Outlawing The Outlaw State
Sept. 2023
Philosopher and prison abolition advocate Mechthild Nagel’s “Ludic Ubuntu Ethics: Decolonizing Justice,” compares effective justice in precolonial communities with the carceral system in the United States. Can anti-authoritarian, community-based models offer a useful alternative to the US court system? Nagel deconstructs the criminal justice system in the United States, and examines examples of Ubuntu ethics in South Africa’s post-apartheid Truth and Reconciliation Commissions, the Gacaca courts after the Rwandan genocide, and some Restorative Justice efforts in the United States. She addresses the roots of the criminal justice system and its role in the social welfare system and offers a restorative justice paradigm.
“Ubuntu” is a Bantu word that describes the relationship of the self to the community: “I am because you are,” or “I am because we are,” implying a network of obligations and responsibility for each other’s wellbeing. “Ludic,” from Latin, means playful, as opposed to rigid Kantian concepts – based on rational thinking – which discount lived experience and context. Nagel writes that in the US system, justice has come to mean vengeance and punishment. A ludic Ubuntu justice would restore peace and safety to the community after a harm has been committed, through full consideration of each person’s relationships and obligations to others.
Nagel reminds the reader that, in the United States, prison abolition effectively already exists for those who are well connected. It cannot be said that we have a universal system of laws when a class of people lives exempt from its rules. Police who attack unarmed civilians are not punished, except in very rare circumstances. The Sackler family, like other corporate criminals, are exempted from prosecution for their role in causing the opioid epidemic. So embedded are our cultural beliefs in who is dangerous and who is not that even juries faced with incontrovertible evidence will fail to indict, much less convict, privileged persons who deliberately or callously harm others.
At the same time, there is another, broader class of people whose victimhood is treated as natural and unremarkable. A black drug dealer shot by a police officer, or a prostitute who has been raped elicits no social outrage, no media attention. Not only are such victims considered to be “asking for it,” for living as best they can within their economic reality, if they apply for justice and thereby become entangled with the police, they may end up in jail.
Nagel calls this class of people exempted from the law the Outlaw State, which originated in colonial times when the European invaders refused to answer for crimes committed against the Indians. A white man could murder an Indian without being punished by English courts, but a retaliatory murder by the Indians justified the extermination of their entire tribe. “I argue that it is the state itself that is devoted to strategic lawlessness, designating certain groups to live ‘beyond the pale.’… The outlaw state is not bound by universal principles of morality.”
The ideology of the court system “affirms the socially connected and powerful,” Nagel writes, and it practices vengeance on the socially marginalized. The Outlaw State divides society into those who are punishable and those who are not. It is dominance- and violence-based.
It also includes a vast, mostly unreported-upon other side: family courts, social workers, and Child Protective Services. The welfare system’s policing of families creates a foster-care-to-prison pipeline and continues the processes of family separation first practiced on indigenous and enslaved people.
“In addition to the United States having the unfortunate status as the world’s largest jailor, it also holds the record in foster placement the world over.” Further, the 1997 Adoption and Safe Family Act incentivized children’s removal from their families with financial rewards for social service agencies that moved children quickly into adoption. BIPOC children are far more likely than white children to be removed from the home and placed in foster care; BIPOC parents far more likely to be cited for neglect. The onus of the surveillance state is on poor mothers, and the consequences for them and their children are dire: family separation has traumatic and far-reaching affects. At the same time, Nagel writes, “The industries associated with the family regulation system are thriving at the expense of the children and the parents.”
Poor mothers are policed by the departments of social services through mandatory drug tests, drop-in home visits by social workers, and a constant stream of mandatory forms and permissions that require recipients of aid to solicit information and permissions from landlords, medical personnel, prospective and current employers, ex-partners and other relatives. There is no privacy and no commitment to poor parents’ rights to raise their own children; poverty itself is transmuted into child abuse, as children are removed to wealthier, whiter homes by social workers with police support. There is little redress through the courts, which accept the Child Protective Service workers’ recommendations: “The parents’ testimony has no worth against the privileged testimonial voices of the state enforcing an unwritten white middle-class codex.”
Nagel writes, “CPS reports are replete with reprimands of the following kind: the mother makes insufficient eye contact with her children or does not hug the child. Her parenting skills are considered ‘inappropriate’ or downright dangerous: take the case of a mother being cited for bringing chicken nuggets to a supervised lunch visit. Family court judges rarely wonder why ‘appropriateness’ is used as a standard when the law specifies ‘neglect’ or ‘imminent danger’ as grounds for removal of a child.”
