Abstract
This essay explores the connections between, on the one hand, how Americans conceive of their society’s moral culpability for historical transgressions like slavery and Jim Crow segregation and, on the other hand, the hyper-punitive policies and practices which have come to define the American criminal justice system over the past four decades. The essay offers two arguments. First, it submits that, beginning in the late 1960s, the politics and everyday rituals of punishment functioned to reaffirm a “sense of innocence” about American society in the wake of what arguably was and still remains the society’s most self-critical moment. Second, the essay contends that this sense of collective innocence, once reestablished, has functioned as a firm ideological foundation for hyper-punitive criminal justice policies. In essence, the society that imagines itself as innocent may punish offenders with impunity, since neither it nor the criminal justice machinery that operates on its behalf has to trouble itself with guilty second-guessing.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
This quote is taken from Nixon’s “Radio Address about the State of the Union Message on Law Enforcement and Drug Abuse Prevention,” which he delivered on March 10, 1973.
This was part of campaign speech that Bush gave in his 1988 presidential campaign (Edsall and Edsall 1991: 225).
The quote is taken from Camus’ essay “Reflections on the Guillotine” (1988:226).
Baldwin offered this insight in The Fire Next Time (1964: 35–36).
This is a play on a play. In a play on Freud’s theory that people commit crime “from a sense of guilt,” David Garland has suggested that we “punish[] from a sense of guilt” (1990: 240). This essay’s argument, while not necessarily in disagreement with Garland’s hypothesis, suggests instead that societies, as well as individuals, may punish from “a sense of innocence.”
This, perhaps, was the kind of innocence that James Baldwin had in mind when he observed: “People who shut their eyes to reality simply invite their own destruction, and anyone who insists on remaining in a state of innocence long after that innocence is dead turns himself into a monster” (1984: 175).
Proponents of getting “tough on crime” have recognized this connection, albeit in rather hyperbolic terms. For instance, Janet Daley (2006), the conservative political commentator for the U.K. Telegraph, has argued: “So long as we accept the doctrine of socially determined criminality—that if a crime is committed, we are all at fault—we will never, ever be in a position to demand effective prosecution of criminals.”
There are obvious respects in which mass incarceration and other forms of penal repression are not akin to the legalized form of social exclusion that took place in the Jim Crow South. As James Forman (2012) has observed, while “the Jim Crow analogy” is not without its merits, it nonetheless “leads to a distorted view of mass incarceration.” He explains: “The analogy presents an incomplete account of mass incarceration’s historical origins, fails to adequately explain black attitudes toward crime and punishment, ignores violent crimes while focusing almost exclusively on drug crimes, obscures class distinctions within the African–American community, and overlooks the effects of mass incarceration on other racial groups. Finally, the Jim Crow analogy diminishes our collective memory of the old Jim Crow‘s particular harms.”
Following Wacquant, the use of quotation marks is intended to emphasize that: “(1) racial identity is but a particular case of ethnicity (one that falsely presents itself as, and is believed to be based on, biological inheritance), i.e., a historically constructed principle of social classification; (2) the gamut of social and symbolic relations designated by ‘race’ (or ‘colour’) varies significantly from one society to the next and from one historical conjuncture to another; and with it (3) the mechanisms of (re)production of racism as a mode of domination invoking nature as principle of legitimation” (2008: 17 n. 4).
Christian Parenti combines elements of both of these accounts when he argues that the functions of containing and warehousing poor people of color, and particularly African–American men, has been to “terrorize” them; to “reproduce apolitical forms of criminal ‘deviance’” among them; and, thereby, to render “poor communities—which might have been organized for social justice—in disarray, occupied by police and thus docile” (Parenti 1999: 169).
However, as Katherine Beckett points out, Southern governors and law enforcement officials had begun employing the rhetoric of “law and order” well before Goldwater had adopted it. According to Beckett, the politics of “law and order” were initially part of an effort “to sway public opinion against the civil rights movement” in the wake of the Supreme Court's decision in Brown v. Board of Education (1997: 48).
