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”?
In her introduction of the concept, and where-ever the concept is invoked in the book, it is connected, by her, to the idea of a reduction of personhood. To ruin someone is to make them less of a person. But this idea, too, is elusive. Every creature on the planet is either a person or not. Personhood is binary; it is not something that admits of degrees. What does admit of degrees is the influence that particular individuals have over decision-making processes—processes that produce their own decisions, and the decisions made by or affecting groups of which they are a part. If we give the title “person” to an individual who gets a full helping of influence, someone who gets less than a full helping is less of a person thanks to that. Given a set of social arrangements and circumstances, each individual has some degree of influence over relevant decision-making processes. We might conceptualize each individual’s degree of influence over decision-making processes that matter, decision-making processes concerning acts of moral import, as their degree of personhood. Dogs are not people, then, since they have no influence over morally relevant decision-making processes. In this sense, children are people, but they are diminished in personhood, in comparison to adults, in many aspects of socially-entwined life. They have some influence, but less influence than adults, over relevant decision-making processes.
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.