A Theory of Injustice for Truly Disadvantaged Blacks

What duties do black citizens owe to a biased “justice” system?

By Jody D. ArmourFebruary 17, 2018

A Theory of Injustice for Truly Disadvantaged Blacks

Dark Ghettos by Tommie Shelby. Belknap Press: An Imprint of Harvard University Press. 352 pages.

MORALLY AND POLITICALLY, how should Americans in general and black Americans in particular think about poor black criminals, and how should poor black criminals think about themselves? These questions were front and center when USC’s Center for Law and Philosophy and its Center for Law, History and Culture hosted a symposium in December on Dark Ghettos: Injustice, Dissent, and Reform, a work of political philosophy and ethics by black Harvard philosophy professor Tommie Shelby. This bold and incisive book reframes the racial justice debate roiling the United States today, focusing on the relationship between “dark ghettos” and residential segregation, cultural configurations, reproductive choices, single-mother families, joblessness, crime, and the racialized mass incarceration dubbed (by Michelle Alexander) “The New Jim Crow.”

Referring to truly disadvantaged black neighborhoods as “dark ghettos” and to their residents as “ghetto denizens” may strike a sour note with some readers. Even though, in one sense, “ghetto” merely means “a quarter of a city in which members of a minority group live especially because of social, legal, or economic pressure,” it is also often used as a derogatory adjective — as in the statements “That’s so ghetto” (to mean something unrefined, low-class, cheap, and inferior) or “he/she is ghetto” (to mean someone unrefined, low-class, cheap, and inferior). This pernicious sense of ghetto inspired a book entitled 150 Ways to Tell If You’re Ghetto (1997), by Shawn Wayans, Suli McCullough, and Chris Spencer, which is full of one-liners such as: “You know you’re ghetto if you’ve ever snuck a 40-ouncer into church” or “… if you’re hooked on ebonics.” Although the word originated in Europe to describe Jewish quarters in cities, in the context of US history its meaning has mutated to refer primarily (though not exclusively) to disadvantaged urban enclaves that are majority black and to behaviors that are stereotypically associated with the residents of such inner-city neighborhoods.

At the USC symposium, Shelby addressed his provocative nomenclature, pointing out that he follows distinguished black theorists like Kenneth B. Clark in deploying the sometime epithet as a term of art. I personally think the title Dark Ghettos more effectively captures the moral tensions, nuances, and paradoxes of race, place, and class in the United States’s most maligned and marginalized neighborhoods than a title such as “Truly Poor Ethnic Enclaves” ever could. As someone who uses the N-word in my own Critical Race Theory scholarship, I found Shelby’s critical reflections on his use of the G-word — an edgy, loaded, to some even offensive term — thought-provoking. Like the N-word, “ghetto” can be troublesome in some respects but uniquely effective in others: both words can be jagged-edged epithets that cut and wound, but, when used with care and precision, both can also forge unique connections and provoke special insights. So it is fitting that the last chapter of Shelby’s book centers on Nas, an artist who deftly wields the N-word in his politically charged gangster rap, just as Shelby deploys the G-word with surgical dexterity in reframing the debate about truly disadvantaged blacks.

When I say he “reframes” this debate, I mean that he foregrounds issues of basic justice usually kept in the background in these discussions. This gestalt shift makes it possible to view poor and oppressed blacks not as hapless victims of impersonal forces in need of help or rescue by complicity-free Good Samaritans but instead as fellow citizens disadvantaged by an unjust social system we all participate in. From this systemic perspective, the duty to address the plight of poor blacks is not about charity, pity, or mercy, it’s about justice, and discharging that duty of justice may require those advantaged by our unjust social structure to relinquish their advantages.

Shelby criticizes many commentators, policymakers, and ordinary citizens who disregard these basic issues of fairness, instead viewing dark ghettos merely as social problems to be solved rather than as consequences of injustices we must collectively own up to. To be more specific, he points out three critical issues buried by the popular but narrow “medical” focus on “what ails poor blacks”:

1) The narrow focus on alleviating the burdens of poor blacks takes for granted gross racial inequalities in the distribution of wealth and power in society (“status quo bias”).

2) This narrow focus also leads social observers to mistake resistance, rebellion, and dissent (e.g., refusing to do menial, low-wage, dead-end work or conform to certain dress codes and rules of decorum) for pathology or dysfunction (“downgraded agency”).

