Do the underlying principles and traditional practices of retributive ‘justice’ highlight an internal inconsistency with respect to the principles of justice?
One could argue that “crime” is a symptom of societal disease at the structural, institutional, and systemic level. One could also argue that it is necessary to contextualize crime, and responses to crime, within a network of systems of social control, discipline, and punishment. By responses to crime I mean, for instance, punitive measures pursued against alleged “criminals” according to established policy and legislation or public opinions regarding the “crimes” that are informed by personal belief systems and unconscious biases (that can influence policy and legislation). Given the history of the United States criminal justice system, a history rife with dehumanizing and oppressive violence against the socially marginalized and politically disenfranchised, particularly as it relates to the rise of mass incarceration, it is necessary to theorize about crime and punishment against the backdrop of such a complex history. In fact it is necessary, when theorizing about crime and punishment, to take into account how much the language and logics of the United States criminal justice system are influenced by what Patricia Hill Collins refers to as controlling images, pervasive sociopolitical and ethnoracial stereotypes “designed to make racism, sexism, poverty, and other forms of social injustice appear to be natural, normal, and inevitable parts of everyday life” (Collins, 2000).
With that in mind, I read Amber Rose Carlson’s Is There a ‘Rational’ Punishment for My Rapist? and couldn’t, at first, understand why I, as someone who also suffers from severe, often debilitating post-traumatic stress disorder as a result of years of physical and emotional abuse and multiple experiences of violent rape, couldn’t bring myself to morally or ethically align myself with the view that while potentially crude, the “desire for permanent punishment” of one’s rapist represents any form of justice, retributive or otherwise. It wasn’t until I interrogated the ways in which my academic research and social activism, related to prison abolitionism, inform my views about justice and humanity that I was able to unpack my conflicting ideas about Carlson’s piece.
Although Carlson’s “attitude is in no way representative of all victims”, it is representative of the way that many people view the criminal system in general. When Carlson states that “it’s certainly important to advocate for prisoners who are wrongly incarcerated” and “that we have good statistical evidence that criminals can and do change” she reveals how pervasive the dehumanizing language and logics of the United States criminal justice system have become. Danielle Sered, former director of the Vera Justice Institute, argues that “what we need is a criminal justice policy for people who commit crime—incarcerated people, people with felony convictions, people on parole, even people who have caused great harm and should be held meaningfully accountable. Any truly effective policy solutions will make central the humanity of everyone directly impacted by crime—including those who commit it.” Like Carlson, many folks are unaware of how even our language can perpetuate cultures of domination. Categories have long been used to reinforce certain ideas about certain populations. They make it much easier to criminalize people and render them irredeemable in the eyes of the law or society. I am in no way arguing that there aren’t people who ought to face consequences for their actions that resulted in harms against others; I am, rather, suggesting, that 1) it is important to advocate for people who are wrongly incarcerated and 2) humans can and do change. Beyond that, it is important to advocate for people who are incarcerated because, given the harsh and often fatal realities of the prison system, subjecting people the conditions that define the incarceration is wrongful in itself. The phenomenology of life as an incarcerated person is one often complete with psychological torture, physical and sexual violence, and/or the constant threat of both.
In Are Prisons Obsolete?, Angela Davis remarks on how “easy it was to produce a massive system of incarceration with the implicit consent of the public” and normalizing its expansion via false notions of sociopolitical necessity or rampant dehumanization of its victims allows for its underlying function to remain hidden. Though, to some, its underlying function might not seem so horrific despite the illumination of it horrors having been brought to life through other systems of social control: genocide of indigenous peoples, slavery, internment of Japanese Americans, the United States eugenics movement, Jim Crow, and other examples of state-sanctioned and systemic violence against socially marginalized and politically disenfranchised peoples. While primary utilized as weapons of social control, these examples of structural violence operated, and together impacted the lives of millions, with implicit consent of the public. What does any of this have to do with determining whether or not a rational type of punishment exists for my rapist? Before I answer that question I’ll pose another: Is There a ‘Just’ Punishment for My Rapist?
I posed the second question because once I first posed it to myself I was able to make sense of why I can’t bring myself to morally or ethically align myself with the view that while potentially the “desire for permanent punishment” of one’s rapist represents any form of justice, retributive or otherwise. Within the framework of the actual reality of the United States criminal justice system, punishment is served to criminals and not to people whose circumstances, beliefs, and agency are heavily influenced by overarching structures specifically designed to maintain a particular hierarchical system. In that particular hierarchical system, “the constitutive role of expendable lives in the project of state building” is often left hidden, an inconvenient truth. Expendable lives feed the prison industrial complex. Whether or not a rational type of punishment exists for my rapist within the framework of the actual reality of the United States criminal justice system matters less to me than one that is just. One that is just would incorporate elements of deliberation, history, and sociological jurisprudence that might not be possible within the logic of retributivism, the logic of the United States criminal justice system. Other logics are possible, though.
In An Abolitionist View of Restorative Justice, Vincenzo Ruggiero provides a framework for restorative justice during which he explains that “compensation as devised by abolitionists, for example, is not based on abstract variables such as judicial truth, guilt or dangerousness, but on the responsibilities of the offenders, the victims, the community as a whole, and on their respective needs. In this exercise of justice there are no winning or losing contestants, as all are involved in a healing process aimed at satisfying the basic requirement for collective wellbeing and safety” (Ruggiero, 2011). When Carlson argues that “crucial differences between victim’s desires and punishments carried out by the state” she points to flaws in our justice system that restorative justice measures aim to prevent. Carlson states correctly that “the criminal justice system’s central aim is to protect the interests of the state”. Victims are just as much a part of the “community” as offenders and other members of the body politic, though, so I’d argue that the system’s central aim is not to also protect the community; it is to ensure that the community continues to offer implicit consent to the state in their project of state building and maintenance.
“Imagine your rapist had been found guilty and sentenced in court. What would you want his sentence to be?” Carlson’s therapist asked her during a session as part of her treatment for PTSD. While her extensive and thoughtful response to that question, as evident in her piece, showcases one example of how victims respond to their trauma, it also highlights how our relationships, as both citizens and moral persons, to concepts such as guilt and institutions like the court system are influenced by how we think about crime. Is crime a symptom of societal disease at the structural, institutional, and systemic level? Is crime nothing more than harmful or offensive action perpetrated by irredeemable people qua criminals? Each one of my rapists avoided a prison cell. The only person to ever threaten my life with a weapon avoided a prison cell. Have they harmed other people? I’m not sure. Is my daily life plagued by horrible flashbacks that often force me to relive trauma? Yes. Is my daily life also plagued by the harmful effects of structural violence that drive my suicidal impulses in ways that PTSD does as well? Certainly. Be that as it may, while I do have “enough to battle without arguments that undermine [my] rational considerations”, my ideas and beliefs regarding justice and basic human rights (often denied to people who are incarcerated or sentenced to death) outweigh all else. And while “advocates for criminal justice reform can, and should, do better”, advocates for prison abolition can, and should, be more vocal about the inherent flaws of the United States criminal justice system in order to make more room for actual justice.