Ruination, Democracy and the Participant Attitude

Guest Blogger

For the Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).

Gideon Yaffe

            Judith Resnik’s Impermissible Punishments is a magisterial work.  What launches the book is the simple observation that prison is profoundly embedded in our lives.  It’s conditions, rules, principles, enabling conditions and political circumstances are, themselves, in any given time and place, highly particular, and they changed and flowed over the many decades since prison’s invention.  The book’s central aim is to give a detailed account of how it came to pass that prison became the enormous, deeply entrenched social practice it is, with all of its distinctive facets.  Of course, the answer to the book’s central question is, “It’s complicated”.  And the book is driven by a determination not to oversimplify; Resnik embraces complexity.  The philosophy of Jeremy Bentham played a role in the state of the social practice and the institutions that support it.  Conferences hosted by relatively minor historical figures played a role.  Medical doctors and people devoted to the logistics of housing and feeding people mattered.  The moral consciences of presidents, Supreme Court justices, imprisoned people, not to mention the family and friends of the imprisoned, played a role.  As did the curiosity-driven work of sociologists, criminologists, economists, philosophers and political scientists.  The bulk of the book is descriptive.  Resnik does her best to accurately describe the startling number of interacting forces and figures that produced the prison-infused world of today. Comprehensiveness is simply not possible in this domain, perhaps not even in principle; but Resnik tries. 

            It is probably hubristic to suggest that the line of thought in the book that most drew my attention, and on which I will focus here, is a central line of thought in this work.  The book has multiple centers.  Perhaps it is more fitting to say that I will here focus on a recurrent theme, which both begins and ends the book, and to which Resnik returns in many places throughout it.  This is Resnik’s idea of “ruination”.  That a punishment produces ruination is sufficient for its impermissibility.  Or, put the other way, a punishment is permissible only if it avoids producing the ruination of the person on whom it is inflicted.  As Resnik sees it, the central feature of contemporary imprisonment that undermines its permissibility is that it frequently ruins those who suffer it, and tends in that direction even in those who emerge unruined.  So, a first question is: what does Resnik means by “ruination”?

            A strong reason to think that Resnik would endorse this way of understanding degrees of personhood is the link that she sees between ruination and democracy.  In its ideal form, democracy is an effort to evenly distribute a particular “good” across people, and only people; non-persons get none of it, lesser persons get less.  The “good” that is to be evenly distributed in a democracy is influence over decision-making procedures concerning matters of social and moral import.  In this sense, then, the way prison became a problem for democracy, to quote the book’s subtitle, was by becoming a mechanism for reducing or eliminating the influence over collective decision-making of the millions of individuals subjected to it. 

            The primary way in which prison had this effect, under Resnik’s description, was through producing subjugation of a sort that undermines the very possibility of looking another in the eye and making a decision together.  A necessary condition of effective mechanisms for joint deliberation is some relatively low baseline of give-and-take among participants in the group aiming to make joint decisions.  Where some in the group dominate, control and subjugate others, this is lost.  So: prison produces subjugation; subjugation eliminates the influence of the subjugated over joint decision-making processes; limited influence of this sort is a diminishment of personhood.  Prison, in short, produces ruination. And with ruination comes the loss of the very decision-making mechanisms that are essential to democracy. 

            Resnik believes that none of this is inevitable; it is possible, in principle, for a democracy to warrant that label and, still, to punish offenders.  But she also thinks a democratic state faces an almost impossibly difficult task.   She writes, “Acceptance of the proposition of equal status makes decisions about punishment harder because the state itself must fulfill its obligation of expressing the wrongness of acts of violence, aggression, and exploitation without violating its parallel obligation to shape a fair and just social order.”  There are famous challenges for those, like Resnik, drawn to an expressivist theory of the justification of punishment—a theory according to which what justifies punishing is that it serves as an expression of shared social values and a public acknowledgement that the offender’s act was in violation of those values.  But in so far as the expressivist holds that the appropriate response to acts of violence, aggression and exploitation requires public elevation of the victim and denigration of the offender, or at least their act, Resnik is right to see a profound challenge here.  How can we at once express solidarity with the victim by declaring the offender’s act to be loathsome and at the same time grant both parties a full helping of influence over joint deliberative processes? 

            I think it helps to see what a solution to this dilemma might look like, in what I hope to be a Reznikian spirit, by reflecting on something which might be missing, too often, from our collective attitude towards prisoners.  The philosopher Peter Strawson, in his famous essay “Freedom and Resentment”, uses the term “participant attitude” to refer to the attitude that one person has towards another when their responses to the other’s behavior are constitutive of bonds between people out of which are built the distinctive forms of relationship that human beings can have only with other human beings.  Friendships, reciprocal relationships of love and respect, even certain kinds of rivalries, consist of connections between people that are constituted by, built out of, reactions to one another that the parties have only when they view each other not merely as sources of danger or pleasure, to be avoided or sought, but as proper participants in relationships of the relevant sort.  Resentment is an attitude that we have towards the agent of an act when the agent has violated a norm at our expense.  But resentment is to be distinguished from fear or fury.  Fear pushes one towards avoidance, or even towards changing, we might even say reforming, the entity that caused us to be afraid.  The person who is scared of the dog that lunges at them might run or draw back or try to train the dog, or lock it in a cage.  But resentment of the dog requires viewing the dog as a participant in the kind of relationship of mutual accountability that human beings have sometimes with other human beings.  What it is to be in a relationship of mutual accountability is for each to respond with resentment to acts of the other that are wrongful and at their expense. 

            We might think of co-citizenship as such a relationship.  The bonds between co-citizens consist in reactions—what Strawson called “reactive attitudes”—to their behavior when they are viewed from the participant attitude.  Too often our collective attitude towards prisoners is not the participant attitude.  Too often our response to crime is not resentment, or the analog of resentment that one person has when another is wronged by a third, but fear or anger.  Too often, that is, we do not respond to violence, aggression and exploitation in the distinctive way in which one so responds when viewing the agent of the violent, aggressive or exploitative act as fit to be a co-citizen.

            At one point in the book, Resnik criticizes Justice Warren Burger’s view that the best, (perhaps the only) path by which prisoners could come to be less badly treated was to appeal to the moral consciences of those doing the work of imprisoning people. In Burger’s view, the answer was not to be found in the law, or in judicial decrees. Resnik, by contrast, believes in the power of law in this domain and explains how legal pressures were used, often by prisoner’s themselves, to promote many fundamental and valuable reforms. 

            One might fear that my diagnosis of the disease—a failure to adopt the Strawsonian participant attitude towards prisoners—is more Burgerian than Resnikian.  If you fear your neighbor rather than resent them, the problem is not likely to be remedied by being told by some judge to view them, instead, with the participant attitude.  But, it seems to me that the essential collective moral education that might solve the problem of prisons is also a kind of legal education.  Just as citizenship is a legal concept, so is co-citizenship.  Law, in this domain, plays a role in constituting a moral relationship that, it seems to me, is absent where we fail to adopt the participant attitude.  In a sense, the lesson of Resnik’s impressive book is that prison became a problem for democracy because it became a tool for management, rather than a tool for the expression of the attitudes that are an essential part of genuine co-citizenship. 

Gideon Yaffe is Wesley Newcomb Hohfeld Professor of Jurisprudence and Professor of Philosophy and Psychology at Yale Law School.  He can be reached at gideon.yaffe@yale.edu.