We Love Our Retribilitution

“We have, then, a public execution and a time-table.” –Michel Foucault, Discipline and Punish

When dealing with the current LD Debate Topic that Resolved: Rehabilitation ought to be valued above retribution in the United States criminal justice system we encounter a framing fault: the resolution presumes guilt. Our presumption of innocence, however, stems from our 4th and 5th amendments (protecting privacy and protection from self-incrimination) as well as 14th (assuring due process of law). The resolution would, like the decapitation-fixated Queen of Hearts in Alice in Wonderland, demand a sentence first and only get to the verdict afterwards. As far as I’m concerned, this is a brazenly reprehensible attempt to warp the minds of today’s youth, as sometimes happens.

Before we begin in earnest, let’s turn to Gary Gutting’s very short introduction to Foucault where he summarizes Foucault’s analysis of the transition from primitive criminal justice to modern criminal justice:

He [Foucault] begins by outlining the contrasts between modern and premodern approaches. There are four major transitions:

  1. punishment is no longer a public display, a spectacular demonstration to all of the sovereign’s irresistible force majeure, but rather a discrete, almost embarrassed application of constraints needed to preserve public order.
  2. What is punished is no longer the crime but the criminal, the concern of the law being not so much what criminals have done as what (environment, heredity, parental actions) has led them to do it.
  3. Those who determine the precise nature and duration of the punishment are no longer the judges who impose penalties in conformity with the law, but the ‘experts’ (psychiatrists, social workers, parole boards) who decide how to implement indeterminate judicial sentences.
  4. The avowed purpose of punishment is no longer retribution (either to deter others or for the sake of pure justice) but the reform and rehabilitation of the criminal.

Now the fourth point begs the question of the debate: regardless of modern fads, is rehabilitation really the way we ought to go? But the first point is by far the more interesting one — that retributive punishments are designed to display the irresistible power of the state, the long arm of its law, while the rehabilitative punishments are the shame of the state in tacitly admitting that the crime did, in fact, happen, and retributive long-arm-of-law-or-not, it can’t be undone. So whether you prefer retribution or rehabilitation probably has more to with your belief in the strength or humaneness of our civilization than it does to do with the policies guiding the criminal justice system.

But even that isn’t the interesting point. Let’s get back to the condensed Foucault:

A second distinctive feature of modern disciplinary control is its concern with normalizing judgment. Individuals are judged not by the intrinsic rightness or wrongness of their acts but by where their actions place them on a ranked scale that compares them to everyone else. Children must not simply learn to read but must be in the 50th percentile of their reading group. … [T]he examination combines hierarchical observation with normative judgment. It is, Foucault says, ‘a normalizing gaze [that] establishes over individuals a visibility through which one differentiates them and judges them’. The examination is a prime locus of modern power/knowledge, since it combines into a unified whole ‘the deployment of force and the establishment of truth’ (DP, 184). It both elicits the truth about those (patients, students, job candidates) who undergo the examination and, through the norms it sets, controls their behaviour.

To put it another way, the ostensible juvenile delinquent who can’t read as well as he — for all delinquents are “he” generically — should be able to will soon also be in illegal possession of marijuana. There is only a degree of separation in terms of social norms there: normal juveniles do possess better reading skills, normal people do not possess marijuana… except in Washington or Colorado, and not even then in the presence of federal agents. The law in this case really is just a social norm. And you can tell it’s a social norm by just trying to value retribution above rehabilitation: what is the demanded repayment for possessing marijuana? Wait, repay what to whom? The very notion of retribution suggests interpersonal criminality — assaults or burgling or the like — where harms against an entity are tangible and restitution can at least be attempted, if never exactly exacted.

The US Department of Justice reports that in 2007, “Drug abuse violations” — riper for rehabilitation than retribution — were the top cause of arrest, followed by “Driving under the influence” which is really just another “drug abuse violation” with a heavy machinery element added to it if we’re honest. After that we’ve gotten down to assaults and theft, followed by “disorderly conduct” and then we round out the top-7 list with “liquor laws” and “drunkenness” — again with drug abuse violations. And, for the record, on May 26th of 2007, actress Lindsay Lohan pulled a two-fer while driving with booze in her blood and coke in her pocket — she would serve 84 minutes of jail time, resulting neither in just retribution nor her rehabilitation. So how we ought to prioritize our goals doesn’t matter here. But the bigger picture is that over half of the top-7 types of arrest are based on the relation of an individual to a controlled substance rather than related rather than distinctly interpersonal criminality.

