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Punishment Theory, Mass Incarceration, and the Overdetermination of Racialized Justice

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Abstract

In recent years, scholars have documented the racial disparities of mass incarceration. In this paper we argue that, although retributivism and deterrence theory appear to be race-neutral, in the contemporary U.S. context these seemingly contrary theories function jointly to rationalize racial inequities in the criminal justice system. When people of color are culturally associated with criminality, they are perceived as both irresponsible and hyperresponsible, a paradox that reflects their status as what Charles Mills calls subpersons. Following from this paradox, criminality is understood as an atemporal characteristic of people of color, such that they are conceived as pre-criminals, criminals, or post-criminals. In Frantz Fanon’s account, overdetermination expresses this exclusion of people of color from full agency by capturing them within a rigid, immutable essence, which then controls the social meaning of their actions. The backward-looking quality of retribution and the forward-looking quality of deterrence then treat people of color as more deserving of punishment (and more severe punishment) and as threats to the social order who have to be restrained. We should read the racialization of mass incarceration as a symptom of how precariously people of color participate in the social contract and as reflections of how theories of punishment have been racially deployed.

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Notes

  1. Roy Walmsley, “World Prison Population List,” 12th ed. (London: Institute for Criminal Policy Research, 2018), https://www.prisonstudies.org/sites/default/files/resources/downloads/wppl_12.pdf; and The Sentencing Project, “Criminal Justice Facts,” 2019, https://www.sentencingproject.org/criminal-justice-facts/.

  2. Steven Raphael and Michael A. Stoll, “Why Are So Many Americans in Prison?” in Steven Raphael and Michael A. Stoll (eds.), Do Prisons Make Us Safer? The Benefits and Costs of the Prison Boom (New York: Sage Foundation, 2009), pp. 27–72.

  3. “In 20 of 24 Gallup surveys conducted since 1993, at least 60% of U.S. adults have said there is more crime nationally than there was the year before, despite the generally downward trend in national violent and property crime rates during most of that period” (John Gramlich, “What the Data Says (and Doesn’t Say) about Crime in the United States,” Pew Research Center, Nov. 20, 2020, https://www.pewresearch.org/fact-tank/2020/11/20/facts-about-crime-in-the-u-s/).

  4. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New Press, 2012), pp. 87–89.

  5. John F. Pfaff, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform (New York: Basic, 2017), p. 71.

  6. Ibid., p. 6. See also Emily Bazelon, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration (New York: Random House, 2019); and Alec Karakatsanis, Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System (New York: New Press, 2019).

  7. Collins v. State, 381 Md. 673 (2004), p. 732. Benjamin Ewing argues that, although in theory recidivists deserve harsher punishments because they had moral opportunities to reflect on their failings, in practice their opportunities to avoid reoffending are diminished (because of limited job prospects, for example). In order for harsher punishments for recidivists to be justified, we must instead impose punishments that increase offenders’ rehabilitative opportunities. See Ewing, “Prior Convictions as Moral Opportunities,” American Journal of Criminal Law 46(2) (Fall 2019): pp. 283–332.

  8. Roper v. Simmons, 543 U.S. 551 (2005).

  9. Greg Pogarsky, “Identifying ‘Deterrable’ Offenders: Implications for Research on Deterrence,” Justice Quarterly 19(3) (Sept. 2002): pp. 431–452. See also Franklin Zimring and Gordon Hawkins, “Deterrence and Marginal Groups,” Journal of Research in Crime and Delinquency 5(2) (July 1968): pp. 100–114.

  10. People v. Edwards, 97 Cal.App.4th 161 (2002, p. 165).

  11. William J. Bennett, John J. DiIulio Jr., and John P. Walters, Body Count: Moral Poverty—and How to Win America’s War against Crime and Drugs (New York: Simon & Schuster, 1996, p. 27).

  12. John Locke, Second Treatise of Government, ed. C. B. Macpherson (Indianapolis: Hackett, 1980), §10 (p. 11).

  13. E. Ann Carson, Prisoners in 2019, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Oct. 2020, https://www.bjs.gov/content/pub/pdf/p19.pdf.

  14. Katherine Beckett, Kris Nyrop, and Lori Pfingst, “Race, Drugs, and Policing: Understanding Disparities in Drug Delivery Arrests,” Criminology 44(1) (Feb. 2006): pp. 105–137.

