I’m giving a short talk in Boston today, at the conference Frontiers of Democracy. Here are some of the points I’m hoping to mention:
The modern world produces a certain kind of despair and helplessness because the primary sources of hope are technological development and the institutional efforts of technocrats. The best hope of progress is always elsewhere: the Supreme Court, Silicon Valley, the Justice Department. I’m sure I’m not the only one who has been waiting with quite a bit of excitement to see whether one man–Justice Kennedy–will decide to legalize same sex marriage. Looking around, we see lots of progress but no role for ourselves in achieving them. I care a lot about same sex marriage, but I can’t point to a single thing I’ve done to bring it about: it has seemed inevitable for most of my life, even when Democratic politicians passed laws outlawing it and campaigned against it.
This is because of modernity’s structuralist bias: problems are most easily parse-able as the result of systematic factors, and thus only large-scale statist solutions seem adequate to respond to them. In this sense we live in the world imagined by Max Weber: progress is achieved by professionals, through the slow boring of hard boards. Bureaucratic solutions are the norm, and even social movements must have their solutions instantiated in bureaucratic institutions to truly count themselves successful. It’s not enough to march or protest: your marches and protests have to lead to new policies, new laws, or new spending. Politics seems like it is reducible to a fight to steer the large organizations that make up our world.
We seem to understand people in aggregate but not individually. The emphasis is on “seem” because these aggregates are often vague, self-fulfilling, or ignore vital ceteris paribus problems. Vox recently suggested that there are 16 plausible explanations for the plummeting crime rate, all but a few of which are not only outside of my power to effect, but most of which are even outside of the power of the police department to effect.
There are similar stories to tell about the difficulty in identifying the causes of economic growth and the levers of macroeconomic success and stability. Yet at the same time pollsters can seemingly predict elections with frightening accuracy on the basis of comparatively small samples, and the Federal Reserve can seemingly nudge growth and inflation. Most of the explanations I know, as a scholar, are systematic explanations. Systems and generalizable knowledge go hand-in-hand: experts produce this knowledge and thereby prove their worth. Scientific progress becomes the model of social and political progress.
Civic renewal proposes a radically different view of progress. On the civic view, developments that exclude us–that render us passive in our own well-being–are not progressive ones. “We” must work together to achieve our hoped for goals, or else, first, they won’t be progressive, and, second, they won’t be sustainable. Policies that are made without engaging citizens threaten to be corrupted by those exclusions either in the first instance or over time as citizens assume that the matter is settled and begin to ignore it. “Nothing for us without us” becomes a democratic slogan, with the understanding that we don’t believe it’s enough for policies to be made and enforced in our interest if they don’t engage us.
The new movements around race and police brutality that began in Ferguson have skillfully combined systematic analysis with personal action, digital mobilization on social media and protest organization. Yet this is not a generalizable lesson: these same techniques have failed to mobilize citizen engagement on a mass scale on environmental issues, finance-sector malfeasance, economic inequality, or free and fair trade.
I worry that other successes, like participatory budgeting or community-led efforts at school integration, are too small-scale and bound up with state institutions and the logic of bureaucracy and governmentality to supply the foundational insights of civics.
This kind of “progressivism” encompasses even conservative civics: front porch conservatives and Sam’s Club conservatives. Modernity is just as much a threat to their ideal lives, and not just because of the way that the modern scientific worldview undermines their metaphysical and moral commitments. Still, civics has a lot to learn from conservatives in this respect: symbolic commitments are at the heart of the solidarity required for co-creation. Here also we see a human-scale politics, around the question of the display of Confederate flags, the naming of streets and respresentation of our community’s heroes and villains.
Instead of a general science of action, it is seems to me that civics can—at best—offer a unified set of participatory values alongside subject-specific and regional knowledge, and case studies of sometimes-viable strategies.