3) And the narrow focus on poor black victims diverts attention from those of us who have been unjustly enriched by our inequitable social structure (the “unjust-advantage blind spot”).

To foreground these issues of basic justice and hold them in bold relief, Shelby’s book views dark ghettos through a “systemic-injustice” framework that focuses on the fairness of social structures. It was moral philosopher John Rawls who made the overall justice of social arrangements the focus of his 1971 book A Theory of Justice (a work my USC colleague Marshall Cohen rightly heralded as “magisterial” in a 1972 New York Times book review). Rawls arrived at three normative tests for judging a social scheme’s overall justice: equal liberty, fair equality of opportunity, and the difference principle. Injustice, from this standpoint, is the failure of social institutions to satisfy these tests and hence live up to what the ideal principles of justice demand. But what are the obligations of the state and its citizens, including its oppressed citizens, when serious injustices — major deviations from the ideal principles — are identified? In such cases we need a Theory of Injustice, if you will — what Rawls refers to as “a nonideal theory which specifies and justifies the principles that should guide our responses to injustices.” In essence, Dark Ghettos gives us a theory of injustice for truly disadvantaged blacks.

Injustices — deviations from the ideal principles of justice — can be small or great, minor or serious, so some injustices may be tolerable while others (slavery and Jim Crow, for instance) may be clearly intolerable. In obvious cases of intolerable injustice, John Rawls and Tommie Shelby are of one mind: we do not have obligations to submit to institutions that exceed the limits of tolerable injustice. In the words of Rawls: “Unjust social arrangements are themselves a kind of extortion, even violence, and consent to them does not bind.” By this logic, with one of the nation’s largest populations of homeless residents (75 percent of whom are black), Skid Row in downtown Los Angeles is one of the United States’s starkest expressions of structural and institutional violence. And prison cells brimming with black bodies may also express structural and institutional violence — though we’ll soon see how hotly contested this claim can be.

The gestalt shift Shelby’s systemic-injustice perspective invites and supports constitutes a frontal assault on “personal responsibility” and “politics of respectability” approaches to the plight of poor blacks, according to which problems that disproportionately afflict blacks (such as crime and racialized mass incarceration) must be attributed to their bad choices, lack of personal responsibility, and moral deficiencies rather than to social oppression. These kinds of moral condemnations of (mostly poor) black criminals were very popular not only among non-black Americans but also among many blacks during the crack plague of the 1980s and its festering aftermath. The mass incarceration of blacks soared to levels that shock the conscience today, in hindsight, but that did not shock the consciences of many blacks who — either directly, by supporting “tough on crime” DAs and enacting draconian anti-crime legislation, or indirectly, by Otherizing and demonizing disproportionately poor black criminals trapped in dark ghettos — helped to fuel this unjust process.

For instance, 13 of 20 voting members of the Congressional Black Caucus voted for the Anti-Drug Abuse Act of 1986, which ushered in a new era of mandatory minimum sentences for possession of specified amounts of cocaine and a 100-to-1 sentencing disparity between distribution of powder and crack cocaine. In 1997, black Harvard Law Professor Randall Kennedy’s influential Race, Crime, and the Law championed a politics of respectability in criminal matters whereby he exhorted upright and respectable African Americans to distinguish and distance themselves morally, socially, and politically from wicked, irresponsible, and disreputable members of the community. And no one better symbolized the sanctimonious spirit animating such respectability politics than disgraced moral scold Bill Cosby, Dr. Huxtable himself, who spoke for proponents of these views at a 2004 NAACP awards ceremony commemorating the 50th anniversary of Brown v. Board of Education. In that infamous speech, Cosby ridiculed the notion that black criminals should be viewed through political lenses as victims of social oppression rather than through moral lenses as victims of their own character flaws and authors of their own predicaments:

Looking at the incarcerated, these are not political criminals. These are people going around stealing Coca-Cola. People getting shot in the back of the head over a piece of pound cake! And then we all run out and are outraged, “The cops shouldn’t have shot him.” What the hell was he doing with the pound cake in his hand? I wanted a piece of pound cake just as bad as anybody else, and I looked at it and I had no money. And something called parenting said, “If you get caught with it you’re going to embarrass your mother.” Not “You’re going to get your butt kicked.” No. “You’re going to embarrass your family.”