  15. Deborah J. Vagins and Jesselyn McCurdy, Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law (Washington, D.C.: ACLU, 2006).

  16. See Brian D. Johnson, “Racial and Ethnic Disparities in Sentencing Departures across Modes of Conviction,” Criminology 41(2) (May 2003): pp. 449–490; Jeffery T. Ulmer, Megan C. Kurlychek, and John H. Kramer, “Prosecutorial Discretion and the Imposition of Mandatory Minimum Sentences,” Journal of Research in Crime and Delinquency 44(4) (Nov. 2007): pp. 427–458; Robert J. Smith and Justin D. Levinson, “The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion,” Seattle University Law Review 35(3) (Spring 2012): pp. 795–826; Besiki Kutateladze, Vanessa Lynn, and Edward Liang, Do Race and Ethnicity Matter in Prosecution? A Review of Empirical Studies (New York: Vera Institute of Justice, 2012), https://www.vera.org/downloads/Publications/do-race-and-ethnicity-matter-in-prosecution-a-review-of-empirical-studies/legacy_downloads/race-and-ethnicity-in-prosecution-first-edition.pdf; and Carlos Berdejó, “Criminalizing Race: Racial Disparities in Plea Bargaining,” Boston College Law Review 59(4) (Apr. 2018): pp. 1187–1249.

  17. Justin D. Levinson, Robert J. Smith, and Koichi Hioki, “Race and Retribution: An Empirical Study of Implicit Bias and Punishment in America,” UC Davis Law Review 53(2) (Dec. 2019): pp. 839–891.

  18. The Sentencing Project, Report to the United Nations on Racial Disparities in the U.S. Criminal Justice System, Apr. 19, 2018, https://www.sentencingproject.org/publications/un-report-on-racial-disparities/.

  19. U.S. Census Bureau, “Quick Facts,” https://www.census.gov/quickfacts/fact/table/US/PST045219.

  20. Carson, Prisoners in 2019; and Ashley Nellis, Still Life: America’s Increasing Use of Life and Long-Term Sentences (Washington, D.C.: The Sentencing Project, 2017), pp. 14–15, https://www.sentencingproject.org/wp-content/uploads/2017/05/Still-Life.pdf. Virtual life sentences are sentences of fifty years or longer.

  21. Ekow N. Yankah, “Punishing Them All: How Criminal Justice Should Account for Mass Incarceration,” Res Philosophica 97(2) (Apr. 2020): pp. 185–218, at p. 191.

  22. Dorothy Roberts, “The Social and Moral Costs of Mass Incarceration in African-American Communities,” Stanford Law Review 56(5) (Apr. 2004): pp. 1271–1305, at pp. 1295–1296.

  23. Alexander, New Jim Crow. See also Loïc Wacquant, “Deadly Symbiosis: When Ghetto and Prison Meet and Mesh,” Punishment & Society 3(1) (Jan. 2001): pp. 95–133; Loïc Wacquant, “The New ‘Peculiar Institution’: On the Prison as Surrogate Ghetto,” Theoretical Criminology 4(3) (Aug. 2000): pp. 377–389; and Isabel Wilkerson, Caste: The Origins of Our Discontents (New York: Random House, 2020).

  24. Alexander, New Jim Crow, pp. 48–58.

  25. Roberts, “Social and Moral Costs of Mass Incarceration,” pp. 1295–1296.

  26. Charles W. Mills, Blackness Visible: Essays on Philosophy and Race (Ithaca: Cornell University Press, 1998), pp. 6–10.

  27. Ibid., pp. 69–72.

  28. Ibid., p. 7.

  29. See Phillip Atiba Goff et al., “The Essence of Innocence: Consequences of Dehumanizing Black Children,” Journal of Personality and Social Psychology 106(4) (Apr. 2014): pp. 526–545; and Rebecca Epstein, Jamilia J. Blake, and Thalia González, Girlhood Interrupted: The Erasure of Black Girls’ Childhood (Washington, D.C.: Georgetown Law Center on Poverty and Inequality, 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3000695. One sign of racialized overdetermination is how the youth of offenders is considered. With white defendants such as Brock Turner, a Stanford University student convicted of sexual assault, youth is framed as a mitigating factor. The defendant did not understand the consequences of their actions, or punishment will ruin the rest of their lives. By contrast, with Black defendants, such as the Central Park Five, their youth intensifies the associations between criminality and animality. The defendants are not in control of themselves and are therefore a danger to the rest of society.