Finally, we should hope that the civic renewal movement grows large enough to encompass lively debate, disagreement, and faction on issues of focus, strategy, and the push-and-pull of partisan identity. This is how the unity of our values will become a foundation for a living community.
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.
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.
The problem is that demanding a policy discussion is not the same thing as having a policy discussion. At this point, we’re just talking about talking about gun control. It’s all “mention” and no “use.” It’d be nice if folks would actually start proposing laws. Like: limits on magazine size. Ammo taxes. Closing the gun show loophole. Or even…
I’d love to talk about gun prohibition. (Notice, this isn’t even the same policy debate as “gun control.”) Unfortunately, if we start talking about gun prohibition, then we will be forced to confront how badly prohibition is working in other markets. There are three hundred and ten million guns in the US. (Yes! 310,000,000!) What does prohibition look like under those circumstances?
Reflecting on that question, ask yourself this: how many people will be killed in no-knock police raids trying to root out the black market in guns? Will they be mostly white or mostly black? (Notice that gun control laws have tended to be stricter in majority black areas rather than majority white areas. Both DC and Chicago, the battleground states for the 2nd Amendment claims, are disproportionately black.) How many of those killed by police will be kids? How many kids’ deaths will be prevented?
On reflection, I suspect that many gun control regimes and all possible paths to gun prohibtion are more likely to increase the number of people hurt and killed by guns. So when we do finally start talking about gun control and gun prohibition, let’s be very, very careful.
Something must be done.
Prohibition is something.
Also, let’s remember that the violent crime rate, including gun crimes, is the lowest it’s been in 20 years. That doesn’t make what happened today any easier to handle, but perhaps it will allow us to focus on what happened, and the people it happened to, instead of replaying Jon Stewart’s Monday night monologue. Something terrible has happened. It didn’t happen to you or I, so we have the ability to ask whether it could have been prevented. We should ask whether it could have been prevented. But we should also ask: at what cost? Then we should follow that calculation of lives lost and lives saved wherever it leads.
Liberals should accept that the only realistic way to control gun violence is not by keeping guns out of the hands of as many Americans as possible, but by keeping guns out of the hands of people we all agree should not have them.
Read the whole thing. Whitney is a liberal gun apologist–which means he has a good sense of what kinds of regulation would actually be constitutional under DC v. Heller, and what sorts might be effective.
What should we say when we talk about guns?
When we start talking about guns, some people will say that they’re unnecessary and dangerous. Others will say that they’re a tool for self-defense and self-sufficiency. That’s usually where the debate rests, except that the 2nd Amendment privileges the second group. If we want to make progress, we can offer better reasons, reasons that will be superior precisely because they are responsive to the reasons of our interlocutors. That means honestly trying to find the overlap in what appears to be an incommensurable set of assumptions.
For one segment of American society, guns symbolize honor, human mastery over nature, and individual self-sufficiency. By opposing gun control, individuals affirm the value of these meanings and the vision of the good society that they construct. For another segment of American society, however, guns connote something else: the perpetuation of illicit social hierarchies, the elevation of force over reason, and the expression of collective indifference to the well-being of strangers. These individuals instinctively support gun control as a means of repudiating these significations and of promoting an alternative vision of the good society that features equality, social solidarity, and civilized nonaggression.
As a result, Braman and Kahan propose a “big trade”: those who oppose guns should offer to recognize and respect the rights of gun ownership, effectively normalizing it, in exchange for universal registration. By emphasizing the responsibility and civic spiritedness of most gun owners, Braman and Kahan believe that we can better reach an agreement what that responsibility entails.
For Braman and Kahan, this is an extension of their cultural cognition work, but I’d put it a little differently, in terms of the interaction between esteem and social norms: rather than depicting gun owners as dangerous hicks, we give them esteem in exchange for esteem-worthy performances of self-abnegation and sacrifice, like giving up assault weapons and semi-automatics. Since less than 0.004% of all guns are used on other human beings in any given year, we should acknowledge that most people’s guns are not the problem.
