Category Archives: punishment

IRAA 3.0: Second Look Review for Adults

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Today I am testifying on behalf of the Second Look Amendment Act of 2019, sometimes dubbed IRAA 3.0. The initial IRAA, the Incarceration Amendment Act, was designed to provide post-sentencing review to those who committed crimes as juveniles and were given life or near-life sentences. IRAA 2.0 extended eligibility and clarified some issues in the original bill, and the current incarnation is designed to provide that same post-sentencing review to those convicted of crimes from 18-25 years old.

I represent the Georgetown Pivot Program—a reentry program based at Georgetown University that began last year. I am also a DC resident, residing in Ward 4, and I support the Second Look Amendment Act.

No discussion of DC sentencing review can proceed without a few basic facts:

  1. The US has the highest incarceration rate in the world. We have less than 5% of the world’s population and more than 20% of the world’s prisoners.[1]
  2. Most of the march towards mass incarceration is driven by state-level policies rather than federal law. 83% of prisoners are incarcerated in state prisons and local jails.[2]
  3. DC has the highest incarceration rate of any state or territory in the US: yes, we have a higher incarceration rate than Louisiana, Oklahoma, Mississippi, or Georgia. When it comes to imprisoning our citizens, DC is #1.[3]
  4. The DC Council has repeatedly chosen policies that enhance sentences in a way that increases the number of our fellow citizens who are incarcerated, despite evidence that this is not making DC’s residents any safer. At the current incarceration rates, there is ample evidence that reducing sentencing at the margin would decrease crime.[4]
  5. Today, our crime rate is near its fifty-five year low—and a small recent uptick should not be cause to repeat the disastrous policies of the 70s, 80s, and 90s that got us our #1 status.
  6. Instead, we should work to reduce sentences across the board—we must become significantly less punitive or else continue to lose our fellow citizens to the Federal Bureau of Prisons.[5]
  7. The Second Look bill currently being considered does this in a very small way. Its greatest weakness is that it countenances post-sentencing modifications ONLY for those whose crimes were committed before the age of 25, on the theory that the young adult brain is still developing. However, we really ought to offer post-sentencing modifications for everyone regardless of age since we are assessing rehabilitation, not the degree of culpability.[6]
  8. The American Law Institute, an association of law faculty that maintain and amend the Model Penal Code, updated the MPC with Second Look post-sentencing review in 2017 in light of the inadequacies of parole board reviews. It behooves us to follow them, at least for those offenders who were 18-25 years old at the time of their offence.[7]
  9. A Second Look is an evaluation of rehabilitation: it gives us an opportunity to live up to the ideal of prisons as correctional rather than merely retributive. Punishment is—and must be—predicated on the idea that the offender, like the victim, is a member of our community who will have the opportunity to be restored to full membership.

At the Pivot Program we have 15 Pivot Fellows studying entrepreneurship alongside a traditional liberal arts curriculum, including two IRAA 1.0 clients. Through my work with the Georgetown Prisons and Justice Initiative, the Prison Scholars Program, and the Paralegal Program I’ve had the opportunity to work with several IRAA 1.0 clients, as well as many who would qualify for post-sentencing review under the Second Look legislation.

We are incredibly lucky to have started our programs at around the same time that the IRAA clients were returning to DC—and I can report that our programs both inside and outside the Jail are desperate for more participants like the ones that IRAA has granted us. 

Kareem McCraney, Charles Fantroy, Tyrone Walker, Halim Flowers, Troy Burner, Mustafa Zulu, and Momolu Stewart: I have been working with incarcerated students for almost a decade and these are among the best students I have taught in all that time. But we are just as excited to work with students who would qualify  for review under the Second Look Act. In particular I would highlight the current mentors on the Young Men Emerging unit at DC’s Correctional Treatment Facility: Joel Caston and Michael Woody.

Michael Woody and Joel Caston with Savannah Sellers

These men seem exceptional to all who meet them, and they are truly excellent students and teachers. But the truth is that there hundreds more like them among our fellow citizens imprisoned in the FBOP—men and women whose talents are currently unavailable to us here in the District, and slated to be wasted for decades longer, because they received very long sentences for crimes committed after their 18th birthday, yet while they were still too young to have the full cognitive capacities of adulthood.

I want to point to three challenges that will continue to plague returning citizens in DC, whether from IRAA-style post-sentencing reviews or the 5,000 citizens returning to the District every year:

  1. Returning citizens still face significant obstacles to employment for crimes that are unrelated to the types of work they pursue. The stigma of incarceration is still far too great, and the best evidence suggests that merely “banning the box” without other supports extends this stigma to all young Black and Latino men. Thus we simply MUST find ways to create fewer returning citizens by incarcerating fewer of our fellow citizens in the first place, and to create positive employment signals for returning citizens that will combat this stigma. 
  2. Housing insecurity is a major problem for returning citizens generally—and this has hit the Pivot Program in predictable ways, with several promising fellows losing significant class and internship time as formerly-secure housing situations became unsettled. The Pivot Fellows were DC residents before they were shipped off to the Federal Bureau of Prisons but they have returned to a rapidly and severely gentrifying city. Often their reentry plans require them to reside with family members who have left the District in the intervening years—and this effectively outsources our obligations to Virginia and Maryland. Allowing former DC residents to secure residency status through MORCA so that they can continue to access DC’s reentry programs while temporarily residing outside of the District is the least we can do for them. As I have tried to show, we otherwise risk losing some extraordinary human capital to other localities.
  3. Finally, our program is highly dependent on the $10/hr subsidized training wage from DC DOES which supports both the Pivot Fellows’ education and work experience. The training wage is designed to be unpalatably low so as to incentive the search for full-time unsubsidized employment, which isn’t fully compatible with our program’s goal of keeping Pivot fellows engaged over the whole ten month program. At Georgetown we subsidize these stipends to raise the effective hourly rate to $15/hour. It would be helpful to our work if they were able to cover a living wage either as a base rate or as an incentive bonus for consistent performance. While we are happy to subsidize the DC DOES stipend in this cohort,  continuing to do so is a significant private philanthropy burden that will hamper our ability to scale. If DC is serious about raising the minimum wage, then training wages like those offered by Pivot and Project Empowerment must rise as well.

DC is in an enviable position: we are poised to do the right thing for all our fellow citizens. We should pass Second Look, end a significant injustice, and reap the dividends. Thank you for your time.

