Civic Death and the Afterlife of Imprisonment

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.

The Progressive Case for the Welfare State: A Refresher

Many of my own fellow-travelers police progressivism in a way I sometimes find frustrating. It is de rigeur to chastise neoliberals and technocratic moderates for their lack of radicality. My work tends towards the technocratic/participatory divide around how policies should be made, and so I often don’t have strong policy preferences unless I’ve researched a question extensively. Thus I may be the wrong person to offer a common sense or standardized progressive defense of the welfare state, but I thought I’d give it a shot. Here goes:

Soft-core Case

  1. Taxes are the price of a good society. Many of the benefits that citizens enjoy are the positive externalities of our shared institutions, including safety net institutions. Thus, the wealth we earn in the marketplace is only partly due to our own effort, and largely due to social investments. Taxes are thus dividends owed for those social investments, and also the seed capital of future social investment.
  2. Private charity is laudable, but historically it has always come up short of real need. The welfare state responds to these failures of private efforts to ameliorate real suffering. Meanwhile, public provision of charity has been massively successful at reducing poverty and alleviating suffering. (The measures of poverty that claim otherwise assume away the goods and services supplied by safety net institutions.)
  3. The regulatory state responds to memorable injustices and documented depredations of private institutions and interests. Public regulation of industrial activity has helped to solve large-scale coordination problems, giving us cleaner air, safer drinking water, and lower mortality than countries who do not regulate those goods.
  4. It is no coincidence that the richest countries have more pervasive welfare states. Both serious poverty and large inequalities are inefficient for finding talented workers and ensuring that they are not excluded from sectors of the labor market that the rich might be tempted to monopolize.

Medium-Core Case

  1. There is a plausible case to be made for free markets: they tend to allocate resources more efficiently than alternative institutions when there’s a method for increasing the supply of that good. But free-market principles tend to fail where there are prospects of monopoly, including in situations of desperation where price-gouging becomes possible. Rent-seeking can happen both privately and publicly, but private rent-seekers tend to extract more value from those they exploit than public rent-seekers do.
  2. When users share a common-pool resource, they gain an incentive to maintain it, punish overuse and free-riding, and invest in future development. Economists have claimed otherwise for years, but eventually they gave Elinor Ostrom a Nobel Prize for her work showing that the so-called “tragedy of the commons” is avoidable.
  3. The safety net is properly understood as a common-pool resource, in specific, as a kind of infrastructure improvement. A functional public schooling system enhances human capital and makes workers more productive. A functional safety net for the very poor prevents the loss of human capacities to bad luck.
  4. Thus, there is good reason to choose mixed institutions (polyarchy) where markets and governments work together and in competition, with governments preventing the worst excesses of markets, and exercises of liberty (through exit, voice, collaboration, and innovation) preventing the worst excesses of governments.

Hard-Core Case

  1. We have stronger obligations to our fellow human beings than our moral psychology is equipped to recognize. The same part of our psyche that ignores the needs of strangers also hates other races and cultures. Group loyalties should be expanded as much as they can be.
  2. The nation-state partially corrects for flaws in our individual moral psychology. It generates the conditions under which we can recognize a limited set of our collective obligations that transcend our family and friends, making it possible to care for distant strangers, though not yet indiscriminately. We still feel stronger obligations to our co-nationals than to citizens of other countries; we have not yet discovered institutions that can produce recognition of cosmopolitan obligations. These obligations to co-nationals includes duties of care, reciprocity, and non-domination.
  3. Care and concern require us to seek both institutional arrangements and personal opportunities to engage with our vulnerable neighbors. Reciprocity requires that we ensure that capabilities and vulnerabilities are distributed in an egalitarian manner. Non-domination requires not just that we personally forgo interfering with each other, but that we reject institutional arrangements that allow other parties to arbitrarily and capriciously coerce our fellow human beings.
  4. Universal welfare programs, like universal infrastructure programs, are better at generating a shared sense of care, reciprocity, and solidarity.
  5. Universal programs are also more efficient than need-based programs. Universal programs don’t generate perverse incentives and poverty traps. Universal programs also don’t require resources be spent on civil servants to determine eligibility or investigate potential misuse.

