Punishment and Proportionality
Are social justice movements undermining their own aims?
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Here’s a question that keeps spinning in my head: Is it possible to have a society with strict moral rules, and harsh social consequences for breaking those rules, without also having a harsh and punitive state?
As progressives become more effective at creating costs for racism, misogyny, and other wrongdoing, can we imagine consequences for bad acts of all kinds that are not purely punitive? As progressives make slow but important progress in changing social norms around gender and race, how do we also create mechanisms for accountability and reckoning that reflect what I hope are among our central values: fairness, justice, and a belief that people and whole societies can change for the better?
Over the weekend, the New York Times published the latest iteration of a “cancel culture” story, this one a little more complicated than the usual narrative. You should read the whole thing, but the toplines are as follows: A 15-year-old white high school student named Mimi Groves got her driver’s permit and sent a three-second Snapchat video to a friend, in which she said, “I can drive, n——"!” A black student at her high school, Jimmy Galligan, later got ahold of the video and saved it. Galligan had heard fellow students using racial slurs throughout high school, but when he went to teachers and administration members, no one did anything. By the time Groves was 18, she had been accepted to the University of Tennessee and had secured a place on their cheerleading squad. As Black Lives Matter protests sprung up across the U.S., she posted a message of support on her Instagram, encouraging her followers to “protest, donate, sign a petition, rally, do something.” Galligan decided to release the video just after Groves accounted which college she planned to attend. The University of Tennessee removed Groves from the cheer squad and pushed her to withdraw, saying they had been inundated with outraged complaints from students and alumni. Groves now lives with her parents and attends community college. Galligan, who is in now college, says he’s glad he taught someone a lesson.
The reactions to the story seem to fall along two lines: (1) Galligan is a sociopathic monster and cancel culture is out of control; or (2) Groves is a racist who got what she deserved, and anyone who says otherwise is giving a pass to racist white girls while children of color get no such consideration.
Neither of those conclusions are quite right. But this story offers a valuable opportunity for those of us who want to see both reckoning and grace consider what that might look like, and how we might break out of the usual response cycle of outrage piled on outrage. It gives us a chance to consider whether we’re advocating for what we really want, or whether we’re joining a race to the bottom — effectively saying that because punitive punishments are doled out so widely to kids with fewer resources and privileges that it’s not worthy of concern when kids with more resources and privileges are treated badly, too. Or that it’s good when kids with more resources and privileges are treated unfairly and punitively, because, well, maybe now they’ll understand what it feels like.
I don’t think walking that path takes us anywhere good.
Both of the kids in the New York Times story — and yes, as teenagers, they are kids — have been phenomenally ill-served by the cowardly adults around them. Adults were slow to integrate the schools in Leesburg; adults didn’t deal with racism and bigotry where they saw it, creating the conditions for racism to thrive at Heritage High School; and across the United States, textbooks and teachers warp American history to whitewash the sins of slavery, to turn confederates into war heroes, to present racism as a bad personal choice and not an ongoing system; and to smooth over the many complicated truths about America. Galligan, also a child, wasn’t protected or advocated for; he wasn’t given any productive avenue through which to deal with the racism he so often faced; he was made to shoulder repeated dehumanization alone as the adults who should have stood up for him shirked their duties. Then, when he takes matters into his own hands, adults on social media jump all over him and accuse him of being evil, vindictive, and sociopathic, and say he’s the one who should be in trouble for bullying. Groves chose to use a word that she knew full well was a racist slur, in a community that tacitly condoned that behavior. When that came back around on her three years later, the adults in the room folded to public outrage and let her shoulder the consequences alone. Then, when others object, the response is, well, her life isn’t ruined and by the way she’s racist so she deserves whatever she gets.
It’s all so unproductive, unjust, and counter to the world progressives should want to build. And yet, in progressive spaces, I’m watching a shift toward celebration of and demand for punitive social and professional punishments for wrongdoers. And don’t get me wrong — there are certainly circumstances where punitive social and professional punishments are justified. But I’m not seeing a lot of conversations about what’s proportionate, or how a consequence should relate to a bad act; I’m seeing a lot of “you’re with us or you’re against us” rhetoric, a lot of implications (or outright accusations) that if you question the scale of a penalty then you must condone the bad act that led to it or not care about those who were harmed. I’m seeing a push for harsh professional penalties only available thanks to at-will employment from people who, a few minutes later, will lament the lack of worker protections in the United States; I’m seeing a push for harsh social penalties from people who will simultaneously decry the authoritarian tendencies of conservatives and readily recognize that the cruelties in our criminal justice system reflect cruelty, vindictiveness, and a retributive impulse in our culture.