It’s tempting to stage a cultural showdown around guns, to line up a set of statistics and international comparisons and arguments: i.e. that carrying a gun probably increases the likelihood that you will be shot and killed. Lots of resources already go into advertising this fact, along with others. From a public health perspective it makes perfect sense to discourage gun ownership, but so long as many Americans treat guns as a central part of their identities, such discouragement will only have limited impact. Research suggests that our prior beliefs on guns will have an significant impact on the way that we process new data on gun deaths. That’s more evident in my Facebook and Twitter feeds, where tragedy and group polarization rule, but very little cross-cutting bipartisan dialogue takes place.
The risks that we face in our daily lives are far too vast in number and diverse in nature to be comprehended in their totality. Of all the potential hazards that compete for our attention, the ones most likely to penetrate our consciousness are the ones that comport with our norm-pervaded moral evaluations: it is easy to believe that ignoble activities are also physically dangerous, and worthy ones benign. Thus, “moral concern guides not just response to the risk but the basic faculty of [risk] perception” as well.
What this means is that how we process school shootings or firearm-related suicides will be largely dictated by our prior views on the social importance of guns. That’s why our responses differ so drastically: it’s not that some of us are dumb and some smart, some indifferent to suffering and some caring, but that we can only understand tragedy within a cultural framework, and that framework partially dictates which elements of the tragedy pop out as salient.
In particular, those concerned primarily with hierarchical forms of status and authority will relate to gun crimes differently from those egalitarians who abhor social statification, while those who favor individual autonomy will take up a different yet a third approach to evaluating and prioritizing risks than those who favor collective action. What Braman and Kahan show is that the facts and statistics that seem salient to us depend largely on where we fall on both the hierarchy-egalitarian axis and the individualism-solidarism axis.
Here, then, is the problem: most of the prohibition-type solutions are only going to receive support from those of us who are both egalitarian and in favor of collective action. This creates the potential for a coalition of interests between those who favor guns as a traditional prerogative of American citizenship, and those who see them as a symbol self-sufficiency and of man’s mastery of nature. You can’t simply eliminate those value profiles and risk-assessments from the electorate, and it’s important to acknowledge that they do see some facts more clearly we do. Instead, we should seek solutions that are more widely satisfying to traditionalists. Politicians understood this long ago and captured it in the canard that gun safety regulations should respect the rights of “hunters and sportsmen.”
But what kinds of policies does this respect entail?
To this, let me add the state and local initiatives suggested by the Mayors Against Illegal Guns, which are in many ways more important, such as better mental health reporting and ammunition controls and licensing. Many of these are things that need not be resolved nationally to be effective: for instance, California single-handedly improved ballistics recognition by requiring guns sold in the state to “micro-stamp” their serial numbers onto shell casings. That program should be expanded to other states.
We should abhor the “tactical turn” in firearms and the fetishization of military-style automatic and semi-autonomatic weapons like the Sig Sauer, Glock, and Bushmaster that were used by the shooter in Newtown, CT.
We should acknowledge that gun owners or their family members are more likely to be shot by their own guns than to be protected by them in self-defense. But we should also acknowledge that this is mostly due to suicide, and that loss of access to guns does not reduce suicide rates in those countries with strict controls.
Instead, we should say that “Most purported self-defense gun uses are gun uses in escalating arguments and are both socially undesirable and illegal” and “Guns in the home are used more often to intimidate intimates than to thwart crime.” These things are true without being deceptive.
A lot of the pushback I received last week was tied to the fact that places like Japan and Great Britain have had reasonable success with prohibitions. Certainly this is true, but it seems to ignore both that those places started off with a very different gun culture, and that they are geographic anomalies, islands of dense populations with a lot of ethnic homogeneity. We have 310,000,000 of the damned things, and we’ve had many failures over the years trying to curb that numbers’ growth. We should try something different.
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.
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?
