PROPORTIONALITY AND MAKING THINGS RIGHT:  
AN INTEGRATIVE APPROACH TO RETRIBUTIVE AND 
RESTORATIVE JUSTICE  
 
 
 
 
 
 
 
 
by 
SAM LINDER 
 
 
 
 
 
 
 
 
 
 
A THESIS 
 
Presented to the Department of Psychology and Philosophy  
and the Robert D. Clark Honors College  
in partial fulfillment of the requirements for the degree of  
Bachelor of Science 
 
November 2022 
 
 
 
 
An Abstract of the Thesis of 
Sam Linder for the degree of Bachelor of Science 
in the Department of Psychology and Philosophy to be taken December 2022 
 
 
Title:  Proportionality and Making Things Right: An Integrative Approach to Retributive and 
Restorative Justice  
 
 
 
Approved:   Michael Stern, Ph.D.   
      Primary Thesis Advisor 
In this project, I aim to integrate principles of retributive justice and restorative justice 
into a comprehensive philosophy of justice that can punish wrongdoers while still 
acknowledging and respecting their humanity. Retributive justice aims to punish offenders in 
proportion to the crime they committed. However, its emphasis on bringing perpetrators to 
justice through punishment can cause people to forget that the perpetrators are human beings, 
resulting in punishments that may be too extreme or immoral. The aim of restorative justice is to 
heal, not just the person who has been harmed by the wrongdoer, but to heal all parties involved. 
This usually means the victim, the offender, and both of their respective communities. I think 
each system of justice has its merits, since the retributivist system has been widely used in the 
U.S., but it would be beneficial to integrate some restorative principles into the current American 
criminal justice system. In my project, I examine the core beliefs of the retributivist system and 
their origins, detailing how they came to be what they are today. Next, I cover restorative justice 
and its benefits. Finally, I outline an integrative approach to both systems of justice, with the 
hope that it will encourage people to reconsider how they view criminals and those they perceive 
as “enemies.”  
 
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Acknowledgements 
 
First, I would like to thank Dr. Edgar Temam, known to me as Edgar, whose Honors 
College class on nonviolence (including restorative justice) during Winter 2020 inspired me to 
do this project. My weekly discussions with him over Zoom during Fall 2021 and Winter 2022 
were very helpful and I’m grateful for the afternoons we spent together. 
Next, I want to thank the members of my thesis committee, Dr. Michael Stern, my 
advisor and Dr. Corinne Bayerl, my Clark Honors College Representative. Theses are difficult to 
write anyway, but this process was further complicated for me by personal matters, some of 
which I recognize that I could’ve handled better regarding communication. Despite this, both 
remained understanding of my situation and were encouraging up until the day of the defense 
(and afterwards), which was beneficial to my confidence and extremely considerate on their part. 
If either of them ends up reading us, I want them to know that I did not take their assistance for 
granted and am glad we had the opportunity to work together. 
 I also want to thank Miriam Jordan, the Thesis Programs Manager for the Honors 
College, who helped me with the little things throughout this project, like formatting the thesis 
and scheduling the defense. I wouldn’t have made it through this process without her. 
Finally, I want to thank my family: my mom, Mary; my father, John; and my sister, 
Maggie. All of them believed in me throughout this project and expressed genuine interest in it, 
which was very uplifting. Whatever happens with my thesis, I hope I made you all proud. 
 
  
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Table of Contents 
Introduction 5 
Punishment 9 
Retributive Justice 12 
Nietzsche’s “The Pale Criminal” and Labeling 16 
The Origin and Consequences of Separation 22 
A History of the Prison System in the United States and Jim Crow 33 
“Rehumanizing” the “Other” 54 
Restorative Justice 60 
Counterarguments to Restorative Justice 66 
The Practicality of an Integrative Approach to Retributive and Restorative Justice 70 
Bibliography 75 
 
 
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Introduction 
Looking back on my college experience, I’ve increasingly come to appreciate the 
opportunities I’ve had to gradually become independent, not just in terms of living by myself, 
but also thinking for myself. While I think this has generally been beneficial for my growth as a 
person, I’ve also noticed how I’ve become more focused on myself and less on other people. On 
any given day in college, I’m most concerned with assignments I have to do, deadlines I have to 
meet, requirements I have to fulfill, and the ins and outs of daily life that I have to take care of. 
In comparison, the countless people I pass on campus in between classes or on the way home 
generally mean less to me. I don’t know the vast majority of them, who they are, how they feel, 
or what’s going on in their lives, and I don’t really have the time to find out. Even at the 
beginning of terms, the professor and most of my classmates are complete strangers to me, and 
this generally makes me apprehensive. I feel separate from them even though we are physically 
in the same room (or, during the pandemic, in the same Zoom call). But then we end up 
interacting, whether it’s during office hours, during discussion, or just because we’re near each 
other and want someone to talk to, and each time, even if it’s brief, I’m reminded of something 
so simple, yet so important: they’re human, too. I get so caught up in what’s going on in my life 
that I often fail to fully consider the humanity of other people, that they have hopes, dreams, 
fears, and worries just like I do. While I recognize that it’s likely unreasonable to expect 
everyone to be acutely aware of everyone else’s humanity throughout their day, I also think this 
points to a significant issue with the criminal justice system in the U.S. We are so focused on 
bringing a criminal or an offender to justice through punishing them that we lose sight of their 
humanity in the process. In my thesis, I aim to outline a philosophy that can not only punish 
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wrongdoers, but also respect their humanity, as well as the humanity of those who have been 
affected by the wrongdoing. 
In Western societies, the primary method of responding to the injustice implicated in a 
wrongdoing is punishment (Wenzel, Okimoto, Feather, & Platow, 2008). Punishment is imposed 
on offenders by courts, and once this happens, justice is considered done. Although achieving 
justice isn’t the only goal of punishment, my thesis will focus on two different approaches to 
justice restoration, retributive and restorative justice, and attempt to integrate the aims of each 
system into a more comprehensive form of justice, one that punishes, yet still respects the 
humanity of those involved. According to retributive justice, an offender who has violated the 
law deserves to be punished, and, in order to reestablish justice, they have to be disciplined in 
proportion to the severity of their offense (Wenzel, et al., 2008). Models of restorative justice, on 
the other hand, usually consider transgressions as conflicts that should be given back to their 
rightful owners to resolve, meaning the offender(s), the victim(s), and their respective 
communities (Wenzel, et al., 2008). As opposed to retributive justice, where justice is primarily 
determined by the courts, the affected parties are directly involved in the restorative justice 
process (Wenzel, et al., 2008). Through deliberative interaction, they are given an opportunity to 
share their feelings, present their side of the story, and preferably reach a consensus regarding 
the hurt the offense caused, the offender’s responsibility, and what can be done to restore a sense 
of justice (Wenzel, et al., 2008). This can take the form of direct compensation to the victim or 
compensation or service to victims of similar transgressions or the broader community (Wenzel, 
et al., 2008). It is important to note that while punishment can be and usually is part of 
restorative justice, its role is not as central as it is in retributive justice. Instead, restorative 
justice’s deliberative approach emphasizes healing over punishing: healing the victim and 
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undoing the hurt done to them; healing the offender by rebuilding their moral and social selves; 
and healing communities by repairing social relationships (Wenzel, et al., 2008). 
I think restorative justice’s emphasis on healing, not just the victim, but all parties 
involved in the transgression is worth serious consideration. The current justice system in the 
U.S. is predominantly retributivist, where offenders are punished by courts and sent to prison to 
serve sentences that are proportional to the crimes they’ve committed. What bothers me about 
this approach is that I take it to be too harsh to use as the primary method of responding to 
wrongdoing. To me, the retributivist approach does not get to the root of the issue: it removes the 
“issue” (the offender) from society and isolates it in prison, but this does not show any concern 
for the humanity of the individual (Davis, 2011). Instead, prisons are more concerned with 
punishing criminals through isolation and surveillance rather than trying to rehabilitate them 
(Davis, 2011). They also don’t do much for the parties who have been harmed. If we want to get 
to the root of the transgression or issue, I think we should approach it by trying to understand it 
and give opportunities to foster growth for everyone involved, which means recognizing that 
everyone involved is human. My research will contribute to philosophy and criminology by 
exploring alternatives to the current retributive justice system in the U.S. and will hopefully 
cause people to reexamine how they view criminals and wrongdoers. I wish to outline a 
philosophy that integrates restorative justice principles into the existing retributive framework. 
My aim is not to get rid of one system in favor of the other. Rather, I want to combine elements 
of both into an integrative approach to retributive and restorative justice that can punish without 
losing sight of the humanity of those involved. 
Chapter II gives a brief synopsis of the idea of punishment as it has changed over the 
course of history. Retributive justice is examined in chapter III. In chapter IV, we explore the 
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harmful effects of labeling, paying particular attention to the “criminal” label. Chapter V 
attempts to give an account of the idea of separation and how it’s been used throughout history to 
create “enemies” that need to be fought against or destroyed. Chapter VI continues this lineage 
of separation into the last three centuries in the U.S., examining its prison system, slavery, Jim 
Crow laws, and mass incarceration, culminating in criminals being perceived as one of the 
“enemies” modern society has to combat. In chapter VII, we discuss how the humanity of the 
“enemy” or “Other” may be restored. Chapter VIII investigates restorative justice. 
Counterarguments to restorative justice are laid out and responded to in chapter IX. Finally, 
chapter X details the practicality of an integrative approach to retributive and restorative justice. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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Punishment 
Punishment, in a relatively more modern, legal context, is defined as “pain, suffering, 
loss, confinement or other penalty inflicted on a person for an offense by the authority to which 
the offender is subject” (Alexander, 1922), but its function has differed throughout human 
history. This makes sense because “a single definition of ‘punishment’ is bound to be too narrow 
unless one focuses on a very particular aspect of punishment” (Gendin, 1967). Before humans’ 
security and rights were protected with the help of an organized society, punishment for crime 
had straightforward significance. Since self-preservation was of utmost importance, one’s 
instincts led them to immediately destroy things or people which caused harm or posed a threat 
to them and their property (Alexander, 1922). Revenge and retaliation were central to this 
conception of punishment, and they gave rise to the idea of “lex talionis” or the law of 
punishment in kind (Alexander, 1922). This was also the basis for retributive justice, as well as 
the capital punishments that were common in Europe before reforms were made during the 
Enlightenment. 
The responsibility of the offender was also measured by the gravity of their offense, 
which involved the standing and position of the victim (Alexander, 1922). The perpetrator could 
compensate for their wrongdoing through trying to satisfy the party that was harmed or through a 
fixed scale (Alexander, 1922). Eventually, this idea of compensation was extended to society, 
where offenses committed by a wrongdoer were considered to be against not only the victim, but 
the larger group they were both a part of (Alexander, 1922). Thus, crimes violated the peace and 
harmony of the group and the criminal, being a menace to society, had to be cast out (Alexander, 
1922). They were made to be an example to discourage others from acting as they did, a strategy 
of deterrence (Alexander, 1922). As we can see, previous theories of punishment for crime had 
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varying motives, and Gendin (1967) suggests that punishment “is a word best restricted to the 
suffering imposed on suspected wrongdoers.” 
In his famous treatise On Crimes and Punishments, Cesare Beccaria (1872) set forth 
several principles of punishment, many of which remain influential to this day. First, he said that 
punishment serves a preventive (or deterrent) function, as opposed to the retributive function that 
was common in his day (Beccaria, 1872). Additionally, he thought that this preventive effect 
would be best achieved through the high probability of punishment, rather than its severity 
(Beccaria, 1872). Finally, he proposed that punishment should be prompt (in order to be 
effective), public, and proportionate to the crime committed (Beccaria, 1872). 
According to Frase (2005), there are two general categories of punishment purposes in 
the twenty-first century: utilitarian and nonutilitarian. Utilitarian purposes aim to achieve 
beneficial effects and lower frequency and seriousness of future crimes committed by offenders. 
The five main utilitarian methods are rehabilitation, incapacitation, specific deterrence, general 
deterrence, and denunciation (Frase, 2005). Nonutilitarian methods include principles of justice 
and fairness viewed as ends in themselves (intrinsically valuable) and will be addressed in the 
following paragraphs.  
The first three utilitarian methods try to prevent future crimes by particular offenders, 
assuming that certain offenders have a higher risk of reoffending and that these individuals and 
their elevated risk of reoffending can be identified in advance (Frase, 2005). Rehabilitation 
assumes that the offender has identifiable and treatable problems that cause them to commit 
crimes, and that their future criminality can be reduced by addressing these problems through 
education and other programs (Frase, 2005). Incapacitation prevents crime by putting high-risk 
criminals in prison, physically preventing them from committing future crimes against the public 
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(Frase, 2005). Specific deterrence aims to discourage perpetrators from committing subsequent 
offenses by instilling fear of receiving the same penalty, or an even more severe one, in the 
future (Frase, 2005). 
The last two methods, general deterrence and denunciation, are supposed to prevent 
future crimes by members of the public at large or by certain subgroups thought to have a higher 
risk of offending. General deterrence tries to discourage potential offenders from committing 
further crimes by making them fear the penalties given to current offenders (Frase, 2005). 
Through denunciation, criminal penalties serve to outline and reinforce important social norms 
of law-abiding behavior and the seriousness of crime (Frase, 2005). 
 