  30. Diane Whitmore Schanzenbach, Ryan Nunn, Lauren Bauer, Audrey Breitwieser, Megan Mumford, and Greg Nantz, “Twelve Facts about Incarceration and Prisoner Reentry,” Hamilton Project, Brookings Institution, Oct. 2016, pp. 7, 14, https://www.brookings.edu/wp-content/uploads/2016/10/thp_20161020_twelve_facts_incarceration_prisoner_reentry.pdf.

  31. Carmel Shachar, Tess Wise, Gali Katznelson, and Andrea Louise Campbell, “Criminal Justice or Public Health: A Comparison of the Representation of the Crack Cocaine and Opioid Epidemics in the Media,” Journal of Health Politics, Policy and Law 45(2) (Apr. 1, 2020): pp. 211–239.

  32. Elaina Plott, “Trump’s ‘Law and Order’: One More Deceptive Tactic Is Exposed,” New York Times, Jan. 16, 2021, https://www.nytimes.com/2021/01/16/us/politics/trump-law-order.html.

  33. Frantz Fanon, Black Skin, White Masks, trans. Charles Lam Markmann (New York: Grove, 1967), pp. 114–116.

  34. Ibid., p. 109.

  35. Ibid., p. 112.

  36. See Peggy McIntosh, “White Privilege: Unpacking the Invisible Knapsack,” in Paula S. Rothenberg (ed.), White Privilege: Essential Readings on the Other Side of Racism (New York: Worth Publishers, 2002), pp. 97–101.

  37. Fanon, Black Skin, White Masks, pp. 111–112.

  38. Sara Ahmed, “A Phenomenology of Whiteness,” Feminist Theory 8(2) (Aug. 2007): pp. 149–168, at p. 153.

  39. Ibid., p. 156.

  40. In some instances of police violence, including this one, the police officer is a person of color. This does not mean that racism is not at work in these killings, as some people claim. Rather, everyone in American society experiences the social training that associates Black men with criminality. In addition, acting as a police officer has a “de-racializing” effect (in many contexts). In the cultural imaginary, the uniform and badge indicate that the person stands on the side of “law and order,” so they uphold the social contract rather than symbolizing a threat to it.

  41. See Alia Al-Saji, “A Phenomenology of Hesitation: Interrupting Racialized Habits of Seeing,” in Emily S. Lee (ed.), Living Alterities: Phenomenology, Embodiment, and Race (Albany: State University of New York Press, 2014), pp. 133–172.

  42. Alia Al-Saji, “The Racialization of Muslim Veils: A Philosophical Analysis,” Philosophy & Social Criticism 36(8) (Oct. 2010): pp. 875–902, at p. 885.

  43. See Benjamin Ewing, “Recent Work on Punishment and Criminogenic Disadvantage,” Law and Philosophy 37(1) (Feb. 2018): pp. 29–68.

  44. Joel Feinberg, “Justice and Personal Desert,” in Doing & Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970), pp. 55–94.

  45. Herbert Morris, “Persons and Punishment,” Monist 52(4) (Oct. 1968): pp. 475–501.

  46. Mental illness raises some of the same issues around who belongs within the social contract and who does not, and therefore around the proper boundaries of moral attention. Racialized overdetermination compounds the tendency on the part of police to act violently toward anyone whose behavior is unpredictable, as evidenced by the deaths of Ezell Ford, Alfred Olango, Marcus-David Peters, Daniel Prude, and Walter Wallace Jr., among others. When police officers encounter people (especially people of color) behaving erratically or irrationally, they tend to be treated as threats to the community rather than people in need of care.