Ryan’s assessment received confirmation in a 1969 Newsweek survey: “Crime, the survey showed, is considered one of the nation’s most serious problems—but oddly enough, it is generally thought to be worst in somebody else’s backyard. Only 10 percent of the sampling volunteered crime in their own listing of the nation’s problems, and fewer than half considered it a serious issue in their own communities. Yet nearly two-thirds checked it off as one of the worst problems facing the cities—and suburbanites were more likely to think so than city dwellers themselves.” Richard Nixon showed an appreciation for the irony of American attitudes toward crime when, during his 1968 campaign for president he wrote Dwight Eisenhower, saying “I have found great audience for this theme [of law and order] in all parts of the country … including areas like New Hampshire, where there is no race problem and very little crime” (Dionne 1992: 88).
There is additionally the question of why other western nations, which have experienced “comparable crime, social, economic, and cultural changes and trends,” did not adopt the types of penal policies and strategies that have led to mass incarceration in America (Tonry 2004: 56).
Katherine Beckett has concluded that “law and order” politics were mainly the product of a strategy by the Republican Party to create “a New Majority” out of “the traditional Republican political base, the solid South, the farm vote, and half the Catholic blue-collar vote of the big cities.” According to Beckett, “law and order” was code for “the indirect expression of racially charged fears and antagonisms” which appealed to blue-collar voters who had formed a key part of the Democratic Party’s base. While Beckett concedes that “punitive anticrime rhetoric does resonate with important themes and sentiments in American culture … [it] remains true … that political elites have played a leading role in calling attention to crime-related problems, in defining these problems as the consequence of insufficient punishment and control, and generating popular support for punitive anticrime policies” (Beckett 1997: 41). Barry Glassner similarly contends that Americans are “afraid of the wrong things,” because “immense power and money await those who tap into our moral insecurities and supply us with symbolic substitutes” (Glassner 1999: xxviii). As sociologists and criminologists have amply documented, the news media is another entity which stands to gain, and has gained, from sensationalizing crime. There is much evidence, too, that the media’s portrayals of crime have much to do with why Americans frequently overestimate the risk of crime (see Beckett and Sasson 2000: 75–99).
The historian Michael Flamm describes the 1960s as a time when the “young blamed their unyielding elders; the elders blamed the disorderly young; Black militants blamed white racism; fearful whites blamed black power.” (Flamm 2005: 150).
The Newsweek report was entitled The Troubled American: A Special Report on the White Majority. The rebellion within the middle class may be viewed as a peculiar manifestation of using ‘scapegoating’ as a means of expiating guilt. In a twist on the scapegoating theories of Rene Girard, Erich Fromm, and others, Dale Vree described the middle-class rebellion this way: “[It] would seem entirely natural for children of affluence to feel guilty. When they look at the ghettos, sometimes with the help of a sociology class, and see their black-skinned peers locked into the ‘vicious cycle of poverty,’ they must wonder what they ever did to deserve their privileges. Feeling unworthy of their privileges, even the privilege of taking a collegiate sociology class, they feel guilty. Self-victimization then becomes an imperative. But fortunately, those who victimize themselves transfigure themselves into new people, into an ethical elite” (Vree 1975: 286, emphasis added).
The Commission specifically called for programs that would “require unprecedented levels of funding and performance.” But it noted that the efforts “probe [no] deeper nor demand more than the problems which called them forth” and declared that there was “no higher priority for national action and no higher claim on the nation's conscience.”
“Rising Voice of the Right,” Time, 13 September 1968.
In Purity and Danger, Mary Douglas defined “culture” as a force that “standardizes values of a community, mediates the experience of individuals,” and “provides in advance some basic categories, a positive pattern in which ideas and values are tidily ordered” (1966: 48).
For their parts, Wallace and Humphrey were as willing as Nixon to reaffirm America’s essential innocence, but each, for different reasons, were not able to do it as clearly as Nixon did. At times, Humphrey echoed Nixon’s valorization of Americans in very nearly identical language: “I do not believe that the American people are bitter or filled with hate. I do not believe that they’re racists. I intend to appeal to their basic goodness.” ‘Rising Voice of the Right,’ Time, 13 September 1968.
This quote is taken from The Troubled American (1969:31).
The quote is from the Roman Catholic philosopher Michael Novak. “On Evil: The Inescapable Fact,” Time, 5 December 1969.