 
 
 
 
 
 
 
 
 
 
 
 
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Retributive Justice 
Retribution is the most widely acknowledged nonutilitarian method of punishment 
(Frase, 2005). Drawing on Beccaria’s (1872) ideas, this theory holds that offenders should be 
punished in proportion to their blameworthiness in the crime being sentenced (Frase, 2005). An 
offender’s blameworthiness is determined by the nature of the harm that was caused or 
threatened by the crime, as well as the offender’s degree of culpability in committing the crime 
(Frase, 2005). The offender’s culpability depends on several factors, including their intent, their 
capacity to obey the law, and their motives (Frase, 2005). 
Hugo Bedau (1978) mentions an important tenet in a retributive theory of punishment, 
which he calls the principle of just requital. It states that “the justification for punishing persons 
is that the return of suffering for moral evil voluntarily done is itself just or morally good” 
(Bedau, 1978). There are several crucial aspects to acknowledge here. First, according to a 
retributivist view, imposing hard treatment on wrongdoers is intrinsically justified. This is 
contrasted to an instrumental justification, which holds that imposing hard treatment on 
offenders would only be justified if it brings about a separate good, like the maintenance of 
security, the deterrence of future crime, or reform of the offender (Allais, 2011). The essential 
retributivist idea is that wrongdoing is necessary to justify punishment and, given wrongdoing, 
no further reason for imposing harsh treatment on the wrongdoer is required (Allais, 2011). 
According to Allais (2011), “it is intrinsic to the justification of punishment that it is appropriate 
to impose it on the guilty, and only on the guilty.” 
Herbert Fingarette (1977) offers a different retributivist justification for punishment in 
Punishment and Suffering. He argues that retributivist punishment is necessarily internal to law  
(Fingarette, 1977). This is independent of moral justification or moral justification of law itself 
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(Fingarette, 1977). A central idea in Fingarette’s (1977) argument is the force of the law or the 
power to require people to do things. The point of laying down a requirement of law, in this 
view, is that people subject to that law are required to will what obeys that law (Fingarette, 
1977). It is assumed that every person is an agent with a will (control over their actions). Thus, 
the power of law is the power over the will (Fingarette, 1977). In other words, public law allows 
and defends each agent’s innate right to freedom. However, this still allows an individual to have 
the power to will otherwise, or to disobey the law (Fingarette, 1977). When this happens, when 
someone does not will in accordance with the law, the law is required to humble their will, and 
this is the justification for retributive punishment (Fingarette, 1977). While the law is capable of 
nullification, restoration, and reparation, the aim in this case is “the categorical imperative of the 
law itself” (Fingarette, 1977). In other words, do not disobey the law or you will be punished and 
justifiably so. On this account, an intrinsic part of what it means for there to be laws is that 
breaking results in punishment. Getting punished for breaking a law is an essential aspect of the 
very existence of laws. 
Punishment, then for Fingarette (1977) is pure suffering. He defines suffering as 
experiencing what is against our will (Fingarette, 1977). Pain is not essential to punishment, but 
the humbling of one’s will is (Fingarette, 1977). Fingarette (1977) agrees that the punishment 
should fit the crime, but also holds that “the gravity of the offense derives not from the putative 
[assumed] moral wrong, but from the gravity of the requirement [of law] it violates.”  
Near the end of his essay, Fingarette (1977) makes an observation which he takes to be 
self-evident, but I think is nonetheless important to mention: “retributive punishment is in itself 
an evil.” Furthermore, he believes that punishment has no constructive aim (Fingarette, 1977). 
This is concerning because it introduces the possibility that people may be excessively punished 
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or are suffering unnecessarily. For example, Angela Davis (2011) argues that the prison system 
in the U.S. is an outdated form of punishment that violates basic human rights. When Davis 
wrote Are Prisons Obsolete?, more than two million people were in U.S. prisons, jails, youth 
facilities, and immigration detention centers (Davis, 2011). Both Davis (2011) and Michelle 
Alexander (2011) assert that prisons are racist institutions, and Alexander (2011) further states 
that the U.S. criminal justice system has used the War on Drugs to create and maintain forms of 
oppression, both traditional and new. This has resulted in the U.S. having the highest rate of 
incarceration in the world, and Alexander’s main argument is that mass incarceration is a well-
disguised form of racialized social control that functions very similarly to the Jim Crow laws that 
enforced racial segregation in the southern U.S. during the 19th and 20th centuries (Alexander, 
2011). 
Stephanie Kane (2013) also provides support for the prison system being an excessive 
form of punishment, even if it is justified by retributivist principles. She conducted an interview 
with Wilbert Rideau, an American man who spent 44 years at Angola prison, and more than a 
decade in solitary confinement on death row, for killing a bank teller in a failed robbery. 
According to Rideau, solitary confinement is the worst thing that can be done to a person 
because it strips them of their sense of self and place in life, as well as any emotional bonds they 
have (Kane, 2013). In prison, “there is no encouragement, no incentive, no support” (Kane, 
2013). Although I can see how one could argue that this punishment might fit some crimes (e.g., 
murder), this does not fit all the crimes that people are imprisoned for (e.g., robbery or theft) and 
seems unnecessarily harsh. Although Rideau acknowledges that not everyone can be 
rehabilitated, he also points out that, “at some point, long-term prisoners want to be better than 
14 
 
 
they were before they went to prison” (Kane, 2013). If that is indeed the case, I think a different 
approach to justice should be considered. 
15 
 
 
Nietzsche’s “The Pale Criminal” and Labeling 
“The Pale Criminal” is a chapter in German philosopher Friedrich Nietzsche’s Thus 
Spoke Zarathustra. The chapter details the end of a criminal proceeding in which an accused 
murderer is being sentenced to death by the red judge (this is how the judge is described in the 
text). An important question raised here is whether there is a difference between violence carried 
out in violation of the law and violence carried out in the name of the law. Nietzsche is 
suggesting that the red judge, who is about to sentence the pale criminal to death, is actually 
concealing his own desire to kill. This is what he means when he tells the red judge, “if thou 
would say audibly all thou hast done in thought, then would every one cry: ‘Away with the 
nastiness and the virulent reptile!’” (Nietzsche). While the criminal acted openly and is now 
suffering the consequences of his actions, the judge is able to mask their desire for blood behind 
legal procedures, instead appearing to “desire” law and order. Nietzsche hints at this at the 
beginning when he says “Ye do not mean to slay, ye judges and sacrificers, until the animal hath 
bowed its head?” (Nietzsche). Society has created a mechanism, the justice system, that allows 
law-abiding members to behave immorally without being punished.  
The essence of Nietzsche’s critique of legal, institutionalized punishment is that it is a 
cowardly display of the (hidden) desire for violence. Nietzsche may want punishment replaced 
by an approach to wrongdoers that rehabilitates them as opposed to penalizing them. This is 
evidenced when he asserts: “‘Enemy’ shall ye say, but not ‘villain,’ ‘invalid’ shall ye say, but not 
‘wretch,’ ‘fool’ shall ye say, but not ‘sinner’” (Nietzsche).  
   Labeling is the final important aspect of Nietzsche’s critique of the criminal law process 
that has been part of the retributive justice system. The criminal is described throughout the 
chapter as “pale.” Nietzsche explains that “an idea made this pale man pale. Adequate he was for 
16 
 
 
his deed when he did it, but the idea of it, he could not endure when it was done.” He argues that 
the red judge causes the murder the criminal committed to lose its meaning by portraying it as 
the consequence of a robbery. This assumption takes away the act’s experiential element, which 
can’t be understood by others. By being labeled with a name and an image, the act is no longer 
unique. The crucial takeaway is that the criminal himself no longer perceives the act as unique; 
as Nietzsche details, “evermore did he [the criminal] now see himself as the doer of one deed.” 
The criminal doesn’t see the act as he experienced it, but as an image, one that he cannot bear. 
Internalizing society’s image of him as a “criminal” or “murderer,” as if that’s all he is, is what is 
most destructive and what causes him to become pale. He is pale because he has lost his sense of 
identity. Society views him a certain way and that perceived identity, the criminal, supersedes all 
other possible identities the criminal has, even if they are positive. This way of thinking about 
crime is the mistake the retributive justice system makes. Perhaps it is necessary to view crime 
this way if the goal is proportional punishment, but I take it to be dehumanizing, which is why I 
consider this to be a problem. Criminals carry the “criminal” label for the rest of their lives, even 
if they leave prison, making it harder for them to find work and housing when they try to 
reintegrate into society. 
The harmful effects of labeling are also discussed by nonviolence authors like Thomas 
Nagler (2014) and Barry Gan (2013). Nagler (2014) thinks that “labels depersonalize, which is 
why soldiers so often use them to get over the natural psychological abhorrence we all feel at 
killing another (17-18). Since “all violence begins in the failure or refusal to recognize another as 
fully human” (Nagler 2014, 17), labeling someone negatively makes it easier to justify harming 
them. Nagler (2014) defines violence as “deliberate harm to another’s person or basic dignity” 
(3), and he contends that our current worldview, as well as our institutions based on that 
17 
 
 
worldview, consider violence to be the status quo. Violence seems to be everywhere, while 
nonviolence seems rare by comparison, though Nagler (2014) believes that has more to do with 
our worldview than the way the world really is (4). The term “nonviolence,” for example, 
implies that the default condition is violence and that nonviolence is a temporary deviation from 
the normal state of affairs (Nagler 2014, 4). This limits our options when we consider how to 
respond to violence. If nonviolence isn’t considered as a serious possibility, then the remaining 
options are to either passively endure the violence or to fight back (Nagler 2014, 4). The former 
probably isn’t attractive to most people because it seems too submissive and inactive, so it’s 
understandable why retributive justice is appealing and why it’s the prevailing justice system in 
the U.S.. It’s active because one is fighting back against the violence being used against them 
and fair because the people who carried out the violence deserve to have violence done to them 
(in the spirit of the Golden Rule or the idea of “an eye for an eye”). However, both of these 
approaches, to yield and allow violence to be done or to respond to it in kind, only increase the 
violence (Nagler 2014, 5).  
Gan (2013) considers labeling itself to be a violent act, and it is part of one of five violent 
myths that American society relies on. I will focus on Gan’s (2013) concept of myths in more 
detail later on, but for him, a myth is a mistaken belief or assumption that cultures rely on to 
solve their problems. The myth relevant to labeling is what Gan (2013) calls “The Myth of Good 
Guys and Bad Guys.” According to this myth, some people are inherently good and others are 
inherently bad, and because of this, many people are prepared to divide individuals into two 
groups, the good and the bad (Gan 2013, 30). Once they’ve been divided, it isn’t difficult to 
arrive at the conclusion that the bad should be eliminated or killed (Gan 2013, 30). Even though 
Gan (2013) acknowledges that the number of people who can truly be classified as inherently 
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evil “are an infinitesimally small percentage of any population” (Gan 2013, 30), the amount of 
people “who can be roused by demagogues to believe that others are evil are virtually 
uncountable because they include almost all of humankind” (Gan 2013, 30). The problem with 
this is that nearly everyone is susceptible to classify not only individuals, but also groups of 
people (ethnic groups, nations, religious denominations, and races) as either good or evil (Gan 
2013, 26). This ignores the diversity and complexity of the individuals in any given group and 
instead boils their identity down to a single label. Thus, it is easier to view those who are “evil” 
as less than human and undeserving of our respect, which in turn makes justifying their 
punishment or elimination more straightforward. Since criminals are generally regarded as “bad” 
or “evil” people, punishing them through imprisonment makes sense and is another reason why 
the retributive justice system appears attractive.  
The idea of “good vs. evil” and the resulting separation may be more closely associated 
with religious traditions, but the secular domain has a similar myth. In many religions 
(Christianity, Judaism, Islam, Hinduism, etc.), one can find individuals who consider anyone 
who doesn’t believe in their religion as flawed (Gan 2013, 30). Non-believers can be considered 
misguided, traitorous, or evil, fully deserving of whatever unpleasant fate awaits them. However, 
early scientific theories about aggression, particularly those of Sigmund Freud and Konrad 
Lorenz, promoted a view of humans as essentially aggressive and inclined towards violence (Gan 
2013, 30). Although more recent theories have weakened those claims, Gan (2013) believes that 
“among non-scientists, it is almost a platitude that people are innately aggressive” (Gan 2013, 
30). If this is true, then the idea is that we need to properly channel this aggression, using operant 
conditioning, genetic engineering, drugs, therapy, and (especially important for the sake of this 
project) the threat of punishment (Gan 2013, 30-31). Furthermore, the most evil people never 
19 
 
 
learn to channel their aggression in a productive manner and thus need to be eliminated (Gan 
2013, 31). The key takeaway here is that the good vs. evil dichotomy is “apocalyptic” (Gan 
2013, 31), meaning that saving the world or redeeming one’s character is dependent on 
eliminating “the other.” Gan (2013) meant this in terms of killing someone to eliminate them, but 
I think that imprisoning someone, especially if it’s for an extended period of time (e.g., more 
than five years) essentially eliminates them from society because they are separated from 
everyone else due to the threat they pose to the public’s safety and well-being. This is another 
issue with the retributive justice system, that it focuses too much on simply eliminating the “evil” 
criminals from society. It doesn’t see any potential for them to improve because of their “evil” or 
“criminal” label and is thus more concerned with ensuring they get the punishment they deserve. 
I want to return to Gan’s (2013) concept of myths because it helps us become aware of 
and subsequently examine some of the myths that our society in the U.S. has been built on. A 
central point that Gan (2013) makes is that “our assumptions govern or direct our individual 
behaviors, and the assumptions of a community or a society govern or direct its social, political, 
and economic behaviors and policies” (3). The problem with assumptions, on both a personal 
and societal level, is that they can be mistaken and thus prevent people or societies from 
addressing their problems (Gan 2013, 3-4). Furthermore, if they are mistaken, the assumptions 
themselves can also be the root cause of many personal and societal issues (Gan 2013, 4). 
Crucially, these misleading or false assumptions can become embedded in a personality or a 
society, potentially becoming “so powerful that they underpin and undermine the very character 
of a personality or society, explaining and justifying unhelpful behaviors and policies” (Gan 
2013, 4). This has already been hinted at earlier, with Nagler’s (2014) assertion that our current 
prevailing worldview in the U.S. considers violence to be the default state of affairs (4). 
20 
 
 
Additionally, he believes that we see ourselves as separate, physical, and competitive (8), thus 
making any dispute or conflict a matter of “me against you” (14) where in order for me to win, 
you have to lose. This worldview is echoed by Cameroonian philosopher Achille Mbembe 
(2019) in Necropolitics, where he states that “the contemporary era is, undeniably, one of 
separation, hate movements, hostility, and, above all, struggle against an enemy” (42). How did 
this society of enmity come to be? How deeply embedded are these ideas regarding violence, 
separation, conflict, competitiveness, and hostility? Are they well-founded or are they what Gan 
(2013) would consider to be myths?  
21 
 