Super Hard-Core Case

  1. Throughout much of our history, the state and private organizations have worked together to create conditions of exploitation. This includes colonialism, slavery, and the successors to slavery, and legalized discrimination against women, homosexuals, and indigenous peoples.
  2. Most large pools of intergenerational wealth are the product of those or other abuses, and most people earning above the median income are benefiting from that history of plunder as well. Other larger pools of wealth are primarily due to the financial sector which is propped up by the public regulatory state and through corporate capture of the state’s policies. Thus taxes and social spending are usually-inadequate efforts to repay those debts.
  3. Libertarians are right to note that redistributive efforts have usually failed to change the basic inequalities of distribution in our society, and that large regulatory states provide ample opportunities for regulatory capture and rent-seeking. But the answer is not to give up on reclaiming what has been expropriated, allowing the bandits to keep what they have stolen so long as they promise to raid no more! The answer is to redistribute more effectively, regulate more intelligently, and continue to target the ways that governments and regulators become captured by the interests of the wealthy.

I’ll note that I think the “soft-core” case is somewhat at odds with the “super hard-core” case, which is what often generates divisions between liberalism and progressivism. Yet I think this basically outlines my reasons for a commitment to the welfare state.

My friends who worry about moderate and technocratic ideological inconsistency are wrong, though. I think progressives should worry about governments, a lot. Governments do a lot of bad things, including a lot of things libertarians are good at recognizing and pointing out.

And really, this post was inspired by a libertarian. Over at EconLog, Bryan Caplan offers a “refresher” designed for libertarians who find Scandinavian welfare alternatives appealing. It’s a kind of intervention for prodigals. It works primarily as a reminder to those who are supposed to have known those things, but it works well. In a few short paragraphs, Caplan combines empirical claims about the efficacy of libertarian policies with principled objections (to borders and to the coercion of taxation.) It’s not exactly an argument: more a statement of premises, with an argument perhaps taking the form of a longer book like Michael Huemer’s The Problem of Political Authority.

Yet it’s still enough to provoke debate with other libertarians. And in my view, arguments with one’s fellow-travelers can be helpful for your collective projects. As is not-often-enough-the-case, we are currently contesting the nature of the progressive/liberal divide during the primary contest between Hillary Clinton and Bernie Sanders. It’s worth remembering our basic commitments to public and participatory institutions, as well as to just and competent government.

(Post updated March 8th)

What kind of right is the right to film police?

It is pretty clear to me that there ought to be some kind of right to photograph and film police, especially arrests. And yet, at least one US District Judge Finds no First Amendment Right to Film or Photograph Police:

We find there is no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct. (Fields and Geraci v. City of Philadelphia et al)

Here’s the problem: the First Amendment protects expressive conduct. We often think of the main role of the photographer as quietly observing and recording; their expressive conduct comes later, when they publish that record. Of course, there’s some reason to think that that required action is thus equally-well protected: I can’t publish a video of police if I’m not allowed to film a video of police.

But we don’t really think this is a generic right. We usually assume that ordinary folks have some right to their likeness and some expectations of privacy. Police are special, and we need enhanced rights to record their activities. Yet the First Amendment might not be designed to cover that special instance. I suspect that the right to film police would best be understood as one of those old penumbral rights no longer in fashion: a living update of the implications of the First, Fourth, and Fourteenth.

I think of filming the police sort of like I think of election monitors: the right to free and fair elections occasionally requires an ancillary right (to monitor elections and note violations) to preserve that primary right to vote. This is always a strategic or practical question, though: you wouldn’t need election monitors of the ordinary sort in Oregon, where all voting is done by mail. Under those circumstances, it would be odd for an election monitor to shove his way into your living room to make sure your postal ballot was properly prepared. But we do need some form of accountability in these matters, and under the current circumstances, photography is a good check on police abuses.

You can’t guarantee due process, reasonable search and seizure, or free expression of dissent without the ability to record interactions with police. And yet, this would fail any originalist’s test, for how can there be an implied right in an 18th century document that can only be exercised with 21st century technologies? It’s not like firearms or the printing press, where some version of the technology existed and it has merely become more effective.

Alternatively, the courts should recognize a First Amendment right to observe and record police as a variety of assembly. This, though, would subject it to much more exacting restrictions on the time, place, and manner of the recording. Legislatures might even be able to curtail filming police arrests entirely under this understanding of the right! Consider that even with a constitutional right to assemble, a city may appropriately require permits for rallies and even restrict the spaces where protests can occur. Would we accept restrictions on observing and recording police such that only credentialed journalists could do it? I think not: the power of the camera phone is that anyone can act as a citizen journalist when they see police engaged in potential misconduct.

Of course, my real problem with original meaning arguments is that they assume the framers were godlike or genius-like in their pronouncements. They certainly weren’t. We should have a lot less respect for them, a lot less of a tendency to call them Founding Fathers with capital letters. They were men, and venal ones. Most of them had slaves, and large parts of the Constitution and the Bill of Rights were designed to help them keep their slaves. When we help people draft their own constitutions–like in Iraq or East Timor–we always make sure they don’t repeat the model in the US Constitution, because it’s antiquated and usually leads to massive constitutional crises in short order. Most of US politics is basically an elaborate work-around for that; a patch on a patch on a patch of broken code.