Lest anyone believe that Cosby’s attitude is a relic of a benighted bygone era, Denzel Washington, when asked about the prison-industrial complex while he was promoting his latest film, Roman J. Israel, Esq., about a brilliant but flawed black lawyer who cares for the poor and dispossessed, answered, “It starts at the home. […] It starts with how you raise your children. […] So you know I can’t blame the system. It’s unfortunate that we make such easy work for them.”

Dark Ghettos drives a stake through the heart of this diehard but wrongheaded perspective on black criminals. Shelby deploys the techniques of analytic philosophy to frame a theory of injustice for truly disadvantaged blacks that not only destroys the normative foundation of respectability politics but also lays a new foundation for political solidarity with black criminals, welfare recipients, single mothers, and others viewed as “bad Negroes” by condescending critics. He discusses the moral limits on what types of policies an unjust state may implement, including state antipoverty and anticrime interventions. And he develops a “political ethics of the oppressed” that defines what the unjustly disadvantaged themselves are morally required and permitted to do in response to unjust social arrangements — that is, when does someone oppressed by an unjust society have a civic duty to obey the law, when do they have a natural duty to obey, and when do they have no such duty at all?

Crime and the Causation Conundrum

A central claim of the theory of injustice Shelby articulates is that the very “existence of the dark ghetto” in the United States “is simply incompatible with any meaningful form of reciprocity among free and equal citizens” — that is, that their existence is “a consequence of injustice.” This core claim forces him to take a controversial stand on one of the most hotly contested questions in law and conventional social morality — namely, the issue of causation. Shelby says that one of the main objectives of his book is to “specify what it is about the social structure of the United States that justifies the claim that ghettos are a product and reliable sign of systemic injustice.”

Although he claims that, “as a philosopher writing about ghetto poverty, my role is not to identify the causes of ghettos” (a claim he repeated at our symposium), he organizes the book as a set of reflections on “widely endorsed,” empirically supported “central factors in explaining ghetto poverty.” He reinforces this approach throughout the book — as, for instance, in this statement in his chapter on “Community”: “The fact that ghetto poverty has been caused by racial and economic injustices should also put a break on the racial profiling of neighborhoods.” One subheading of his chapter on “Crime” reads: “Crime as a Response to the Ghetto Plight.” In another he discusses the implications of “[t]he fact that ghetto poverty has been caused by racial and economic injustices.” Later, he says, “The frustration of dealing with racial discrimination by employers probably leads more blacks into the criminal subculture than would otherwise end up there.” After describing the ghetto neighborhoods (lacking jobs, decent schools, and safe streets) to which many blacks are relegated by forces beyond their control, he points out that some who are stuck in these unjust circumstances choose illegal means to generate needed income. He makes many other implicit and explicit causal claims throughout the book about the relationship between structural and institutional injustice and decisions by dark ghetto residents to break laws and cause harm to their neighbors.

No matter how much we may wish to avoid them, controversies over causation haunt all legal and moral discussions of poverty, crime, and mass incarceration. For if poverty and crime result from external factors beyond the control of dark ghetto denizens, then these problems can be attributed to such factors and the unjust basic structure they reflect. But if they are not completely outside the control of poor black people, then many citizens can (and do) look at the United States’s ghettos and their poor black residents and see not “injustices” (as Shelby’s framework conceives them) but bad choices by immoral and irresponsible wrongdoers. Shelby fully recognizes this causation concern: “Many people, including some black people, believe that the ghetto poor are responsible for perpetuating their own poverty, and for this reason they don’t view ghettos as unjust or a sign of injustice.” Yet, in his crime and punishment chapters, Shelby never adequately addresses this causation conundrum, this recurrent conflict between structure and agency, institutional constraint and individual choice, macro-level social factors and voluntary criminal wrongdoing.

Reflecting a powerful strain in our culture, the concept of causation in substantive criminal law treats human action as differing from physical events and therefore treats physical events that follow from a person’s actions as caused by him or her. By contrast, it typically does not treat human action that follows from an initial actor’s conduct as being caused by that initial actor, even when the subsequent human action (i.e., the second person’s action) is abundantly foreseeable. For instance, landmark cases relating to doctor-assisted suicide hold that one who provides the means for such suicides and participates in the acts leading up to death may not be charged with murder (with causing the death) so long as the final act is that of the decedent. Essentially, the decedent’s final voluntary act constitutes a superseding cause of his or her death that breaks the causal chain between the initial actor’s conduct and the foreseeable (and intended) consequences of those actions.