 
The Origin and Consequences of Separation 
One of the earliest sources that contains ideas concerning separation is the Book of 
Genesis. I chose this text because it is the account of the creation of the world for both 
Christianity, currently the world’s largest religion, and Judaism, another of the world’s major 
religions (World Population Review 2022). Thus, Genesis has had, and currently has, significant 
influence on our worldview, particularly regarding separation. On the sixth day of Creation, 
according to this account, “God said, ‘Let us make man in our image, after our likeness. They 
shall rule the fish of the sea, the birds of the sky, the cattle, the whole earth, and all the creeping 
things that creep on earth” (Genesis 1.20). There are several key points to note. First, humans are 
not equal to nature in this view. Instead of simply being a part of nature, alongside everything 
else, they are above it. They were created in God’s image, which gave them the divine right to 
rule and dominate nature. The God-given right to rule the earth is what distinguishes humans 
from the rest of nature. Although it doesn’t separate them entirely, as they still live in the same 
physical world, it demarcates a clear boundary between them, where humans are superior. 
Animals were described as “creeping things that creep” (Gen. 1.20), which to me carries a 
negative connotation. This suggests that animals are distasteful or even frightening creatures that 
need to be controlled. Since animals are a part of nature, this conception could reasonably be 
extended to the rest of nature, which was later seen in the aims of colonialism. 
The implications of this view are problematic because its logic is flexible, which can be 
used to justify the domination, submission, and colonization of other peoples. Humans, on this 
account, constitute the Self, the “we,” the “us,” the familiar. “We” have a right to rule, and 
therefore dominate, nature, the unknown Other, and submit it to “our” will. This is apparent in 
Genesis, where “God formed out of the earth all the wild beasts and birds of the sky and brought 
22 
 
 
them to the man to see what he would call them; and whatever the man called them, that would 
be its name” (Gen. 2.23). According to this, naming or labeling is also a God-given right. 
Humans order and classify the world according to how they see it, and this becomes the 
universal truth, creating a dominant order. This is especially important to consider because, as 
mentioned previously, Genesis is the creation story for both Christianity and Judaism, two of the 
world’s major religions. Thus, the idea not only that individuals and groups can be labeled, but 
also that the act of naming can justify the loss of their humanity, as well as their domination and 
submission, has long been a part of our worldview. Given the harmful effects of labeling 
discussed in prior sections, I think it’s important to trace how this “human-nature” dualism has 
embedded itself into modern society, using naming and classification to separate people into 
groups and create hostility between them. This matters because I think the way we view 
criminals and wrongdoers has been greatly influenced by this genealogy of separation. 
In introducing this “human-nature” dualism, I want to briefly discuss the nature of 
dualisms themselves. On one hand, dualisms are useful because they help us compartmentalize 
and understand the world. Many of us, even those who love philosophy, cannot reflect on 
everything we encounter because we need to attend to what’s happening in our lives in the 
present. Thus, dualisms are helpful in a practical sense because they allow us to save time in 
understanding our world and acting in it. However, dualisms can be problematic if they are never 
reflected upon because then they are taken for granted. To me, this is how Gan’s (2013) myths 
are created. Dualisms are not challenged, become assumptions, and in turn are established as a 
society’s main method of problem solving. As we will see, they can be seamlessly applied to 
different situations to separate things previously unified, creating an account of the way things 
23 
 
 
are separated and always have been, which can justify the separation and dehumanization of 
individuals and groups. 
An early way in which the “human-nature” dualism was used was in the separation of 
Western culture from other cultures. First seen in colonialism, and later in fascism and Nazism, 
this asserted “the absolute superiority of so-called Western culture, understood as the culture of 
race—the white race” (Mbembe 2019, 121). Western culture was “a culture like no other” 
(Mbembe 2019, 121), making it untouchable because it was the only culture which could relate 
all other cultures to itself (Mbembe 2019, 122). According to Mbembe (2019), “its project was to 
steer the world according to its will” (122) and it had a body and a soul. From this we see how 
smoothly Western culture took human characteristics, not only the physical ones, but the right to 
rule nature mentioned in Genesis. Nature, in this view, became the other non-Western cultures in 
the world, whose existence was dependent upon the West, thereby establishing Europe as the 
center of the world. 
Another key point to note is that Mbembe (2017), like Gan (2013), also mentions myths, 
saying that they were necessary for the Western world to rationalize its power (11). In addition to 
considering itself the center of the world, Western culture viewed itself as the origin of reason, 
universal life, and the truth of humanity (Mbembe 2017, 11). The self-appointed most “civilized” 
region of the world was, according to their view, solely responsible for creating the rights of the 
people; for building a civil society of nations; for introducing the idea that being human meant 
possessing civil and political rights that allowed them to develop powers, both privately and 
publicly, as citizens of a human race; and, finally, for codifying “a range of customs accepted by 
different peoples that included diplomatic rituals, the rules of engagement, the right of conquest, 
public morality, and polite behavior, and practices of business, religion, and government” 
24 
 
 
(Mbembe 2017, 11). As we can see, the Western world used myths to solidify itself as the 
humans in Genesis, the Self, the “we,” the positive force. This separated it from the rest of the 
world, what Mbembe (2017) calls “the Remainder” (11), what constitutes nature in Genesis, and, 
above all, what was there to be conquered. 
The separation of the West from all other cultures enabled colonialism, which sought to 
dominate, subjugate, and control them. According to Mbembe (2019), “colonizing broadly 
consisted in a permanent work of separation: on one side, my living body; on the other, all those 
‘body-things’ surrounding it; on one side, my human flesh, through which all those other ‘flesh-
things’ and ‘flesh meats’ exist for me” (Mbembe 2019, 46). This was partly caused by what 
Mbembe (2019) calls “annihilation anxiety felt by the settlers themselves” (46). The colonizers 
were in a new and unfamiliar environment in which they were outnumbered, which explains why 
they “lived in fear of being surrounded on all sides by ‘bad objects’ that threatened their very 
survival and were ever liable to take away their existence: natives, wild beasts, reptiles, 
microbes, mosquitoes, nature, the climate, illnesses, even sorcerers” (Mbembe 2019, 46). 
Colonialism clearly demonstrates a reliance upon the “human-nature” dualism. The colonizers 
were the “human” in opposition to the environment, the “nature,” of the place they were sent to 
conquer, which aligns well with the Genesis account. However, these “bad objects” or “other 
entities” were not completely devoid of humanity, thus making it the European colonizers’ duty 
to help them, to “raise them up to our level” (Mbembe 2017, 12). Viewed this way, the colonial 
project was “a fundamentally ‘civilizing’ and ‘humanitarian’ enterprise” (Mbembe 2017, 12), 
morally justifying the resulting violence. From this, we see how the Western world imagined, 
labeled, and classified other worlds and their cultures in a way that rationalized Europe’s goals of 
conquest and domination. This way of thinking invented and conjured up ideas, but presented 
25 
 
 
them as factual and certain, which allowed this erroneous belief to become the Western world’s 
main approach to “solving” the problem of these separate, subhuman worlds that needed to be 
brought under colonial control. It is also key to point out that Mbembe considers colonialism to 
be a permanent work of separation, meaning that the division (or divisions) created may have 
endured to the present day, which we will see later. 
Part of the reason for this enduring separation may be due to colonialism’s reliance upon 
racism. For Fanon, racism was rarely accidental and always subtended by a structure which 
drove an economic and biological subjugation (Mbembe 2019, 130). This involved “an arbitrary 
and original declaration of superiority—a superiority destined to establish the supremacy of a 
group, a class, or a species of humans, over others” (Mbembe 2019, 130), which was discussed 
at length in previous paragraphs. According to Mbembe (2019), racism carries out this process 
by creating a double, taking a real human face and pushing it into the background or obscuring it 
from view with a veil (32). Through imagination, it evokes a ghost of a face, an image, a 
silhouette, that replaces the real human face hidden from view (Mbembe 2019, 32). This is the 
essence of racism, its ability to distort reality through imagination and substitution. The 
substitution of a ghost of one’s face, in place of their real one, is how they are classified and 
labeled, and this becomes the justification for any harsh treatment they receive. Their humanity 
has been replaced by an image, one that is fantastical, concealed by shadows, and the uncertainty 
that this inspires creates a fear of them. 
To “maintain its virulence and its efficacity” (Mbembe 2019, 130), racism constantly 
must renew itself and metamorphose. This was done through what Fanon considered to be two 
types of racism. The first was a vulgar racism that appealed to the sciences, particularly biology 
and psychology, to establish and justify its authority (Mbembe 2019, 130). The second was 
26 
 
 
cultural racism, a mutation of vulgar racism that “attacked particular forms of existing, which 
colonialism then sought to liquidate” (Mbembe 2019, 130). If it didn’t destroy them, then it tried 
“either to devalorize them or to turn them into exotic objects” (Mbembe 2019, 130). At work 
here are value judgements and classifications made by the colonizers about the people they were 
trying to dominate. Condemning the ways in which the colonized lived made it easier to 
subjugate and maintain control over them because it emphasized their inferiority as colonial 
subjects rather than human beings who were independent. 
Making judgements and classifications in the context of Fanon’s cultural racism can also 
be traced back to Genesis because it is closely related to the concept of naming. Mbembe (2019) 
provides a particularly illuminating description of the disastrous psychological effects this can 
have on someone: 
“The essential human person, witnessing its dissolution in the thing, is suddenly 
stripped of all human substantiality and imprisoned in a crushing objectality. 
Others have ‘fixed’ me, ‘in the same way you fix a preparation with a dye.’ My 
‘blood congealed,’ here I am henceforth the prisoner of a vicious circle. A 
representative instance of the ‘white’ took my place and made my consciousness 
its object. Henceforth, this instance breathes in my place, thinks in my place, 
speaks in my place, monitors me, acts in my place” (133). 
The issue is that a person assigned a race or given a label still exists behind the silhouette 
imposed on them (Mbembe 2019, 32). Their imprisonment in the silhouette or image separates 
them from their essence (Mbembe 2019, 33). Mbembe (2019) believes that everything “starts 
with an identification” (151), that “to unveil one’s identity is also to recognize oneself” (151), to 
affirm one’s existence. This cannot happen if one is confined to an image. For Fanon, a person in 
this situation is unhappy because their existence involves living out the separation from their 
essence as if that were a part of their true identity, in “hating what they are and seeking to be 
what they are not” (Mbembe 2019, 33). This demonstrates the power of labeling. If someone is 
denied the ability to name themselves, they can’t develop a self-image with which to understand 
27 
 
 
themselves in the world. They are denied their humanity, which explains why slaves in the New 
World essential cogs in a global colonial and capitalist process of accumulation (Mbembe 2019, 
170) were. Instead of being considered as people, with agency and the right to be treated 
decently, they were seen as a means to an end. 
I have shown how racism was a driving force behind colonialism, but it has also played a 
role in democracy, which resulted in a form of separation. At first, this seems contradictory 
because in theory, brutality and physical violence should either be non-existent or at the very 
least brought under control in democratic societies, but Mbembe (2019) thinks that the brutality 
of democracies has been hidden from the public (16). He observes how the United States began 
as a pro-slavery democracy, where slaves were “foreigners” in a society of fellow humans 
(Mbembe 2019, 17). Thus, Mbembe (2019) considers a pro-slavery democracy to be: 
“Characterized by its bifurcation. Two orders coexist within it — a community of 
fellow creatures governed, at least in principle, by the law of equality, and a 
category of nonfellows, or even of those without part, that is also established by 
law. A priori, those without part have no right to have rights. They are governed 
by the law of inequality. This inequality and the law establishing it, and that is its 
base, is founded on the prejudice of race. The prejudice itself, as much as the law 
founding it, enabled a practically unbridgeable distance to be upheld between the 
community of fellow creatures and its others. Pro-slavery democracy, supposing it 
to be a community, could only be a community of separation” (17). 
The existence of a community entails some form of separation because, according to Mbembe 
(2019), we desire an enemy, an enemy that we can objectify, even though this terrifying object 
doesn’t (and never will) exist (43). Desire must continually invent it, so while it previously 
fixated on the “Negro” and the “Jew,” these are now known by other names: Islam, the Muslim, 
the Arab, foreigners, immigrants, and refugees (Mbembe 2019, 43). Colonialism and democracy 
are thus part of the same historical matrix because both are driven by a racism that 
metamorphoses, constantly creating new threats that must be addressed and kept in check. 
Control and surveillance are done through constructing concrete walls, wire fences, and security 
28 
 
 
structures like checkpoints, watchtowers, and trenches, as has been done in Palestinian towns 
surrounded by Israeli forces. 
Consequently, a security or surveillance state has emerged and been consolidated. In 
Mbembe’s (2019) view, it thrives on a state of insecurity which it instigates and to which it 
believes it is the solution (54). The security state holds this belief because it “presupposes that a 
‘cessation of hostilities’ between ourselves and those who threaten our way of life [which form 
an irreducible enemy who is endlessly transforming] is impossible” (Mbembe 2019, 54), creating 
a constant sense of fear and unrest. This resembles Gan’s (2013) myth of the good guys and bad 
guys, where the world’s salvation depends on the elimination of the “bad guys.” To conquer this 
perceived threat, a war is permanently waged which is global in its scope and whose “privileged 
theater of action is everyday life itself” (Mbembe 2019, 54). Its main concern is “to control 
human life in general, whether it is a case of its subjects or of those designated as enemies” 
(Mbembe 2019, 54).  
The aim of the security state’s project seems, to me, exceedingly paranoid. In my eyes, 
there is a significant difference between wanting to be prepared to defend oneself and constantly 
being on the lookout for, and instilling fear about, threats that may not even exist. The former is 
a natural and understandable tendency, but I think adopting the latter view is harmful. On an 
individual level, you become your own worst enemy. While imagination is certainly capable of 
wonderful things, it is also capable of effectively separating a person from the rest of the world 
because their fear of perceived threats is too great. Something similar can happen on a societal 
level, where society begins to be on the lookout for enemies within. One could argue that this is 
what is meant by the existence of a community entailing a form of separation, as that might bring 
one closer to the community (or communities) they’re a part of, but I’m wary of this claim. As 
29 
 
 
has been demonstrated with both racism and desire, metamorphosing to create new perceived 
threats has significant negative consequences, and I believe the same is true of the security 
state’s assumption that there can be no peace between “us” and our “enemies.” 
There are two main repercussions of the security state’s assumption, the first being a 
negative messianism. This messianism is not about salvation (Mbembe 2019, 106). In its minor 
version, it is about survival, sacrifice or being sacrificed (Mbembe 2019, 106). In its more 
extreme version, it means “collective suicide before the Apocalypse” (Mbembe 2019, 106). For 
Mbembe (2019): 
“Stories about an increasingly dangerous and insecure world in turn feed a thirst 
to trace and mete out ‘justice’ and retribution to dispersed anonymous and not-so-
anonymous enemies: from terror cells manufacturing AK-47s on 3-D printers to 
freelance ‘assassins with termite-sized drone armies’ to Google, Amazon, and 
Facebook, responsible for bundling ‘all our personal data—social security 
numbers, credit card numbers, nude photos, names of children, pets, and second 
cousins’ before selling them to data brokers or peddling them to identity-theft 
crime rings and pedophiles” (106-107). 
I don’t see how that fosters the growth of community, nor how it would give one a sense of 
security. As mentioned in the previous paragraph, it separates a person from the world, painting 
it as an evil and dangerous place, like a more extreme version of the idea of nature (animals) 
implied in Genesis. Instead of building relationships, it cuts them off, creating a comprehensive 
and isolating separation. 
The second main repercussion is the establishment of borders, which carries its own 
consequences. According to Mbembe (2019), “the aim of a society of security is not to affirm 
freedom but to control and govern the modes of arrival” (104). This means that “everything leads 
back to borders—those dead spaces of non-connection which deny the very idea of shared 
humanity, of a planet, the only one we have, that we share together, and to which we are linked 
by the ephemerality of our common condition” (99). More specifically, Mbembe (2019) means 
30 
 
