A popular talking point in leftist political circles is the Prison-Industrial Complex. Drawing its name the “Military-Industrial Complex,” a concept President and WWII General Dwight Eisenhower warned about in his farewell address, the Prison-Industrial Complex references the ways that private, capitalistic interests mix with justice system, and cause oppress marginalized communities. The major talking points about the PIC are how the United States incarcerates more people than any other industrialized nation, and our prisoner population is disproportionately black and latino, to the point that the United States incarcerates more black men per capita than South Africa at the height of Apartheid.
Many leftist activists will speak about the “School-to-Prison Pipeline,” which describes how primary and secondary educational facilities have increased their security and police connections in recent years, and have resorted to arresting youth for infractions instead of managing them internally to the system. With criminal convictions early in life, (especially for youthful mischief characteristic of a developing teenager, like vandalism, fighting, marijuana use, or petty theft) minority and poor-white teenagers will have much greater difficulty getting into college or finding gainful employment. By restricting their economic opportunities at an early age, these youth often turn to criminal activities such as selling drugs, which often lead to further convictions.
There must be an alternative to prison, the argument goes. The massive prison population is expensive, dehumanizing, racist, and exploitative: The Prison-Industrial Complex is unacceptable in principle. I agree, but it leads me to an uncomfortable cognitive dissonance: If prisons are immoral, then why do we leftists want to lock up bankers? Why do we want to lock up the police who shoot unarmed black men in the back? Why do we want to send Bush to Den Haag for the Iraq War, and Obama for his drone strikes? In short, is our disapprobation with prisons really about prisons themselves, or because we want to punish a different set of people?
When I was a child, I thought justice was a simple thing: people who did bad things got to have bad things inflicted on them by a neutral, objective force. I didn’t even question this at all, it just seemed to me that punishment existed for its own sake, that justice was desirable in and of itself. This sort of view is called the Retributive view of Justice, and is perhaps the strongest argument used in support for the death penalty, corporal punishment, and increasing the severity of prison sentences. In my childlike mind, when I was hurt, I wanted nothing more than an equal amount of pain to be inflicted on my enemy. Similarly, contemporary defenders of the Retributive Justice argue that unless a suitable punishment is levied against the wrongdoer, the memory and dignity of the victims is disgraced. Charleston Shooter and White Supremacist Dylann Roof has recently been condemned to death in a federal court for his heinous crimes. Clearly he is not being put to death because he serves an immediate threat, as it would have been cheaper and easier to simply give him the sentence of life without parole. The Federal Government wants to kill Roof because he is a bad person, and because the State disapproves of his actions. Killing Roof has no utility: his victims will not be resurrected by his execution; systemic racism will not disappear by his execution; I sincerely doubt any other domestic terrorist will be deterred from committing terror by the fear of a death penalty. This State-endorsed murder is simply a task to balance “the ledger of justice.”
While Leftists often talk in great disgust about the death penalty, I see an identical system of reasoning around locking up bankers or abusive police: the act of punishing the architects of the financial collapse or the officers who murdered Walter Scott and Philando Castile, or privileged rapists like Brock Turner or Roman Polanski will be “Justice Served,” as if Justice is an idol unto which we must satisfy by making an appropriate sacrifice. When white collar criminals do serve time in prison, the criticism is often how lenient and lofty their sentences wind up being. Even in the most “woke” activist, there is a desire for blood.
Not everybody believes this is the only way to think about justice. Jeremy Bentham, 19th century lawyer and philosopher, famously argued for the ethical theory of utilitarianism. According to Bentham, morality is a matter of pleasure and pain: pleasure, or happiness, is good, and pain and suffering are bad. Abstract theories about “Natural Rights” or a “Natural Law” were nothing more than “Nonsense on Stilts.” As such, Bentham argued that all punishment was necessarily evil, as it inflicted pain on a party. The goal of the justice system must be then to prevent crimes, rather than to manage this abstract and inflated notion of justice. The death penalty, Bentham argued, did not deter crimes so much as it made criminals more careful as to not be caught, and thus different sorts of punishments must be considered. Bentham would almost certainly be disappointed at the American PIC, as incarcerating youths and adults does not stop people from committing crimes, as criminality is often an outcome of socioeconomic and psychological factors that are not solved by locking them up. If anything, bundling all the criminals together makes for more criminals. Thus, utilitarian justice looks forward, while retributive justice looks backward.