That’s why I hope that the Supreme Court will eventually recognize filming the police as an act of expressive conduct worthy of protection under the First Amendment: not because that’s the best analysis of such cases, but because our system increasingly needs such “cheats” just to function.

Self-Esteem and the Death of the Subject

I have written here repeatedly about the problems with person-oriented reactive attitudes and character skepticism. But recently I came across the work of the psychologist Albert Ellis, whose work is at the intersection of therapeutic psychology and philosophy. His work on self-esteem and person-oriented assessment suggests an interesting new direction for the general insight that we are in error when we attribute actions, habits, and tendencies to a self or a subject.

Ellis calls this “unconditional self-acceptance.” Where the psychology of self-esteem encourages us to continually affirm (perhaps daily) propositions about how lovable and capable we and others are, Ellis’s unconditional self-acceptance instead suggests that we forgo these exercises and the global evaluations they require for more careful assessments of acts and behaviors. The same applies to our assessments of others, and thus he offers a good case study of the attempt to operationalize a rejection of person-oriented reactive attitudes through “unconditional other-acceptance.”

Ellis’s student David Mills summarizes the argument like this:

  1. Most people unfortunately believe that self-esteem must, in some way, be earned through accomplishments.
  2. When self-esteem is based on accomplishments, it must be earned repeatedly. It is never permanent.
  3. The concept of self-esteem leads intermittently to self-damnation.
  4. The concept of self-esteem usually promotes social and behavioral inhibition.
  5. A compulsive drive for self-esteem leads to frequent anxiety. And self-esteem-related anxiety is an obstacle to achieving those goals essential to our self-esteem!

Now, I think there’s a lot of truth in Ellis’s diagnosis. We have good reasons to believe that our acceptance within the community is predicated on the judgments of our peers. So we are right to self-monitor the likely assessments of others, to avoid transgressing crucial communal norms, free-riding on the efforts of our collaborators, or running afoul of the unwritten standards of behavior and comportment. There’s some reason to believe that this monitoring is the basis for person-oriented status judgments: we assess others and ourselves in order to determine the standards for preserving our group membership, and the continued existence of social exclusion and individual choice proves that we’re not living under conditions of unconditional acceptance.

Yet at the same time, we also know that our assessments and attributions suffer from serious errors and biases. Psychology has begun to catalog these biases and give them catchy names like the spotlight effect and fundamental attribution bias, but the basic insight is just that we’re often very deeply wrong about these assessments.

As a result, Mills (following Ellis) recommends an elegant solution:

  • To overcome self-esteem-related anxiety and inhibition, recognize that your choice is not between self-esteem and self-condemnation. Your choice, rather, is between establishing an overall self-image and establishing no self-image. That is, you can choose to view your external actions and traits as desirable or undesirable, but abstain from esteeming or damning yourself as a whole.

This is a philosophically dense proposal, one that assumes that by changing our metaphysical orientation to persons, we can overcome the pernicious (and importantly false!) habits of anxiety, self-blame, and self-destruction. In so doing, we can also develop a more sensitive and sophisticated attitude towards our neighbors and fellow citizens.

Of course, the practical efficacy of these attitudes are difficult to measure; apparently there’s been little empirical work on the topic, but to assess the model it helps to think through the best case scenario. Let’s assume that forgoing global evaluations of self and other has the effects promised: less anxiety, fewer fundamental attribution errors, improved mental health outcomes, etc.

Yet as we think about these themes, and especially about prescriptive metaphysics required for this to function, I wonder if we can preserve the sense of accuracy. Is this merely an exercise or is it meant to actually be supplying more accurate claims about the world? Is it convenient or true?

Academics of a certain stripe have been rehashing the “death of the subject” for a while now. The best reasons for rejecting person-oriented reactive attitudes seem to follow in this mold: one cannot judge a person without judging her acts, yet single acts are insufficient for a whole judgment of her person. Her acts are multifarious and varied, yet domain-specific judgments are subject to contextual factors. She is the agent of her acts, yet agency is empirically undermined by context.

Ellis himself claims the mantle of truth for this rejection of global judgments, but since his primary work is with patients who aren’t all willing to accept the full set of metaphysical presumptions here, he also suggests a “pragmatic” and “inelegant” alternative:

“If, however, you have difficulty refusing to rate your self, your being, you can arbitrarily convince yourself, ‘I am “good” or “okay” because I exist, because I am alive, because I am human.’ This is not an elegant solution to a problem of self-worth, because I (or anyone else) could reply, ‘But I think you are “bad” or “worthless” because you are human and alive.’ Which of us is correct? Neither of us: because we are both arbitrarily defining you as ‘good’ or ‘bad,’ and our definitions are not really provable nor falsifiable. They are just that: definitions.