 
borderization, where world powers “permanently transform certain spaces into impassable places 
for certain classes of populations” (99). To me, this effectively dooms humanity. By definition, 
humanity is collective. If we cannot share the planet in the relatively brief time (in the grand 
scheme of things) that we live on it, it seems like our existence is destined to fall short, which to 
me inevitably leads to despair because it implies that we will always be irrevocably separated. To 
wage war against our enemies “whose means of existence and survival we have previously 
destroyed” (Mbembe 2019, 99) using warheads and other bombs is not an effective way to live 
because it separates humanity. Yet “it is on the verge of defining the times in which we live” 
(Mbembe 2019, 100). 
In this section, I have detailed how the idea of separation appeared in Genesis, that one 
group of people, the humans, the “we,” had the God-given right to label everything else, the rest 
of nature, the “other.” This framework was flexible and was used to justify other projects 
involving the classification and domination of other groups of people, like European colonialism 
and the racism that drove it. In more modern times, this has manifested itself as a pro-slavery 
democracy and, in the present, a security state heavily influenced by Gan’s (2013) myth of the 
good guys and bad guys. Our ideas (or assumptions) regarding violence, separation, conflict, 
competitiveness, and hostility are so deeply embedded in our worldview that there seems to be 
no possibility for reconciliation between us and the enemies that threaten our very existence. We 
truly live in a society of enmity. 
To build on Mbembe’s (2019) ideas discussed in the preceding paragraphs, I think desire 
has created another enemy: the criminal. Although the concept of a criminal is not new, I believe 
it has recently become another one of the principal perceived threats to our society in the United 
States. In Necropolitics, Mbembe (2019) mentions how, through a process of dissemination and 
31 
 
 
inculcation, a “massive coating of nonsense, lies, and fantasies has become a kind of exterior 
envelope whose function has since then been to stand as substitute for the being, the life, the 
work, and the language of Blacks” (39). What once began as an appearance transformed, through 
classification, into a framework and finally into what he calls a “calcified shell” (Mbembe 2019, 
39), a second way of being in the world, that gradually consumes its victim. Similarly, I want to 
argue that desire has constructed a similar exterior of fantasies around the being, life, and work 
of criminals, both those who are incarcerated and those who have not yet been caught. In the 
next section, I will give a history of the prison system in the United States and its relationship 
with racism and Jim Crow laws, examining how it came to define criminals as a serious threat to 
the rest of society. 
 
 
 
 
 
 
 
 
 
 
 
 
32 
 
 
A History of the Prison System in the United States and Jim Crow 
  Shortly after achieving their independence, Americans questioned the death 
penalty, as well as severe punishment in general, views that resembled those of Bentham, 
Beccaria (2005), and Voltaire (O’Connor 2014). For them, the cause of crime was due to 
inequalities in classes and wealth (Morris & Rothman 1998, as cited in O’Connor 2014), so if 
their newly formed nation was formed on the bases of equality and class mobility, then there 
would be a decrease in crime (O’Connor 2014). However, the general public’s desire for social 
order remained, and the concept of prison appeared to balance the need to adequately punish 
people for crimes they committed so it would deter them in the future, with the means to 
rehabilitate criminals (Morris & Rothman 1998, as cited in O’Connor 2014). Thus, most prisons 
had rehabilitation-focused plans, the two most popular being the Auburn Plan and the 
Pennsylvania Plan (O’Connor 2014). Under the Auburn Plan, prisoners worked and ate together 
during the day, and were separated in isolated sleeping quarters at night, in cells, though they 
were allowed to read the Bible (Barnes 1921). Prisoners were required to always be silent, and a 
rigid daily schedule was enforced through disciplinary means like lockstep marching, special 
regulations in the dining halls, and whipping (Barnes 1921). In the Pennsylvania Plan, however, 
prisoners were confined to their individual cells the entire time they were serving their sentence 
(O’Connor 2014). The defining quality of American prisons during this time was their persistent 
eerie silence (Morris & Rothman 1998, as cited in O’Connor 2014). Rehabilitation, under these 
prison plans, was achieved through the establishment of habits and order during one’s sentence, 
as well as solitary confinement, all of which were thought to positively influence prisoners’ 
moral conduct upon reentering society. Though solitary confinement today is considered one of 
the worst forms of punishment imaginable, most reformers at the time were religious and thought 
33 
 
 
it would have an emancipatory effect on prisoners (Davis 2011, 46-47). One’s body was put in 
conditions of segregation and solitude so the soul could flourish, and the architecture and 
regimes of the prison were thought to reproduce the architecture and regimes of monastic life 
(Davis 2011, 47). 
According to O’Connor (2014), punishment underwent two major changes in this period 
during the 18th and 19th centuries. First, physical punishment was widely eschewed in favor of 
efforts to rehabilitate wrongdoers’ souls and characters through subjecting them to rigid routines 
and schedules. However, these rehabilitative practices took place behind the prison walls, which 
caused the second significant transformation: punishment was no longer a public spectacle, 
meaning that society became disconnected from, and increasingly less aware of, the experience 
of prison. In addition to physically separating them from the community, this created an 
imaginary divide between prisoners and everyone else (O’Connor 2014). Although rehabilitation 
was the main goal of the early prison systems in the U.S., society increased their disapproval of 
those who had to serve time. Thus, boundaries, both physical and mental, had been established 
between those who served time in prison, the “criminals,” the “wrongdoers,” and the rest of the 
public, the “innocent,” the “good guys” who did not want to be associated with the other. There 
were already traces of Gan’s (2013) myth of good guys and bad guys, but there needed to be 
more separation, and subsequent justification, for the criminal to become widely perceived as a 
major threat to society.  
Although the seeds of separation had been planted early in the founding of the first prison 
systems in the U.S., racism helped accelerate the divide between the criminal and the rest of the 
community and establish the former as an easily recognizable enemy. As mentioned earlier, 
Alexander (2011) argues that mass incarceration is a hidden, racialized form of social control 
34 
 
 
that effectively functions as a more modern form of the Jim Crow laws that imposed racial 
segregation. Like Mbembe (2019), Alexander (2011) observes how racism metamorphoses. 
According to her, the rules, and justifications that the political system uses to impose and 
maintain status relations, in this case racial hierarchy, evolve and change in response to 
challenges brought upon them (Alexander 2011, 21). Thus, the idea of race, as well as racial 
division, lived on even after the end of slavery. Racism functioned as a deeply embedded belief 
system based on unquestionable “truths,” namely that people of African origin were savage, that 
whites were inherently superior, and that slavery was for blacks’ own good (Alexander 2011, 
26). Using Gan’s (2013) idea of myths, whites were the “good guys,” and the blacks were the 
“bad guys.” However, once slavery was abolished, there was a need for a new way to control the 
“bad guys,” which entailed the development of a new racial order. 
Racism’s first metamorphosis after the end of slavery came in the form of the new Black 
Codes. These were laws passed by former slave states designed to regulate free blacks’ behavior 
in a way that resembled conditions during slavery (Davis 2011, 28). Actions like vagrancy, being 
absent from work, breaking job contracts, carrying firearms, and gestures or acts perceived as 
insulting were criminalized, but only if the offending person was black (Davis 2011, 28). This 
meant that former slaves could be legally sentenced to servitude in prison. It also helped develop 
a stigmatized image of the criminal. As mentioned earlier, Mbembe (2019) describes how racism 
creates an image that distorts one’s humanity and hides it from view. Due in part to the new 
Black Codes, this emerging image of the criminal portrayed wrongdoers as black. Because 
blacks were already viewed by many as less than human, and thus deserving of any harsh 
treatment or sentences, criminals were now regarded in a similar manner. This was important 
because it changed the goal of punishment in the U.S. prison system. While its aim had 
35 
 
 
previously been to rehabilitate wrongdoers, it now shifted more towards simply punishing them. 
Blacks criminalized and sentenced to prison could not be rehabilitated because they were 
considered less than human. According to this view, they couldn’t be rehabilitated, and they 
didn’t need to be. They were a threat to the rest of white society and needed to be surveilled and 
controlled. This was an early instance of what Mbembe (2019) called the emergence of a 
surveillance state. 
Although the Reconstruction Era marked a period of significant social and political 
advancement for blacks, racism again metamorphosed and manifested itself in the convict lease 
system. The list of meaningful legislative progress for blacks during Reconstruction includes the 
Thirteenth Amendment, which abolished slavery; the Civil Rights Act of 1866, granting African 
Americans full citizenship; the Fourteenth Amendment, which prevented states from denying 
citizens due process; the Fifteenth Amendment, which protected the right to vote from being 
denied on account of race; and the Ku Klux Klan Acts, which made interfering with voting a 
federal offense and violent transgression of civil rights a crime (Alexander 2011, 29). 
Additionally, the Freedmen’s Bureau, which provided resources and assistance to impoverished 
former slaves, was expanded and a public education system in South, giving blacks, as well as 
poor whites, their first opportunity to learn to read and write (Alexander 2011, 29). In response, 
the Ku Klux Klan experienced a resurgence, beginning a terrorist campaign, called 
“Redemption,” against Reconstruction governments that included bombings, lynchings, and mob 
violence (Alexander 2011, 30). This stopped the federal government’s efforts to enforce civil 
rights legislation and funding for the Freedmen’s Bureau was cut to such an extent that it 
effectively put the agency out of business. The new Black Codes enabled a large market for 
convict leasing, where prisoners were contracted out for their labor to the highest private bidder 
36 
 
 
(Alexander 2011, 31). Tens of thousands of blacks were arrested during this time, and many had 
to work off court costs and fines to be released (Blackmon 2008, as cited in Alexander 2011, 31). 
Since they couldn’t pay these “dues,” prisoners were sold and forced to work on lumber camps, 
brickyards, railroads, farms, plantations, and other corporations in the South (Alexander 2011, 
31). Compared to the period when slavery was legal, death rates were higher because the private 
contractors didn’t care at all about the health and well-being of their laborers, whereas slave 
owners needed their slaves to at least be healthy enough to survive hard labor.  
Convicts did not have significant legal rights and were considered slaves of the state. 
Although the Thirteenth Amendment abolished slavery, it permitted slavery as an appropriate 
punishment for a crime. A decision by the Virginia Supreme Court in Ruffin v. Commonwealth 
(1871) clearly indicated that convicts were legally indistinguishable from slaves: 
“For a time, during his service in the penitentiary, he is in a state of penal 
servitude to the State. He has, as a consequence of his crime, not only forfeited his 
liberty, but all his personal rights except those which the law in its humanity 
accords to him. He is for the time being a slave of the State” (as cited in 
Alexander 2011, 31).  
In the decade following Redemption, the convict population grew ten times faster than the 
general population, with prisoners becoming younger and increasingly African American, as 
well as having longer sentences (Alexander 2011, 32). It was the country’s first prison boom, and 
prisoners were disproportionately black. This further cemented the image of the criminal as 
African American, which in turn strengthened the idea that they should be punished, not 
rehabilitated. Drawing on Mbembe’s (2019) ideas, criminals’ humanity had been replaced with 
the image of an African American, which, due to previous fantasizing and imagining, already 
inspired uncertainty and fear. Thus, the image of the criminal also began to evoke 
unpredictability and terror, which helps explain why the prison population during Redemption 
contained a disproportionate number of African Americans and continues to do so today. 
37 
 
 
In response to Redemption, alternative philosophies of race relations emerged, and 
radicalism, whose leaders later formed the Populist Party in the late nineteenth century, held the 
most promise for African Americans. It was critical of large corporations, especially railroads, 
and the wealthy elite in the North and South. According to this view, the socially advantaged 
classes conspired to keep poor whites and blacks in an inferior economic and political position 
(Alexander 2011, 33). The Populists argued that working-class whites and African Americans 
had a common grievance (being held in a subordinate economic and political position) and a 
common oppressor, the wealthy whites (Woodward 2001, as cited in Alexander 2011, 33). Thus, 
they advocated for a multiracial, working-class movement against white elites, which 
emphasized racial integration as a symbol of their dedication to class-based unity (Alexander 
2011, 33). This inspired optimism and enthusiasm among African Americans throughout the 
South, as it seemed they would have true partners in a struggle for social justice (Alexander 
2011, 33). Initially, the Populist movement was highly successful in the South, helped by 
widespread discontent caused by agricultural depression during the 1880s and 1890s (Alexander 
2011, 33). The Populists went directly after the conservatives, then known as a party of privilege, 
and they achieved a series of political victories throughout the region (Alexander 2011, 33-34).  
Frightened by the Populists’ success, the conservatives appealed to white supremacy and 
utilized the tactics that had worked so well for them during Redemption, including intimidation, 
fraud, and terror (Alexander 2011, 34). Segregation laws, known later as Jim Crow laws, were 
proposed to drive a wedge between poor whites and African Americans and destroy the alliance 
between them. If lower-class whites maintained a sense of superiority to African Americans, 
they would be less likely to sustain interracial political alliances. While the Populists redirected 
working-class whites’ hostility from working-class African Americans toward the wealthy white 
38 
 
 
elite, the conservatives used an aggressive and uncompromising approach to again redirect that 
hostility back toward African Americans. 
In the end, the Populists gave in to the pressure and dissolved the biracial partnership. By 
the beginning of the twentieth century, every state in the South had codified laws that 
disenfranchised African Americans and discriminated against them in all aspects of life, leading 
to segregation in schools, churches, housing, jobs, restrooms, hotels, restaurants, hospitals, 
orphanages, prisons, funeral homes, and cemeteries (Alexander 2011, 35). Racism had once 
again metamorphosed into a new racial order, known as Jim Crow, and was the “permanent 
system” (Woodward 2001, as cited in Alexander 2011, 35), just as slavery had before it. Like 
slavery, Jim Crow appeared “natural” (Alexander 2011, 35), which was a sign that it had become 
one of the myths American society relied on. 
Although there has been debate among scholars concerning the precise end of Jim Crow, 
the public considers Brown v. Board of Education to be the beginning of its end (Alexander 
2011, 35). By 1945, there was an increasing number of whites in the North who believed the Jim 
Crow system would have to be modified, if not scrapped altogether (Alexander 2011, 35). This 
like-mindedness was due to several factors. First, African Americans had increased political 
power due to many of them migrating to the North, which also resulted in the growth of 
membership and influence of the National Association for the Advancement of Colored People 
(NAACP). The NAACP was particularly successful in its campaign to challenge Jim Crow laws 
in federal courts (Alexander 2011, 36). Second, the events of World War II provided an 
important ideological conflict. Although the U.S. was opposed to the crimes that the Third Reich 
carried out against European Jews, the continued existence of a racial caste system, which 
Alexander (2011) defines as a “stigmatized racial group [in this case, African Americans] locked 
39 
 
