Editors’ Note: Professor Loury suggested that we include the following excerpt from pp. 32-35 of his book Race, Incarceration and American Values. He writes, “Feel free to post this and let your readers decide whether or not they think I am advocating in this passage the promulgation of discriminatory criminal penalties favoring black offenders. Clearly, I am not so advocating.” We’ve taken his suggestion.
So put yourself in John Rawls’s original position and imagine that you could occupy any rank in the social hierarchy. Let me be more concrete: imagine that you could be born a black American male outcast shuffling between prison and the labor market on his way to an early death to the chorus of “nigger” or “criminal” or “dummy.” Suppose we had to stop thinking of us and them. What social rules would we pick if we actually thought that they could be us? I expect that we would still pick some set of punishment institutions to contain bad behavior and protect society. But wouldn’t we pick arrangements that respected the humanity of each individual and of those they are connected to through bonds of social and psychic affiliation?
If any one of us had a real chance of being one of those faces looking up from the bottom of the well — of being the least among us — then how would we talk publicly about those who break our laws? What would we do with juveniles who go awry, who roam the streets with guns and sometimes commit acts of violence? What weight would we give to various elements in the deterrence-retribution-incapacitation-rehabilitation calculus, if we thought that calculus could end up being applied to our own children, or to us? How would we apportion blame and affix responsibility for the cultural and social pathologies evident in some quarters of our society if we envisioned that we ourselves might well have been born into the social margins where such pathology flourishes?
If we were to take these questions as seriously as we should, then we would, I expect, reject a pure ethic of personal responsibility as the basis for distributing punishment. Issues about responsibility are complex, and involve a kind of division of labor — what Rawls called a “social division of responsibility” between “citizens as a collective body” and individuals: when we hold a person responsible for his or her conduct — by establishing laws, investing in their enforcement, and consigning some persons to prisons — we need also to think about whether we have done our share in ensuring that each person faces a decent set of opportunities for a good life. We need to ask whether we as a society have fulfilled our collective responsibility to ensure fair conditions for each person — for each life that might turn out to be our life.
We would, in short, recognize a kind of social responsibility, even for the wrongful acts freely chosen by individual persons. I am not arguing that people commit crimes because they have no choices, and that in this sense the “root causes” of crime are social; individuals always have choices. My point is that responsibility is a matter of ethics, not social science. Society at large is implicated in an individual person’s choices because we have acquiesced in — perhaps actively supported, through our taxes and votes, words and deeds — social arrangements that work to our benefit and his detriment, and which shape his consciousness and sense of identity in such a way that the choices he makes, which we may condemn, are nevertheless compelling to him — an entirely understandable response to circumstance. Closed and bounded social structures — like racially homogeneous urban ghettos — create contexts where “pathological” and “dysfunctional” cultural forms emerge, but these forms are neither intrinsic to the people caught in these structures nor independent of the behavior of people who stand outside them.