Footnotes (aka The Receipts)

[1] Peter Wagner and Alison Walsh, States of Incarceration: The Global Context 2016, available at https://www.prisonpolicy.org/global/2016.html

[2] Wendy Sawyer and Peter Wagner, Mass Incarceration: The Whole Pie 2019, available at https://www.prisonpolicy.org/reports/pie2019.html

[3] Peter Wagner and Alison Walsh, States of Incarceration: The Global Context 2016, available at https://www.prisonpolicy.org/global/2016.html

[4] James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America. (New York: Farrar, Straus, and Giroux, 2017) and Daniel Roodman, The Impacts of Incarceration on Crime, Open Philanthropy Project 2017, available at: https://www.openphilanthropy.org/files/Focus_Areas/Criminal_Justice_Reform/The_impacts_of_incarceration_on_crime_10.pdf

[5] Urban Institute, A Matter of Time, available at: http://apps.urban.org/features/long-prison-terms/a_matter_of_time_print_version.pdf

[6] Gideon Yaffe, The Age of Culpability: Children and the Nature of Criminal Responsibility. (Cambridge: Oxford University Press, 2018)

[7] Richard Frase, Second Look Provisions in the Proposed Model Penal Code Revisions, 21 Fed. Sentencing R. 194 (2009), available at http://scholarship.law.umn.edu/faculty_articles/522 and Meghan J. Ryan, Taking Another Look at Second-Look Sentencing, 81 Brook. L. Rev. (2015). Available at: http://brooklynworks.brooklaw.edu/blr/vol81/iss1/4

Provoking pedagogically-effective discussion in college courses, with an example using Danielle Allen’s Cuz

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Today is the first day of classes in my seventeenth year of teaching. I have taught a lot over those years–sometimes as much as a 5/5/1 (5 courses in Fall, 5 in Spring, and one over the summer.) My sense from that time is that the value of a philosophy course is largely not derived from excellent lectures on my part–but rather from an engaged seminar discussion. This is sometimes called “Socratic” but I happen to think that Socrates provided a terrible model for contemporary faculty.

Still, I think students learn more from what they do and say and write in the classroom than from what I do, say, and write. The kind of reading, note-taking, and preparation I do to give a lecture helps me understand material deeply–and it’s precisely that kind of reading and preparation that I want my students to cultivate themselves. In that spirit, I have developed a kind of “in-class” presentation which is both how I think of my own best classes, and also allows students to easily step into the role of “guiding discussion” themselves.

During the semester each student takes responsibility for a “provocation,” a written and oral project whereby they start off the class. This works best in small seminars under 15, but it can scale up to 30 with careful management. Each class period a student takes responsibility for kicking off our discussion of the reading with a short paper that briefly summarizes the argument, pulls a choice textual selection for discussion, and asks a provocative question or two, and then explains why this question meets three critera: (1) it is personally interesting to the student, (2) difficult to answer because it turns on a deep philosophical disagreement/confusion or rests on tricky empirical issues, and (3) important for directing further study and/or its answers will have implications for other relevant questions.

I always make sure to model these provocations for students myself, and indeed this afternoon I’ll be doing so using an article by Danielle Allen:

Danielle Allen’s “The Life of a South Central Statistic” is an excerpt from her book Cuz, which describes her cousin Michael Allen who was incarcerated as an adolescent for a string of robberies and thefts. Danielle Allen describes how Michael was locked up under the then-new three strikes policy in California (which also enhanced sentencing for carjacking) and how prison changed him—and how the relationships he formed there eventually led to his murder. Though he worked as a firefighter while incarcerated his criminal record kept him from taking firefighting up as a career upon release, and he fell into the drug trade. Though she lays some blame at the feet of the California legislature for meting out such a harsh sentence, Danielle Allen also describes the violence of organized drug trafficking as a “para-state” with twice the resources of the CIA operating in American cities to exploit and kill men like her cousin.

One of the more striking passages in the article is this one:

“California’s legislators had given up on the idea of rehabilitation in prison, even for juveniles. This is a point that critics of the penal system make all the time. Here is what they don’t say: legislators had also given up on retribution. Anger drives retribution. When the punishment fits the crime, retribution is achieved, and anger is sated; it softens. This is what makes it anger, not hatred, a distinction recognized by philosophers all the way back to antiquity. Retribution limits how much punishment you can impose.

The legislators who voted to try as adults sixteen-year-olds, and then fourteen-year-olds, were not interested in retribution. They had become deterrence theorists. They were designing sentences not for people but for a thing: the aggregate level of crime. They wanted to reduce that level, regardless of what constituted justice for any individual involved. The target of Michael’s sentence was not a bright fifteen-year-old boy with a mild proclivity for theft but the thousands of carjackings that occurred in Los Angeles. Deterrence dehumanizes. It directs at the individual the full hatred that society understandably has for an aggregate phenomenon. But no individual should bear that kind of responsibility.”

In the quoted paragraphs above, Danielle Allen seems to suggest that the political morality of deterrence is worse than revenge. Is the purpose of criminal punishment to prevent crime? Does this treat a person like an aggregate–a statistic–as she suggests?

This fascinates me because I am tempted to believe that the only reasonable use of state violence to punish is to deter worse behavior, but such efforts are often accused of dehumanizing the perpetrator. Yet revenge seems more dehumanizing, doesn’t it? Perhaps this is difficult to answer because the manifold justifications for punishment all speak to us at different times in terms of different crimes: when we see the individual harm to a victim we are much more likely to demand the satisfaction of our anger in revenge—but when we think about the ways that a deterrence theory might prevent some crimes from even happening it seems better than having more crime and more retribution for those crimes! I wonder whether there are techniques that could be used to combine these theories: perhaps there are ways that revenge is itself deterring—for instance it signals that crimes are unacceptable. But still there is more to deterrence than renaming revenge: for instance it might be the case that some crimes are difficult to prevent, while other crimes—which cause less harm overall—can be prevented best with really graphically shameful punishments. (For instance, perhaps slumlords are best deterred by being required to stand shamefully in front of their badly maintained buildings holding a sign indicating their violations.) There’s a lot of further study warranted here—and plenty of room for both empirical assessment and more principled philosophical exploration of the related themes.