Nixon’s future vice-president and successor, the then-House Republican leader Gerald Ford, would put the view in even simpler terms when he asked, rhetorically: “How long are we going to abdicate law and order—the backbone of any civilization—in favor of a soft social theory that the man who heaves a brick through your window or tosses a firebomb into your car is simply the misunderstood and underprivileged product of a broken home?” (Edsall and Edsall 1991: 52).
The research for this essay failed to yield any evidence whatsoever that anyone assessed the shootings as the product of society’s sickness—on Bennett’s show or otherwise.
Reagan would give a slightly different version of this speech in his first address to the nation after being wounded in an attempted assassination by John Hinkley, Jr.: “[S]ick societies don't produce men like the two who recently returned from outer space. Sick societies don't produce young men like Secret Service agent Tim McCarthy, who placed his body—he placed his body between mine and the man with the gun simply because he felt that's what his duty called for him to do. Sick societies don't produce dedicated police officers like Tom Delahanty or able and devoted public servants like Jim Brady. Sick societies don't make people like us so proud to be Americans and so very proud of our fellow citizens.” Ronald Reagan, “Address Before a Joint Session of the Congress on the Program for Economic Recovery,” April 28, 1981, http://www.reagan.utexas.edu/archives/speeches/1981/42881c.htm (last accessed April 5, 2011). The National Review celebrated the speech as a lethal blow to “traditional liberal wimpism about our sick society.’” Reagan’s Revolution, National Review, May 15, 1981, http://www.nationalreview.com/articles/211022/reagans-revolution-editors (last accessed April 5, 2011).
This follows from Thomas Frank’s observation that “for the true Reaganite, America was never back; it was always betrayed, every time those sixties people sneaked in the back door and ruined everything. It never mattered how wealthy the bitter self-made men became or how many times their candidates won; their side always lost in the end. Their way of life was always under siege” (2005: 141).
This is not to say, necessarily, that collective guilt does not exist for Americans. David Garland has suggested that, rather than talking about “criminals from a sense of guilt” as Freud did, it might make more sense, at least in our own times, to talk about “punishers from a sense of guilt” (1990: 240). By this, Garland means that “an unconsciously punitive attitude towards one’s own anti-social wishes may carry over into a projected punitive attitude towards those who have actually carried out such prohibited desires” (1990: 240, emphasis added). In his later work, Culture of Control (2001), Garland suggested that middle-class anxieties and guilt have played a central role in the formation and reproduction of repressive penal regimes in Britain and the United States.
One possibility for squaring Garland’s theory of collective unconscious guilt with this essay's claims about collective innocence is to view collective innocence as the byproduct of a denial of collective and individual guilt over past and present injustices. This is the essential thrust of Michael Haneke’s film Cache. In Cache (2005), the central character Georges and his family live happily and comfortably in their Parisian flat until a series of mysterious videotapes reminds Georges of a deep and lingering sense of guilt over an act that he committed as a child, which, as history would have it, became inextricably bound up with the sins of French colonialism. The film, Haneke tells us, is not so much about guilt—we are all guilty—as what we do with it. In an interview, Haneke explains: “Georges takes two sleeping pills at the end [of the film] and pulls the blanket over his head, that’s the way for example we deal with our collective guilt relating to the Third World. At worst we have a moral tummy ache, then we donate some money to a charity and believe that we’ve done our part, and that’s what this film’s about” (Australian Film Commission 2005). The philosopher and anthropologist Eric Gans (2006), similarly observed that “Georges, the allegorical representative of old Europe, winds up in a dark room, peacefully sleeping while the world goes on.”
McNagthen’s Case, 8 Eng. Rep. 718 (H.L. 1843).
The playwright and sociologist Phillip Slater termed this the “avoiding tendency” (1970: 15).
References
Alexander, M. (2010). The new Jim Crow: Mass incarceration in the age of colorblindness. New York: The New Press.
Anderson, E. (1990). Code of the Streets. New York: W.W. Norton & Co.
Australian Film Commission. (2005). Cache von Michael Haneke, interview with Michael Haneke, http://www.afc.at/jart/prj3/afc/main.jart?rel=de&reserve-mode=active&content-id=1164272180506&tid=1158748426766&artikel_id=13295. Last accessed April 5, 2011.
Baldwin, J. (1964) The fire next time.
Baldwin, J. (1984). Notes of a native son. Boston: Beacon Press.