Antecedent events do not cause a person to act in the same way they cause things to happen. We tend to regard a person’s acts as the product of his or her choice, not as inevitable results of a chain of events governed by physical laws or regularities of nature. This approach to causation rests on the assumption of free will and the rejection of determinism. Hence, the results that follow from the second person’s actions are viewed as being caused by him or her alone. As it is sometimes put, there has been a novus actus interveniens, a later act by another person that displaces the relevance of prior circumstances or conduct by others and provides a new foundation for causal responsibility. As Glanville Williams explains:

The legal attitude, in general, rests on what is known to philosophers as the principle of autonomy, which enters deeply into our traditional moral perceptions, reinforced by language. […] The autonomy doctrine, expressing itself through its corollary, the doctrine of novus actus interveniens, teaches that the individual’s will is the autonomous (self-regulating) prime cause of behavior.

Because the law of causation cannot ground the responsibility of earlier actors who set the stage and create the conditions for the voluntary wrongdoing of subsequent actors, the criminal law has established special doctrines — principally those of complicity and conspiracy — to hold responsible those who instigate or help another to commit a crime.

It is partly on causation grounds that proponents of respectability politics in criminal matters reject the claim that racialized mass incarceration constitutes a “New Jim Crow.” The exercise of choice by criminal wrongdoers makes it harder for these champions of personal responsibility to see that unjust circumstances “caused” the wrongdoers to break the law or that their crime was the proximate consequence of unfairness in the basic structure of society. Those who urge blacks to distinguish between “good Negroes” and “bad Negroes” in matters of blame and punishment view “real” historical Jim Crow as about the social oppression of innocent Negroes like Martin, Medgar, and Rosa. In contrast, they view black criminals not as innocent victims of unjust circumstances but rather as culpable wrongdoers who sometimes prey on the most vulnerable members of their own communities. (As Marc Mauer has pointed out, “Lots of people think that 80 percent of the people who are locked up are there for low-level drug offenses, and that’s not even close to being true. Half the people in state prisons today have been convicted of a violent offense. That’s what they’re serving time for.”) Advocates of respectability politics view the so-called New Jim Crow as about the self-destruction of morally condemnable “bad Negroes,” not the social oppression of innocent “good Negroes.” They reject the claim that there is any moral equivalence between Martin, Medgar, and Rosa on the one hand and a gangbanger, drug dealer, or prostitute on the other.

Of course, just because an actor’s choice to commit a crime generally (though not invariably) breaks the causal chain, in criminal law, between his wrongdoing and earlier factors that set the stage for or enabled such criminal conduct, it does not follow that we must approach causation that way in political morality or in other domains where “explanations” of criminal conduct are developed. But, as Shelby acknowledges at the outset, for ghettos to be viewed as unjust or as a sign of intolerable injustice, these causation questions must be confronted. Yes, causation is a messy and complicated concept that raises perennial questions of free will and determinism, the same questions that shape how we think about subjective culpability in criminal law. So how we think about causation jibes in important ways with how we think about a wrongdoer’s moral blameworthiness or mens rea.

Unpacking these connections and relationships could go a long way toward helping citizens and policymakers see how state-sanctioned segregation (traditional Jim Crow) can plausibly be viewed as morally equivalent to racialized mass incarceration (the New Jim Crow), how self-destruction can plausibly be viewed as morally equivalent to social oppression, and how macro-level injustices can cause criminal wrongdoing in ways that make it reasonable to view black criminals as signs and symptoms of intolerable injustices for which we as a society are collectively responsible.

Crime and the Political Ethics of the Oppressed

Regardless of how one resolves the causation issue (that is, even if we assume that causal responsibility for his wrongdoing rests entirely on a wrongdoer’s own shoulders), the justice question with which Shelby opens his chapter on crime remains apt: “Do the ghetto poor have an obligation to respect and abide by the law?” Put differently, when poor blacks perpetrate crimes, do they thereby 1) violate their civic responsibilities, or 2) merit public condemnation, or 3) deserve state-imposed punishment? Viewing matters from a Rawls-inspired systemic-injustice framework, Shelby concludes that blacks who commit crimes do not violate civic responsibilities nor do they merit public condemnation nor do they deserve state-imposed punishment for public welfare offenses such as prostitution and selling drugs. He does say, however, that they deserve state-imposed punishment for serious crimes that are inherently wrong, such as murder and rape, so long as the state at least provides them with fair trials and unbiased verdicts.

