That, says Gaynes, is more or less all we really do offer crime victims. Not healing, or restitution, or accountability—just punishment for the offender. Because as all we know, the American justice system is about wrath and punishment. All we can conceive of with the system we have is maybe, if everything works, to wrench the privileged down into the pit, to lay low the citizens of the Nation and make them crawl beneath the yoke of the Colony. If we are going to so callously capture and warehouse and harass so many of our citizens, justice commands us to ensure that no one is immune. Let everyone be forced to face the scythe.
But exactly what good does retribution do? If every privileged malefactor in the Nation got his or her proper humiliating comeuppance, if every bad cop went to jail, every bankster executive were sentenced, and every sociopathic rich boy sexual predator were locked up, it would do little to revive democracy and liberty in the occupied precincts of our land. “I spent all morning and early afternoon in criminal court in Brooklyn,” the prison abolitionist Mariame Kaba wrote in the midst of the uproar over Brock Turner’s sentence.
Sitting in the sterile, antiseptic gray courtroom watching a parade of young Black men on the assembly line (some handcuffed). The guards, the judge, the overwhelming [number] of lawyers all white administering (white) justice. And I come back here to this ongoing nonsense about the need to circulate the mugshot of a convicted white rapist. As though that has ANY purchase at all in dismantling the system I witnessed/participated in today.
This instinct to level down—Circulate the mugshot! Censure the judge! Get tough on crime for privileged white boys!—rather than level up is a core feature of American justice. We readily accept punitiveness as the given, as the way we as a democratic polity express ourselves. Our temptation is to seek equality through uniform application of the state’s punishing power.
Even the application of mercy, in sentencing or parole, James Whitman argues, can be suspect because it requires judges or parole boards to consider the individual circumstances of each person brought before them, to consider the specific conditions of their crime and detention. And who’s to say that showing mercy to one won’t mean injustice for another? The only true justice can happen in the absence of mercy, where each individual meets the same punishment and the same fate, with no deviation.
If “no mercy” sounds perverse, keep in mind that injustice in sentencing provided at least part of the rationale that animated the call for mandatory minimums, a policy now seen by many, across the political spectrum, as a wholesale disaster. In the 1960s and 1970s, as Naomi Murakawa details in The First Civil Right: How Liberals Built Prison America, influential jurists and legal scholars pointed to shocking racial disparities in sentences for perpetrators of very similar crimes. They located the problem not in institutional racism but in the discretion of the judges themselves, who were empowered to give whatever sentence they wanted. Thus began a push in all levels of law to remove that discretion and impose statutory minimums.
Our discussion of policing and criminal justice is rightly focused on race and racial disparity. But the entire system is out of control. The policing of the Colony has breached the levee and flooded the Nation. SWAT teams are called out in caravans of military vehicles to knock down doors and shoot dogs in the heart of white America, too.
White Americans are more likely to be killed by cops than their peers in any other Western democracy. This is particularly true of poor white and working-class white people. In fact, the places with the highest rates of white incarceration are the most punitive states, those in the conservative Deep South. The result? The states of the Old Confederacy have the least amount of racial discrepancy in their incarceration rates. The ratio of the incarceration rates for black people to white people in Louisiana is 4 to 1. In Mississippi it’s 3 to 1. In Wisconsin it’s 12 to 1; in New Jersey 12.2 to 1.
The incarceration rate just for white Americans is still two and a half times the rate of France. Meaning white America, the Nation, the place free of the worst excesses of law and order and occupation, is still putting its citizens under lock and key at more than twice the rate of its continental cohort. In fact, if white America were its own country, it would have the sixteenth-highest incarceration rate in the world. This is the result of the American impulse to level down.
BUT WHAT IF WE saw everyone in the Colony the same as we do the bright-eyed future swimming star? What if we were to agree human beings are not defined by the worst thing they ever did? Yes, there are incorrigibles and sociopaths. There are pathologically dangerous people who are a threat to those around them, no matter what you try to do to rehabilitate them. But there are far, far fewer of them than are currently crammed twelve to a room in our prisons.
As a full-scale epidemic of opioid addiction has spread through white America, some of the most punitive rhetoric, the staple of how politicians talk about crime, has started to unravel. The images of addicts as dangerous incorrigibles are being replaced by images of high school prom queens lost to the demon of heroin. The shift is striking; the new language of forgiveness is the direct opposite of how Americans reacted to the spike in crack cocaine use among largely inner-city black populations in the late 1980s.
“In Heroin Crisis, White Families Seek Gentler War on Drugs,” the New York Times reported:
While heroin use has climbed among all demographic groups, it has skyrocketed among whites. . . . And the growing army of families of those lost to heroin—many of them in the suburbs and small towns—are now using their influence, anger and grief to cushion the country’s approach to drugs, from altering the language around addiction to prodding government to treat it not as a crime, but as a disease.