Our previous post was devoted to Justice Kennedy's opinion in Plata, and discerning readers may have noticed we did not discuss the dissents. I didn't comment on those because, to me, they represent the worst kind of populist alarmism and rhetoric of fear, and pretty much the last thing we need now. But I have to say something about the rhetoric in Justice Scalia's dissent, because being silent about such matters is tantamount to letting them happen without outrage in the public sphere.
Justice Scalia writes:
One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result.
The "outrageous result" is having human beings caged and soiled in their feces and urine for want of medical treatment, Nino. The "outrageous result" is that people needlessly die waiting to be examined and diagnosed. Your comments about the lack of standing of inmates are disenfranchising and dehumanizing. It's fairly obvious that the thought that there, by the grace of God, goes you, has never crossed your mind. Clearly, because during the oral argument, when Justice Sotomayor was horrified and heartbroken to hear about these inflictions of needless suffering, you told her off, saying "don't be rhetorical."
Your cruel mockery of human beings like you and complete lack of human empathy really shine through in this remarkable passage:
Most of them will not be prisoners with medical conditions orsevere mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.
This has to be one of the most backwards, Lombrosian, objectifying, smug paragraphs ever written by a judge about inmates, or really, about anyone. It recalls Justice Holmes' infamous comment in Buck v. Bell, that "three generations of imbeciles is enough", ironically shattering the life of someone who was not mentally defective.
These are shameful words, but Justice Scalia is not the only one who needs to be ashamed. We all share in the shame. Because the bottom line is that all the horrific abuses in the California correctional system would not have occurred, despite alarmist politics, fear-mongering media, redball cases, and a powerful prison guard union, had it not been for our collective lack of empathy for our fellow Californians behind bars. We have "othered" crime long enough. Empathy has been a long time coming. Fortunately, five out of nine Supreme Court Justices were able to find some within their hearts. Here's hoping that many taxpayers and policymakers follow their example.
Overwrought, hand-wringing moral outrage deserves better than more of the same in response, Hadar. For a post tagged with "the big picture," let's consider the big picture here a moment: how are we to deal with deviancy in society? We've obviously hit the practical and objective limits of the model focused on merely incapacitating and penning up the deviant. We don't seem to know how to do anything else, or at least there's nothing fresh on the table. I don't think even you would suggest that merely "doing nothing" is practically or politically viable either, otherwise the proper response to Scalia's concerns about 46,000 convicted felons being set loose would be a big, fat "so what?" as opposed to the obvious anxiety his remarks inspired.
So what's the answer? We do "other" crime. We're supposed to. That's inherent in the definition of what crime is: the breach of the public norms by which we expect people to comport themselves. The scope of what we may consider criminal, and how we treat those who commit such acts (incapacitating them to prevent future harm, punishing them to disincentivize that behavior, rehabilitating them to change or remove behavioral tendencies to commit crime), is all up for debate, but empathy itself is at most a starting point or an influence on policy, not an end in itself.
I'd like to note also that I think so much of the "heat in the absence of light" that gets generated in criminal justice law, policy, and politics comes from the fact that the system is burdened by being a very unsatisfactory backstop and proxy for the absence or failure of social policy in other areas. The social problems that we don't deal with openly and honestly: racial issues, gender issues, economic issues, educational issues, parenting issues, the drug problem, and the like, all eventually wind up more or less by default falling in major portions into the system, which is based on a model that is and probably always will be woefully ill-equipped to deal with them, and in which we wind up basically shouting and shadowboxing over issues that we can't or won't resolve any other way. That fact to me means that we're probably stuck in a Sisyphean effort if the focus remains on trying to come up with some sort of system that's somehow able to dispense genuine justice and equity only at the point at which all of its participants have become the most hardened and least amenable to it. Criminal justice shouldn't and can't be the only sort of justice we work on.
"Othering" those convicted of crimes is not the only option. It is just what we're used to, which makes it seem natural. Consider how far we've come with disease. When we considered ourselves more helpless about disease, we "othered" the sick. Consider the leper colony. Consider families like my tribe of recent southern european immigrants where my aunts and uncles would not utter "cancer" but would say things like the "c-word" because they thought people with cancer had attracted the evil eye and they didn't want to call it on themselves. We don't do that any more, even though it seemed quite natural only a generation ago. Now we consider it normal to attack the sickness, not the sick.
Yes, crime involves an element of choice that may be absent or at least secondary in disease. I am not saying that crime is the same as illness. I'm suggesting, however, that we do not have to go all the way to the extreme in responding to crime, completly "othering" the criminal. We could act along a spectrum that recognizes that the etiology of crime includes some elements of choice and some of chance. (Just like most diseases.)
Given the fact that 90% of prisoners are eventually released (even in California, they are released on average 24 months or so after they go in), which model is more in line with reality? One that permanently banishes the prisoner from human empathy, or one that plans for a return? Perhaps my recent ancestors' attitude toward serious disease was realistic and functional for their times. The people afflicted would soon be gone forever, and those left behind felt more secure in their hold on life the more they could distinguish themselves from the stricken. Then medicine got better, and the "other" model of disease was no longer adaptive. The stricken started getting better, and what could you do with them if you had already dehumanized them?
With prisoners, though, we stick with the non-adaptive model, no matter how much it hurts us. Now, when people continue doing something that hurts them, you have to look for the secondary gain that might not be obvious at first. That would, I suppose, lead to a much longer comment about race and penology. Michelle Alexander has already written that book.
Leprosy is a fantastic example, Ernie. During my sabbatical in HI I became acquainted with the Kalaupapa leper colony, which was active until the 1960s. Now, of course, we know that leprosy is nothing more than a virus to which 95% of the population is immune. But for centuries, leprosy had a strong negative stigma associated with it, so revulsion and isolation became the word of the day.
As to Michelle Alexander's fantastic book, I heard her speak recently, which was incredibly inspiring. Look for a book review soon.
Projective identification in the culture of domination. Set people up to carry the disruptive affects of others and then "awfulize" and isolate them. Then they "get what they deserve".
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