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Punishment and Race

Published online by Cambridge University Press:  26 January 2009

John P. Pittman
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Abstract

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This article criticizes the standard way philosophers pose issues about the core practices of criminal justice institutions. Attempting to get at some of the presuppositions of posing these issues in terms of punishment, I construct a revised version of Rawls's ‘telishment’ case, a revision based on actual features of contemporary criminal justice practices in the USA. In addressing the implications of ‘racialment’, as I call it, some connections are made to current philosophical discussions about race. I conclude with brief remarks about the importance of race to philosophical discussion as such.

Type
Research Article
Information
Utilitas , Volume 9 , Issue 1 , March 1997 , pp. 115 - 130
Copyright
Copyright © Cambridge University Press 1997

References

1 A well-known example is Murphy, Jeffrie G., ‘Marxism and Retribution’, Philosophy and Public Affairs, ii (1973), 217–43Google Scholar. Reiman, Jeffrey, in his important book The Rich Get Richer and the Poor Get Prison: Ideology, Crime, and Criminal Justice, Boston, 1995Google Scholar, seems to adopt something like this overall normative framework (see esp. pp. 182 ff.) While I have found Reiman's book quite stimulating, and agree with much of what he has to say, he rejects the significance of race as an independent factor in discussing the US criminal justice system.

2 Rawls, John, ‘Two Concepts of Rules’, in Theories of Ethics, ed. Foot, P., Oxford, 1967, p. 151Google Scholar. Hereafter citations to page numbers in this edition will appear in the text.

3 The case of racialment has been constructed based on information about the US criminal justice system collected and reviewed by Roberts, Dorothy E. in ‘Crime, Race, and Reproduction8’, Tulane Law Review, lxvii (1993)Google Scholar.

4 Tunick, Mark, Punishment: Theory and Practice, Berkeley, 1992Google Scholar.

5 Tunick seems to have melded the notion of essentially contested concepts – introduced into philosophical literature by Gallie, W. B. in a chapter by that title in Philosophy and the Historical Understanding, London, 1964Google Scholar – with the notion of a practice. He writes of essentially contested practices as any practice for which ‘aspects of the practice can be accounted for only by distinct and mutually exclusive interpretations of its purpose’ (p. 171).

6 Scheffler, Samuel, ‘Responsibility, Reactive Attitudes, and Liberalism in Politics and Philosophy’, Philosophy and Public Affairs, xxi (1992)Google Scholar.

7 The concept of racial formation is formulated in Omi, Michael and Winant, Howard, Racial Formation in the United States: from the 1960s to the 1990s, London, 1994Google Scholar. They write, ‘We define racial formation as the sociohistorical process by which racial categories are created, inhabited, transformed, and destroyed…we argue that racial formation is a process of historically situated [racial] projects in which human bodies and social structures are represented and organized’ (pp. 55–6).

8 The contrast I have drawn, for present purposes, between naturalist and social constructivist conceptions of race, is a somewhat simplified presentation of a very diverse array of views on the matter. The distinction I have drawn, while simplistic, does not falsify but only emphasizes one important axis of alignment of such views. For some of the most important philosophical statements of what I have called the social constructivist view (as distinct from the sociological analysis offered by Omi and Winant), see Appiah, Kwame Anthony, In My Father's House, New York, 1992Google Scholar; Goldberg, David Theo, Racist Culture, Oxford, 1993Google Scholar; and Zack, Naomi, Race and Mixed Race, Philadelphia, 1993Google Scholar.

9 What I am calling ‘naturalism’ with regard to race is described by Appiah, Kwame Anthony as ‘racialism’ in his ‘Racisms’, Anatomy of Racism, ed. Goldberg, David Theo, Minneapolis, 1990, pp. 3–17Google Scholar.

10 See my ‘Introduction’ to African-American Perspectives and Philosophical Traditions, ed. Pittman, John P., New York, 1997Google Scholar.

11 On this subject see Reimarń, The Rich Get Richer and the Poor Get Prison, ch. 3.

12 This link, between ‘criminality’ and ‘race’ – specifically meaning African-American descent – has played a deep and pervasive role in American culture throughout its history.

13 I have benefited from some helpful comments by Professor C. L. Ten.