This provocation barely touches the surface of the interesting themes raised by the article and Allen’s book. But it’s enough to get a conversation started, and I usually come prepared with four to six passages and questions like this for an hour-long class. Quite often I find that even students who are randomly assigned to provoke on some topic develop a semester-long fixation on the themes that arose during their provocation–just because the deep thinking and preparation required to write this short assignment and share it with others gives them a sort of endowment effect with those issues. Here are some more provocations on Allen:

  • Michael was technically a “violent” criminal but his victims weren’t really hurt. He was also a teenager, and perhaps less culpable than an adult in a similar situation. What should we make of his age in assessing his culpability?
  • Michael’s lover–and murderer–was a trans woman named Bree and there are all sorts of issues raised by her time in a men’s facility in California. Should Bree have been housed with women? What would have happened to Michael then?
  • Michael had a loving and supportive mother but her struggles with abusive partners may have contributed to his fate. Could she have done anything differently? And how do our public policies exacerbate these circumstances?
  • Some of Michael’s difficulties upon release are closely tied to the stigmas he faced during reentry. But others are tied to the fact that he fell in love with Bree while incarcerated–they are the results of the deliberate decisions of an adult man struggling to manage social expectations, economic needs, and an obviously abusive relationship with someone who he loved helplessly. What should we make of his story?
  • I find Allen’s discussion of the para-state endlessly fascinating and I wonder whether this is something that prison abolitionists should spend more time working on. Why does she name it a “para-state” and what should we say about the violence that arises from it? Does she partly exonerate the United States for its racist, mass incarcerating policies thereby?

The Enduring Appeal of Perversity Arguments and Unintended Consequences Warnings

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James Forman, Jr. won the Pulitzer Prize last week for his book Locking Up Our Own. It is well-deserved. That book–and his earlier work wrangling with Michelle Alexander’s The New Jim Crow–shows the ways that we have arrived at the wicked problem of mass incarceration through something much harder to disdain than evil scheming by distant elites. We did it to ourselves, and African-American political leaders did it with the full support of their African-American constituents.

Forman’s argument is sometimes conflated with that of Naomi Murakawa, who argued that it was liberals, not conservatives, who created mass incarceration by emphasizing the importance of safety over all other civil rights goals. According to Murakawa, when Lyndon Johnson championed the the 1968 Safe Streets Act which swelled the flow of federal dollars–and federally procured military equipment–into local law enforcement, it wasn’t just a capitulation to conservatives, but:

“part of a long-term liberal agenda, one that reflected a belief that federally subsidized police recruitment and training could become racially fair.” (73)

That is, according to Murakawa, Democrats didn’t adopt law-and-order rhetoric to respond to the policy entrepreneurship from Republicans that threatened to swamp them–they explicitly preferred more coercive and punitive state institutions so long as the men and women wielding the riot gear were racially diverse. By the mid-nineties, Bill Clinton wasn’t passing the 1994 Crime Bill because he got dragged there by Republicans, the Democrats lead the way–in fact the Senate version was sponsored by none other than Joe Biden. Murakawa’s conclusion is damning:

In the end, the Big House may serve racial conservativism, but it was built on the rock of racial liberalism. Liberal law-and-order promised to deliver freedom from racial violence by way of the civil rights carceral state, with professionalized police and prison guards less likely to provoke Watts and Attica. Despite all their differences, Truman’s first essential right of 1947, Johnson’s police professionalization, Kennedy’s sentencing reform, and even Biden’s death penalty proposals landed on a shared metric: criminal justice was racially fair to the extent that it ushered each individual through an ordered, rights-laden machine. Routinized administration of race-neutral laws would mean that racial disparate outcomes would be seen, if at all, as individually particularized and therefore not racially motivated.” (151)

James Forman’s book is quite different. Where Murakawa places most of the blame squarely on white Democrats, Forman places his lens on Black politicians in DC, and finds a very different dynamic. From the start, the story of the rise of racialized mass incarceration is a tragic story of reasonable and well-intentioned Black leaders fighting white supremacy and Black disadvantage with reason and evidence. They made deliberate choices that were well-justified and supported by their constituents. And incrementally, they made things worse.

DC’s leaders saw drugs like heroin as a scourge and heroin dealers as race traitors. They saw violent crime rising, and guns playing a major role. And they wanted Black police–because those were good jobs and because Black police officers wouldn’t be tempted to engage in racist practices. So they punished drug dealers and ultimately drug users. They punished violent crime and gun possession. And they did it with a Black-led and majority-Black police force. But still they ended up creating a majority Black prison population in our (I live in DC too) Black-led and Black-staffed prisons and jails.

Forman does the hardest thing in criminology and law: he adopts the stereoscopic vision that can see both from the perspective of those who fear crime and those who bear the costs of policing and prisons.* Black District residents know what it’s like to fear that their family and neighbors will fall into drug addiction or be the victims of gun crime. They also know what it’s like to fear that their family and neighbors will be terrorized by the police or have their lives derailed by imprisonment. And Forman is able to square those stories: see the victim’s fear and rage with one eye and the perpetrator’s circumstances and his community’s losses with the other. Alone, either perspective gives a flat, two-dimensional image, but together you get depth: three-dimensions of a wicked problem where values are always at stake but a way forward is possible.

The difference between Forman and Murakawa is that where Forman wants to tell a careful story about wicked problems and their double-binds, Murakawa seems to want to show up liberals (including Black liberal elites) as self-undermining and doomed to failure. This is Afropessimism at its best and worst: any efforts at racial equity are perverse and doomed to failure. I find such arguments deeply challenging when they come from non-white authors, which is why it’s important to me to think seriously about what a perversity argument is doing.

A perversity argument is any argument that claims that when we try to do a thing we believe is important, we will fail and make it worse, falling further behind as we try to move ahead. The actual use of perversity and unintended consequences arguments are often justified by some of the available evidence, as well as some of the speculative hypotheses: try to make someone love you and they will feel manipulated; create a minimum wage to help the poor and you’ll increase unemployment; try to reform the criminal justice system and you’ll just make it stronger and more pervasive; tell someone they’re wrong and they’ll sink even deeper into their error; try to engage in affirmative action to reverse racial discrimination and you’ll entrench stereotypes of inferiority.