There is a profound dissonance here.
This is not a call for no penalties, no accountability, no consequences. It is a challenge: What does fairness look like outside of a punitive frame? How do we hold people accountable for bad acts without falling back on simple retribution? For the majority-American audience reading this, how much more thoughtful and creative could our solutions be if we weren’t so steeped in a national culture where punishment for punishment’s sake is the primary response to bad acts small and large in schools, in workplaces, and in courts of law?
I worry that the primary way we have learned to signal we take something seriously is by demanding institutions exercise the maximum of their retributive power in response — and that that power is exercised inconsistently and reactively, which fuels fear and resentment more than progress and justice.
Folks on the left (and some on the right) are increasingly seeing the problems that come with over-policing, with criminal penalties as the first response, and with excessive sentencing for crimes of all types. We increasingly understand that a highly punitive criminal justice system is not particularly just; we are increasingly asking what the purpose of the justice system is, and concluding that if the purpose isn’t just to punish but also to rehabilitate those who do wrong and to protect society more broadly, then our current model is just about the worst solution we could have come up with. But we don’t seem to be making those connections outside of the criminal system.
I can already hear the objections: Getting your college admission rescinded is not even close to the same thing as going to jail. And of course it’s not! But it is a punishment. It does change the course of your life. That doesn’t mean it’s never justified, but it also doesn’t mean it’s no big deal. And in the midst of these arguments, what’s often missing is the question of whether a particular punishment is fair, proportionate, and intended to address the harm caused — instead, the stakes get over-simplified into “should there be a consequence at all here?” (here the answer is a resounding yes, but the next sentence doesn’t need to be “…and those consequences should be as severe as the relevant institution, in this case a school, can make them.”). We run around in circles, some people crying “cancellation” even as they too want to see punishment leveled on the person they believe is the villain, others saying that anyone who raises questions of fairness is giving a pass to racists or sexists or wrongdoers.
But there’s a lot of space between “they’ve been cancelled” and “you’re giving them a pass.” The harshest penalty an institution can impose is not necessarily the best penalty, and it is not the only way an institution can signal that they take a particular bad act seriously. But that’s where we’ve gotten ourselves — into this idea that (to use this particular example) if the University of Tennessee doesn’t rescind Graves’s admission, they must not take racism seriously. The question of proportionality is ignored.
There have been huge and increasingly successful pushes over the past two decades to recognize that children and teenagers do not have the same ability as adults to regulate their impulses, and that the teenage brain is not a fully-developed brain; as such, it’s unjust to treat children and teenagers like adults in the justice system. We’ve seen monumental changes in this arena: Far fewer minors are placed in adult prisons than were in the late 1990s, and rates of juvenile incarceration have plummeted by 50 percent. In 2005, the Supreme Court held that capital punishment and mandatory life sentences without the possibility of parole for juvenile offenders are unconstitutional. That didn’t happen by accident. It’s the result of criminal justice advocates working tirelessly to convince the courts and the public that brain science shows there are important differences in how children act compared to adults, and that trying children as adults, and incarcerating children, results in far worse outcomes than less punitive interventions. The U.S. still imprisons far too many of its kids and seeks to rehabilitate far too few. The overwhelming majority of those kids are black and brown. But we’re moving in the right direction. And I would hope that most progressive folks would agree that primarily punitive measures, including incarceration, are overwhelmingly the wrong way to deal with children and teenagers who commit crimes.
Our criminal justice system doesn’t exist as an entity wholly separate from society generally; our broader norms, fears, desires, and biases shape our systems of incarceration and policing as much as they shape our daily lives, our workplaces, and our schools. I also hope most progressive folks would agree that a person who was convicted of a nonviolent crime as a teenager should still be able to attend college, that their record should be sealed, and that with some rare exceptions, mistakes they made as minors should not follow them into adulthood. I hope most progressive folks understand that offering teenagers grace isn’t the same as condoning or excusing those teenagers’ bad choices and bad acts, but rather seeking to address those acts proportionately and in the context of what we know about the developing brain. I hope most progressive folks would see educational institutions as places that exist to teach, guide, challenge, and help better their students — not places where students show up fully-formed.
