Though elites bear significant shares of the responsibility for the ills of American criminal justice, it is undeniable that America’s penal state has long been a tyranny of the silent majority. And as Michael Javen Fortner and James Forman, Jr. have shown us in their provocative recent books Black Silent Majority and Locking Up Our Own, in this story the oppressors are not always easily disentangled from the oppressed. The black American communities most burdened by mass incarceration and correctional supervision have also struggled the most to stay safe from crime. Their justified anxiety and anger have sometimes led them to support the kinds of extreme penal responses for which we typically blame Nixon, Reagan and other race-baiting populists of the right. By contrast, in the more “socialist” countries of Scandinavia and Western Europe—which have substantially lower incarceration rates and better prison conditions—less politicized legal systems protect the authority of penal experts to make level-headed decisions uninflamed by popular outrage about crime.
California continues to attest to the bipartisan nature of penal bloodthirst. Following a crusade by a victims’ rights activist and Stanford law professor, the citizens of liberal Santa Clara County recently saw fit to recall a superior court judge for his perceived leniency toward Brock Turner, a former Stanford undergraduate convicted of sexual assault. The young man in question was excommunicated from upstanding society with permanent “sex offender” registration and sentenced to six months in jail (of which he served half—because of a general policy adopted to help redress California’s unconstitutional and cruel prison overcrowding!), followed by three years of correctional supervision via probation. Santa Clara voters nevertheless judged his punishment far too lenient—too lenient, that is, relative to the still greater harshness that less privileged perpetrators of sexual assault can expect to receive in America. If we cannot treat everyone with equal humanity—regardless of their backgrounds and those of their victims and victimizers—is equal degradation the most for which we can hope?
What might lie in the socialist penal imaginary? Presumably it cannot simply be something on the laundry list of familiar aspirations for criminal justice that do not require a socialist vision to imagine or advocate: e.g. equal accountability before the law and its agents, more sparing use of custodial sanctions, more humane conditions of confinement or better opportunities for social and economic reintegration post-release.
There are many obvious long-term ideals and few cheap or easy strategies by which to reach them. Yet a socialist politics of punishment might make its greatest contribution not by dictating our ends or means, but by building the connective tissue between them: an ethos. A distinctively socialist ethos of criminal justice might be built from what has always been the signature link between socialism as ideal and as strategy: solidarity. Crime and punishment pose distinctive challenges and opportunities for solidarity, and an effort to work through them may be the best way to shed light on the promises and pitfalls of a socialist criminal justice.
One of the characteristic moves of the socialist, as distinct from the more market-positive liberal, is to build class solidarity by linking the emancipation of the lower classes with an affirmation of a working class capacious enough to encompass the working poor, middle managers and professionals. Rather than characterize poverty and inequality as problems that we are obligated to solve for the benefit of those who suffer from them, the socialist constructs a more encompassing “we”—a “we” whose interests need protection from domination and exploitation—and therefore calls for universal rather than means-tested public benefits. Where the technocratic liberal sees wasteful and polarizing excess, the democratic socialist sees the construction of a broad-based political coalition—one that avoids the self-serving mischaracterization of social justice as the beneficence of elites.
Among the worst aspects of contemporary American punishment—and there are many—is a cynical and counterproductive spirit that is nearly solidarity’s opposite: ostracism. This mentality is partly the resentment of the anxious and status-conscious, partly the dehumanization of a society that treats even the law-abiding like disposable commodities. The problem is not simply that we continue to impose the literal death penalty and its exponentially more common symbolic equivalent, life imprisonment without the possibility of parole. Ostracism is a spirit—a negative ethos in its own right—which is not confined to criminal punishment or those who espouse a tough-on-crime attitude. Much as the American frontier once made it possible for a proud nation to let some of its most glorious cities decay, our rootless, transactional attitude toward human relationships encourages us to throw people to the wolves or abandon them.
Inside the criminal-justice system, one could point, for example, to the pathological bureaucratic rituals to which we subject sex offenders—which may include continual re-registration requirements, draconian restrictions on their ability to live in society, coerced “treatment” that penalizes a refusal to confess to further crimes, or indefinite “civil confinement,” even after they have endured their punishment and supposedly “paid their debt” to society. Talk to anyone, not just a sex offender, who has had the misfortune to come under the immediate power of the criminal-justice system—whether through incarceration, correctional supervision, arrest or stop-and-frisk—and he will tell you that once the penal state has taken aim at you, it is nearly impossible to be a first-class citizen ever again. Even in contexts more or less wholly “outside” the system, it is lamentable that social exile remains the best solution we have yet come up with for male-pattern misogyny.
Ostracism of wrongdoers is as much a consequence as it is a cause of the fracturing, weakening and destabilization of social bonds. In the face of such an undercurrent, how might we stand in solidarity with the large majority of prisoners, parolees and simply bad men whose abuse or exploitation of other people demands that we somehow hold them to account? And how might we do so without undermining our solidarity with victims of crime—particularly those whose interests have been disregarded and whose voices have been silenced?