Margo Schlanger’s 2015 review of Murakawa’s The First Civil Right has stuck with me for a while in part because I still occasionally hear people pushing the Murakawa line that Democrats and liberals are primarily responsible for mass incarceration, and thus can’t be trusted to reverse it. Schlanger has a great reading of Albert Hirschman’s work on reactionaries, radicals, and academics and our enduring love of perversity arguments:

Indeed, perversity arguments are appealing not only to reactionaries and the left-of-liberal left but to academics, irregardless of ideology. As Hirschman says, a perversity argument “is, at first blush, a daring intellectual maneuver. The structure of the argument is admirably simple, whereas the claim being made is rather extreme.” Perversity arguments are counter-intuitive, attention-grabbing. These are attractive characteristics for someone trying to stand out in a crowd of monographs. And sure enough, the attack on liberalism as perversely harming the disempowered has become quite fashionable in criminal justice in particular. Bill Stuntz is its most well-known (and least radical) author, but structurally similar claims have sprouted up all over, usually from the far left. These are arguments that prison conditions litigation causes an increase in incarceration, Miranda rights cause increased arrests, and so on. The claims are empirical—A caused B—but the arguments are usually a combination of ideological and hypothetical.

Perversity arguments feel smart and daring. They make you feel like you’ve seen a secret truth. But they also work to disempower and disengage. They paralyze us with fear, uncertainty, and doubt. Every step in the minefield of unintended consequences and backlashes is probably doomed, so the only safe thing to do is stand still. From the perspective of perversity helping hurts, loving hates, attacking strengthens, and truth-seekers lie. Nothing is what it seems, and everything must be viewed through a hermeneutics of suspicion that ends with a kind of paralysis or status quo preference.

But at the same time… sometimes everything is not what it seems. Sometimes our well-intentioned efforts do make things worse. If Forman is right, DC’s leaders were facing real crime problems in need of real solutions, and they built a tidy mass incarcerated city without ever seeking to do so. And his chapters on DC’s responses to gun violence, especially, strike me as importantly relevant to current discussions of gun control in the wake of the Parkland shootings.

*Another book that manages the “stereoscopic view” well is Danielle Allen’s Cuz.

Civic Death and the Afterlife of Imprisonment

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It’s primary season, and once again I am reminded at just how little the rest of the country cares about the disenfranchisement of the District of Columbia. I usually salve my irritation with the knowledge that individual votes are unlikely to sway an election, so I am largely unharmed personally. The problem, of course, is that the disenfranchisement of a large group of people who share some interests does seem likely to have serious policy effects, as those interests are systematically ignored. (Perhaps a more powerful argument defending the loss of DC’s voting rights in federal matters is that it might force us to attend to local politics where decisions are both consequential and close enough to our lives to be noticed. So far, though, I am unimpressed.)

In any case, my neighbors and I are not alone. Vann Newkirk has a piece in the Atlantic challenging felon and prisoner disenfranchisement:

The origins of disenfranchisement as a vehicle of American punishment are likely traceable to some form of the classical notion of a “civil death.” For the Greeks, the punishment of civil death was akin to capital punishment—a complete extinguishing of the civil rights that Greeks believed constituted personhood, including suffrage, landownership, and the right to file lawsuits. English common law borrowed the Greek concept, and civil death was long viewed as a suitable punishment for felony offenses.

But civil death as a formal punishment in the American colonies differed from the English system on which it was based, and from the punishments that would later evolve. Civil death was initially only adopted in America for a very small number of felonies, the most common of which were violations directly connected to voting—for example, fraud or bribery. This paralleled both an expansion of crimes considered felonies and a decoupling of felony punishment from capital punishment. The use of long-term imprisonment, instead of corporal or capital punishment, only came about in fits and starts.

It doesn’t have to be that way. In Maryland, former felons are regaining their voting rights this year, and that affects some of the graduates of the JCI Prison Scholars Program! It’s pretty great.

For too long, we have begun to imagine that violators of the social contract are somehow unable to participate in its revision. In a world without ungoverned spaces, it’s no longer possible to exile our trangressors into the wastes. But what we do instead is significantly more cruel: exiled to social and civil death, prisoners are meant to continue to live in our midst while occupying as little of our time and energy as possible. They’re invisible men whose future is supposed to hold no future except to be ignored.

Yet the fantasies of social death are pernicious precisely because they imagine no return. The reality is that most of these men must someday rejoin the communities from which they have been exiled. People come back. What’s more, they’re never really that far away.

Their lives and ours are still bound together: at the very least we still pay to keep our fellow citizens incarcerated, we still send some of our fellow citizens inside to guard and “correct” them. But it’s also worth remembering that the prison’s walls are remarkably permeable. Guards and visiting family stream in and out. Gang members inside help their outside colleagues agree to cessation of hostilities.

If we were still able to punish our criminals with exile or death, it would be much easier. Instead ghosts still haunt us long after their social death. Fathers and mothers still parent their daughters and sons from within the prison’s walls. Husbands have long arguments and tender reconciliations with their wives as phone calls and letters go back and forth at great expense. And in most cases, the men and women who go off to prison must eventually shamble back from the social death we’ve wished upon them.

I still don’t know if there’s room for prisons in a just society. Our vengeful impulses seem to require some sort of satisfaction, and imprisonment might just be the fairest one remaining. But I do feel confident that those prisons cannot be premised on social death any longer.

Reprobation as Shared Inquiry: Teaching the Liberal Arts in Prison

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One of the reasons I blog less than I used to is that in addition to running this journal I’ve been teaching and organizing a college program at Jessup Correctional Institution. (Although I think it was having a daughter that really sucked the wind out of my sails, blogging-wise.)

Anyway,first page to prove I haven’t been completely unproductive, my collaborator Daniel Levine and I just published an article on the philosophy of punishment that reflects on our experiences at JCI. Here’s the abstract:

Respect for victims requires that we have social systems for punishing and condemning (reproving) serious crimes. But, the conditions of social marginalization and political subordination of the communities from which an overwhelming number of prisoners in the United States come place serious barriers in the face of effective reprobation. Mass incarceration makes this problem worse by disrupting and disrespecting entire communities. While humanities education in the prisons is far from a total solution, it is one way to make reprobation meaningful, so long as the prison classroom is a place where the educators’ values are also put at risk.

If your library doesn’t have a subscription to RPR, you can read an archival copy (which excludes the final formatting and page numbers) through philpapers here.