Beside the fact that foster care can be unsafe and abusive, removal from the home is traumatic for the hundreds of thousands of children seized by social workers (with police escorts), sometimes to fulfill adoption quotas encouraged by federal law. “Such excessive transfer would be labeled child trafficking if it were not done by the power of the paternalist state.”
Serious consideration of abolishing prisons must include addressing children’s safety in a radically different way. Families need to be strengthened rather than torn apart. People need to be brought together and helped to form strong communities, rather than being traumatized by separation and isolation.
Examples of restorative justice
She writes about a judge in Mali, a country that has a low incarceration rate; Malians widely consider prisons a toxic relic of colonialism. On the street, a woman chastised the son of a judge publicly, accusing the judge of being a man who “steals people.” The judge was embarrassed, took the point, and responded by being less punitive in his sentencing. (Imagine that happening here!)
Maya Angelou’s autobiography describes another example of traditional community justice. While she was living in Africa, Angelou decided to divorce her husband. The friend-and-relative circle around her and her husband convened to discuss the marriage, question both parties about the reasons for the marriage’s dissolution, and render (or not) their approval of a divorce. The process took a long time and a lengthy discussion, and could not be more different from the antagonistic process required by U.S. courts. Successful or not, such a process at least aims toward reconciliation and greater peace between the affected parties, rather than producing winners and embittered losers; it involves listening to those being judged, rather than a top-down verdict by a strange authority figure.
However, although community justice models may be more effective in interpersonal issues, Nagel found that government-sponsored models of restorative justice failed to address harms sponsored or supported by the state. The South African Truth and Reconciliation courts sought to bring peace to the country after apartheid by using community-based models of traditional justice. It was not logistically possible to incarcerate all the individual perpetrators of racist attacks after apartheid ended. The TRCs brought those who had committed harm together with the families of their victims in a process of truth-telling, possibly performative remorse, forgiveness and reconciliation. Nagel gives Bishop Desmond Tutu – the architect of the TRCs – credit for what he was trying to do, but notes that the greatest harm, the wholesale theft of land from the African people by the white invaders, was not addressed. With black Africans still ghettoized and separated from the land, justice and peace have not been achieved.
In Rwanda, the Gacaca courts also faced an impossibility: bringing peace to a country where thousands of the inhabitants had massacred more than a million of their neighbors. So many people were involved in the slaughter that incarcerating them all was just not possible. So, basing the courts on a traditional community justice model, the Gacaca, the government set out to reconcile the living inhabitants to one another and prevent a retributive massacre. But Nagel points out that the original Gacaca courts dealt with petty crimes like theft or family disputes. Serious crimes like murder were the province of the chiefs. Trutht-elling and forgiveness, furthermore, cannot be forced upon anyone.
She writes that the Gacaca courts became perverted from creating peace between those who committed the genocide and their victims’ families, and instead became a vehicle for vengeance – not necessarily for those directly involved, but for Tutsi families who had fled the country in 1959, thirty years before the genocide took place. It was certainly vengeance and not justice operating in the case of a Hutu woman who hid her wounded Tutsi husband to protect him during the massacre, appeased one of the attackers by having sex with him, and was later prosecuted by the Gacaca for sleeping with the enemy and being a “collaborator.”
Finally, Nagel looks at models of restorative justice practiced in the United States today. In Hawai’i, a traditional form of community-based justice, the Ho’oponopono, is used in diverting youth and families from the criminal court system. Unfortunately, because these restorative justice programs are sponsored by the government, it’s hard to know how well they would work in a pure form. As they are, participants who fail are remanded to the criminal justice system. Further, if the Ho’oponopono elders are not punitive enough, the criminal court judge may take a case away from them.
In the end, “Ludic Ubuntu Ethics” advocates for turning away from the carceral system and creating community systems of harm reduction, justice and healing that avoid government involvement. In some places, this is already happening. Instead of directly attacking the criminal justice system – a suicidal move – people are avoiding it altogether. They create organizations like SOS in New York City to help others dealing with homelessness or mental health crises; they rely on one another for help, rather than the government.
Even with community justice models integrated into the current system, Nagel concludes that the system is rotten from the root, and attempts to reform it have so far fallen short of creating real justice and real peace.
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