“That man who has nothing to lose:” Black Americans and Superfluousness

Long before white Americans felt like their society had abandoned them, Black Americans knew the feeling. Just like whites do today, some Black Americans responded to earlier superfluousness by “clinging to guns and religion” to use Barack Obama’s famous analysis. (cf. Kinsley gaffe) Here’s James Baldwin, describing the Nation of Islam:

“I’ve come,” said Elijah, “to give you something which can never be taken away from you.” How solemn the table became then, and how great a light rose in the dark faces! This is the message that has spread through streets and tenements and prisons, through the narcotics wards, and past the filth and sadism of mental hospitals to a people from whom everything has been taken away, including, most crucially, their sense of their own worth. People cannot live without this sense; they will do anything whatever to regain it. This is why the most dangerous creation of any society is that man who has nothing to lose. You do not need ten such men—one will do. And Elijah, I should imagine, has had nothing to lose since the day he saw his father’s blood rush out—rush down, and splash, so the legend has it, down through the leaves of a tree, on him. But neither did the other men around the table have anything to lose. –James Baldwin, “Down At The CrossLetter from a Region in my Mind

Baldwin was no fan of Elijah Muhammed’s movement, but he tries to understand it and he seems to sympathize. And what he calls out in these lines is an overriding sense of loss–one that can justify any effort or sacrifice to overcome. That loss of worth, which Baldwin wants to depict as something much deeper than “self-esteem,” is tied not to airy questions of recognition but to material harms and embodied injuries: frisks and kicks by “legitimate” authority that go unanswered, murdered fathers that go unmourned by white society.

Baldwin even interprets the turn to Islam as a turn away from Christianity’s whiteness–from the forgiveness that it seems constantly to demand from white supremacy’s victims.

Today I know more Black Muslims than Arab ones, but mostly they’re imprisoned. And that, too, is a form of superfluousness: of the 2.3 million people incarcerated in the US, 40% are Black, even though Blacks make up only 13% of the population.

PPI 2016 race

It’s hard not to see imprisonment of African-Americans as primarily a reaction to their enforced superfluousness. Labor market prejudices create a circumstance where unemployment rates for African-Americans are roughly double the rates for whites, at every education level. My students believe (and I agree) that the War on Drugs is largely a war on Black participation in the black labor market. (Recall the Ice Cream truck war of the summer which helps explain how police and the courts can make black markets less or more violent.) It’s an attempt to foreclose available forums for Black entrepreneurship. It’s notable that as marijuana legalization proceeds state-by-state it begins in white places, and the new profits and businesses are primarily white-owned.

To be rendered superfluous is a particularly odd phenomenon, and at least in the formulation I’ve lately been thinking about, it seems uniquely tied to relative deprivations of status and respect. I want to believe that respect and recognition matter less than life or health. We all have things we could lose, and honor is the least of these.

But that’s simply not how people act. Flourishing matters to most people more than survival, and flourishing requires a community of esteem. It requires reputation and character assessments, it requires that the agents of the state give you equal protection and don’t target you as a unique threat.

Some parts of Black America responded to superfluousness by clinging to god and guns, but for the most part African-Americans responded by becoming the center of cultural attention. There’s little argument that Black culture simply is American culture at this point, as almost all of our distinctively American institutions and cultural traditions are shot-through with Blackness even if it is unacknowledged. Baldwin charged that even myths of Black laziness or violence serve an important function in White America: they are our “fixed star” and moving out of their place of subordination would shake our “heaven and earth… to their foundations.”

Yet whites don’t seem to be willing to create their own economies of esteem in this way. Something–perhaps supremacy itself–has rendered them too lazy, too dependent on long-lost tradition and long-gone cultural victories. Consider Katherine Cramer’s formulation: rural Wisconsinites resent that the urban centers have deprived them of “power, money, and respect.” But they’re simply wrong: they’ve seen no real deprivations of power or money compared to Black Americans. It’s certainly true that they receive less respect than they used to get, less deference and less cultural attention. But this is a downfall from absolute supremacy and literal enslavement–enforced by rule of law. We have a long way to go before we aren’t still reaping what WEB Du Bois called “psychic wages” of white supremacy. (I prefer to call them psychic dividends, since it’s important that they are not a reward for work, but rather like a racial trust fund.)