Scanlon’s “Giving Desert its Due”

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A couple of years back Tim Scanlon did a blog post and comment-section discussion on PEA Soup. Here’s one bit:

In earlier work, including my Tanner Lectures on the significance of choice and Chapter 6 of What We Owe to Each Other, I rejected the idea of moral desert because I identified it with the idea that the fact that someone has behaved badly can make it a good thing that he or she should suffer some loss. I still find the latter view morally unacceptable. But it now seems to me that this rejection of desert is too quick. Desert should not be identified with this retributivist idea. There is, I believe, a distinct category of valid desert-based justifications. A desert-based justification for treating a person in a certain way claims that this form of treatment is made appropriate simply by facts about what that person is like, or what he or she has done. By simply, I mean without need to appeal to other factors such as the good consequences of treating the person in this way or to the fact that this treatment is called for by some institution or practice that is independently justified. Moral blame, gratitude, and some honors and distinctions can be justified in this way, and these justifications do not presuppose that the qualities that form the basis for justification are all under the person’s control. The responses are justified simply by what the person is like, or has done. By contrast, legal punishment, insofar as it involves forms of hard treatment such as fines or imprisonment, cannot be justified purely on the basis of desert, nor can significant differences in economic reward be justified in this way. I argue for these views in “Giving Desert Its Due,” which has just appeared in Philosophical Explorations.

I’m just today reading the article in Philosophical Explanations, and it has some interesting features that bear on some of my recent work with Daniel Levine. For one thing, he tries to argue that when we distinguish moral from legal blame–that is, when we distinguish blaming from punishment–we can start to justify withdrawing our personal willingness to have special relationships and obligations to a person based on what they are like or what they have done. For instance, if your male neighbor abuses his wife, it’s reasonable to find yourself less trusting of him, less willing to enter into friendship or shared projects, and less happy for him when things go well in his life… and thus less unhappy when things go badly. (page 11)

But what’s important is that these attitudes are all of the “special” designation: conditional attitudes which we cannot grant equally to all and thus appropriately deprive most people of–and now the neighbor as well. It is appropriate to “withdraw good will” towards a person if they act in certain ways. This is the distinction: everyone, regardless of their behavior, deserves certain unconditional kinds of respect. But conditional forms of respect are conditioned and thus winnable and loseable: esteem, deference, and honor; disesteem, disdain, and contempt.

So far, so good. Now, we know on Scanlon’s account that in some sense responsibility is merely a matter of attribution: so we blame and praise and engage in all the special interpersonal relationships because our actions are attributed to our character. We don’t just blame or praise an action, we blame or praise the person for being the kind of person who would engage in that action.

Now as it happens, I am not convinced that we need to so quickly conflate acting and being. Because what happens in punishment, at least in our society, is that everyone simultaneously withdraws good will towards the prisoner, while simultaneously we become willing to inflict suffering upon them. Scanlon focuses on this second element, and deplores it as not appropriate when we decide not just to acquiesce (by being less unhappy) to their suffering, but to actively visit it upon them, to act (often at our own expense, and obviously so in the criminal justice system) to make them worse off.

Interestingly, this rule-following punishment that Scanlon deplores is at the heart of the social production of norms in community. It’s at the heart of common pool resource management, including the management of the common pool of social reasons and thus our community and its mores, so there’s a strong practical sense in which Scanlon is probably wrong. More on this in moment.

Where Scanlon really seems to go wrong is in the special kind of deprivation in the widespread withdrawal of special relationships that Scanlon calls for in addressing the wrongdoer. It takes an odd kind of individualist contractualism to assume that the universal deprivation of good will and willingness to share projects is somehow unobjectionable. Shared projects are at the heart of human agency. They are the basis not just of the special respect of friendship and love, but of the shared practices that make dignity possible. We have ample evidence of this, that the conditional and unconditional interpersonal relationships are not as easily prised apart as Scanlon claims here.

I think we must probably accept that Scanlon has the wrong end of this problem. Probably it should work something like this: we deem it acceptable to visit suffering on another in a directed manner as a response to normative failures like wrongdoing. But we do so under the understanding that the punishment is a part of the restoration of the conditions of special interpersonal relationships–of good will. We punish so that we can go back to trusting and collaborating. Anything else is inappropriate. Thus we restore the priority of the conditional over the (allegedly) unconditional reactive attitudes, acknowledging as we do so that these never really were unconditional attitudes in the first place, that reactivity always trump unconditionality and honor always trumped dignity.

I need to think some more about what that means for the latter half of the paper, where Scanlon tries to tie these questions of punishment and moral blame to economic distributions and redistributions. I’m sympathetic to his conclusions there, but having undermined his foundations I’ll have to see if I can justify an alternative means to that end.

The “Humanitarianism” of Living in Prison Until Death

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The profile of Judith Clark from last month has me worried:

We are more willing to impose death when the killer is painted in monochrome—if we can define him or her by the horror of the crime. Many think this is just; that is what blame and punishment are about. But in rare public comments to the magazine of Washington and Lee University’s law school, where she has taught, Clarke argued that no person should be defined “by the worst moment, or worst day” of his life. She laboriously constructs a complex and sympathetic portrait of the accused, working with a far more varied palette, sketching out the good and the bad, unearthing the forces that drove a killer to the terrible moment, and insisting that judges and juries and prosecutors see the larger picture, weighing not just the crime but the whole person. She seeks not forgiveness but understanding. It takes only a small spark of it to decide against sentencing someone to death.

It seems like such a laudable goal: to demonstrate that since even the worst criminals are ultimately unworthy of the death penalty, lesser criminals ought not to receive it either. Yet I see the appeal in the death penalty, too. As Arendt puts it in Eichmann in Jerusalem:

And just as you [Eichmann] supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations…we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang.

I’m sympathetic to Arendt here, but I worry that the great mass murders and our outsized vengeance justifies a whole system of lesser punitiveness (like the supermax) that we ought to rein in. Maybe we can’t.

And to a large extent that paragraph is self-refuting: “as though you and your superiors had any right to determine who should and who should not inhabit the world.” On Arendt’s view, that kind of authority could never exist (what theory of political authority or consent would justify it? how could it be epistemically reliable? who would hold it in check? what does the claimed authority do to the regime that claims it?) and yet our courts regularly assert it. And, yes, this is the same boring claim made by opponents of capital punishment everywhere, an argument that Arendt acknowledges was just as valid in Eichmann’s case as in any other but “this was not a very promising case on which to fight.” Clark disagrees, of course: while hard cases make bad law, they do make good tests of general principles.