The core insight here is that a truly disadvantaged black person who commits a crime does not owe a debt to society in the way someone more privileged does. For a person only owes such a debt if there is mutual benefit for everyone participating in the overall social scheme. If everyone is benefiting from a fair system of social cooperation, then anyone who fails to exercise self-control and obey the law renounces a burden that others have voluntarily assumed and thus gains an unfair advantage over those who have chosen to lawfully control themselves. To restore fairness, this advantage must be taken away from her; she deserves punishment in the sense that she owes payment for the benefits. The Latin Retribuo — the root of “retribution,” a primary justification for punishment — literally means “I pay back.” But as Jeffrie Murphy points out, this “gentlemen’s club” picture of the relation between citizens and society does not describe the actual relationship between the residents of dark ghettos and the larger social system; indeed, these individuals would be hard-pressed to name the benefits for which they are supposed to reciprocate through their lawful obedience. Do they owe a debt for the cynical deindustrialization of inner cities in the 1960s, ’70s, and ’80s that left them marooned in dying Rust Belt metropolises without jobs? For the crumbling schools, substandard housing, inadequate health care, less-than-subsistence welfare payments, police brutality, biased courtrooms, and exclusion from the political process? Debt for what?

Drawing out the implications of this core justice-as-fairness insight, Shelby argues that the question of whether breaking the law is “unreasonable” (i.e., whether doing so expresses an unwillingness to honor the fair terms of social cooperation that others accept and abide by) depends on the justness of the overall social scheme. If social institutions exceed the limits of tolerable injustice, Shelby argues, then the ghetto poor do not violate or shirk civic obligations when they refuse to respect the authority of the law (qua law). This is because civic obligations are owed to those with whom one is cooperating in order to maintain a fair basic structure. Following Kant and Rawls, Shelby argues that the individual’s civic obligations are rooted in reciprocity. Because the basic structure of American society fails to embody the value of reciprocity (in his words, “the existence of the dark ghetto […] is simply incompatible with any meaningful form of reciprocity among free and equal citizens”), when the ghetto poor refuse to respect the authority of the law (qua law), “they do not thereby violate the principle of reciprocity or shirk valid civic obligations.” He adds: “Not all crimes perpetrated by the ghetto poor are wrong and that condemning criminal transgressions as a violation of civic responsibility is misplaced” (emphasis added).

Even in a fundamentally unjust society that exceeds the limits of tolerable injustice, however, Shelby argues that the ghetto poor have natural duties to one another (or to others) not defined by civic reciprocity and thus not negated by intolerable injustice. Natural duties hold between all persons regardless of whether they are fellow citizens — “the key difference is that one has civic obligations qua citizen and natural duties qua moral person.” These duties include a duty not to be cruel or cause unnecessary suffering, et cetera. “Yet fulfilling one’s natural duties to others may nevertheless be compatible with a number of unlawful actions”; for instance,

[t]aking the possessions of others, especially when these others are reasonably well off, may be permissible. […] Mugging someone at gunpoint does not show sufficient respect for the victim’s claim to be free from threats against their person. But shoplifting and other forms of theft might be permissible. […] [P]articipating in gangs may be a defensible and effective means to secure needed income. Something similar can be said in favor of prostitution, welfare fraud, tax evasion, selling stolen goods.

Legitimacy, Authority, and Enforcement 

From a systemic-injustice standpoint, if a social scheme exceeds the bounds of tolerable injustice, such injustices undermine its moral standing to condemn crimes within its claimed jurisdiction. In an unjust state that has not maintained an equitable distribution of burdens and benefits in the cooperative scheme, when the oppressed violate the law, they do not take unfair advantage of the compliance of others and thus their acts cannot be condemned for lacking civic reciprocity. So the state may lack the moral standing to condemn or punish mere social welfare (mala prohibita) crimes.