Bazelon, D. (1976). The morality of criminal law. Southern California Law Review, 49, 385–405.
Beckett, K. (1997). Making crime pay: Law and order in contemporary politics. New York: Oxford University Press.
Beckett, K., & Sasson, T. (2004 [2000]). The politics of injustice: Crime and punishment in America. Thousand Oaks, CA: Sage Publications.
Bennett, B. (2011). ‘We are not a sick society; we are the last best hope.’ Bennett Mornings, April 17, 2007, at http://billbennett.townhall.com/columnists/BillBennett/2007/04/17/we_are_not_a_sick_society;_we_are_the_last_best_hope. Last accessed April 5, 2011.
Burns, S. (2004). America you must be born again: How Martin Luther King moved from reform to revolution. Sojourners, 33(1), 14.
Cache (“Hidden”) (2005). DVD, Directed by Michael Haneke, (2005; Paris and Vienna; Sony Picture Classics, 2006).
Camus, A. (1960). Reflections on the guillotine. Resistance, rebellion, and death (pp. 173–234). New York: Random House.
Carmichael, S. (1966) Berkeley speech.
Christie, N. (2007). Limits to pain. Eugene, OR: Wipf and Stock.
Coulter, A. (2002). Slander: Liberal Lies about the American right. New York: Crown.
Daley, J. (2006). Middle-class guilt means we are doomed to more crime. The Telegraph. Available at http://www.telegraph.co.uk/comment/personalview/3625951/Middle-class-guilt-means-we-aredoomed-to-more-crime.html. Last accessed March 8, 2012
Davis, A. (2003). Are prisons obsolete?. Toronto: Publishers Group.
Dionne, E. J. (1992). Why Americans hate politics. New York: Schuster & Schuster.
Douglas, M. (1966). Purity and danger. London: Routledge & Kegan Paul.
Douglas, M. (1992). Risk and blame: Essays in cultural theory. New York: Routledge.
Durkheim, E. (1964). Division of labor in society. New York: The Free Press.
Edsall, T. B., & Edsall, M. D. (1991). Chain reaction: The impact of race, rights, and taxes on American politics. New York: W.W. Norton and Co.
Farber, D. (1994). The silent majority and talk about revolution. In D. Farber (Ed.), The sixties: From memory to history. Chapel Hill, NC: University of North Carolina Press.
Flamm, M. (2005). Law and order: Street crime, civil unrest, and the crisis of liberalism in the 1960s. New York: Columbia University Press.
Flamm, M., & Steigerwald, D. (2008). Debating the 1960s: Liberal, conservative, and radical perspectives. Lanham, MD: Rowman & Littlefield.
Fletcher, G. P. (2002). Liberals and romantics at war: The problem of collective guilt. Yale L.J, 111(7), 1499–1573.
Forman, J. (2012) Racial critiques of mass incarceration: Beyond the New Jim Crow. New York University Law Review (forthcoming).
Foucault, M. (1995). Discipline and punish: The birth of the prison. London: Allen Lane.
Frampton, M. L. (2008). Transformative justice and the dismantling of slavery’s legacy in post-modern America. In M. L. Frampton, I. H. Lopez, & J. Simon (Eds.), After the war on crime: Race, democracy, and a new reconstruction. New York: NYU Press.
Frank, T. (2005). What’s the matter with Kansas?. New York: Henry Holt & Co.
Fulbright, W. (2001). A sick society. In P. B. Levy (Ed.), 100 key documents in American democracy. Greenwood: Westport, CT.
Gans, E. (2006). Postmodernity as White Guilt: Michael Haneke’s Cache (first impressions). GaBlog: Generative Anthropology in the Public Sphere, http://gablog.cdh.ucla.edu/2006/07/postmodernity-as-white-guilt-michael-hanekes-cache-first-impressions/. Last accessed April 5, 2011.
Garland, D. (1990). Punishment and modern society: A study in social theory. Chicago: University Chicago Press.
Garland, D. (2001). The culture of control: Crime and social order in contemporary society. Oxford: Oxford University Press.
Glassner, B. (1999). Culture of fear: Why Americans are afraid of the wrong things. New York: Basic Books.