I think it’s notable how simple and straightforward the arguments against the death penalty are, and how convoluted and twisted the arguments in favor of it are. It seems we must go to considerable cognitive trouble to justify what we know is wrong (and we know it is wrong because murder is so often what we are punishing in the first place.)

So a life sentence is more humane. It’s the most ethical of the punishments, right? My friend Sarah Shugars challenges this humanism, again in the context of Tsarnaev:

a life sentence allows us to pat ourselves on the back for a job well done: our judgement was harsh but humane. Our prisoner will get no appeals while he lives in extreme isolation – cramped in a 7 x 9 cell and fed through a slot in the solid steel door. But at least he will have his life. We are progressive after all.

There is something wrong with this dynamic.

I’m not sure what to recommend in the Tsarnaev trial – whether life or death is ultimately a worse fate. But more broadly we need to rethink our options. We need to recognize the deep, systemic failures of our prison system and identify new strategies and options for reparation and justice. If we want to be harsh, we can be harsh, but let’s be honest about what we are and what we want from our punishments.

After all, if we’re quibbling over whether someone should die slowly or die quickly – we’re hardly arguing about anything at all.

Life without parole (LWOP) is a weird kind of humanitarianism. It’s often defended by reference to how easy death is in comparison, which hints at how little there is of humanitarianism in our drive to sentence wrongdoers to life rather than death… to make them live rather than make them die.

Perhaps thinking similar thoughts, Corey Robin shares this poem from Primo Levi, “For Adolph Eichmann”:

O son of death, we do not wish you death.

May you live long as no one has ever lived:

May you live sleepless for five million nights,

And every night may you be visited by the grief of everyone who saw

The door that closed off the way of return click shut,

the dark around him rise, the air crowd with death.

For Primo Levi, a life sentence is not about mercy: it’s the ultimate punishment, or it is supposed to be. It’s the only way to make the harms received equal to the harms perpetrated.

We see this same conflict in the work of the ACLU. They call LWOP both “a living death” and “swift, severe, cheap, and fair,” depending on whether they’re criticizing its use for nonviolent offenders or offering it as an alternative to the death penalty. It’s torture unless it’s justified; or, it’s torture, but some people deserve torture. That can’t be right.

LWOP seems to exist only to make sense of our greater economy of punishments, not because in itself it’s recognizably fair.

This idea–that there’s something like an order or an economy to all the bad things people can do–strikes me as pernicious and nonsensical. Arguably, it’s that first effort to rationalize our revenge that makes room for mass incarceration: it’s only when we try to make all this resentment and anger sensible and procedural that we end up with the highest incarceration rate in the world.

Can we imagine a real alternative to the death penalty, though? And if we can’t, is there much point in pushing the issue? What about life with parole? Is this imaginable?

Anders Breivik got 21 years, so clearly it’s possible, though even in Norway he can be imprisoned indefinitely if he’s still considered a threat.

I have some questions about violence

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11736It looks like I’ll be co-teaching a course on violence with Daniel Levine in the spring, and I have some questions:

  1. Is it just me, or do philosophers rarely talk about violence? We talk a lot about killing, and war, and punishment, and even torture. We talk about peace and non-violence. But “violence” doesn’t come up often, and when it does it’s often (as in the Frankfurt School) mythologized or dealt with through a kind of negative theology. Am I right about that?
  2. Clearly there are some related concepts, like cruelty, domination, coercion, etc. But what do they tell us about violence? Is violence the worst thing that humans can do? Compare violence to cruelty, domination, destruction, and harm; are these the components of violence, or its frequent companions?
  3. Where does sexual violence fit? Is it an intensification, a different kind, or a mixture of violence and other things like domination and cruelty?
  4. More basically: is violence a natural kind? Is there a specific phenomenality attached to it, i.e. is there something all instances of violence are “like”? Or is it a family resemblance term? (Or is it worse than a family resemblance term, we don’t even know what it means in all the contexts where we’re using it?)
  5. Who is more violent: a sniper or boxer?
  6. Who is more violent: a drone operator or a torturer?
  7. Which is more violent: a bomb or a prison cell extraction?
  8. Is an explosion always violent? Are fireworks “controlled violence” or are firebombs “violent and destructive fireworks”?
  9. Why do we continue to speak as if peace is passive and violence active, even after generations of non-violent activists have shown us how active peace can be? What’s the bias, there?
  10. Can words and arguments be violent, or is it just that some words are backed by institutions of violence? Like, can philosophy be violent, or does it only get a little violence rubbed off on it when it’s justifying war or torture or the actual embodied violence of the state? Put another way, is an argument or aa discourse violent only insofar as it is an implicit but authentic *threat* of physical violence?
  11. Contrariwise: can violence be expressive?
  12. War is way more violent than most people  even give it credit for being, I think. There is a lot of peripheral violence, destroyed communities, and lost capacities, even in “just” wars. So is interstate and civil war more violent than totalitarianism? Is “legitimate” state violence better or worse than “illegitimate” non-state violence? Are they equal, i.e. violence is violence is violence?

Reflections on my Crime and Punishment Seminar

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Old Ohio Penitentiary by J. Harris Day

Old Ohio Penitentiary by J. Harris Day

This semester I taught a course on crime and punishment, and in part out of competition with my colleague Seth Vannatta, I set out to give a final presentation on the dimensions of the course. This is the presentation I wrote.

Introduction

Our task was to explore the role of ethics in the law, and we began our semester worrying about standard ethical questions of responsibility and who to blame when things go wrong. The standard theories of punishment all revolve around these questions: whether we are utilitarians or contractarians, we are implicitly depending upon an account of what we owe to the criminal and to society. What’s more, the same assumptions underwrite our theories of what it is to deserve a grade (an A, an F), to deserve the love of our partners, or to deserve a particular job or a raise. This question of where to locate merit in our account of responsibility is particularly troubling, however, when someone is harmed, when a law is broken, or a right is infringed.

Simple questions of positive and common law or negligence, willfulness, and standards of care quickly morphed into a thorny metaphysical question: how can we be responsible for our acts if we could not have done otherwise, that is, if the mechanistic picture of the universe and our genetics and our society and our brains is true, and what I ate for breakfast or the crimes I commit before dinner are all predetermined?

