The Philosophy of Policing, Crime, and Punishment.

Thinking For A Living: A Philosopher’s Notebook 9

By Robert Hanna

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PREVIOUS INSTALLMENTS

#8: The philosophy of borders, immigration, and refugees.

#7: The philosophy of old age.

#6: Faces, masks, personal identity, and Teshigahara.

#5: Processualism, organicism, and the two waves of the organicist revolution.

#4: Realistic idealism: ten theses about mind-dependence.

#3: Kant, universities, The Deep(er) State, and philosophy.

#2: When Merleau-Ponty Met The Whiteheadian Kripke Monster.

#1: Introductory; The rise and fall of Analytic philosophy; Cosmopolitanism and the real philosophy of the future; How to socialize the philosophy of mind.

***

189. The philosophy of policing, crime, and punishment. A few months ago, on Law Enforcement Appreciation Day, Chelsea Manning tweeted this:

Needless to say, she was widely abused and excoriated for f-bombing the police.

190. And on 21 June, four former and current professional football players, Doug Baldwin, Anquan Boldin, Malcolm Jenkins, and Benjamin Watson, wrote this in The New York Times:

President Trump recently made an offer to National Football League players like us who are committed to protesting injustice. Instead of protesting, he suggested, we should give him names of people we believe were “unfairly treated by the justice system.” If he agrees they were treated unfairly, he said, he will pardon them.

To be sure, the president’s clemency power can be a valuable tool for redressing injustice. Just look at Alice Johnson, age 63, who was serving a life sentence for a nonviolent drug conviction until her sentence was commuted by President Trump. He should be commended for using his clemency power in that case.

But a handful of pardons will not address the sort of systemic injustice that N.F.L. players have been protesting. These are problems that our government has created, many of which occur at the local level. If President Trump thinks he can end these injustices if we deliver him a few names, he hasn’t been listening to us.

As Americans, it is our constitutional right to question injustices when they occur, and we see them daily: police brutality, unnecessary incarceration, excessive criminal sentencing, residential segregation and educational inequality. The United States effectively uses prison to treat addiction, and you could argue it is also our largest mental-health provider. Law enforcement has a responsibility to serve its communities, yet this responsibility has too often not met basic standards of accountability.

These injustices are so widespread as to seem practically written into our nation’s DNA. We must challenge these norms, investigate the reasons for their pervasiveness and fight with all we have to change them. That is what we, as football players, are trying to do with our activism.[1]

The NFL-ers too were widely abused and excoriated — even though their little essay, saying essentially the same thing as Manning’s (f-)bomb-throwing-anarchist-sounding tweet, was not only very meticulously written and carefully argued, but also very calm, measured, and Statist in its rhetoric.

191. But the serious problems being highlighted by Manning and the NFL-ers are not about the essentially trivial, attention-deflecting issue of whether the police in particular or the legal justice system in general deserve to be profanely dissed or submissively respected, although I must also frankly admit that I hereby fistbump the former and take a knee against the latter.

The serious problems being highlighted are about the very idea and the all-too-real-world fact of policing and of what I’ll call The Crime-&-Punishment Machine in America, and whether they are rationally and morally justified, or not.

And here is where some serious philosophical thinking can help out.

192. In his breakthrough 2017 book, The End of Policing, Alex Vitale compellingly argues for these claims:

The massive increases in policing and incarceration over the last forty years rest on an ideological argument that crime and disorder are the results of personal failing and can only be reduced by harsh punitive sanctions. This neoconservative approach protects and reinforces the political, social, and economic disenfranchisment of millions who are tightly controlled by aggressive and invasive policing or warehoused in jails and prisons.

We must break these intertwined systems of oppression. Every time we look to the police and prisons to solve our problems, we reinforce these processes. We cannot demand that the police get rid of those “annoying” homeless people or the “threatening” youth on the corner an simultaneously call for affordable housing and youth jobs, because the state is only offering the former and will deny us the latter every time. Yes, communities deserve protection from crime and even disorder, but we must always demand them without reliance on the coercion, violence, and humiliation that undergird our criminal justice system.[2]

Vitale’s claims are strongly supported by recent historical or sociological micro-studies of policing and mass incarceration–for example, Kelly Lytle Hernández’s excellent book, City of Inmates,[3] a history of the LAPD and the Los Angeles County prison system.

And in a very cool New York Times article from 2017, Khalil Gibran Muhammed accurately and movingly describes The Crime-&-Punishment Machine in America:

Two new books offer timely and complementary ways of understanding America’s punitive culture and, in the process, stark pleas to abolish it. In “Locking Up Our Own,” James Forman Jr. explains how and why an influx of black “firsts” took the municipal reins of government after the civil rights movement only to unleash the brutal power of the criminal justice system on their constituents; in “A Colony in a Nation,” Chris Hayes shows that throughout American history, freedom — despite all the high-minded ideals — has often entailed the subjugation of another….