In both of these instances, the crime is understood to be a violation of the rules of the State, and thus it is the roll of the State, and the State alone, to make judgements and administrate punishment. Many Leftists dislike this focus on the power of the State, and claim that both Utilitarian Justice and Retributive Justice ignore the victims of crime by making the transgressions crime about the State rather than about actual people. In contrast, some activists express interest in ideas around Transformative, or Restorative Justice. There are a variety of models, but the general idea is that the parties would meet, the victims would have a much more active roll in determining what is to be done, the situations of the guilty would be carefully considered, and the judgements will seek to rehabilitate and minimize the future offenses. Victims and offenders broker a decision, rather than the State holding a monopoly on all violence.
While I understand the appeal of Restorative Justice (as I tend to have sympathies to anarchist politics), I don’t quite see how it would work on macro level, or in any circumstance where the offender does not recognize their transgressions. If the CEOs of speculative investing firms truly believed they were acting in enlightened self-interest, if collegiate rapists like Brock Turner really believe that his heinous behavior wasn’t really rape, if White Nationalists like Richard Spencer or Matthew Heimbach actually hold that White people are genetically and culturally superior to all other races, how on earth is a restorative peace ever supposed to be reached, especially if the victim does not have the retributive power of the State to “back them up?” Why should the victims of violent crimes especially ever need to consider the input of their oppressors? And especially in cases such as child abuse, sexual abuse, and domestic abuse, the victims are often manipulated by their oppressors in the first place to believe the abusive tactics are justified.
Moreover, I’m not convinced Restorative Justice models solve the question at the heart of the divide between utilitarian and retributive justice: does justice require a violence to be inflicted on the offending party to reconcile a perceived debt?
Restorative Justice is often linked to talk about Forgiveness, but again, I think this is side-stepping the fundamental question about Justice. Consider Dylann Roof again, days after his racist mass murder, members of the congregation he attacked stated how they forgave him. While I in no way question the intentions or sincerity of this gesture, I am a little confused about what this really means. Suppose the judge of his trial, upon hearing that the victims’ families forgave Roof of his crimes, granted him an unconditional pardon, under the condition that he be banned from ever owning a weapon again. Such a move would be met with mass protests, if not riots, in the streets. On an intuitive level, the vast majority of people simply could not accept a situation of justice in which an offender commits a violent crime, is forgiven by the victim, and is free to carry on their lives. The Truth and Reconciliation Committee after Apartheid South Africa is a living example of this: the vast majority of the requests for absolution were denied, indicating that most victims needed for there to be a violence inflicted on their offenders for there to even be the possibility of reconciliation.
Consider the notion of forgiving a debt: if my bank told me they would forgive my mortgage, but I still had to pay the money I borrowed, I could not possibly agree that there was any act of forgiveness. On the same measure, I reject definitions or usages of the word “forgiveness” to mean something to the effect of, “A lessening of personal anger toward somebody, but a desire that a retributive act of violence is still inflicted on the offending party.” For this sort of “Ersatz-Forgiveness,” there is still a belief in a metaphysical ledger of justice, dashed in the blood of criminals.
I reject Retributive Justice as a product of our residual reptilian brain: as much as we want blood, there is literately no justification for punishment for its own sake. With Bentham, I hold that all punishment must serve to prevent crime and to rehabilitate the offenders. The State must also work to restore the lost livelihood of the victims, but this restoration is a process separate from the punishment of the offender. There is no such thing as a debt to society that is somehow paid through a prison sentence; if anything, exacting our State-Sanctioned revenge against the mortgage crisis bankers, the murderous police officers, and rapist college men will grant us that immediate rush of pleasure, while ignoring the rancid systems of power and cultures of abuse. Locking up the bankers will not restore the sunk retirements of millions. Locking up Brock Turner for 10 years will not end rape culture. Locking up George Zimmerman for 25 years to life will not end racism. Injecting poisons into Dylann Roof’s arm will not end White Supremacism. At the same time, we cannot forgive or restore relationships with Dylann Roof, George Zimmerman, Roman Polanski, or Jordan Belford in my view, because they do not want to be reconciled for their abuses. The best thing a victim can do is forget or “release” the abuser, but this is without ever absolving them of their abuse.
Justice is in how outside parties will uphold the victims, not in how we destroy the oppressors.