 
into an inferior position by law and custom” (12) made it difficult for the country to claim it was 
the leader of the “free world” (Alexander 2011, 36). Finally, there was concern that the absence 
of greater equality for African Americans would cause them to become more susceptible to the 
influence of communism (Alexander 2011, 36).  
According to Alexander (2011), Brown v. Board of Education, which ruled that racial 
segregation in public schools was unconstitutional, was important because it ended the “home 
rule” in the South regarding racial affairs. Though earlier decisions had slowly reversed the 
“separate but equal” dogma, Jim Crow had metamorphosed and adapted to the changes in the 
legal environment, meaning many Southerners were confident that the institution would persist 
(Alexander 2011, 36). However, in addition to abolishing segregation in public schools Brown 
also threatened to dismantle the entire system of legalized discrimination in the South, which had 
been in place for more than half a century (Alexander 2011, 36). 
The Brown decision was met with fury and rebelliousness throughout the South, like the 
reaction to emancipation and Reconstruction after the Civil War. North Carolina Senator Sam 
Erwin Jr. drafted a racist polemic called “the Southern Manifesto,” which pledged to fight to 
maintain Jim Crow laws by all legal means, receiving 101 out of 128 votes of support from 
Congress members from the eleven original Confederate states (Alexander 2011, 37). White 
Citizens’ Councils were formed in many Southern cities and towns, mostly made up of middle- 
to upper-middle-class whites in business and the clergy (Alexander 2011, 37). Similar to how 
Southern legislatures had passed the black codes in response to Reconstruction, five Southern 
legislatures passed nearly fifty new Jim Crow laws in response to Brown v. Board (Alexander 
2011, 37). Resistance in the streets also became violent, as the Ku Klux Klan committed 
castrations and killings, the bombing of black homes and churches, and violence against NAACP 
40 
 
 
leaders, who they beat, pistol-whipped, and shot (Alexander 2011, 37). All of this caused 
desegregation in the South to halt in the late 1950s. 
However, while the South was taking drastic measures to combat the Brown decision, a 
civil rights movement was simultaneously developing, encouraged by Brown v. Board and a 
changing political environment, both at the domestic and international level. Civil rights leaders, 
activists, and progressive clergy led boycotts, marches, and sit-ins in protest of the Jim Crow 
system, enduring fire hoses, police dogs, bombings, and beatings by white mobs (Alexander 
2011, 37). President Kennedy announced on June 12, 1963, that he would deliver a strong civil 
rights bill to Congress, indicating his alliance with the Civil Rights Movement. After Kennedy’s 
assassination, President Johnson ensured the passage of extensive civil rights legislation. The 
Civil Rights Act of 1964 legally dismantled the Jim Crow system of legal discrimination in 
public accommodations, employment, voting, and education (Alexander 2011, 38). The Voting 
Rights Act of 1965 eliminated numerous discriminatory barriers preventing African Americans 
from effectively participating in politics and mandated federal review of new voting regulations 
to prevent possible voting discrimination in the future. As a result, the percentage of African 
American adults registered to vote in the South increased between two and tenfold, depending on 
the state (Lawson 1976, as cited in Alexander 2011, 38). Black children were no longer 
segregated from their white peers, and miscegenation laws were declared unconstitutional, 
causing the rate of interracial marriage to climb (Alexander 2011, 38). 
Although there was significant progress in the political and social realms, civil rights 
activists worried that most blacks would remain in poverty without major economic reforms. 
Thus, economic issues became a principal focus of discontent, and boycotts, picket lines, and 
demonstrations were held to protest discrimination in accessing jobs, as well as the denial of 
41 
 
 
economic opportunity (Alexander 2011, 38). The most famous of these was the March on 
Washington for Jobs and Economic Freedom in August 1963, which drew President Kennedy’s 
attention to poverty and black unemployment (Alexander 2011, 38). Following Kennedy’s 
assassination, President Johnson called for an “unconditional war on poverty” in January 1964 
and weeks later proposed the Economic Opportunities Bill of 1964 to Congress (Alexander 2011, 
39).  
The new focus on economic reforms aligned the goals of the Civil Rights Movement with 
those of poor and working-class whites, who also sought them. Thus, the Civil Rights Movement 
became a “Poor People’s Movement,” as it promised to not only address black poverty, but white 
poverty as well (Alexander 2011, 39). This created a poor and working-class movement that 
transcended racial lines, something not seen since the Populist movement of the late nineteenth 
century. According to historian Gerald McKnight, Martin Luther King Jr. was “proposing 
nothing less than a radical transformation of the Civil Rights Movement into a populist crusade 
calling for redistribution of economic and political power” (McKnight 1998, as cited in 
Alexander 2011, 39). Once again, a major disruption in the country’s racial equilibrium had 
occurred, and if conservative whites wanted to maintain the racial order that had existed under 
Jim Crow, they would have to find a new order that was formally race-neutral—there could not 
be any explicit or clearly intentional racial discrimination (Alexander 2011, 40).  
Advocates of racial hierarchy introduced a new racial caste system that did not violate the 
law or current limits of political discourse by demanding “law and order” (Alexander 2011, 40). 
After Brown v. Board of Education, civil rights activists had used direct-action tactics to force 
Southern states to desegregate public facilities. Southern governors and law enforcement 
officials considered these tactics to be criminal and asserted that the rise of the Civil Rights 
42 
 
 
Movement was indicative of a breakdown of law and order (Alexander 2011, 40). From the mid-
1950s to late-1960s, conservatives systemically and strategically connected opposition to civil 
rights legislation to calls for law and order, claiming that King Jr.’s philosophy of civil 
disobedience was a principal cause of crime (Alexander 2011, 41). Civil rights protests were 
commonly portrayed as criminal rather than political, and the FBI began reporting significant 
increases in the national crime rate. Although the accuracy of these statistics was controversial, 
the reports received considerable national attention, and they served as further evidence that 
there was an ongoing collapse in lawfulness, morality, and social stability (Alexander 2011, 41). 
Additionally, riots broke out in Harlem and Rochester in the summer of 1964, followed by 
nationwide uprisings after King Jr.’s assassination in 1968, both of which supported the 
argument that civil rights for blacks resulted in widespread crime (Alexander 2011, 41). This 
distorted American society’s image of blacks, making them appear as perpetually angry, violent, 
and dangerous entities, a portrayal that left them devoid of any humanity. Thus, they were 
perceived as “the other,” an enemy that needed to be dealt with and potentially eliminated from 
society, perhaps not in terms of genocide, but certainly in terms of ever being equal. However, as 
acceptable discourse changed, this process could not be publicly advertised or described as 
racist, so segregationists had to find a race-neutral rhetoric. 
The racially sterilized rhetoric that emerged was “cracking down on crime.” Though now 
freely used by all politicians, conservatives who embraced the rhetoric at its introduction did not 
distinguish between the civil rights activists’ direct-action tactics, the violent rebellions in inner 
cities, and traditional economic or violent crimes (Alexander 2011, 41). These were all put under 
the heading “crime in the streets” (Edsall and Edsall 1992, as cited in Alexander 2011, 42). This 
served to unite the segregationists and the poor and working-class whites, who had been swayed 
43 
 
 
by the Civil Rights Movement, against a common enemy, the criminal, who was portrayed as 
black, as well as a serious threat to the segregationists’ and working-class whites’ way of life. 
The seeds of what Mbembe (2019) called a security or surveillance state had been planted, as the 
segregationists created a state of insecurity due to the perceived existence of a dangerous enemy. 
In the late 1960s and early 1970s, there were two competing opinions offered to the 
public concerning race, poverty, and the social order. Conservatives argued that poverty was 
caused by black culture, and all the criminal tendencies that supposedly were a part of it, while 
liberals believed that social reforms like the War on Poverty and civil rights legislation would get 
to the root causes of criminal behavior, instead focusing on the particular social conditions that 
would be most likely to generate crime (Alexander 2011, 44-45). Because lower- and middle-
class whites had experienced a disproportionate share of the costs of integration, and now had to 
compete with blacks for jobs and status, conservatives were able to characterize the liberal 
Democratic establishment, whose members were often sheltered and immune to these costs, as 
out of touch with ordinary working people. In 1968, 81 percent of Gallup Poll respondents 
agreed with the statement that “law and order has broken down in this country” and the majority 
blamed “Negroes who start riots” and “Communists” (Edsall and Edsall 1992, as cited in 
Alexander 2011, 45). Society’s “enemy” was becoming increasingly well-defined, and 
politicians took this image and altered it to appear as an even larger threat. 
During the 1968 presidential election, both the Republican candidate, Richard Nixon, and 
the independent segregationist candidate, George Wallace, centered their campaigns around the 
idea of “law and order,” collecting 57 percent of the vote combined (Edsall and Edsall 1992, as 
cited in Alexander 2011, 46). Nixon devoted seventeen speeches to the topic, and one of his 
television advertisements, using ominous music and images of protestors, bloody victims, and 
44 
 
 
violence, explicitly told voters to reject the lawlessness of civil rights activists and support 
“order” in the U.S. (Weaver 2007, as cited in Alexander 2011, 47). This helped explain the 
sizable decline in the belief among working-class whites that the condition of the poor (or those 
failing to succeed), was due to a faulty economic system that needed to be challenged and fixed. 
Instead, the blame was placed on the individuals, that they were responsible for putting 
themselves in their disadvantaged situation. While the Civil Rights Movement had united blacks 
and working-class whites, the conservatives’ political campaign during the late 1960s and early 
1970s served to drive a wedge between them based on race, framing it as the hardworking blue-
collar whites against the poor blacks who did not want to work. 
Additionally, Nixon called for a “war on drugs,” declaring drugs “public enemy number 
one” even though he did not propose any dramatic shifts in drug policy. This was also used by 
Ronald Reagan during his presidential campaign, who continued the strategy, used by previous 
conservatives, of exploiting racial hostility or resentment for political gain, while not making any 
explicit references to race (Edsall and Edsall 1992, as cited in Alexander 2011, 47). Reagan’s 
appeal as a candidate, according to one political insider, was due to “the emotional distress of 
those who fear or resent the Negro, and who expect Reagan somehow to keep him ‘in his place’ 
or at least echo their own anger or frustration” (Edsall and Edsall 1992, as cited in Alexander 
2011, 47). As mentioned earlier, the segregationists had created a state of insecurity among poor 
and working-class whites, and Reagan’s campaign thrived on this vulnerability. His most famous 
anecdote was one of a Chicago “welfare queen [a term that became a description for “lazy, 
greedy, black ghetto mother]” who had “80 names, 30 addresses, 12 Social Security cards,” and 
whose “tax-free income alone is over $150,000” (Edsall and Edsall 1992, quoting New York 
Times, Feb. 15, 1976, as cited in Alexander 2011, 48). The food stamp program was described as 
45 
 
 
a vehicle that allowed “some fellow ahead of you buy a T-bone steak” while “you were standing 
in a checkout line with your package of hamburger” (Edsall and Edsall 1992, quoting 
Washington Post, Jan. 28, 1976, as cited in Alexander 2011, 48). These racialized appeals were 
frequently accompanied by promises to be tougher on crime and to increase the federal 
government’s role in fighting it. Reagan portrayed the criminal as “a staring face—a face that 
belongs to a frightening reality of our time: the face of the human predator” (Kirschten 1981, as 
cited in Alexander 2011, 48). The image of the criminal in the U.S. had previously been 
portrayed as black, unpredictable, and alarming, and this predatory depiction only served to 
increase the fear surrounding it. All these tactics were effective; 22 percent of all Democrats 
defected from the party to vote for Reagan in the 1980 presidential election (Alexander 2011, 
48). 
After his election, Reagan tried to fulfill his promise to enhance the federal government’s 
role in fighting crime. However, there were complications stemming from the fact that dealing 
with street crime has historically been the responsibility of state and local law enforcement 
(Alexander 2011, 49). Despite an initial period of confusion and controversy over the issue, the 
Justice Department announced that it would halve the number of specialists assigned to identify 
and prosecute white-collar criminals and instead focus on street crime, particularly drug-law 
enforcement (Beckett 1997, as cited in Alexander 2011, 48-49). The War on Drugs was officially 
announced by President Reagan in October 1982. At the time, less than 2 percent of the 
American public considered drugs to be the nation’s most critical issue (Beckett 1997, as cited in 
Alexander 2011, 49). This did not matter to Reagan because, according to Alexander (2011), the 
drug war from the outset was less about public concern about drugs and more about public 
concern about race. Through waging a war on those who used and dealt drugs, Reagan fulfilled 
46 
 
 
his promise to “crack down on the racially defined ‘others’—the undeserving” (Alexander 2011, 
49).  
With the War on Drugs officially declared, the budgets of federal law enforcement 
agencies shot up. FBI antidrug funding increased from $8 million to $95 million between 1980 
and 1984 (Beckett 1997, as cited in Alexander 2011, 49). From 1981 to 1991, Department of 
Defense antidrug allocations increased from $33 million to $1,042 million (Alexander 2011, 49). 
In the same period, Drug Enforcement Administration spending went from $86 million to $1,026 
million, and FBI antidrug allocations grew from $38 million to $181 million (Beckett 1997, 
citing Executive Office of the President, Budget of the U.S. Government 1990, as cited in 
Alexander 2011, 49). Conversely, funding was dramatically reduced for agencies responsible for 
drug treatment, prevention, and education. The budget of the National Institute on Drug Abuse 
was cut from $274 million to $57 million between 1981 and 1984, while antidrug funds given to 
the Department of Education went from $14 million to $3 million (Beckett 1997, citing U.S. 
Office of the National Drug Control Policy, National Drug Control Strategy 1992, as cited in 
Alexander 2011, 49).  
To ensure that “the new Republican majority” would continue to support the 
aforementioned expansion of the federal government’s law enforcement activities and that 
Congress would continue funding it, the Reagan administration launched a media offensive to 
justify the War on Drugs (Beckett 1997, as cited in Alexander 2011, 49). The key part of this 
offensive was to sensationalize the appearance of crack cocaine in inner-city neighborhoods, 
communities that had been devastated by deindustrialization and ever-increasing unemployment. 
This strategy also proved to be effective, as in June 1986, Newsweek declared crack to be the 
biggest story since the Vietnam War and Watergate, and Time called it “the issue of the year” 
47 
 