On the one hand, a classical leftist emphasis on the primacy of material conditions should make liberals more sensitive to the class- and race-based structural barriers to avoiding not only punishment but also crime. Subjects of the law are not all equally well-positioned to avoid violating it. Whereas reactive liberals stress economic and racial disparity in the enforcement of the law, proactive socialists should insist that mere “formal” equality before the law is not enough. We must also emancipate the poor and working classes from the post-industrial conditions of domination and exploitation that substantially explain their disproportionate resort to crime—including violent crime.
On the other hand, we must remember that we too could be—if we are not already—the violent, the mendacious, the brutish, the dangerously blind or weak-willed. #MeToo reckonings are a sobering testament to both the quotidian and exceptional callousness of many men. But all of us, in our complicity in militarized policing and brutal mass punishment, have been guilty of barbarism—whether or not we have committed any other serious crimes.
Moreover, solidarity with criminals would enhance rather than diminish our solidarity with the victims of crime—particularly ones whose rights have historically been under-protected. If we are to take seriously and redress the society-wide problems that violations of their rights exemplify, we must not place so much weight on the culpability of specific wrongdoers that we ossify the very boundary between the guilty and the innocent that thwarts collective responsibility and structural change. It may feel cathartic to scapegoat individual criminals for the deeper social ills of which their crimes are symptoms. But it ultimately does a disservice to actual and potential victims. To stand in solidarity with criminals is not to deny their guilt but our innocence.
What might solidarity with criminals look like as a practice and not merely an idea? It would mean what it generally does to choose socialist solidarity over liberal individualism: making fewer of the benefits and burdens of social cooperation dependent on personal choices and treating more of them as non-negotiable baselines of membership in a political community.
On the one hand, socialism in punishment would require us to respect the dignity, equality and future potential of even the worst offenders—the mass shooters, the Harvey Weinsteins, the Larry Nassars and all the other terrorists among us. On the other hand, it would mean shared struggle and sacrifice. For the socialist, it is not too much to demand that all of us share in at least some of the hardest, dirtiest forms of necessary labor. And punishment is unquestionably high on the list of such work.
Collectivizing our responsibility for criminal punishment might start with an acknowledgement of the debt we owe to everyone on whom the hard work of punishment currently falls. Our least acknowledged debt, in this regard, is to criminals themselves, who by enduring confinement and post-release supervision, perform the hardest form of involuntary servitude that modern society has not yet transcended. The fact that we can and should make their labor more dignified and less alienated is no excuse for failing to recognize its immense value. If punishment is necessary, it is most plausibly necessary because we need to credibly threaten crime with condemnation and punishment if we are to secure one another’s rights against violation. Hence, there is a strong case to be made that it is precisely on criminals’ backs that we safeguard our rights.
We must also remember what we owe to police and prosecutors, judges and defense attorneys, who serve the same end as criminals who serve their sentences—and who do this hard work as voluntary public service rather than forced expiation. Their active complicity in the injustices of American criminal punishment is a more noble assumption of responsibility than our passive acceptance of them. If the agents of American criminal justice are sometimes like garbage collectors who enable us to wash our hands of the messes we have collectively created, then it is worth remembering that there is nothing so honorable as doing society’s dirty work well.
Remembering this will make it harder to feel indiscriminate indignation toward the police or prosecutors, and easier to see the importance of joining their ranks. Rather than decry the offices of law enforcement, we should seize the means of prisoner production—with all the attendant responsibility and compromise that will involve. Likewise, we should not construct a rigid opposition between the police, as instruments of state violence, and those on whom their violence disproportionately falls. For the victims of police violence are also disproportionately the victims of other violence and crime, and they have a special need for the power of the state to protect them. Indeed, it is precisely their special need and lack of such protection by the police that makes any act of police violence of greater moral concern than a comparable act by one private person against another.
Yet if the work of criminals and law enforcement officials is, in an important respect, the same, solidarity with the two on the same basis is too abstract. The problem is that the work of criminals is harder, less voluntary and more concentrated on the underclass. To see what it would take to share their struggle in earnest, we must consider what punishment would look like were we truly to socialize it—i.e. to stop confining its imposition to those who are convicted of crimes.
Strictly speaking, we cannot subject a person to “punishment” without at least pretending he is guilty. Yet it is only because we have had the structural privilege to avoid invasive policing and pervasive pressures to succumb to crime that most of us do not recognize that, where go the perpetrators of crime, there but for the grace of God go I. Would it really be incoherent, then, or an affront to fairness, to impose a penal draft—i.e. to randomly select citizens to serve their country as inmates, probationers or parolees, perhaps under the (all too familiar) pretense that they must be guilty of something?
If “as if” punishment of the might-have-been-guilty-anyway is a bridge too far, what of a brief period of mandatory public service in prison? Despite the demise in practice of jury trials, jury duty remains a potent symbol of our commitment to protecting the innocent from wrongful conviction. What better way could there be than some form of “prison duty” to embody our commitment to protecting the guilty from unjust punishment?
We often wonder: If we each had to slaughter our meat, would we become vegetarians? If we each had to fight our wars, would we become pacifists? What if we each had a share of the work not only of dispensing, but also bearing, society’s condemnation and punishment?
Art credit: Benjamin S. Jones
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This essay appears in issue 17 as part
of our “What is prison for?” symposium.
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