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MAKING HAPPY PUNISHERS
by James Q. Whitman [ Full Text ] |
VOL. 118 · June 2005 · NO. 8
118 Harv. L. Rev. 2698 (2005) |
| This is a book by a philosopher, on a subject of urgent importance to legal scholars. Yet the truth is that most legal scholars have not understood how urgent that subject is. The book is about the psychology of the darker and uglier emotions in the law: shame and disgust. Legal scholars have certainly had plenty to say about this topic. There has been a steady flow of literature on the emotions and the law, and in particular on shame and disgust,
for the past decade or so. Nevertheless, much of the legal debate has revolved around problems of strikingly minor importance in American criminal justice. In particular, we have had a lot of literature on a few colorful shaming penalties, like sentencing businessmen who urinate in public to scrub the streets with toothbrushes, or sentencing shoplifters to wear T-shirts announcing their offenses to the world. It is no surprise that criminal law professors enjoy debating these shaming penalties — call them T-shirt and
bumper-sticker sanctions. They are tailor-made for discussions of
familiar classroom topics like communitarianism and “norms.” Most of all, they make everybody titter. Who can resist that?
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| Nevertheless, the reality is that T-shirt and bumper-sticker sanctions are unlikely ever to play more than the most subordinate role in American punishment. The really pressing and troubling problems, as Martha Nussbaum well understands,
lie elsewhere — and they involve practices that should make nobody titter. The problems of shame and disgust appear everywhere we discover degradation and humiliation in the law; and American criminal punishment is rife with degradation and humiliation. Our prisons in particular are theaters of appalling human degradation. Outside prison, too, American criminal justice humiliates offenders in ways unique in the
Western world, from the moment of arrest, sometimes televised, through the occasional “perp walk,” and beyond. To be arrested or convicted in America is sometimes to run a devastating gauntlet of public exposure. The same spirit has apparently established itself in our detention camp at Guantanamo Bay, where the Red Cross has complained that the United States engages in “humiliating acts” that are tantamount to
“psychological torture.” Indeed, it is hardly a secret that the United States has pursued policies
of deliberate degradation, such as keeping Muslim prisoners naked.
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| Is it right for a decent country to use such methods? Should we really be humiliating and degrading prisoners of war, or “unlawful combatants” — or, for that matter, prison inmates?
The use of humiliation and degradation in punishment raises deeply unsettling questions. The occasional alternative sanction involving T-shirts is the least of our worries. In the grand scheme of things, the T-shirt and bumper-sticker sanctions are simply of paltry importance, and our debates about them cannot do justice
to the truly pressing and troubling problems.
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| If we need dramatic evidence of what the truly pressing problems are, we need only reflect on the demoralizing Abu Ghraib scandal, which broke a few weeks after Nussbaum’s book was published. All Americans remember — or at least all Americans ought to remember —
the Abu Ghraib photos. They make it only too clear
how disturbing the psychological challenges of shame and disgust are for the law. Why did the soldiers in those photos flash the thumbs-up sign, and grin such simian grins, while they stood over the human pyramid of naked bodies that they had built? We all remember such scenes as the young American woman festively cocking her finger at the exposed genitals of the cowering prisoner, or the tableaux vivants
of naked Iraqi men forced to kneel down and push their unseeing, hooded faces into other men’s penises, in a parody of fellatio. We also all know — or ought to know — that Abu Ghraib raises troubling questions about domestic American prisons. As newspaper reports observed in the midst of the scandal, some of the soldiers involved were corrections officers back home, and there is disturbing evidence that
similar sorts of brutal and degrading practices go on in ordinary American corrections facilities. |
| What makes people charged with the task of punishment behave this way? Do events like Abu Ghraib tell us something important about the psychological dynamic, and psychological dangers, of punishment? The question, after all, is not just whether the soldiers involved were directly ordered to engage in the particular acts we see
in those photos. Those acts were surely improvised on the spot. The question is whether this awful human disaster was encouraged by the broader American tolerance of humiliating and degrading punishment methods. Did military officials invite the outbreak at Abu Ghraib by condoning such practices as stripping prisoners naked and hooding their faces, thus creating a climate of humiliation and degradation?
Is it possible that punishment always threatens to spin out of control, if there is no concerted effort to guarantee that prisoners are treated respectfully? These are questions to which decent Americans must find answers, and the answers are manifestly not to be found in our merry little controversies about T-shirts and bumper stickers. |
| Maybe it takes a philosopher to remind us that human psychology presents tougher and more frightening problems than the ones we most enjoy discussing in the classroom.
The human animal is capable of behaviors unimagined by our rational actor models, and even by our most resolutely “behavioral” brands of law and economics. Hiding from Humanity faces up squarely to that psychological truth. Although it has been marketed, to some extent, as a
book about T-shirts and bumper stickers, Nussbaum’s book is more. It is an effort at frank reflection on the nastier human emotions, and an exploration of their place throughout the entire landscape of the law. If the book achieves nothing else, it will deserve praise for that.
This is a book that rubs legal scholars’ noses in the problems represented by Abu Ghraib, and it arrives at a moment in our history when that is exactly what we need. |
The ultimate success of a book depends, though, on the power of its particular arguments, and by the end of this Review I will have to report that I find Nussbaum’s arguments disappointing.
This is a book by an author with an admirably humane sensibility, and a much richer grasp of the human predicament than most of our legal academics display. It is also a book that could hardly be more timely. In the end, however, it is a book by an author who
has not, to my mind, fully reckoned with the problems presented by the law. |
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