 
two months later (Alexander 2011, 51). Thousands of stories about the crack crisis flooded the 
media, typically featuring black “crack whores,” “crack babies,” and “gangbangers,” all of which 
reinforced the stereotypes of black women as selfish and irresponsible “welfare queens” and 
black men as “predators” (Reinarman and Levine 1995, as cited in Alexander 2011, 51).  
With the media frenzy surrounding crack in full swing by September 1986, the House 
passed legislation allocating $2 billion to the antidrug crusade, required military participation in 
narcotics control efforts, allowed the death penalty for drug-related crimes, and allowed the 
admission of some illegally obtained evidence in drug trials (Alexander 2011, 52). Later in the 
month, President Reagan signed the Anti-Drug Abuse Act of 1986. Among other harsh penalties, 
it included mandatory minimum sentences for the distribution of cocaine, as well as far more 
severe punishment for the distribution of crack (normally associated with blacks) than the 
distribution of powder cocaine, which was normally associated with whites (Alexander 2011, 
52).  
According to Alexander (2011), few criticisms of the legislation could be heard leading 
up to its enactment, but Congress did revisit drug policy in 1988. The resulting legislation was 
again extremely punitive, extending beyond traditional criminal punishments and including new 
“civil penalties” for drug offenders (Alexander 2011, 52). The Anti-Drug Abuse Act allowed 
public housing authorities to evict any tenant who allowed any form of drug-related activity to 
occur on or near public housing premises and eliminated many federal benefits, including student 
loans, to anyone convicted of a drug offense (Alexander 2011, 52). The act also expanded the 
death penalty for serious drug-related offenses and imposed new mandatory minimum prison 
sentences for drug offenses, including a five-year mandatory minimum for simple possession of 
cocaine base with no intent to sell, which also applied to first-time offenders (Alexander 2011, 
48 
 
 
52-53). The severity of this punishment was unprecedented in the federal system, as, prior to 
1988, one year of imprisonment had been the maximum for the possession of any amount of any 
drug. Eventually, the legislation passed by a vote of 346 to 11. This result was indicative of the 
success of the segregationists,’ and later the conservatives,’ campaign to create a new racial 
order after the Brown decision and the end of Jim Crow. The resources invested in fighting the 
War on Drugs, as well as the unprecedented increase in the severity of punishments for drug-
related offenses demonstrated that the U.S. was in a state of insecurity due to the perceived 
existence of dangerous, predatory blacks, who were supposedly abusing crack and uninterested 
in working. Their image was replaced by that of a criminal, making them the enemy that had to 
be fought against, even though the segregationists and conservatives were the one who created 
their image and status as the enemy in the first place.  
Reagan’s successor, President George Bush Sr., also employed implicit racial appeals, 
having seen the successes of other conservative politicians in mobilizing the poor and working-
class whites who had previously been loyal to the Democratic Party. His most famous appeal 
was the Willie Horton ad, featuring a dark-skinned black man, who was a convicted murderer, 
escaping while on a work furlough and subsequently raping and murdering a white woman in her 
home (Alexander 2011, 53). The ad blamed Bush’s opponent, Massachusetts senator Michael 
Dukakis, for the white woman’s death, since he had approved the furlough program. For months, 
the ad played on news stations and was subject to political commentary, and despite being 
controversial, was highly effective, as it ended Dukakis’s chances of becoming president 
(Alexander 2011, 53). 
Once elected, Bush Sr. enthusiastically supported the drug war, claiming in August 1989 
that drug use was the “most pressing problem facing the nation” (Beckett 1997, as cited in 
49 
 
 
Alexander 2011, 54). A New York Times/CBS News Poll reported shortly after 64 percent of 
respondents now thought drugs were the most significant problem in the U.S., the highest 
number ever recorded (Beckett 1997, as cited in Alexander 2011, 54) and a drastic change from 
the public opinion at the beginning of Reagan’s presidency. This change in public opinion did 
not correspond to an actual change in reality: the level of public concern regarding crime and 
drugs was weakly correlated with actual crime rates, but highly correlated with political 
initiatives, campaigns, and partisan appeals (Beckett 1997, as cited in Alexander 2011, 54).  
By the early 1990s, mass incarceration emerged as the new racial caste system, using a 
similar political dynamic to that which resulted in the birth of the old Jim Crow laws. In the late 
nineteenth century, Populists eventually gave in to the political pressure created by the 
conservatives, who had successfully appealed to poor and working-class whites by proposing the 
openly racist Jim Crow laws. At the end of the twentieth century, politicians, regardless of 
political affiliation, were competing to win the votes of poor and working-class whites who felt 
threatened by racial reforms and deindustrialization. Former allies of blacks adopted a political 
strategy that required them to prove how “tough” they could be on the “other,” what Alexander 
(2011) called “the dark-skinned pariahs” (55). 
The increase in law enforcement budgets caused a subsequent increase in prison and jail 
populations. In 1991, the Sentencing Project reported that the number of people who were 
incarcerated in the U.S. was unprecedented in world history and that one-fourth of young African 
American men were now controlled by the criminal justice system (Alexander 2011, 55). 
Between 1984 and 1989, nine prisons were opened in California alone, whereas it had taken 
more than a century to build the first nine prisons in the state (Davis 2011, 13). Twelve more 
prisons were built in the 1990s, and by 2002, 157,979 people were incarcerated in thirty-three 
50 
 
 
prisons, thirty-eight camps, sixteen community correctional facilities, and five tiny prison mother 
facilities throughout California, demonstrating how simple it was to produce “a massive system 
of incarceration with the implicit consent of the public” (Davis 2011, 14). 
This massive expansion of prisons and their populations occurred during the presidency 
of Bill Clinton, who promised during his 1992 presidential campaign that he would never allow 
any Republican to be perceived as tougher on crime than himself (Alexander 2011, 55). Once he 
was elected, President Clinton supported the idea of a federal “three strikes” law in his 1994 
State of the Union Address, which would require any person with three serious offenses 
(typically felonies) to serve a mandatory life sentence in prison. The $30 billion crime bill sent to 
President Clinton in August 1994 was considered a victory for Democrats, enabling them to 
“wrest the crime issue from the Republicans and make it their own” (Masci 1994, as cited in 
Alexander 2011, 55). The 1994 Crime Bill created dozens of new death penalty offenses (notable 
ones included non-homicidal narcotics offenses, murder of a federal law enforcement officer, 
civil rights-related murders, and drive-by shootings resulting in death), mandated life sentences 
for some three-time offenders, and authorized more than $16 billion for state prisons and the 
expansion of police forces at both the state and local level (Alexander 2011, 55). The Justice 
Policy Institute observed that “the Clinton Administration’s ‘tough on crime’ policies resulted in 
the largest increases in federal and state prison inmates of any president in American history” 
(Johnson 2008, as cited in Alexander 2011, 55).  
According to Davis (2011), the current construction and expansion of state and federal 
super-maximum security prisons, which serve to address disciplinary problems within the penal 
system, draws on the conception of the penitentiaries in the eighteenth and nineteenth centuries, 
which were designed to reform their inmates through long-term solitary confinement. The 
51 
 
 
difference between the penitentiaries and supermaxes, however, is that descriptions of the latter 
do not mention individual rehabilitation. When Charles Dickens visited the Eastern Penitentiary 
in Philadelphia in 1842, he was convinced that it was “kind, humane, and meant for reformation” 
(as cited in Davis 2011, 48) even though he also believed that the people running it 
underestimated the cruel effects of solitary confinement. A description of supermaxes in a 1997 
Human Rights Watch report makes no such reference: 
“Inmates in super-maximum security facilities are usually held in single cell lock-
down, commonly referred to as solitary confinement … [C]ongregate activities 
with other prisoners are usually prohibited; other prisoners cannot even be seen 
from an inmate’s cell, communication with other prisoners is prohibited or 
difficult (consisting, for example, of shouting from cell to cell); visiting and 
telephone privileges are limited” (as cited in Davis 2011, 50).  
To me, the idea of the supermax is an essential part of establishing what Mbembe (2019) called a 
security or surveillance state. Supermaxes thrive on a state of insecurity, the fear of the existence 
of criminals who are so reprehensible and threatening that, according to a retributive model of 
justice, they deserve to be permanently locked up and segregated from the rest of society and 
from each other. Indeed, Davis (2011) notes that “no one—not even the most ardent defenders of 
the supermax—would try to argue today that absolute segregation, including sensory 
deprivation, is restorative and healing. The prevailing justification for the supermax is that the 
horrors it creates are the perfect complement for the horrifying personalities deemed the worst of 
the worst by the prison system” (50). There is no concern for the individual, nor respect for their 
rights. Instead, prisoners’ movement and conduct are constantly controlled by video monitors 
and remote-controlled electronic doors (Davis 2011, 50) due to their status as the “enemy,” 
which was the second key element of Mbembe’s (2019) surveillance state. The surveillance state 
assumes that there can be no reconciliation between us and our “enemies,” meaning the latter 
must be continually monitored and controlled. There is no possibility for reconciliation because 
52 
 
 
“we” are different from our “enemies.” They deserve the treatment they get because they are in 
some way worse than we are. Less human than we are. 
This last point is what bothers me most about retributive justice. While I agree that a 
person should be held accountable for their wrongdoings, the retributivist system focuses too 
much on trying to punish an offender in proportion to their crime. Because the primary focus is 
on proportional punishment, the person who committed the crime is labeled as “bad,” “criminal,” 
or as the “enemy,” all of which serve to separate them from us. Separating them from us causes 
us to lose sight of their humanity, or even to choose to ignore it. While this may make justifying 
their punishment easier, I don’t think it’s right. We assume that they are less human than we are, 
but that assumption is based on a label and a part of a worldview that has been deeply embedded 
in our society—one of Gan’s (2013) myths. Mbembe (2017, 2019) mentions in both Critique of 
Black Reason and Necropolitics that there is only one world, a world that we, humanity, share. In 
order “to build a world that we share, we must restore the humanity stolen from those who have 
historically been subjected to processes of abstraction and objectification” (Mbembe 2017, 182). 
We must “rehumanize” the “Other,” which means recognizing the humanity of the individuals 
who we might have previously considered to be our “enemies.” This can be difficult, but it’s the 
reason restorative justice is so important. It gives earnest consideration to everyone involved in 
an offense, including those who we may initially assume don’t deserve it. 
 
 
 
 
 
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“Rehumanizing” the “Other” 
The thoughts of French philosopher, mystic, and political activist Simone Weil give 
crucial insight on the importance of restorative justice because she recognizes the desires and 
needs we have in common as human beings. I chose to include her work in my thesis because 
she devoted her life to improving social conditions for the disadvantaged and expressed several 
ideas on the human condition that I believe are closely related to restorative justice’s focus on the 
needs of everyone involved in a crime. Her thought brings attention to the existence and 
importance of human needs that everyone shares, which I think is crucial if we want to 
“rehumanize” the criminal, or the “Other.” 
Weil’s thought rests on her conception of a transcendental reality, which she considers to 
be the foundation for all good. She believes that “there is a reality outside the world, that is to 
say, outside space and time, outside man’s mental universe, outside any sphere whatsoever that 
is accessible to human faculties” (Weil, 1981, 5). Corresponding to that transcendental reality, 
“at the centre of the human heart, is the longing for an absolute good” (Weil 1981, 5). Similar to 
how the reality of this world is the only basis for facts, this other reality is the only basis for good 
and is the unique source for all good that can exist in this world (Weil 1981, 5). Despite it being 
transcendental, a person has the power to turn their love and attention toward this other reality 
through consenting to do so (Weil 1981, 5). This consent may be expressed, but it doesn’t 
necessarily have to be; for Weil, all that matters is that it has in fact taken place (Weil 1981, 5-6). 
These two things, the longing in one’s heart for absolute good and the latent ability to direct 
one’s love and attention to a transcendental reality that is the foundation for all good, form a link 
that attaches every person to that other reality (Weil 1981, 6). If one recognizes that reality, they 
54 
 
 
also recognize that link and thus regard every human being as something sacred to whom they 
should show respect (Weil 1981, 6).  
For Weil (1981), this is the only feasible motive for universally respecting all human 
beings. The reality of this world, the one we live in, is filled with variety and inequality (Weil 
1981, 6). We direct our attention and love to certain people, while ignoring others (Weil 1981, 
6). Even if they don’t completely escape our attention, we at most see them as “items of a 
collectivity” (Weil 1981, 6). According to Weil (1981), “if our attention is entirely confined to 
this world, it is entirely subject to the effect of these inequalities, which it is all the less able to 
resist because it is unaware of it” (6). One cannot feel equal respect for things that are unequal 
unless one directs their respect towards something that is identical in all of them (Weil 1981, 6). 
Weil (1981) admits that people are unequal regarding all their relations with the things of this 
world, but the link to the transcendental reality of the good is identical in all of them (6). Thus, 
human beings are identical in that “they can be thought of as consisting of a centre, which is an 
unquenchable desire for good, surrounded by an accretion of psychical and bodily matter” (Weil 
1981, 6-7). 
The idea that a desire for good is an essential part of human nature is worth discussing 
because it avoids the harmful effects of labeling discussed by Gan (2013), Mbembe (2019), and 
Nagler (2014), particularly if one is labeled as “evil” or as the “enemy.” When you label 
someone as such, they are given no chance to redeem themselves or to make things right. The act 
of labeling them like that assumes that they can’t. They are bad, (might) have always been bad, 
and will always be bad. As Alexander (2011) demonstrated, they carry that label for the rest of 
their lives, and it affects their future job and housing opportunities after they leave prison. But 
what if they are willing to improve themselves or to reconcile with the people that they harmed? 
55 
 