Drawing heavily on personal experiences as a white kid growing up in the crack-era Bronx and attending a magnet school on the border of East Harlem, much of Hayes’s book unfolds along the axis of two “distinct regimes” in America. One for whites, what he calls the Nation; the other for blacks, what he calls the Colony. “In the Nation, you have rights; in the Colony, you have commands,” Hayes explains. “In the Nation, you are innocent until proven guilty; in the Colony, you are born guilty.”….

Many historians have long noted that black folk are simultaneously overpoliced and underprotected. Hayes writes that violence by police or by gangs are “two sides of the same coin.” As such, the Nation evinces a peculiar circular logic: The harm black people do to one another “justifies” the harm the state does in their name. By contrast, the premium on white victimization in the Nation is “painfully clear to people living in the Colony,” Hayes writes. “White lives matter, and it hardly needs to be spoken.”[4]

In other words, then, what has happened in America — the wages of its original sin of slavery — is that coercive, punitive laws applying to everyone, whether white or non-white, are then specifically applied in a brutal, discriminatory way to non-white people, especially black people.

193. Notice, moreover, that the very idea of a “criminal act” is defined wholly in terms of the coercive, punitive laws that forbid that act, backed up by the threat of legal violence via the police and legal punishment via the prison system: without the coercive, punitive law that forbids an act, there is no such thing as a “criminal act” that violates that law, and therefore no ground whatsoever for legal violence or legal punishment.

194. Now in America, when anyone, especially non-white people and extra-especially black people, react against the coercive, punitive laws that are used to criminalize them, imprison them, or kill them — whether by police gun violence or by capital punishment — by committing even more “crimes,” then this fact, which has actually been caused and created by the coercive, punitive laws and their brutal, discriminatory application, is self-servingly used as a sufficient reason to create and justify harsher, more coercive, more punitive laws, that are then applied to everyone, but in an increasingly brutal, discriminatory way to non-white people and especially black people.

195. On top of that, as the two books discussed by Muhammed–one of which won a Pulitzer Prize–show, it is not only white people in America who create and self-servingly “justify” these harsher, more coercive, more punitive laws, that are then applied to everyone, but in an increasingly brutal, discriminatory way to non-white people, and especially black people: it is also non-white people, and especially black people, who do this very same thing to other non-white, and especially black, people.

This bizarre, tragic, sociopolitical twist by which oppressed people become themselves the oppressors of other oppressed people is simply yet another case, here extended over a whole generation of post-Civil-Rights-era, non-white, and especially black, law-makers and law-enforcement officers, of internalizing the oppressor.

196. Here is how Muhammed eloquently concludes his article:

Taken together “A Colony in a Nation” and “Locking Up Our Own” compel readers to wrestle with some very tough questions about the nature of American democracy and its deep roots in racism, inequality and punishment. Both authors find hope in a shared vision of a future society that protects human dignity and seeks accountability rather than vengeance. “What would the politics of crime look like in a place where people worried not only about victimization but also about the costs of overly punitive policing and prosecution?” Hayes asks. Forman imagines redefining our core values: “What if we strove for compassion, for mercy, for forgiveness? And what if we did this for everybody, including people who have harmed others?”

Because, finally, there may be no pathway to end mass incarceration without reconsidering our handling of all crimes, not just nonviolent ones. Fifty-three percent of all state prisoners are serving time for violent offenses, most commonly robbery. Racism and mass incarceration are systemic problems, but both Forman and Hayes show that the solution will lie not only with policy changes but with individual changes of heart too.

Forman recalls that a 16-year-old he defended was saved from incarceration by the testimony of the victim, who told the judge he didn’t want the teenager to be sent to prison. A system built to make “teeth rattle,” as described by Atlanta’s first black mayor, Maynard Jackson, is not a system capable of transformation; we need to build a new foundation. We need to choose to do it. “Mass incarceration,” Forman writes, “was constructed incrementally, and it may have to be dismantled the same way.”[5]

197. From a specifically Kantian and social anarchist[6] point of view, I could not agree more with both Vitale and Muhammed.

More precisely, all punishment is coercive.

And all coercion is rationally unjustified and immoral because it inherently involves treating people as mere means or mere things, backed up by violence or threats of violence, in order to promote self-interested ends of the coercer.

Hence all punishment is immoral, whether its purported justification is retributive, deterrent, rehabilitative, or restitutional.

Moreover, “crimes” are so-defined in relation to coercive, punitive, authoritarian laws.