But can a seriously unjust state at least condemn mala in se crimes — i.e., acts that are seriously wrong in themselves and that often disproportionately afflict other truly disadvantaged blacks in the form of so-called “black on black” violence? What if, for instance, the state is complicit in the crimes it would condemn — for instance, what if there were demonstrable state complicity in the crack plague (through the CIA-Contra connections revealed by journalists like Gary Webb, by formal US Senate hearings, and by internal investigations of the CIA itself)? Would such a state have the moral standing to condemn (“condemnation is the public expression, explicit or implicit, of strong moral disapproval”) its own accomplices for their foreseeable violent (mala in se) crimes in furtherance of drug trafficking? No, says Shelby: “When a state is complicit in the wrongs it punishes, […] it lacks the moral standing to [publicly] condemn these wrongs and is therefore rightly criticized for these unjustified expressive acts of condemnation. […] And this loss of [moral] standing might extend beyond condemning legal defiance to condemning the wrongs themselves.”

But wait! If a seriously unjust, complicit, hypocritical state lacks the moral standing to condemn even mala in se crimes, can it permissibly punish them? According to the theory of penal expressivism, if a state lacks the moral standing to condemn a crime, then it also lacks the right to hold the wrongdoer accountable for it, and if it can’t hold him accountable, it can’t permissibly punish him either. From this standpoint, a state in an unjust society is stuck on the horns of a dilemma: “[I]t can punish those it has no right to punish or it can fail to protect those it has treated unjustly,” like law-abiding but vulnerable dark ghetto residents.

Shelby avoids this dilemma by arguing that a state’s right to punish a wrongdoer does not depend on its right to condemn him or her. To support this claim, he first points out that the state can punish people it cannot morally condemn. (As I teach my criminal law students, the state certainly does punish people whom it cannot morally condemn in areas such as strict liability public welfare offense, mistake of law doctrine, and refusals to individualize the Reasonable Person test, to name a few.) The justification for the state’s enforcement right to punish violent crime and other mala in se offenses is not reciprocity or its moral standing to condemn but rather the need to protect the vulnerable from unjustified harm by deterring wrongdoers. For Shelby, the state’s enforcement legitimacy (its right to penalize actions that are “seriously wrong in themselves”) rests on something like a right of self-defense and a right to defend others (what he calls a right to intervene to prevent an unjust attack). To deter would-be aggressors before they have a chance to victimize others, a state that lacks legitimate authority (the kind of authority a state would have when its basic social structure is fair) can still threaten and penalize persons who engage in mala in se offenses as long as there are adequate due process protections and adjudications of crimes are fair and unbiased (otherwise the state does not have the right to punish even mala in se offenses!). In Shelby’s words, “These penal sanctions don’t express condemnation, and may be applied simply as a crime control measure” to incentivize actors to obey laws against mala in se crimes. His approach to punishment is not utilitarian (the parties in Rawls’s original position, knowing themselves to be morally weak, could agree to establish non-moral incentives to encourage themselves to satisfy the principles of justice that shape many laws), but it is forward-looking and focused on deterrence.

The strongest objection to Shelby’s rigorous, original, cogent thesis that I can imagine a critic making is that, if many occupants of dark ghettos come to view criminal laws as either not expressing moral condemnation or lacking legitimacy, then more residents will suffer serious harm at the hands of criminals. This forward-looking and deterrence-focused objection might run along the following lines. Criminal laws designed to protect the vulnerable from a host of unjustified harms achieve that objective not simply (or even primarily) by deterring wrongdoers though the threat of punishment. Studies suggest that people obey the law (including laws designed to protect vulnerable people from harm) not principally because of the threat of punishment but because they fear the disapproval of their social group if they violate the law and because they generally see themselves as moral beings who want to do the right thing as they perceive it. In short, social group disapproval and internalized norms keep people from breaking laws that protect vulnerable residents more than the deterrent threat of punishment itself.

Nevertheless, the criminal law can play a significant role in protecting vulnerable citizens by nurturing norms against certain kinds of wrongdoing. For example, when it comes to the norm against nonconsensual sex, progressive jurisdictions have eliminated the force requirement and defined consent as only consisting in an affirmative expression of willingness. We have also seen other cases in which the act of criminalizing certain behaviors can sometimes nurture a prohibitory norm, as arguably it has in the areas of drunk driving, domestic violence, and sexual harassment. (By contrast, criminalization failed miserably to nurture the prohibitory norm behind the national prohibition of alcohol in the 1920s and early ’30s.) By the same token, the act of decriminalization functioned to dilute existing norms against same-sex intimacy (see Lawrence v. Texas), fornication, and adultery.