How much should that matter? In my heart, I want to believe that people with a surplus of money, power, and respect should share. And I want to believe that it’s not a finite resource, that more souls can and will produce more of each if they’re not forced into superflousness. I think of Malcolm X, whose industriousness and self-invention could not be halted or stultified by racism or even Elijah Muhammed’s theocratic nonsense, only assassinated. But that’s where my analysis is probably wrong: when people have the money and power, they’re well-placed to demand the respect or punish its absence.

Why Daniel Levine is Wrong About Everything

war is overWell, he’s not. But that’s the title of his new blog. (Apparently he is challenging me for the title of “Most Contrite Fallibilist.” He’s even taken the nom de plume of “Wrongzo.” Bastard.)

For his first substantive post, “What should we mock about when we mock about guns?” he parodies my attempts to articulate a boring solution to the gun debates. He, rightly, turns the attention away from guns and towards inequality and precarity. Here’s the money quote:

“So, guns, whatever. Take away the fear and hatred that drives the hierarchical-individualist worldview (and its purity norms, on which a future discussion) and probably we have guns that police occasionally use against sociopaths and hunters use to get game meat, and boltcutters I only use on my back gate. The fight is with hierarchy, not guns.”

I can’t help but agree. (The wrongest thing about that blog is its title.) Some things that Wrongzo suggests but doesn’t say:

1. Wrongzo believes that value assessments and risk profiles are malleable. So, if we win the right political battles or transform our economy in appropriate ways, we might someday render individualists or hierarchists extinct. Even though I’ve spent a long time trying to work out and defend this thesis, I don’t know that I’m convinced it’s true. What if we’re just built differently, if not in the genetic and cogntive pluralism way, then in a way that leads to diverse cognitive styles being cultivated within any community? (For instance, a functioning community is always going to have some contrarians.)

But my suspicions and hopes here largely reflect a prejudice in favor of pluralism. As I say in my second post, “it’s important to acknowledge that they do see some facts more clearly we do.” And it’s true that the individualist notices different elements of the problem than the solidaridist: that’s why Radley Balko is such a boon to American political punditry. I’ve not yet figured out what hierarchists are good for, but I do worry that hierarchy and tradition are intrinsic to any account of solidarity, but we only notice the hierarchical and irrationally traditional elements when we see them in others with whom we disagree. But that’s what I do: worry.

2. Wrongzo believes that outsider derision can change things, citing Appiah. I was highly critical of this element of Appiah’s thought when I reviewed his book:

Here, then, is the problem that Appiah’s project must suppress in order to succeed: honor codes work best when they are unacknowledged, and they are best changed when they are not the object of direct study or overt deliberate manipulation by outsiders. Moral revolutions that are predicated on honor code changes are most likely to succeed when the transition does not appear to be the work of self-conscious elites, even if it probably is. This would probably help explain some other details suppressed in Appiah’s account, like why debates about slavery and racism did not end with the Atlantic slave trade or the American Civil War.

Again, I want to be wrong, but ultimately, you can only maintain the claim that “we mock because we love” so long as a reasonable person would see “hick-shaming” as a loving remonstration and not othering. Our chosen subalterns are the urban poor; conservatives pretend to represent the rural and suburban poor. Given the discourses and practices of coastal elites, I don’t see much evidence that hick-shaming will do anything other than tweak the subalterns of our competitor elites. In contrast, the evidence suggests that what Braman and Kahan call “identity vouching” is better able to get things done. That’s why “only Nixon can go to China” and why President Obama receives harsher criticism from African-Americans like Cornel West than he does from white progressives. What we need to engineer is a collaboration with gun owners.

There’s another serious core to the argument: what do we give up when we take up the cultural cognition attempt to negotiate a détente between gun owners and gun haters? I want to say more about this is a future post more critical of the “cultural cognition” perspective, but for now, go read Levine’s blog!

Update: Wrongzo responds:

But when we laugh with someone, we importantly laugh at our shared frailty and vulnerability and failure. We are saying that we are unwilling to give a charade of honor and weight to the human stupidity they have shown, but that ultimately that stupidity connects us, rather than dividing us.

…I am laughing because I ultimately want social reconciliation, for all the romance of class war. The hierarchs are hurting. So, for all the mean-ness of the last post, ultimately, laughter is the proposed weapon because it holds the hope of everyone saying, “wow, that was a fucked way of setting things up, let us do something different now.

Amen.

Reflections on my Crime and Punishment Seminar

 

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?