But all coercive, punitive, authoritarian laws are rationally unjustifed and immoral.

Therefore all “crime-&-punishment” systems, whether in America or in any other State, are also rationally unjustified and immoral.

198. So let me now “wrestle with some very tough questions about the nature of American democracy and its deep roots in racism, inequality and punishment,” by going directly to the heart of the matter, and raising this amazingly hard question:

How can we go about devolving, dismantling, and exiting The Crime-&-Punishment Machine in America?

Here are two radical thoughts in that direction.

199. First, by means of repealing the 2nd Amendment, we should universally abolish the legal right to the possession and use of guns in the USA, especially including their possession and use by the police.

Correspondingly, whether most Americans believe it or not,[7] there are at least five other contemporary States in which police do not use guns — Iceland, Ireland, Britain, New Zealand, and Norway — and yet everything works out quite well.

Moreover, many countries already seriously restrict the possession and use of guns, with significant benefits for all involved; therefore gun abolition would radically extend and increase those benefits.

200. It is of course obvious that gun abolition would have to be implemented in very carefully-designed stages, so as to ensure a non-violent, safe transition from gun-free sub-zone1 to gun-free sub-zone2, etc.

And in the devolutionary period immediately after the repeal of the 2nd Amendment, particularly, it might be necessary to create a small public caches of guns, owned by no one, in certain communities, for use under special, critical conditions, for last-resort, defensive, protective, and preventive moral force, by those who have volunteered to help others in this way.

But these would be designed to wither away.

In any case, I hereby emphasize and re-emphasize what I noted just above, namely, that gun abolition would be implemented by, first, repealing the 2nd Amendment and then, second, universally banning the possession or use of guns thereafter in a step-by-step, zone-by-zone way, by COMBINING the process of civilian gun abolition with a step-by-step, zone-by-zone police, internal security, military, and intelligence force disarmament, and “the end of policing.”

Above all, then, by abolishing the possession and use of guns in the USA, especially including their possession and use by the police, we would thereby end police gun violence, which is an essential feature of The Crime-&-Punishment Machine in America.

201. Second, and most importantly, we should de-criminalize everything, and shut down all prisons, by simply getting rid of all coercive, punitive laws.

Non-coercive, non-punitive “laws,” aka social principles, would still be acceptable, important, and even necessary for society: but their purpose would be solely to provide wise, apt guidelines for creating, operating, and sustaining all and only constructive, enabling social institutions for our mutual aid, benefit, and self-realization, guided above all by universal respect for human dignity and universal resistance against human oppression.

202. The most obvious objection to what we have just argued is this:

“Supposing that these radical proposals for dismantling The Crime-&-Punishment Machine in America were enacted, then how then could we ever defend and protect innocent people against the bad acts of bad people or prevent these bad acts from happening?”

203. Here’s my reply.

Although all coercion is rationally unjustified and immoral, nevertheless, minimal sufficiently effective, last resort, defensive, protective, and preventive moral force is morally permissible, precisely because its fundamental aim is to support and sustain human dignity.

Correspondingly, I will contextually define “minimal sufficiently effective, last resort, defensive, protective, and preventive moral force” as follows:

A rational human agent X is using minimal sufficiently effective, last resort, defensive, protective, and preventive moral force if and only if X, as a last resort, only either uses the smallest sufficiently effective level of violence or threat of violence, or deploys the smallest sufficiently effective threat of appreciable, salient harm, in order to defend against, protect against, or prevent, X her/himself, or someone else, being coerced, or having their human dignity directly violated.

In view of that, when people are threatened, or about to be harmed, by bad people, we not only morally can but also morally should protect and defend those people against those bad people, and prevent this harm from happening.

But this protection, defense, and prevention would not involve crime-&-punishment, and would never involve either the ownership or possession and use of guns[8] or incarceration.

204. This leads me to a doctrine I call Crime-&-Punishment Social Anarchism.

Crime-&-Punishment Social Anarchism rejects The Crime-&-Punishment Machine, whether in America or anywhere else, from top to bottom.

Now The Crime-&-Punishment Machine is a monstrous, Leviathan-size fusion of

(i) institutionalized vengeance,

(ii) Utilitarian social engineering, and

(iii) Statism.

Correspondingly, this monstrous fusion is directly reflected in the retributive, deterrent, rehabilitative, and restitutional philosophical theories of punishment.[9]

Therefore, in order to reject the very idea of crime-&-punishment, and along with that, in order to dismantle The Crime-&-Punishment Machine in America, or anywhere else, the core assumptions of

(i) institutionalized vengeance,

(ii) Utilitarian social engineering, and

(iii) Statism

must all be rejected.

Now I’m going to make three radical counter-offers to those rejected assumptions.

