pocket.

Everyone was watching. 

I took a deep breath and walked along the wall toward him. My mind was racing and now I felt like a stupid jerk for leaving the shank because two things were obvious: 1) he definitely had a shank and, 2) I had no plan. I just kept walking. He was maybe 100 yards away from me and I could see the determination in his eyes. But I also saw something else. I saw another human being who was probably just as scared and conflicted as I was. We had been friends. We had broke bread together and kept each other company, playing dominoes and playing the dozens with one another. And yet here we were, ready to maim or even kill each other. Well, I wasn’t going to do it.

What happened was that when we finally came face-to-face, I refused to fight him. Just like that…

I’m saying, fuck it, I ain’t fighting you, this is stupid. Why are we doing this? And he’s looking around because everyone is looking, hoping for some recreation, and we’re standing there like two fools. He tells me to fight, that he will fight regardless. He says I made him lose face and now I had to pay for it. I tell him to fuck himself that I’ not going to fight. And I begin talking to him, asking him why we’re doing this. I ask him if it’s cool to be entertainment for these other motherfuckers who don’t have anything else to do. I offer my apology and I ask if he could find it within himself, as a man, for us to resolve this differently.

Truth be told, I really don’t remember everything I said that day, all I know is that we didn’t fight. I refused to fight. I know I told him if he really wanted to stab me to go ahead and for a moment, I thought he was.

But he didn’t.

He cursed and I told him to fuck himself, whatever was going to happen that moment, the one thing I knew was that I wasn’t fighting him. I think he was actually really taken by surprise by my refusal. I think he expected anything else but that from me. He just shook his head in disbelief and walked away. I stood there and looked around and checked out the reactions. Some laughed, others didn’t know what to make of of it. Shit, I didn’t know what to make of it.

Later, a group of mutual friends invited us both to the dominoes table and eventually we became good friends. I even taught him to meditate, but he said that shit was crazy. The day I left prison for the last time, that man was my friend. Many years later, I returned to Sing Sing to tell my story of life on the outside to the men I left behind, many of who will never see the light of a free day. 

When I stood up there in Sing Sing to tell my story as a free man, many of the men I did time with, hardened men -- men who had harmed and been harmed -- cried openly. My friend came up to me after and told me these words, “Today we live freedom through you, Eddie. We used to laugh at you because you liked to say you escaped from prison when you were here. But you have gone out there and shown us that freedom is something in here,” he said as he pointed to his heart. “You represent all of us here who may never be free and that’s your responsibility because you have been given another chance.”

Freedom is a state of mind.

Today, his words are just as powerful and they serve to remind me that freedom begins here in this very moment. Philosophy is not merely mental masturbation for college kids debating in class, it has practical value. It’s what separates us from being animals ruled by mere instincts.

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