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.
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?
We don’t normally think of induction and statistics as a part of critical thinking courses, but I think we should. Logic doesn’t end with deduction, after all, and there are few other instances in a college curriculum where students are asked to think carefully about how they ought to evaluate evidence, rather than being asked to apply a particular evidentiary standard given by a discipline. What’s more, most of the benefits of numeracy are actually tied to the ability to evaluate formulaic and statistical reasoning, rather than do sums in your head. So in my course, we do a section on evidence and explanation. Here is my effort to explain Bayes’ Theorem to my students.
Strange things happen, and we shouldn’t always update our beliefs on the basis of a weird fluke. Bayes theorem is a way to decide how new evidence should lead us to change our beliefs. Put another way, it’s a way to calculate the likelihood that some piece of data is evidence of a conclusion, considering the possibilities of false positives, misleading evidence, and statistically improbable events.
Here’s what it means: what is the probability of some hypothesis, h, given some piece of evidence, e? Since the evidence might be misleading, we have to consider both the possibility that the evidence is there because the hypothesis is true, and the possibility that the evidence is there even though the hypothesis is false.
Consider a simple example. What is the probability that someone is guilty given that their fingerprints were found at the scene of the crime?
Well, we start with the basics. Either the she’s innocent or she’s guilty, right? We might write that this way:
Guilt + Innocent
Why are we putting it like that? By analogy, the likelihood of flipping a coin and getting heads is:
Heads + Tails
But so far, we don’t have any information about how likely those things are. What we’re looking for is a way to use evidence to tip the scales from the 50/50 of the coin flip. We’re looking for the probability of someone’s guilt, if their fingerprints were discovered. In terms of probabilities, the left side of the equation would look like this:
Pr(Guilt if Fingerprints Discovered)
That’s Pr(h|e). The right side of the equation will look like this:
Pr(Guilt) × Pr(Fingerprints Discovered if Guilty)
[Pr(Guilt) × Pr(Fingerprints Discovered if Guilty)] + [Pr(Innocent) × Pr(Fingerprints Discovered if Innocent)]
So what does that mean? In ordinary English, we’re saying that that probability that the person is guilty is equal to the probability that the fingerprints are evidence of her guilt divided by the disjunction of all the possibilities: in this case, her fingerprints were found but she is either guilty or innocent.
The only additional issue is that we have to consider the possibilities of false positives and false negatives. So, what is the probability of guilt, given the evidence? What is the probability of innocence, given the evidence? These accuracy indicators modify the various elements.
But what if there are more than two possibilities? Another example is the likelihood that a high fever is evidence of the flu:
Fever Evidence of Flu
Fever Evidence of Flu + Fever Evidence of Food Poisoning + Fever Evidence of Broken Thermometer + Etc.
An Alternative to the Algebraic Formulation of Bayes’ Theorem
The same information can be developed as a table:
Hypothesis is True
Hypothesis is False
So out of the total population, how often is the hypothesis true, and how often is it false? Using incidence data, we can make a general statistical claim about the population and then drill down to discover how often the evidence will be present.
For the accused criminal whose fingerprints were found at the scene of the crime, we’d draw the table like this:
Guilt and Fingerprints
Innocent but Fingerprints
No Fingerprints Found
Guilt but No Fingerprints
Innocent, No Fingerprints
Then we’d fill in the total “guilt” and “innocent” figures from crime statistics. Since we’re using historical data, there is always the possibility that something has changed or that the data will be biased in some important way. Still, this can give us a good first approximation. Adding the charts allows us to take advantage of the much more powerful frequentist intuitions for understanding probabilities.
By the way, this post uses an application of Bayes’ Theorem from Sinnott-Armstrong and Fogelin’s Understanding Arguments, where they use it to evaluate the case of Sally Clark. Using this technique to demonstrate the injustice of her case blew my students’ minds. It’s that good. I haven’t yet told them about this case, though!