Reactive Attitudes

The courts want to avoid such questions, but throughout the semester my contention was that they end up smuggling metaphysical accounts of agency into their descriptions of the non-culpability of children for trespass. Yet what we saw in Peter Stawson’s account of the reactive attitudes was an attempt to save responsibility, praise, and blame while jettisoning the supposedly-unavoidable metaphysical underpinnings. By redescribing blame and responsibility in terms of their own possibly-deterministic framework, Strawson allows us to say something like the following: “Maybe you could not have done other than what you have done, maybe your virtues and your vices are both unavoidable, but my reactions are no more avoidable. If you cannot be expected to have prevented your crimes, then I cannot be expected to prevent your punishment.”

This certainly appears to be a satisfying solution to the problem, because the law cannot requires a victim or a judge to achieve an inhuman level of restraint in the face of a dazzling failure of restraint in the perpetrator. Strawson’s “reactive attitudes” account comforts us by communicating just how unfair this asymmetry actually is. And yet… in beginning to spell out conditions for the defeasibility for responsibility, Strawson reiterates that not all actions and reactions are symmetrical. Under many circumstances, a victim truly does have more restraint than a perpetrator, and ought to exercise  it, too. (Not just to prevent cycles of reprisal, although that certainly counts in its favor; to get beyond a mere modus vivendi to what we might mean by justice.) Even more: a judge’s capacity to see beyond the dyadic relationship of injury and blame means that she can ask questions about the overarching justice and efficacy of a punishment.

Grammatical Theories

Thus we entered what we called the “grammatical” theories of agency and responsibility. We experience our own lives through the first-person lens, as “I.” Meanwhile, we can talk about the other person in two different ways: as a second-person “you” or as a third-person “them.” And underwriting these lenses or grammatical conventions is the fact that we tend to see ourselves as agents and others as passive, to an extent that is so asymmetric and inconsistent that it is hard to believe it can be warranted. For instance, we are much more likely to explain our own failings in terms of circumstances, while we tend to describe the failings of others in terms of character, intention, or predilection. “I” fail because of events and impediments beyond my control, despite my best efforts. “You” fail because you didn’t try hard enough, you just weren’t willing to work at it; “they” fail because that’s just what they’re like, “they” are failures.

So what starts as an attempt to avoid the difficult metaphysical problems gets bogged down in our cognitive heuristics and biases. In gathering the texts we read together, I tried to duck this problem by adopting the third-person perspective, moving the course from the questions of just deserts to systematic accounts of the problem. Of course, all the intutions and issues of first-person and second-person agency and responsibility are still lurking there for you to pick up, if you like, but we’re all fascinated by the political theory and history, so I followed our collective inclinations. “Don’t blame me!” I guess I’m saying. “We are collectively responsible!”

The Republican Theory of Punishment

In order to ground our discussions of justice, we tried to transition from metaphysical and psychological accounts of freedom to the political and legal theory of liberty, that thing of which coercion and the threat of interference and violence deprives us. At about this point it began to be increasingly difficult to ignore issues of race, even in the sense of putting them off until we got to Michele Alexander’s book. So when John Braithwaite and Philip Pettit offered a theory of dominion as the equality of social status and defended it explicitly with reference to the differential “costs of victimization investigation” that African-Americans face, it became increasingly difficult to ignore the discriminatory intents and impacts of things like the death penalty.

Perhaps the most interesting insight that Braithwaite and Pettit offer is the conclusion that much punishment is simply an attempt to preserve hierarchy rather than to right an inequality. This is something we well-recognize in looking around at the race and class of those who get punished in the US, but philosophers too frequently ignore it. What’s more Braithwaite and Pettit offered us an explanation of what makes coercion and domination so difficult: not the harm or loss of utility, nor the shear loss of doing what you want to do, but the way that it harms our social standing, makes some “better than” and others “less than.” Many political philosophers have concluded that a democratic society cannot function if it is not populated by social equals. The only problem is that so many so-called democracies *do* seem to have serious social hierarchies, and as university students and faculty we inhabit an elitist institution that sets out to distinguish erudition from ignorance and good work from bad.

Costs and Benefits

One way to articulate the appeal of the theory of non-domination that Pettit offered is the way in which it gives us a tool to balance the costs of victimization against the costs of investigation and incarceration. But the balancing act favored just one variable, equality, and it seemed that this is not the only way to proceed. Sometimes, as in markets, equality should take a back-seat to other values, like efficiency and optimality.

In his book When Brute Force Fails, Mark Kleiman offered a different account. He suggested that given how much we spend on and lose to crime-avoidance, perhaps some large amount of criminality is simply inefficient, and we’d be better off spending even more of our scarce resources on eliminating it. What is more, he suggested, we not only need to spend more preventing crime, but we need to spend these greater resources more intelligently. (Work harder AND smarter.) Yet the real strength of his argument is not so much the cost-benefit analysis but his prescriptions: that infrequent, uncertain, and severe punishments are simply not much of a deterrent, while swift, certain, and light-but-escalating punishments could be much more effective, saving us costs to the criminal as well as the victim.

Given how much crime costs us as a society (and Kleiman includes the cost to the criminals!) there is much benefit to be had from preventing it. Yet so long as we organize our response to crime around the concept of punishment rather than prevention, we will tend to choose more severe and less effective regimes of investigation, correction, and incarceration.

Surveillance and Punishment

Despite its appeal, Kleiman’s prescriptions fall under the rubric of an increasingly surveyed disciplinary society, one that simply uses new technologies from psychology and economics to do a better job of controlling its citizenry. The justification for this increased control is that citizens desire safety and security more than they wish to be free from such disciplinary technologies, and Kleiman is undoubtedly right that that is our preference. However, we should worry.

The heart of the course was a close reading of Foucault’s book Discipline and Punish, and if his history taught us anything, it is that social knowledge always has two faces: the production of justificatory knowledge and “truths” by experts who stand to gain from their expertise, and the development of practices and techniques for the regulation and management of bodies.

Much of the first half of the semester was devoted to the production of knowledge and the progress we have made in discerning the true and the just ways of investigating and punishing. But what Foucault attempts to lay bare is the way in which our contemporary treatments of prisoners’ bodies are only intensifications of historical brutalities we think of as inhumane. The intensification follows an introverting path: we have certainly lost the stomach for the spectacle of the regicide being drawn and quartered or the criminal hung on the scaffold. But incarceration and rehabilitation, the watch-words of criminal science, take up a set of tasks related to the ordering of unruly and delinquent bodies that is much more effective but no less self-serving. We now have the tools for more power, and if Foucault is right then we will generally put these instruments to use in asserting our own advantage by dominating others.

