Friday, June 08, 2007

The Epidemiology of Criminal Sanction

A few summers ago, I recall reading an article by Charles Lawrence III on "the epidemiology of racism." Lawrence compared racism to an epidemic disease. It's wide-spread, it's extremely dangerous, but (importantly) it's not your "fault" for catching it. We don't think that malaria victims are worse individuals for their infection. Lawrence hoped that describing racism in this manner would allow folks to talk about it more honestly and without the reflexive stigma and defensiveness that racism-as-a-moral-failing provokes. We don't want to ostracize sick individuals, but nor do we want to paper over their illness. We want to help heal them.

I always liked Lawrence's idea. But today, Laura Appleman has a good post at PrawfsBlawg that exposes a flaw. In theory, perhaps, diseased individuals should not be stigmatized or shunned. But, in effect, they are (think lepers). And Appleman argues that, with regards to our (mostly poor and minority) prison population, we treat them exactly like diseased individuals:
The TB flyer has much more in common with Paris Hilton than with the average inmate, in terms of money, power, opportunity, etc. Yet we furiously shun him and criticize his (potentially dangerous) actions with the same vigor and rage that we exhibit towards convicted felons. Both are loathsome to us, unable to be rehabilitated, best off quarantined away from us, permanently.

....Our criminal system today has no second chances for anyone who's been convicted of a felony; once you have this stain on your record, you are essentially isolated from the larger community. We allow no opportunities for restorative justice to our convicted offenders, who are primarily poor and often minority. By having such a rigid, "no returns" policy, we cut off a substantive segment of our society, barring them from participation in the polity. In that sense, having a felony conviction is very much like having an incurable, communicable disease. Either way, we want no part of you.

This is true, and distressing. When you permanently isolate someone from society--over and beyond the time they serve as punishment--they often have no other choice but to return to crime. They need to eat, they might have children to take care of, and the stigmatizing effect of having a criminal conviction means they are permanently locked out from a job with any real opportunity. What do we do with these people? The status quo is not feasible at this stage--and that would be true even if prosecutions weren't arbitrary, if the system wasn't biased, and if the drug laws weren't stacked against minorities. With all those factors taken into account, the leperization of folks committed of a single, often non-violent, felony becomes outrageously unjust.

6 comments:

PG said...

Not precisely on topic, but an interesting discussion on whether there's really white privilege.

On topic, while I think in many ways both our laws (such as felony disenfranchisement) and our social mores (such as a felony record's immediately disqualifying one from getting many jobs) act to leperize felons, it's a highly imperfect analogy because lepers 1) create their own communities to which non-lepers do not come, which felons don't seem to do; and 2) lepers are lepers and stigmatized as such forever, whereas felons can lose the stigma of felony.

For example, Tim Allen (star of Home Improvement, voice of Buzz Lightyear) is a felon who served 28 months for cocaine possession, and would have served more had he not agreed to testify against his partner in crime. I bet 90%+ of the people who saw Home Improvement or Toy Story don't know this about him, though it's included in any biographical sketch about him -- there's even the cute romantic angle that his girlfriend at the time waited for him while he was in prison. There are many other felons in the entertainment field, particularly among athletes (how shunned is Mike Tyson?). The key is to be successful -- people forgive anything if you have enough money and/or talent. I don't think this is true with communicable disease, which we are constantly afraid we will catch from someone. The only public figure I can think of with HIV/AIDS is Andrew Sullivan, who's hardly famous except among dorks. We may fear that certain criminals could be a threat to us, particularly those who committed violent crimes (so no woman is going to go into a hotel room with Mike Tyson now), but we figure if they have money, they at least won't commit property crimes against us.

Justin said...

1) create their own communities to which non-lepers do not come, which felons don't seem to do; and 2) lepers are lepers and stigmatized as such forever, whereas felons can lose the stigma of felony.

One group of felons that does seem to fit this mold is sex offenders. Not only do they suffer the same stigma that all felons suffer, they bear the added burden of being told where they can and cannot live, and their presence is broadcast loudly in their neighborhood. It can be difficult for them to integrate into a community because they're identified as "that pervert who lives nearby." Finding housing can also be difficult for them because they're not allowed to live within a certain distance of schools or playgrounds, and, frequently, they are forced to move if someone puts up a playground. As a result, these offenders tend to congregate in certain areas simply because there's nowhere else for them to live. See, for example, this article.

David Schraub said...

The white privilege article isn't really compelling to me. She's making two (somewhat contradictory) points. The first is that there are many illegitimate constraints on people's lives aside from race that bar them from access to power. I don't disagree--Kenji Yoshino makes the same point far more eloquently in Covering. The second is that nearly all of these barriers, and certainly all the racial ones, are reducible to class. This is just empirically untrue--the fact that class imposes unique burdens of its own that prevent access to power does not negate independent race-based privilege.

Ultimately, she might show that we need to develop more complex vocabulary to talk about racism, as well as do a better job contextualizing racism within other systems of privilege, but she certainly does nothing to dismantle the existence of White Privilege.

CWhite said...

Over 30 years ago, I was convicted of a business related felony. I am white with an economics degree from one of the fourth or fifth most respected universities in the United States.

My trial was a very splashy, five weeks in federal court. It was quite traumatic for myself, my brother, and my father who were also tried and convicted. The rest of my family also underwent enormous stress. While the judge stated that it seemed more a case of bad judgment than criminal intent, he, understandably, would not nullify the verdict of a jury.

For myself, I served out my punishment and became a non-voting member of society again.

During the ensuing 30 years, I have managed to have some lucrative, responsible jobs. Most of those were obtained through people who knew of my conviction and trusted me anyway. Some jobs ended quickly after circumstances brought my conviction to light.

In the past 10 years, with background checks standard, quick and cheap, good work is impossible for me to obtain. My abilities have not changed, nor has 30 years of trustworthy service. In that time, I have received one speeding ticket.

I have been thrown away. I am now in the process of creating my own, honest work opportunity, but will never again be able to contribute up to my capacity.

Our system is not making any attempt to rehabilitate felons. Yes, there are programs for felons, but, to my knowledge, without exception, they are little more than cheer-leading programs which aim at changing the mental processes of criminals, not attempts to make us productive.

We, felons, are not like the ball on a roulette wheel that always falls into one predetermined slot or another. We are like the rest of society. Our abilities, and morality, cover every niche on the entire wheel of opportunities and beliefs our society offers.

I have asked college counselors, mental health professionals, personnel managers, court officials and newspaper editors what someone like myself can do. The answer is always a variation of, "Gee, that's a tough one."

Well, luckily, I am, mentally, "a tough one." I'll find some way to keep your tax dollars from paying for me in my old age, but, regrettably, with little to no help from the Great American Society.

sakthi said...

If we wish to build a healthy society then we have to vanish racism from any form.All humans are same,we shouldn't dominate others or segregate them by caste and economic condition...
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PG said...

David,
What do you think about her point that the vast majority of whites experience "white privilege" actually as an absence of discrimination? I think it's an interesting idea that our semantic norm should be an absence of discrimination, and therefore there's not white privilege but rather harm to non-whites, but obviously this in itself is a white-centric viewpoint; from the perspective of a person who is discriminated against racially, discrimination is the norm and the absence of discrimination is white privilege.