 
I think that they should be given the chance to do so, which is why I think Weil’s (1981) 
assumption about the desire for good being a core aspect of human nature is so important. Not 
every wrongdoer may make use of the opportunity to improve themselves or to make things right 
with those they harmed, but we’ll never know if they’re capable of doing so if we never give 
them the chance.  
The other significant point about Weil’s (1981) assumption is that it unites us as human 
beings by focusing on what we have in common instead of separating us based on our 
differences. That isn’t to say we don’t have differences. Mbembe (2019) recognizes that plurality 
is a basic human condition (74), but “the world belongs to all of us, equally, and we are all its 
coinheritors, even if our ways of living in it are not the same” (Mbembe 2017, 182). To me, this 
illustrates that while we may be different in some ways, those differences do not have (and 
should not have to) irrevocably divide us and pit certain groups against each other. Nagler (2014) 
mentioned that all violence begins with the refusal to acknowledge another as fully human (17). 
If we instead recognize that we are all human and assume we all desire good, I think that will 
bring us closer to the justice we seek when dealing with crime and wrongdoing. 
The next important part of Weil’s (1981) thinking is her idea of obligation. Obligation is 
“concerned with the needs in this world of the souls and bodies of human beings, whoever they 
may be” (Weil 1981, 8). The basis for this lies in the indirect expression of respect for human 
beings. The expression is indirect because it is inspired by the link between human beings (who 
are in this world or reality) and the transcendental reality that is the foundation of all good, 
meaning that respect can’t, in this world, find any form of direct expression. Respect for human 
beings comes from the connection between our innate desire for good and our sensibility. Every 
need has a corresponding obligation and vice versa, and Weil (1981) believes that there are no 
56 
 
 
other obligations as far as human affairs are concerned. In her view, anyone whose love and 
attention are directed towards the transcendental reality of the good recognizes that they are 
bound to remedy, according to their responsibilities and extent of their power, “all privations of 
the soul and body which are liable to destroy or damage the earthly life of any human being 
whatsoever” (Weil 1981, 8). This obligation cannot be canceled under any circumstances, and 
the thought is present to all people, though in varying forms and degrees of clarity, meaning that 
some of us are bound to be inclined to accept it. Importantly, though, Weil (1981) believes that 
to refuse it is to become criminal (8). We, as human beings, have needs pertaining to both our 
bodies and souls, which I interpret as physical and mental needs, that should be met and taken 
care of by everyone else, to the best of their ability and responsibility. Weil (1981) considers 
them to be sacred, meaning that their satisfaction “cannot be subordinated either to reasons of 
state, or to any consideration of money, nationality, race, or colour, or to the moral or other value 
attributed to the human being in question, or to any consideration whatsoever” (10). This is 
another way in which we are brought closer together instead of being pulled apart. Our bodies 
and minds require certain things to function properly and every person, as a human being, should 
have those satisfied. However, I think we can get so caught up in satisfying our own needs that 
we forget that other people have needs, just like we do. Regarding the criminal justice system, in 
a retributive sense, we focus so much on the fact that the victim’s needs were violated that we 
fail to recognize that the perpetrator may have needs as well. My worry is that, in our desire to 
punish the perpetrator, we may not meet some of their needs, which I think is harmful to them. 
Everyone is obligated to take care of everyone else’s needs, to the extent they can. This includes 
criminals, who we may not think deserve it at first. Weil’s (1981) ideas on obligations and needs 
57 
 
 
remind us that every person has needs that merit consideration, regardless of how that person is 
labeled. 
According to Weil (1981), the main needs of the human body are food, warmth, sleep, 
health, rest, exercise, and fresh air (10). The needs of the soul comprise a longer list, and there 
are several that I believe are relevant to this thesis. The first is equality. Equality for Weil (1981) 
is the public recognition, expressed in institutions and manners, that an equal degree of attention 
should be given to the needs of all human beings. This relates to the ideas discussed in the 
previous paragraph, as I believe that separation has been used throughout history to prioritize the 
needs of certain groups over the needs of others. In retributive justice, I think the needs of the 
victims have been given much more consideration than the needs of the criminal, whereas in 
Weil’s (1981) framework, they should be given equal consideration because they are both human 
beings.  
The next three needs of the soul, which I shall mention and discuss together, are the need 
for solitude and privacy, for social life, and to be rooted in a natural environment. Solitude and 
privacy are self-explanatory. I take social life to mean opportunities for human connection. 
Weil’s (1981) examples of natural human environments include a person’s country, a place 
where their language is spoken, places that share a culture or historical past with them, their 
professional milieu, and their neighborhood. She believes anything that uproots a person or 
prevents them from becoming rooted is criminal. I want to discuss these three needs together 
because I don’t think the current prison system in the U.S. does an adequate job of meeting all of 
them. One could argue that a person does get solitude and privacy in prison, and I acknowledge 
that. However, one might get too much solitude and privacy, to the point where it jeopardizes the 
other two needs of the soul. Solitary confinement does not allow social life opportunities, and 
58 
 
 
this is harmful to a person even if their time in solitary confinement was meant to reform them. 
When Kane (2013) interviewed Wilbert Rideau, the man who spent more than four decades at 
Angola prison and more than a decade in solitary confinement, he mentioned how solitary 
confinement strips a person of their self-identity, their sense of place in the world, and their 
existing emotional bonds. I think this fits Weil’s idea of uprooting a person, or preventing them 
from becoming rooted, and believe that the current prison system in the U.S. is too harsh of a 
punishment because it violates several basic needs of the human soul. 
However, Weil (1981) does mention punishment as a need of the soul (12). She defines it 
as “reintegration with the good” (12). This is a key point. Punishment, in retributive justice, is 
based on vengeance. When you want to punish an offender based on vengeance, you want them 
to suffer just as much as or more than the victim suffered. If they suffer less, that isn’t considered 
just to the victim. They can suffer more than the victim, though, because they are “bad” or “evil” 
and deserve it. But how can suffering be measured? There isn’t a system to quantify it. So how 
can one know if the punishment is proportional to the crime? Furthermore, the victim isn’t taken 
into consideration in a retributivist system because the state and the court handle it. Yet the 
victim is one of the two parties most involved in a crime (along with the offending party). I 
mention this because Weil (1981), despite her deep concern for and awareness of the needs of 
the human body and soul, still believes punishment is necessary for the human soul. Thus, we 
need to examine punishment a little differently because I don’t think a purely retributivist 
definition is adequate. I think that punishment can be constructive instead of focusing mostly on 
suffering. Therefore, we will turn to restorative justice to examine this possibility. 
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Restorative Justice 
According to New Zealand criminologist and restorative justice specialist Allison Morris 
(2002), restorative justice is best understood in contrast to conventional justice systems, which 
typically see offending as a violation of the state’s interests. Decisions about how the offense 
should be dealt with are made by people representing the state (Morris, 2002). Restorative 
justice, however, puts these decisions in the hands of the people who were directly involved: 
victims, offenders, and their communities (Morris, 2002). The goal, according to Morris (2002), 
is to try to reconcile the victims, the offenders, and their communities by addressing each party’s 
needs and reaching agreements about the best way to deal with the conflict. This approach 
emphasizes human rights, tries to heal the harm caused by the offending, and attempts to make 
things right (Morris, 2002). 
Howard Zehr (2015), an American criminologist who is a pioneer of restorative justice, 
has a slightly different view of restorative justice compared to Morris (2002). Unlike Morris 
(2002), Zehr (2015) does not believe restorative justice is primarily about forgiveness or 
reconciliation (13). While he recognizes that it provides a context whether either or both may 
occur, he believes it to be an unnecessary outcome, and that there should not be pressure to make 
those things happen. Instead, he considers the reparation of harm to be the main goal of 
restorative justice, which will be discussed more later in this chapter. 
There are several other key points Zehr (2015) makes about what restorative justice is 
not. First, the term “restorative” does not mean a return to past circumstances. In many cases, it 
is extremely difficult, if not impossible, to return to a state in which it seems as if the harm had 
not occurred. On the contrary, restorative justice often involves moving toward a new sense of 
identity or newer, healthier relationships. What it restores is a sense of hope and community to 
60 
 
 
our world (Zehr 2014, 14). Second, restorative justice does not necessarily mean mediation, 
where a third party facilitates an encounter between the parties involved because the offending 
party may not have been identified or a party may be unwilling or unable to meet (Zehr 2014, 
15). Thus, restorative practices are not limited to an encounter, but even if one occurs, the parties 
are not necessarily on a level moral playing field, as in a mediated conflict. Responsibility is not 
always shared on all sides in all criminal cases, with victims of rape or burglaries being two 
examples (Zehr 2015, 15). The neutral language of mediation can be misleading, which is why 
“conferencing” or “dialogue” are more accurate terms to use in the field. Finally, restorative 
justice is not a particular program, nor does it follow a specific blueprint. All models are 
dependent on culture, meaning programs should be built from the bottom up, by communities, 
through dialogue and assessment of their needs and resources (Zehr 2015, 17). This is important 
because it is more sensitive to the social, political, and cultural context in which a crime takes 
place, meaning that the decisions being made on how to proceed are better informed about the 
situation. Instead of a map, restorative justice can be thought of as a compass, something that 
offers direction and invites dialogue and exploration (Zehr 2015, 17). 
Like Weil (1981), restorative justice considers needs and considers the roles implicit in 
crimes. In the modern retributive system, the state and the offending party are the main 
stakeholders in a crime, but restorative justice expands the circle of stakeholders to include those 
harmed, those causing harm, and community members. Each party’s needs are considered, and 
these needs are referred to collectively as “justice needs” (Zehr 2015, 21). However, it is 
important to note that victims’ needs are the primary focus of restorative justice, since they are 
the ones who have been harmed, but the other “justice needs” are still given thoughtful 
consideration (Zehr 2015, 30). 
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Crime is legally defined as against the state, so in the current retributivist system, the 
state is the victim, or the party that has been harmed. However, this neglects the needs of crime 
victims, which are usually not met. These are information, truth-telling, empowerment, and 
restitution (Zehr 2015, 22-23). Information means answers to questions the victim has about the 
offense or the offender, such as why and how the crime happened or what has happened since. 
They need real information, which I take to mean honest and authentic information, as opposed 
to speculation or legally constrained information, and this usually comes from having access 
(either direct or indirect) to the offender (Zehr 2015, 22). Truth-telling means the opportunity to 
tell the story of what happened. The experience of a crime can be traumatic because it can upset 
one’s self-image or worldview. A viable way to overcome this experience is to “restory” one’s 
life by telling their story in significant settings (which does not necessarily have to be in court, 
but rather places where they feel safe) where they can receive acknowledgement from others, 
particularly to the party that caused the harm (Zehr 2015, 22). This gives the offending party the 
opportunity to understand the impact of their actions. Empowerment means a sense of control 
over oneself and one’s life. Experiencing a crime can take this away from a person, whether it’s 
a sense of control over their property, their body, their emotions, or their dreams (Zehr 2015, 22-
23). The opportunity to be involved in one’s own case can help return this sense of 
empowerment to them. Lastly, restitution is important, not only in terms of restoring actual, 
concrete losses to the victim, but also because of the symbolic recognition it implies (Zehr 2015, 
23). When a person becomes a victim of a crime, they may wonder why it happened to them and 
whether they are to blame for the fact that it happened to them. If the offending party tries to 
right the harm, even if only partially, that gesture can mean that they are taking responsibility 
and that the victim is not to blame, which can be reassuring for the victim. 
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In a restorative framework, offenders also have needs, which may seem strange at first. 
According to retributive justice, all they “need” to do is be held accountable for their actions, 
which means getting the punishment they deserve. Restorative justice also considers 
accountability to be one of an offender’s needs, but the definition is different. Accountability, in 
a restorative sense, means facing up to what one has done, then, with a little encouragement from 
others, trying to understand the impact of the harms they’ve caused, and finally taking the steps 
to put things as right as possible (Zehr 2015, 24). Curiously, this is not encouraged in a 
retributive system, as acknowledging one’s responsibility can risk lengthier prison sentences. 
Thus, the legal process and prison experience can potentially heighten an offender’s sense of 
alienation from society, ironically leading to them feeling like victims of the system and society 
(Zehr 2015, 24). In addition to accountability, offenders may also need encouragement, whether 
that is to experience personal transformation (e.g., healing personal traumas, seeking treatment 
for addiction or other problems, and improving personal competencies) or to integrate into the 
community (Zehr 2015, 25). For a small number of wrongdoers, temporary restraint may be a 
need if they are unable or unwilling to take any of the steps previously mentioned. 
Communities and their members also have needs arising from crime, since they are 
impacted and may have responsibilities to victims, offenders, or both. Former judge Barry Stuart, 
and national restorative justice leader Kay Pranis, both restorative justice advocates, argue that 
when the state takes over in a criminal case, it undermines our sense of community (Pranis, 
Stuart, and Wedge 2005, as cited in Zehr 2015, 26). There is no definitive definition of a 
community within the restorative justice field, but Zehr (2015) believes a good starting point is 
to look at who cares about the people or about the offense and ask how they can be involved in 
the process (Zehr 2015, 37–38). Communities need to provide attention to their concerns as far 
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as the community in question is considered a victim; to provide opportunities to build a sense of 
mutual accountability; and to provide chances and encouragement to take on their obligations for 
the welfare of their members, both those who have been harmed and those who have caused 
harm (Zehr 2015, 26). I think communities, in the context of restorative justice, need to be self-
defined because they are made up of the people who care about the crime committed and want to 
be involved in doing something about it. 
Restorative justice defines crime differently than the current retributivist criminal justice 
system, which stems from its worldview. According to the retributivist view, crime is a violation 
of the law and the state. The violation creates guilt and justice demands that the state determine 
blame for that guilt and impose pain as punishment (Zehr 2015, 30). This process is based on the 
worldview mentioned by Nagler (2014), where we see ourselves as separate, physical, and 
competitive, a perspective that I have tried to trace back to Genesis. Any dispute is a matter of 
“me against you” (Nagler 2014, 14), where one of us must win and the other must lose. In 
contrast, a restorative lens assumes that we are all interconnected (Zehr 2015, 29). This idea that 
all things are connected to each other in a web of relationships is present across many cultures: in 
Hebrew, the word is shalom; for the Maori, whakapapa; for the Navajo, hozho; for many African 
cultures, the Bantu word ubuntu; and for Tibetan Buddhists, tendrel (Zehr 2015, 29). I think 
Simone Weil (1981), with her thoughts about the human desire for good, obligations, and the 
needs of the human body and soul, Achille Mbembe (2017, 2019), with his reminder that there is 
only one world that we all share despite our differences, and Nagler (2014), with his idea that all 
violence begins with the failure to recognize another as human, all illustrate a similar point. We, 
as human beings, all share something in common, something that unites us. Thus, crime or 
wrongdoing is a wound in the community, damage to the web of relationships, and that harm 
64 
 
 
needs to be repaired as much as possible (Zehr 2015, 29-32). In this view, violations create 
obligations. While the first obligation may be on those who caused the harm to make things 
right, victims and community members also have obligations to participate in the process and 
decide what justice requires in a particular case and how these harms can be repaired (Zehr 2015, 
34). These are the three pillars of restorative justice: harm and needs, obligations, and 
engagement. 
In sum, restorative justice is about balancing concern for all parties involved. While it 
focuses on the harms and needs of the victim first, it also considers the harms and needs of the 
community involved and of those causing harm. Next, it addresses the obligations that result 
from those harms, again recognizing that offenders, the community, and society may all have 
differing obligations. Finally, it uses collaborative processes to involve those with a legitimate 
stake in the situation, including the victims, offenders, communities, and larger society, to work 
to repair the harm and right the wrongs to the extent possible (Zehr 2015, 43). The main goals of 
restorative justice programs are to place important decisions into the hands of those most 
affected by crime; make justice a more healing and (ideally) transformative process, and to 
reduce the likelihood of future offenses (Sharpe 1998, as cited in Zehr 2015, 48). 
 