I worry that, even as we pay more attention to the harms of punitive consequences in the justice system, we are amping up punitive social consequences in progressive spaces without considering proportionality, ripple effects, or even our desired result. I worry that we don’t see how a punitive culture helps to create a punitive state, and vice-versa. I worry that we are such a punitive nation that even folks who work against conservative authoritarianism still struggle to imagine what reckoning, consequences, and justice look like outside of this narrow frame of punishment and a kind of “get 'em” vengeance. I’ll speak for myself: I absolutely struggle to imagine what reckoning, consequences, and justice could look like outside of our punitive model. I don’t have the answer or the ideal vision, and the more the question feels personal, the more I fall back on a desire for vengeance and the more I bristle against calls for grace and forbearance. These questions arise every day, and I get the answers wrong about as often. We are all human and we all react. Looking deeper at our most immediate impulses — that is the work.
This particular story isn’t all that important. Students lose college admissions for all sorts of cock-eyed reasons; on the scale of the world’s injustices, this story ranks very, very low. But that doesn’t make it irrelevant or aberrational. Cultural norms and changes are made up of a million individual decisions. Those of us who sincerely want a more just world should look at our own impulses and actions and ask whether our demands, and what’s being done in the name of progress and social justice, align with our ideals.
xx Jill
This piece brought to mind for me a few different passages from Adam Smith, where he tries to sort out how people in the past had decided on the punishments that they did. He suggests that, at a high level, we shouldn’t operate from the belief that punishments are set based on public utility. Instead, they are generally dictated by the degree of public sympathy with the resentment of the victim.
Why is that? Well, it’s because of the destabilization that would result, if public resentment were not gratified. Early social institutions were not very powerful, and even today we see well organized states fall or fail to function due to public discontent. Indifference to injustice outrages the public, just because of the strength of the faculty of human sympathy, and this can be a very powerful force. This discontent often leads the public to mete out some kind of punishment, whether the state manages to or not. We do not have a justice system or a state in order to have the capability to mete out punishments — the public is perfectly capable of doing that itself, and the state draws on only a small fraction of the resources of the public to be able to do it — but rather to see accountability, transparency, and some possibility for correction of gross errors in that process. What we gain by the state’s involvement is not the capacity to punish but a process that is less costly, less slipshod, and more credible to everyone outside of those most local to whatever injustice occurred. The framing of Smith asks us to see the justice system in a thoroughly realistic way — to acknowledge very real limits on its integrity and capability, as something sharing space with many old and influential aspects of human social behavior.
Our institutions are all in a similar circumstance to the justice system, and all are adapted similarly, when they must come in between a suspect and the public’s resentment. These institutions must, in some measure, conform to the public’s hostility, and for the same reasons — both to be able to channel it, and not to be bowled completely over by it. There is not always a just outcome when they do so. There are several ways to resolve any situation like this. There are also several ways to moderate the public’s resentment. One of the most important is a just and credible process of inquiry about the wrongdoing as well as an open and searching consideration of comparable cases when it comes to what to do about it. These together help the public to appreciate that a particular determination, even of innocence, was arrived at in a manner that they can respect. An orderly and truthful process is what allows institutions to stand up to the public — and thus to protect our rights in those situations where we most need that protection.
What is perhaps most important to acknowledge, however, is that there are also factors that stoke and increase the public resentment; and these factors lead to a force that our institutions must bow to as surely as if it were based on the sympathy that would exist without them. Social media allows people to present accounts of events that are impactful, easy to consume and utterly believable — not like a 2nd or 3rd party write-up. The subtle way in which framing of events impacts our judgement of them — and thus the degree of our resentment — is something that we are not well prepared for. The way in which dialogue occurs on social media allows for such a tremendous number of participants that discussions are reduced to the briefest and most impactful statements.
To the degree that progressives have relied on these factors for impact and reach — and we have to acknowledge that this has happened — it only contributes to the problem of how we have a credible approach to justice, because it means relying too heavily on sympathy with resentment to see the process through. We shouldn’t look for the problem in the punitiveness of our society. That punitiveness is ultimately a reflection of that sympathetic resentment and is a force to be brought into balance with others. The real problem is our embrace of a discombobulated and rushed, almost warlike, style of discussion. To call for proportionality and a clear link between consequences and a wrongful act is to connect with a long tradition of public dialogue on justice that serves to balance out that sympathy — a long tradition that’s shared with conservatives. It implies a longer form — a more doubting and deliberative — approach to accusations. We must be more willing to say that certain modes of dialogue are not acceptable, even if they dovetail with that resentment — and that result — with which we sympathize.