Defining yourself as ‘good,’ however, will give you much better results than believing that you are ‘bad’ or ‘rotten.’ Therefore, this inelegant conclusion works and is a fairly good practical or pragmatic solution to the problem of human ‘worth.’ So if you want to rate your self or your being, you can definitionally, tautologically, or axiomatically use this ‘solution’ to self-rating.”

This was always the real problem with the self-esteem movement and with the two kinds of respect Stephen Darwall identified; it’s very difficult to preserve recognition respect, a sense of respect-for-persons that rates them higher than chairs, concepts, or other animals while simultaneously pretending that there are no further forms of appraisal like their skills, competences, and morally salient decisions.

We sometimes pretend that maximal attention to the norms of recognition respect eliminate the room for appraisal respect. Thus, because humans all have this recognition respect in the form of what Kant called “dignity” there’s no room for social status differentiation. But we play favorites. I have favorite people (friends), favorite scholars (idols?), favorite religious groups (Quakers!), and even favorite politicians (Elizabeth Warren, who was once a favorite scholar!) What’s more, I have good days and bad days, days where I’m proud of my teaching and writing, and other days where I feel like I failed to live up to my own expectations.

Ellis claims that we should actively resist any effort to assemble all these appraisals into a complete picture of the person. That we can assess the actions without making all the troublesome metaphysical assumptions required to attribute those actions to a person. Indeed, perhaps I shouldn’t give Elizabeth Warren the Senator so much credit for the work of Warren the Law Professor.

But I’m still giving Warren credit. And that’s the problem. I’m starting to think we can’t duck person-oriented reactive attitudes by merely reducing them to action-oriented reactive attitudes. Going back to the original Strawson paper, we don’t get angry at the painful blow, or fall in love with the witty reply. We get angry at the person who lands the painful blow; we fall in love with the person who offers the witty reply.

So how can we avoid the Nietzschean invention of a doer for every deed? Can we stop ourselves from filling in the back story of the driver who cuts us off in traffic to show that he is a terrible human being? And if we can, should we? Or should we continue to pretend?

We still might want to say that global judgments are a mistake. The person who offers you witty replies on a first date may also be kind of boring sometimes. The person who assaults you may also be a loving father or an honor roll student. It may well be that we learn remarkably little about most people from what we see of them, and that we fill in this ignorance with heuristics and biases that are more rough than ready.

It’s hard not to equate Nietzsche and Ellis here with Buddhist reflections on the illusory nature of selfhood. And it’s hard, too, not to think that this demand that we amend our syntax and our ethics begs the question.

Are we merely doing this to get off the treadmill of anxiety, to overcome maladaptive perfectionism? Is all this elaborate metaethical reflection really just therapeutic? Is it the philosopher’s obsessive #actually that demands we reassess the common sense for no other reason than to avoid imprecision? Is there a pragmatic upshot? What’s the cost of self-esteem? And what are its benefits?

The Two Endings of Brison’s Aftermath

Susan Brison’s Aftermath ends twice: the final chapter discusses her various efforts to retell the story of her brutal rape and attempted murder (she calls it “attempted sexual murder.”) And ends with her final, planned retelling to her son when he is older:

“Tragedy,” Wittgenstein wrote, “is when the tree, instead of bending, breaks.” What I wish most for my son is not the superhuman ability to avoid life-threatening disasters, but, rather, resilience, the capacity to carry on, alive in the present, unbound by dread or regret. Not the hard, flinty brittleness of rock, but the supple tenacity of the wind-rocked bough that bends, the bursting desire of a new-mown field that can’t wait to grow back, the will to say, whatever comes, Let’s see what happens next.

The second ending comes in an afterword where she discusses four murders. The first set of murders is the murder of her friends Susanne and Half Zantop which occurs soon after she submitted the manuscript. The second set is the murder of Trhas Berhe and Selamawit Tsehaye, two of five black women candidates for PhD in physics at Dartmouth a decade before. Because they were black international students from Ethiopia–killed by a third black Ethiopian–the campus treated these murders as non-events, and failed to mourn or respond with what we sometimes think of as the characteristic security theater.

In both cases she struggles with survivor’s guilt, the sense that their deaths and her survival were random, and undeserved. So she finishes the story again:

None of us is supposed to be alive. We’re all here by chance and only for a little while. The wonder is that we’ve managed, once again, to winter through and that our hearts, in spite of everything, survive.