 
 
 
 
 
 
 
 
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Counterarguments to Restorative Justice 
One criticism of restorative justice is that it erodes legal rights. The argument goes that it 
purposely fails to provide procedural safeguards or to protect the rights of offenders so that 
offenders more readily accept responsibility for their wrongdoing. If offenders are more open to 
taking responsibility for their actions, it makes it easier for participants to agree on how to 
address a crime. First, Morris (2002) notes that there is nothing in the values of restorative 
justice, which were detailed in the previous chapter, that denies or erodes offenders’ rights (601). 
It could be argued that the protection of offenders’ rights could be put into practice in diverse 
ways, and this is true, but recall that Zehr (2015) mentions that models of restorative justice are 
dependent on the cultures they are developed in. In South Australia, juveniles participating in 
conferences can consult with lawyers before admitting to an offense and before agreeing to the 
proposed outcome, even though the lawyers may not be present at the conference itself (Morris 
2002, 601). In Real Justice conferences in the U.S., however, lawyers at conferences have a 
watching brief and can interrupt the proceedings if they feel that the young person’s legal rights 
are being breached (Morris 2002, 601). If facilitators at a family group conference in New 
Zealand have concerns about young offenders’ legal rights, they may request an appointment of 
a lawyer, which is paid for by the state (Morris 2002, 601). Based on these examples, restorative 
justice does not undermine offenders’ legal rights. Rather, it places a different priority on the 
protection of offenders’ rights because it doesn’t use a procedure where offenders’ lawyers are 
their primary spokespeople and whose purpose is to minimize the offenders’ responsibility as 
much as possible. 
Another common criticism of restorative justice, particularly regarding violence against 
women, is that trivializes crime. According to this view, restorative processes decriminalize 
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men’s violence against their partners and return these instances to a “private” matter rather than a 
crime or more serious offense. However, Zehr (2015) points out that crimes have a societal and 
more personal and interpersonal dimension (19). While the legal system in the U.S. focuses more 
on the societal dimension (e.g., society’s interests and obligations represented by the state), 
restorative processes tend to emphasize personal, interpersonal, and community aspects of crime, 
something the legal system does not prioritize. Since domestic violence against women is an 
interpersonal matter, restorative processes are better equipped to deal with these cases. Morris 
(2002) points out that denouncing the violence in front of the abuser’s family and friends means 
the message is loud and clear for those who matter most to the abuser (603). Furthermore, it 
could be argued that crime is trivialized in the retributive legal system because in those justice 
processes, victims don’t always play a role (except as witnesses) and offenders are passive 
observers. In contrast, we have already seen how restorative justice encourages the participation 
of all parties involved as one of its three pillars. 
A third criticism of restorative justice is that it fails to “restore” victims and offenders. I 
think the validity of this criticism, as well as the validity of any response, depends on one’s 
definition of “restore,” which I will attempt to do here. Zehr (2015) mentioned how experiencing 
a crime can cause a victim to lose their self-identity, worldview, and empowerment or their sense 
of control over their body, property, and life in general. Assuming that this is what should be 
“restored” regarding victims, then research has shown that victims who have taken part in 
restorative processes are highly satisfied with reparative agreements, have lower levels of fear, 
and appear to have increased understanding of why the offense occurred, as well as how likely it 
is to reoccur (Morris 2002, 604). Although it is true that full restoration, in a monetary sense, 
does not always occur, since offenders typically have limited resources, Morris (2002) thinks 
67 
 
 
that this restoration could be considered a state responsibility. Research also shows, however, 
that victims are typically more interested in emotional reparation as opposed to monetary 
reparation. One could argue that emotional reparation does not always happen either and that is 
true. Recall that Zehr (2015) acknowledges that forgiveness and reconciliation are not the 
primary focus of restorative justice, that they don’t always happen, and there should be no 
pressure to make them happen (13-14). However, he does acknowledge that restorative processes 
provide a context for both to happen, and they do appear to occur more frequently than in the 
criminal justice system. Indeed, in a meta-analysis of twenty-two studies, which examined the 
effectiveness of thirty-five restorative justice programs, victims who participated in restorative 
processes were significantly more satisfied compared to those who had participated in the 
traditional justice system (Morris 2002, 604).  
“Restoring” offenders means them taking responsibility for their wrongdoing, as well as 
its consequences. What is being restored in them is a sense of control to right what they’ve done 
and a belief that the processes and outcomes were fair (Morris 2002, 604). Maxwell and Morris 
(1993) demonstrated that young offenders in New Zealand felt involved in the decisions being 
made in family group conferences (as cited in Morris 2002, 604). Another study done by 
Maxwell (2001) on 300 young people involved in family group conferences in New Zealand 
showed that more than half felt involved in making decisions; that more than two thirds said they 
had the opportunity to say what they had wanted to say; that over 80 percent understood the 
decision; and that two thirds said they agreed with it (as cited in Morris 2002, 604-605). 
Research in Australia refers to young offenders seeing conferencing as fair, and reports that they 
are satisfied with both conference processes and outcomes (Morris 2002, 605).  
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The final argument to acknowledge here is that restorative justice does not “restore” 
offenders if it does not give them access to treatment programs they need to address the 
underlying causes of their offending in the first place (e.g., drug and alcohol abuse programs). 
Similarly, restorative justice does not “restore” victims if it doesn’t give them access to the help 
and support they need. However, Morris (2002) argues that the critics are pursuing the wrong 
target. Treatment programs for offenders and effective support for victims certainly should 
accompany good restorative practices, but she believes it is the state’s responsibility to fund 
them.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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The Practicality of an Integrative Approach to Retributive and Restorative 
Justice 
The biggest criticism, as well as obstacle, to restorative justice is people’s belief in the 
degree to which it generates real change in the world. Zehr (2015) admits that restorative justice 
is not necessarily a replacement for the current legal system in the U.S., and it isn’t the answer in 
all situations. Even in New Zealand, where restorative justice is widely implemented in the 
juvenile justice system, youth courts still exist as a form of the Western legal system (albeit a 
restorative justice-oriented one) that functions as a backup and guardian of basic human rights. 
Zehr (2015) also admits that restorative justice is not necessarily an alternative to prison. While 
he thinks Western society, and the U.S., uses too many prisons, he recognizes that restorative 
practices may sometimes be used together with, or parallel to, prison sentences (20). Restorative 
justice might reduce our reliance on prisons, but it would not eliminate the need for some type of 
incarceration. So, if both retributive and restorative justice are flawed if they’re functioning on 
their own, an integrative approach to both would be a helpful solution.  
In fact, Zehr (2015) believes retributive and restorative justice are not polar opposites and 
have more in common than we might think. Both theories of justice recognize a moral intuition 
that balance has been upset by wrongdoing. Both theories attempt to vindicate through 
reciprocity, to balance the scales (Zehr 2015, 75). Thus, the victim deserves something, and the 
offender owes something. Both agree that the offender should be treated as a moral agent and 
that there should, in theory, be a proportional relationship between the act and the response. They 
differ, however, on how the obligations should be fulfilled and how the balance should be 
achieved again. According to retributive justice, pain vindicates, but this can be 
counterproductive for both the offender and the victim because it only increases the harm being 
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done. Restorative theory, in contrast, says that what vindicates is the acknowledgement of the 
harms being suffered by the victim, along with an honest and active effort to encourage the 
offender to hold themselves accountable, right their wrongs, and examine the causes of their 
behavior. Zehr (2015) notes how restorative justice “has the potential to affirm all parties and 
help them transform their lives” (75). What if we applied that statement to the prison system in 
the U.S.? 
If restorative justice is not necessarily an alternative to prison, then perhaps we can apply 
restorative principles to prisons. One way to do this would be to make education programs 
available in all prisons. If prisoners want to educate or improve themselves, there is no harm in 
that. On the contrary, it would give the opportunity not only to understand the harm that they 
caused, but also become better so they have a future once they leave prison and can contribute to 
society. Davis (2011) mentions the influential role prison literature has played in campaigns 
around the prison calling for reforms or its abolition altogether (54-55). In his autobiography, 
Malcolm X mentions that he had never been as free in his entire life as he was during his 
incarceration in the 1950s, when he read a dictionary and copied each word onto his hand (Davis 
2011, 56). According to him, prisoners who demonstrated an unusual interest in reading were 
thought to have started on a journey of self-rehabilitation and were thus allowed to check out 
more than the maximum number of books (Davis 2011, 56). In the aftermath of the Attica prison 
rebellion in New York, the leaders of the uprising made demands concerning their diet, 
improving the quality of the guards, more realistic rehabilitation programs and better education 
programs. This was because  
“Prisoners very early recognized the fact that they needed to be better educated, 
that the more education they had, the better they would be able to deal with 
themselves and their problems, the problems of the prisons and the problems of 
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the communities from which most of them came” (Eddie Ellis, as cited in Davis 
2011, 57-58). 
 
 
The Attica Rebellion led to the establishment of an on-site four-year college program at 
Greenhaven Prison, which lasted twenty-two years until President Clinton’s Crime Bill. Some of 
the prisoners who earned their degrees at Greenhaven pursued postgraduate studies after their 
release, demonstrating that prison education could indeed produce people who could offer their 
newly acquired knowledge and skills to communities outside prison (Davis 2011, 58).  
The biggest issues with the prison system in the U.S. become clear when they are 
compared with the prison systems in other countries. O’Connor (2014) conducted a comparative 
analysis of the prison systems in the U.S., the Netherlands, and Germany. At the time of the 
analysis, the U.S. had 2.2 million prisoners, which was more than Russia and China (the 
countries with the second and third most prisoners, respectively) had combined. In comparison, 
the Netherlands had 13,749 prisoners, while Germany had 64,379. The reason for this 
discrepancy is that the U.S. uses prison time as the punishment for nearly all crimes, whereas 
Germany and the Netherlands reserve prison sentences for only violent crimes (O’Connor 2014). 
Lesser, nonviolent crimes are punished with fines, community service, and probation (O’Connor 
2014). In both Germany and the Netherlands, the maximum prison sentence is 15 years, with life 
sentences being reserved for murder cases. The average prison sentence in the U.S., in contrast, 
is 29 years, but the increased use of imprisonment and prolonged sentencing does not deter 
future crimes (O’Connor 2014). Another key difference is that both Germany and the 
Netherlands allow furloughs and mandatory work obligations, whereas the U.S. does not allow 
furloughs and occupation is optional (O’Connor 2014). While there isn’t much evidence that 
72 
 
 
furloughs and mandatory work programs help prisoners while they are in prison, they can earn a 
salary for their work, which helps immensely when they are released. In the U.S., however, 
prisoners often leave facilities with only a bus ticket and about fifty dollars (O’Connor 2014). 
From this, we see that the U.S. does not help their prisoners’ well-being by imprisoning 
them more frequently or for longer. When compared to the Netherlands and Germany, American 
prisoners also do not benefit from the lack of furloughs and limited educational and work 
programs. I think a large part of this is due to how our society and our current justice system 
views criminals. As demonstrated in previous chapters, the image of the American criminal is 
racialized, perceived as dangerous, violent, and predatory, and is thus undeserving of any 
opportunity to repair the harms they’ve caused or to improve themselves and their communities. 
But this image is a fantasized one, created by desire long ago, and has gradually metamorphosed 
into a monstrous enemy that instantly inspires fear and repulsion, or uneasiness at the very least. 
The goal of this thesis was to help people reflect on this image, examine it, and think about 
whether that image reflects reality. I don’t think it does. We’ve been living in, and continue to 
live in, a society of enmity, and that has caused many of us to forget that prisoners are human 
beings, too. Although it’s unreasonable to expect all of them to be willing or able to rehabilitate, 
we never even give them the chance to. American prisons don’t just punish their inmates; they 
practically incapacitate them. I do see the merit of retributive justice in that it recognizes 
wrongdoing has occurred, and that something needs to be done to restore the balance, but I don’t 
think that punishment through pain is the right answer. In practice, it’s too easy to cross the line 
between proportional punishment and excess punishment. While I don’t believe prisons should 
be abolished altogether, since I do think prison time can be a reasonable penalty, I also think that 
one’s time in prison (if they deserve to be in there at all) should be spent in a constructive 
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manner. Alexander (2011) mentions re-entry programs for criminals that give them the training 
and education they need to get high-paying or, alternatively, viable and rewarding careers; the 
idea that prison workers should be retrained for meaningful jobs instead of locking people up; 
that on-demand drug treatment should be provided for all Americans; and that barriers to 
reintegration, like the laws that function to discriminate against drug offenders in every aspect of 
their lives, should be eliminated (221). An integrative approach to retributive and restorative 
justice allows for punishment, but not to the point where one becomes uprooted. I don’t see the 
point of punishing someone if you don’t give them an opportunity to become better. 
The final thing I want to cover is the generalizability of this project. While I certainly 
hope that it will change how American society views criminals, the ideas discussed in this thesis, 
particularly regarding seeing the “Other” as human, can also be applied to other marginalized 
groups, including (but not limited to) homeless people, immigrants, people with disabilities, and 
the LGBT community. On a wider scale, it will help us with existential threats, like the 
possibility of nuclear war (and our relationships with other countries) and climate change (and 
our relationship with nature and Earth). In American society, there are many things, whether they 
are the pressures of daily life or deeply embedded assumptions and philosophies that our 
worldviews are based on, that cause us to see things outside ourselves and “our” groups as less 
than human and therefore less important. But they aren’t and I don’t think we should allow 
ourselves to forget that. Thus, the overarching aim of my thesis, and its main takeaway, is to 
bring awareness to those assumptions and philosophies and to develop a worldview that is more 
holistic and compassionate.
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