  47. Locke, Second Treatise, §10 (p. 11), italics added.

  48. The number of Latino men in prison actually grew by a faster rate than African American men from 2000 to 2010, which prompted James Kilgore to call it “The New Operation Wetback,” after the deportation campaign in the 1950s (“The New Operation Wetback,” Counterpunch, Aug. 4, 2011, http://www.counterpunch.org/2011/08/04/the-new-operation-wetback/). See Becky Pettit and Bryan Sykes, “Incarceration,” in Pathways: The Poverty and Inequality Report (Stanford: Stanford Center on Poverty & Inequality, 2017), pp. 24–26, at Table 1 (p. 26),

    https://inequality.stanford.edu/sites/default/files/Pathways_SOTU_2017_incarceration.pdf; and John Gramlich, “Black Imprisonment Rate in the U.S. Has Fallen by a Third since 2006,” Pew Research Center, May 6, 2020, https://www.pewresearch.org/fact-tank/2020/05/06/share-of-black-white-hispanic-americans-in-prison-2018-vs-2006/.

  49. See Leo R. Chavez, The Latino Threat: Constructing Immigrants, Citizens, and the Nation, 2nd ed. (Stanford: Stanford University Press, 2013), pp. 40–43.

  50. Oliver Wendell Holmes Jr., The Common Law (Cambridge, MA: Belknap, 2009), p. 44.

  51. Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (New York: Verso, 2006).

  52. See Paul H. Robinson and John M. Darley, “The Utility of Desert,” Northwestern University Law Review 91(2) (Winter 1997): pp. 453–499.

  53. Yankah, “Punishing Them All,” p. 201; and Vincent Chiao, “Mass Incarceration and the Theory of Punishment,” Criminal Law and Philosophy 11(3) (Sept. 2017): pp. 431–452, at p. 433. See also Edward Rubin, “Just Say No to Retributivism,” Buffalo Criminal Law Review 7(1) (Apr. 2003): pp. 17–83; and Robert Weisberg, “Reality-Challenged Theories of Punishment,” Marquette Law Review 95(4) (Summer 2012): pp. 1203–1252. Although he otherwise defends retributivism, Chad Flanders expresses a similar concern in “Can Retributivism Be Saved?” Brigham Young University Law Review 2014(2) (2014): pp. 309–362, at pp. 350–351. Hamish Stewart tries to defend retributivism against this objection by claiming that, according to the theory, we also ought to maintain a rightful condition, namely a legal system in which there is equal freedom for all. See Hamish Stewart, “The Wrong of Mass Punishment,” Criminal Law and Philosophy 12(1) (March 2018): pp. 45–57. Although one can agree with Stewart that a system of equal freedom for all is valuable, it is not obvious how that commitment follows from retributivism as a theory of punishment.

  54. Yankah, “Punishing Them All,” p. 201.

  55. Chiao, “Mass Incarceration and the Theory of Punishment.”

  56. Ibid., p. 445.

  57. Yankah, “Punishing Them All,” pp. 207–208.

  58. Roberts, “Social and Moral Costs of Mass Incarceration,” p. 1304.

  59. Ewing, “Recent Work on Punishment and Criminogenic Disadvantage”; and Benjamin Ewing, “Mitigating Factors: A Typology,” in Larry Alexander and Kimberly Kessler Ferzan (eds.), The Palgrave Handbook of Applied Ethics and the Criminal Law (London: Palgrave Macmillan, 2019), pp. 423–442.

  60. Erin I. Kelly, The Limits of Blame: Rethinking Punishment and Responsibility (Cambridge, MA: Harvard University Press, 2018), esp. ch. 5.

  61. See, respectively, Mills, Blackness Visible, pp. 67–74, 139–166; and Robert Bernasconi, “Hegel at the Court of the Ashanti,” in Stuart Barnett (ed.), Hegel After Derrida (London: Routledge, 1998), pp. 41–63.

  62. This perceptual shift to critique how philosophical theories are used to uphold white supremacy parallels the description of the criminal justice system as part of a carceral network that has historically taken on a range of forms for the “management of social marginality” (Roberts, “Social and Moral Costs of Mass Incarceration,” 1298). In both cases, we need to see the practice (theorizing punishment or punishing) in the context of its racialized impact, rather than as a race-neutral activity. See also Wacquant, “Deadly Symbiosis.”

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  1. Department of Philosophy and Religious Studies, Central Washington University, 400 E. University Way, Ellensburg, WA, 98926-7555, USA

    Matthew C. Altman & Cynthia D. Coe

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Altman, M.C., Coe, C.D. Punishment Theory, Mass Incarceration, and the Overdetermination of Racialized Justice. Criminal Law, Philosophy 16, 631–649 (2022). https://doi.org/10.1007/s11572-021-09618-0

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