This leads us to this FBI report regarding 2011 which says that only 47.7% of violent crimes and 18.6% of property crimes were “cleared,” that is ostensibly solved and resolved. That’s less than half and less than a fifth — because, compared to dealing with serious criminality, prosecuting for a fifth of Jack is easier by half.

So far, I’ve mentioned the notorious criminal mastermind Lindsay Lohan — the dripping noise is sarcasm — but let’s take a moment to compare her with somebody who isn’t high profile and doesn’t have the kind of celebrity influence to get out of jail in less than a policy debate round’s worth of time. Paulo Freire gives an example of this referring to public drunkenness — our crime #7, but the perp could’ve been high on marijuana which is crime #1! — in Pedagogy of the Oppressed (2008 edition, p 118):

[A social worker intends to investigate aspects of alcoholism, so] a group of tenement residents discussed a scene showing a drunken man walking on the street and three young men conversing on the corner. The group participants commented that “the only one there who is productive and useful to his country is the souse who is returning home after working all day for low wages and who is worried about his family because he can’t take care of their needs. He is the only worker. He is a decent worker and a souse like us.” … On the one hand, they verbalize the connection between earning low wages, feeling exploited, and getting drunk — getting drunk as a flight from reality, as an attempt to overcome the frustration of inaction, as an ultimately self-destructive solution. On the other hand, they manifest the need to rate the drunkard highly. He is the “only one useful to his country, because he works, while the others only gab.” After praising the drunkard, the participants then identify themselves with him, as workers who also drink — “decent workers.”

So what would rehabilitation mean in this context? What it should mean — not being forced to choose between low wages and no wages, not feeling exploited by wanna-be plutocrats, not feeling utterly powerless — isn’t within the purview of the criminal justice system. But we don’t know how to face up to that degree of social injustice, so we tell ourselves simple stories instead where the guilt is part of the substance in question. Eugene Jarecki calls this out saying “Wherever you see drug addition and drug abuse in this country be ravaging, those people already have ravaging lives… it’s just so easy to blame the drug and pretend that that poor person, who turned to the drug to self-medicate for their pain, that they were actually great before the drug came to town.” Bryan Stevenson observes that “We have a system of justice in [the US] that treats you much better if you’re rich and guilty than if you’re poor and innocent.”

Bryan Stevenson is worth an entire tangent, so here he is:

Back on topic, reviewing the DoJ arrest statistics, we see that when we’ve got an estimated 10000 federal criminal statues (“Did you know that it can be a federal offense to be in possession of a lobster?“) not because we’re effective at handling interpersonal criminality, but because we actually like personally sordid vice — it helps us explain why the punished are having a miserable time with life. And whether you’re looking at it like a Catholic and relishing guilt as proof of your mere humanity, or as a Calvinist and relishing their guilt as proof of their mere humanity, we should be deeply concerned about what “rehabilitation” really means in a context devoid of social justice.

Getting back to Foucault’s synopsis:

Is the new idea – roughly, to imprison rather than to torture – the enlightened, progressive development it thinks it is? Foucault has his doubts, suggesting that the point was ‘not to punish less, but to punish better’ (DP, 82).

So there are two effects here:

  1. the ability to “punish better” socially deviant — but not interpersonally criminal — behavior is designed to suppress social justice. The drive for “rehabilitation” is a matter of getting the impoverished individual to accept their sorry state in life in accordance with social norms — it’s just a step away from a boot stepping on the face of humanity for ever — while also serving as tacit explanation as to why the hypothetically rehabilitated ex-convict has such a hard time finding gainful employment.
  2. Justice is denied to the good people who have always been troubled by “the thugs and hoodlums,” to borrow Nixon’s phrase: because they are — We Are — paying to incarcerate the poor. Eugene Jarecki (already cited) has a documentary out on the drug war and how it subsidizes the prison industry that gets into this; he was on The Daily Show discussing some of the key points of the film back in October. And what we have built in the fog of a war on drugs isn’t a justice system, a retributive system, or even a rehabilitation system, but rather a system of — as Jarecki puts it — industrialized mass incarceration that, I must note, competes with public education and public health care for its funding.

If we cared about about rehabilitation, then we’d be trying to punish people less. We’re not even remotely trying to punish less, we’re trying to punish better.

And when we glance back at Foucault’s fourth point of change from premodern to modern criminal punishment and see that “The avowed purpose of punishment is no longer retribution… but the reform and rehabilitation of the criminal,” then we have to conclude that the evolution out of premodern retribution to modern rehabilitation has stunted our concern with social justice and undermined our capacity for mercy and empathy for people in other circumstances, and thus we should not be valuing some fantasy-gilded “rehabilitation” as a preferable goal of the criminal justice system, regardless of what alternative goals there are. This resolution is both pernicious and false.