205. Instead of institutionalized vengeance, I counter-offer institutionalized forgiveness.

This means that in a post-crime-&-punishment world, there would be no coercive, punitive laws, hence there would be no guilt under the law.

It also means that since there would be no criminalization, there would also be no criminals.

206. Instead of Utilitarian social engineering, I counter-offer Kantian existential responsibilism.

This means providing a social-institutional backdrop that makes it really possible for people to take deep moral responsibility[10] for the bad and wrong things they have done, and change their lives for the better, in pursuit of principled authenticity, which includes serious commitments to respect for human dignity, resisting oppression, and mutual aid, hence a serious commitment to helping victims.

207. And instead of Statism, I counter-offer existential Kantian cosmopolitan social anarchism.[11]

In a post-crime-&-punishment world, there would be no legal violence, especially including no capital punishment, which is simply legalized State coercion via arbitrary killing.

There would be no possession and use of guns, hence no gun violence, hence no legal gun violence on the part of the police.

Indeed, there would no such thing as the police, as we currently know them.

And there would be no prisons, hence no mass incarceration.

The protection of the innocent, and of people generally, from being threatened or harmed by bad people, would be guaranteed by the principle of minimal sufficiently effective, last resort, defensive, protective, and preventive moral force.

208. It remains true that if the state of things were to reach a special crisis situation, such that the well-being or lives of people were imminently threatened, or they were on the verge of being coerced or otherwise harmed, then we might have to use some minimally sufficiently effective, last resort, defensive, protective, and preventive means for neutralizing gun violence or other forms of violence, or for temporarily restraining someone.

And in some extreme cases, this might involve the permissible use of guns, although never the ownership or possession of guns.

So, again, legal gun violence, especially by the police, capital punishment, and prisons would all be abolished.

And in this way, the racist, discriminatory use of police gun violence, capital punishment, and prisons, whether in America or anywhere else, would also all be abolished.

209. Hence the violence-neutralizing or temporary restraining that would sometimes be necessary in special crisis situations, would be as infinitely far from The Crime-&-Punishment Machine in America as utopia now[12] is from earthly hell.

210. So all in all, in a post crime-&-punishment world, no one would have to f-bomb the police or take a knee against the Crime-&-Punishment Machine in America ever again, because they’d be nothing but regrettable relics of the bad old days.

NOTES

[1] D. Baldwin, A. Boldin, M. Jenkins and B. Watson, “N.F.L. Players to Trump: Here’s Whom You Should Pardon,” The New York Times (21 June 2018), available online at URL = <https://www.nytimes.com/2018/06/21/opinion/trump-pardon-nfl-players.html>.

[2] A. Vitale, The End of Policing (New York: Verso, 2017). pp. 227–228.

[3] K. L. Hernández, City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles (Chapel Hill, NC: Univ. of North Carolina Press, 2017).

[4] K.G. Muhammed, “Power and Punishment: Two New Books about Race and Crime,” The New York Times (14 April 2017), available online at URL = https://www.nytimes.com/2017/04/14/books/review/locking-up-our-own-james-forman-jr-colony-in-nation-chris-hayes.html>.

[5] See note 4 above.

[6] See Kant, Agnosticism, and Anarchism: A Theological-Political Treatise (THE RATIONAL HUMAN CONDITION, Vol. 4) (New York: Nova Science, 2018).

[7] See, for example, R. Noack, “5 Countries Where Most Police Officers Do Not Carry Firearms — and it works well,” Washington Post (8 July 2016), available online at URL = <https://www.washingtonpost.com/news/worldviews/wp/2015/02/18/5-countries-where-police-officers-do-not-carry-firearms-and-it-works-well/>.

[8] As I mentioned in #200, in some special critical cases, it would nevertheless be at least permissible to use guns without owning or possessing them.

[9] See, for example, D. Boonin, The Problem of Punishment (Cambridge: Cambridge Univ. Press, 2008).

[10] In Deep Freedom and Real Persons: A Study in Metaphysics (THE RATIONAL HUMAN CONDITION,Vol. 2) (New York: Nova Science, 2018), I distinguish sharply between deep moral responsibility and shallow moral responsibility. Deep moral responsibility is an a first-person ontological fact that flows from the free choices and actions of the real human person herself, whereas shallow moral responsibility is only a second- or third-person epistemic fact that flows from the beliefs and judgments of others.

[11] See Kant, Agnosticism, and Anarchism, esp. part 2.

[10] See Kant, Agnosticism, and Anarchism, part 3.

AGAINST PROFESSIONAL PHILOSOPHY REDUX 197

Mr Nemo, W, X, Y, & Z, Thursday 1 November 2018

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