There is evidence that many people are inclined to accept the law — including laws that protect vulnerable citizens against serious mala in se crimes — as a source of moral authority that they themselves should take seriously. In this way, criminal laws that protect vulnerable dark ghetto residents can play a role in the moral thinking of people tempted to commit serious crimes and influence their internalized moral standards. Studies suggest that the level of commitment to obey the law (again, including many laws that protect our most vulnerable citizens) is proportional to what one scholar calls the law’s “perceived legitimacy.” More specifically, if one regards the law as a legitimate source of rules — if the law has “moral credibility” — then actors should be more likely to regard its judgments about right and wrong actions as a relevant factor in their own moral thinking and hence they will be more likely to obey laws that prohibit mala in se crimes and so protect the vulnerable. If the criminal law does not have a reputation as an institution focused on morally condemnable conduct, it may have no hope of helping shape the moral thinking of actors in ways that protect potential victims. Put most simply, if the criminal law’s power to nurture norms that protect dark ghetto residents is directly proportional to its perceived legitimacy, its moral credibility, then widespread acceptance of Professor Shelby’s thesis could expose residents of dark ghettos to more crime.

At our USC symposium, Professor Shelby gave two responses to this objection. First, he pointed out that the criminal law does not currently enjoy a high level of moral credibility and legitimacy among truly disadvantaged inner-city residents, so his theories about its lack of legitimacy are not likely to cause a marked decline in the law’s already extremely low perceived moral credibility among poor blacks. This may be true, but I’m not convinced that it is, and I can certainly hear a lot of proponents of respectability politics in criminal matters vociferously declaring that dark ghettos include many law-abiding “good Negroes” who don’t hustle and who do hold the criminal law in high regard. If there are a sizable number of such folk in dark ghettos, and if they become disillusioned about the law’s legitimacy because of exposure to Shelby’s ideas, then (according to some studies) these residents may be more prone to commit serious crimes against their neighbors due to his insights.

Moreover, alarmists might contend that the criminal law’s loss of legitimacy and moral credibility among ghetto residents could spark urban conflagrations. The widespread sense of injustice that followed the acquittal of the four police officers videotaped beating Rodney King 25 years ago triggered one of the worst urban uprisings in American history and revealed the staggering social costs of the criminal law’s loss of legitimacy in the eyes of truly disadvantaged blacks and Latinos. The ’92 L.A. riots did not erupt when the images of King’s beating first saturated the airwaves — a fact that undermines the claim that rioters were merely hooligans looking for any excuse to go off. Rather, ghetto residents waited for justice, waited for the criminal justice system to honor its promise of neutrality, and they took to the streets only when that promise seemed so shamelessly flouted. For alarmists, if poor urban blacks embrace Shelby’s theory of injustice, the criminal law’s loss of moral credibility could turn dark ghettos into powder kegs.

His second response was that, even if revealing or broadcasting these truths about the law’s lack of legitimacy did result in an increase in serious crimes against dark ghetto residents in the way social science suggests, what’s the alternative — not telling the truth, not telling it like it is? I am personally willing to pay a high price to vindicate certain values, including truth, sincerity, authenticity. But I also know many proponents of personal responsibility in criminal matters who would readily if not eagerly trade truth for safety, sincerity for security, and honesty for respectability in the eyes of whites.


Jody D. Armour is Roy P. Crocker Professor of Law at the University of Southern California. He is the author of Negrophobia and Reasonable Racism: The Hidden Costs of Being Black in America (1997).

LARB Contributor

Jody David Armour is the Roy P. Crocker Professor of Law at the University of Southern California. Armour studies the intersection of race and legal decision making as well as torts and tort reform movements. A widely published scholar and popular lecturer, Professor Armour is a Soros Justice Senior Fellow of The Open Society Institute’s Center on Crime, Communities and Culture. He has published articles in Stanford Law Review, California Law Review, Vanderbilt Law Review, Boston College Law Review, Southern California Review of Law and Women's Studies, University of Colorado Law Review, University of Pittsburgh Law Review, Loyola of Los Angeles Law Review, Southwestern University Law Review, and Ohio State Journal of Criminal Law. His book Negrophobia and Reasonable Racism: The Hidden Costs of Being Black in America (New York University Press) address three core concerns of the Black Lives Matter movement — namely, racial profiling, police brutality, and mass incarceration.


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