Kasarda, J. D. (1986). The Regional and urban redistribution of people and jobs in the U.S. A paper prepared for the National Research Council Committee on National Urban Policy, National Academy of Science
Kennedy, J. (2000). Monstrous offenders and the search for solidarity through modern punishment. Hastings Law Journal. 51(5), 829–908.
King, M.L., Jr. (1963) Letter from a Birmingham jail.
King, M.L., Jr. (1967) Beyond Vietnam.
Kluger, R. (1977). Simple justice: The history of Brown v. Board of education and Black America’s struggle for equality. New York: Vintage Books.
Lasch, C. (1991). The true and only heaven: Progress and its critics. New York: W.W. Norton and Company.
Mead, G. H. (1918). The psychology of punitive justice. American Journal of Sociology 23, 577–602.
Mills, C. W. (1943). The professional ideology of social pathologists. The American Journal of Sociology, 49(2), 165–180.
National Review. (May 15, 1981). Reagan’s revolution. http://www.nationalreview.com/articles/211022/reagans-revolution-editors. Accessed April 5 2011.
Newsweek. (Oct. 6, 1969). The troubled American: A special report on the White majority. pp. 45–73.
Nixon, R. (1968). Presidential nomination speech.
Nixon, R. (1973). Radio address about the state of the union message on law enforcement and drug abuse prevention. March 10, 1973, http://www.presidency.ucsb.edu/ws/index.php?pid=4135#axzz1ImJ1ANdy. Last accessed April 5, 2011.
Pager, D. 2007. Marked: Race, crime, and finding work in an era of mass incarceration. Chicago: University of Chicago Press.
Parenti, C. (2000). Lockdown America: Police and prisons in the age of crisis. New York: Verso.
Ryan, W. (1971). Blaming the victim. New York: Random House.
Schlesinger, A. (1969). Crisis of confidence: Ideas, power, and violence in America. Boston: Houghton Mifflin Company.
Scott, R. (1972). A proposed framework for analyzing deviance as a property of social order. In R. Scott & J. Douglas (Eds.), Theoretical perspectives on deviance. New York: Basic Books.
Simon, J. (2001). ‘Fear and loathing in late modernity: Reflections o the cultural sources of mass imprisonment in the United States’. In D. Garland (Ed.), Mass imprisonment: Social causes and consequences. London: Sage Publications.
Slater, P. (1970). The pursuit of loneliness: American culture at the breaking point. Toronto: Beacon Press.
Sowell, T. (2007). The Aftermath of the 1960s?’ Conservative Voice. http://townhall.com/columnists/thomassowell/2007/04/24/aftermath_of_the_1960s. Last accessed April 5, 2011.
Time. (Sept. 13, 1968). Rising voice on the right. http://www.time.com/time/magazine/article/0,9171,838655,00.html. Accessed April 27 2012.
Time. (Dec. 5, 1969). On evil: The inescapable fact. http://www.time.com/time/magazine/article/0,9171,901625,00.html. Accessed April 5, 2011..
Tonry, M. (2004). Thinking about crime: Sense and sensibility in American penal culture. Oxford: Oxford University Press.
Vree, D. (1975). Stripped clean: The Berrigans and the politics of guilt and Martydom. Ethics, 85(4), 271–287.
Wacquant, L. (2008). Urban outcasts. Cambridge: Polity Press.
Wacquant, L. (2009). Punishing the poor. Durham, NC: Duke University Press.
Western, B. (2006). Punishment and inequality in America. New York: Russell Sage Foundation.
Wilson, W.J. (1990 [1987]). The truly Disadvantaged. Chicago: The University of Chicago Press.
Woodward, C. V. (1981). The fall of the American Adam. Bulletin of the American Academy of Arts and Sciences, 35(2), 26–34.
Acknowledgments
The author wishes to thank the reviewers at Critical Criminology for their very helpful comments. The author would also like to thank Sally Merry, Juan Corradi, Steven Lukes, Gabriel Abend, David Garland, Jock Young, David Fonseca, and Rob Atkinson for their critical comments on earlier drafts of the essay.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Rowan, M. Punishing from a Sense of Innocence: An Essay on Guilt, Innocence, and Punishment in America. Crit Crim 20, 377–394 (2012). https://doi.org/10.1007/s10612-012-9155-2
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10612-012-9155-2