Both the concerns about social hierarchies and the recognition of the radically racialized form that incarceration and punishment take in the US suggest that “our own advantage” may include my students and I, but it is unlikely to include the majority of black people and it is unlikely to include the majority of people without college degrees. Recognizing the power that our knowledge allows us does not mean that we can necessarily bend that power to our wills; it is much more likely that it will continue to accrue advantages for us even if we try to betray it, just a rich person’s Capital continues to make money even if they purport to be egalitarian communists.

Punitive Isolation and Bare Life

Deepening our understanding of the techniques of imprisonment, we read essays (including a great one by Lisa Guenther) on the horrors of solitary confinement and the sometimes bewildering Homo Sacre by Giorgio Agamben on the forms of exclusion that seem to have a permanent place in our prison system.

If Agamben is right, then these new forms are all a part of an overarching paradigm, that of the reduction of human beings to their mere physicality and biology. This political movement towards reduction transforms flourishing into survival, and it does it in a way that has been continuously experimented with since the first colonists started to round South African natives into “concentration camps” for ease of management. When those colonial overlords returned home to Europe, they brought their techniques of domination with them, and so in that sense the Holocaust was Europe’s chickens coming home to roost, a “boomerang effect” by which European Jews reap what European capitalists sow.

Biopolitics is a form of legal sovereignty in which “modern man” is a depicted as “an animal whose politics calls his existence as a living being into question” but it makes sense only as a development of the totalitarian interpenetration of politics and private life. The modern sovereign no longer decides between ‘letting his subjects live or making them die,’ rather he chooses to ‘make them live or let them die.’ Thus he distinguishes the form of a power that disciplines its subjects and channels their activity from one that simply responds to infractions with infrequent but grotesque punishments.

Trying to spell out exactly how these new techniques and knowledges serve the purpose of domination is something of a challenge precisely because they are still in the experimental stage, still being contested. In the absence of opposition, however, they have been allowed to remain in unquestioned use for far too long. The very nature of bare life and isolation means that the contestation that would normally be working through these techniques and forcing them to receive some form of justification has been slow to form even among those academics who are supposedly most opposed to domination and who purport to ally themselves always and everywhere with the downtrodden and silenced. Let me suggest one reason, at least, why you should think that there is still work to do.

Agamben suggests that we ought to see ourselves in solidarity with the least of us; the immigrants and refugees, those without rights. No doubt he is motivated by the idea that the rightless are marked by the fact that they rise in status when they have committed a crime, because only then are they granted procedural rights (like the right to a trial) and recognized within the legal framework. In practice, however, it may be more effective to view prisoners through the lens of the nomos of the camp.

The New Jim Crow

One concept we did not discuss in our class in much detail is race solidarity and race treason. But when we turned to Michelle Alexander’s book it became obvious just how difficult such a discussion might be. Having made a persuasive case for the differential intention and impact of the current system of mass incarceration, Alexander then asks her readers, who she assumes will be bourgeois African-Americans like my students, to engage in a radical act of political solidarity. Rather than putting our hope in a Black president, Alexander suggests that quietly celebrating civil rights victories from fifty years ago while enjoying the benefits of what she calls the “Racial Bribe” is a kind of racial treason: selling out the majority of African-Americans for the spoils of white supremacy by becoming complicit in it. In contrast, she suggests that true opposition to white supremacy will require a rejection of the racial bribe and a laser-focus on the policies currently at work in the domination of African-Americans.

We started this class asking what sort of punishment we owe to the criminal: at the conclusion, Alexander proposed that what we owe to the criminal is solidarity. I suspect that this is a difficult proposal to accept. I do not know how to make the case any stronger than she made it, so I will simply quote Baldwin, as she does:

these men are your brothers—your lost, younger brothers. And if the word integration means anything, this is what it means: that we, with love, shall force our brothers to see themselves as they are, to cease fleeing from reality and begin to change it. For this is your home, my friend, do not be driven from it; great men have done great things here, and will again, and we can make America what it must become. It will be hard, but you come from sturdy, peasant stock, men who picked cotton and dammed rivers and built railroads, and, in the teeth of the most terrifying odds, achieved an unassailable and monumental dignity. You come from a long line of great poets since Homer. One of them said, The very time I thought I was lost, My dungeon shook and my chains fell off…. We cannot be free until they are free.

Yet as a white professor of African-American students, I cannot quite countenance her proposals, like when she took to the pages of the New York Times calling for a plea-bargain strike, suggesting that everyone accused of a crime act in solidarity to force the courts to a halt: “Go to Trial: Crash the Justice System.”

“What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”

I tend to think this kind of collective action is unworkable, in part because it puts the responsibility to act on people who are risking very serious jail time if they proceed.

However, the key focus of this proposal is not only to increase demand for lawyers and judges beyond the point the system can handle, but also to increase the demand for jurors so that we must actually face what we have collectively done. Right now almost no criminal can afford to take advantage of his supposed constitutional right to a jury trial. We do everything in our power to coerce them not to use that right, and the results are spectacularly unjust even if every one of them is guilty. As a result, most citizens don’t have to face up to the decision-making a jury trail entails. That’s part of why mass incarceration is of so little interest to most people: out of sight, out of mind. At least a plea-bargain strike would put citizens back in the drivers’ seat. When we get tired enough of jury duty, perhaps we will vote to decriminalize some of the things that are taking us away from our work and families. But so long as we can leave the job to prosecutors, we’ll likely continue to vote for tougher laws and more “tools in the arsenal of prosecutors,” which is an arms race prosecutors have long since won.

Throughout the course we saw a very diverse set of authors arguing that something akin to an abolution of incarceration was required. I didn’t always realize that a text could be read in that way, but it was a running theme. It’s almost impossible to imagine, now; yet I think that these unimaginable things are often what most needs philosophical work. Why not imagine a world where almost 2% of our fellow citizens are in some way dominated by the criminal justice system? Why not imagine a world where we regularly isolate  prisoners, depriving wrongdoers of the social bonds that would be required to reenter society?