Justice and Reconciliation: The Death of the Prison?

Justice and Reconciliation: The Death of the Prison?Author(s): Amy AllenSource: Human Studies, Vol. 30, No. 4 (Dec., 2007), pp. 311-321Published by: SpringerStable URL: http://www.jstor.org/stable/27642805 .

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Hum Stud (2007) 30:311-321

DOI 10.1007/s 10746-007-9062-9

COMMENTARY

Scholar's Symposium: The Work of Angela Y. Davis

Justice and Reconciliation: The Death of the Prison?

Amy Allen

Published online: 19 October 2007

? Springer Science+Business Media B.V. 2007

In its intention I am well convinced that it is kind, humane, and meant for

reformation; but I am persuaded that those who devised this system of Prison

Discipline, and those benevolent gentlemen who carry it into execution, do not

know what it is that they are doing. (Charles Dickens, quoted in Davis 2003, p. 48)

In the last 20 years, the prison population in the United States has soared from

300,000 to over 2 million. About half of that population is African-American, and, at current incarceration rates, it is likely that as many as one in three black men will

be imprisoned in their lifetimes. Even as crime rates dropped dramatically during the 1990s, the prison population continued to grow, and new prisons continued to be

built. And not only has this population explosion produced very little public protest or outcry, it seems to have gone largely unnoticed. Indeed, at the very same time,

one of the most popular, long-running, and prolific shows on television, Law and

Order, celebrates cops and district attorneys who are tough on crime and the

criminal justice system within which they work. Against the background of this

widespread thoughtlessness about the prison, Angela Davis's searing indictment of

the prison-industrial complex demands that we, in the famous words of Arendt,

"think what we are doing" (1958, p. 5).

In what follows, I focus on two interrelated aspects of Davis's demand that we

think what we are doing with respect to the prison-industrial complex: first, on her

genealogical critique of the prison system, and, second, on her critical-utopian call

for a new model of justice understood as reparation or reconciliation. Focusing on

these interrelated aspects of Davis's critique of the prison allows me to highlight the

connections between her work and the tradition of critical social theory, broadly

construed. As Benhabib has argued, critical social theory has two distinct but

A. Allen (El)

Department of Philosophy, Dartmouth College, Hanover, NH 03755, USA

e-mail: [email protected]

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312 A. Allen

interrelated aspects: an "explanatory-diagnostic" aspect that aims to diagnose social

pathologies and/or crisis tendencies, and a "anticipatory-utopian" aspect that posits a vision of a "better future and a more humane society" (1986, p. 226). My overall

aim in what follows is to re-situate Davis's critique of the prison system within the

tradition of critical social theory by organizing my discussion of her work around

these two aspects. To be sure, given Davis's philosophical training in Frankfurt and

her work with Herbert Marcuse, it should not be surprising that her work connects in

interesting ways to the critical theory tradition. Nevertheless, it seems to me that

contemporary critical social theorists have, for the most part, paid insufficient

attention to Davis's work, and that their attempts to construct a critical theory of

race would be greatly enhanced by a consideration of her work. For both of these

reasons, it seems worth the effort to re-situate her work within the context of critical

social theory.

I begin, in the first section, by comparing Davis's genealogical critique of the

prisons with that of Michel Foucault. The relationship between Davis's and

Foucault's work is both complicated and instructive. On the one hand, in her essay "Racialized Punishment and Prison Abolition," Davis is openly (and rightly) critical of Foucault's work because of his inattention to the crucial importance of

race; on the other hand, her genealogy of the prison is broadly speaking Foucaultian

in its methodology. As such, Davis seems to me to be engaged in an interesting and

productive conversation with Foucault's work, one that helps to demonstrate how

Foucaultian genealogy might be a useful tool in the critique of racism. Although this

is far from the primary value of her work?her deep and compelling critique of the

racism of the American prison system and its profound moral vision are challenging and important in their own right, independent of whatever relationship the work has

to Foucault or any other "canonical" thinker?it is nonetheless an interesting

theoretical convergence that comes at a time when there is renewed interest in the

usefulness of Foucault's framework for thinking about race. Yet Davis doesn't

simply extend Foucaultian genealogy to offer an explanatory-diagnostic analysis of

the ways in which the prison system upholds and reinforces racism, she also moves

beyond Foucault in significant and important ways by engaging in the anticipatory

utopian project of challenging her audience to construct a moral vision of a world

beyond racism and beyond the prison. It is this vision that I will focus on in the

second part of the paper, where I will explore Davis's proposed alternative to

retributive conceptions of justice, a framework that is based not on punishment and

vengeance but on reconciliation and reparation. Davis does not do much more than

gesture toward this framework at the end of her book. My aim in the second part of

the paper, then, is to consider such a framework more systematically and to explore some of its limits.

Foucault and Davis: The Birth and Death of the Prison

In her essay, "Racialized Punishment and Prison Abolition" (1998), Davis

acknowledges Foucault's influence on contemporary studies of the prison system at the same time that she criticizes his work for ignoring the crucial impact of race

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Scholar's Symposium: The Work of Angela Y. Davis 313

and racism on that system, both in the United States and, increasingly, in post colonial Europe. Because Foucault does not talk at all about the racialization of

prisons, Davis suggests that there is a "need to move beyond a strictly Foucauldian

genealogy in examining histories of punishment" (1998, p. 96). Indeed, Davis

argues that "a more expansive analysis of US historical specificities might serve as

the basis for a genealogy of imprisonment that would differ significantly from

Foucault' s" (1998, p. 97). The most crucial of these historical specificities in the

case of the United States is, of course, slavery and the ways in which, after

Abolition, the prison system in the United States absorbed or took over some of the

social, political and economic functions that the slave system had fulfilled. In fact, as Davis points out, there was no reference to imprisonment in the Constitution of

the United States until the Thirteenth Amendment was passed; it declares that

"Neither slavery nor involuntary servitude, except as a punishment for a crime

whereof the party shall have been duly convicted, shall exist within the United

States..." (1998, p. 99). As a result, Davis argues, "the abolition of slavery...cor

responded to the authorization of slavery as punishment. In actual practice, both

Emancipation and the authorization of penal servitude combined to create an

immense black presence within southern prisons and to transform the character of

punishment into a means of managing former slaves" (1998, p. 99). When considered in this light, some of the central arguments of Foucault's

Discipline and Punish (1977) clearly stand in need of revision if they are to be

applicable to the American prison system. For instance, Foucault's claim that the

prison, unlike prior forms of punishment, targets not the body but the soul of the

offender (1977, pp. 29-30), simply could not apply to black slaves in the United

States at this time, who were widely?though outrageously?believed to lack souls

in the first place. Similarly, the notion that prison labor is a means to the end of

moral reform and education does not hold true for either black slaves or former

slaves who were imprisoned, whose labor was itself the end around which much of

the racist economic system was organized. In general, the problem with Foucault's

elision of the race in his study of the prison is that it gives the impression that racism

is a merely contingent feature of the prison system. By contrast, Davis argues that

the institution of the prison both "preserves existing structures of racism as well as

creates more complicated modes of racism in US society" (1998, p. 105). On

Davis's view, Foucault's account of the prison does little to illuminate this

pervasive and crucial feature of the American prison system. Davis's explanatory

diagnostic critique of the racism of the American prison-industrial complex thus serves as a significant challenge to one of Foucault's most influential and important

works.

And yet, Davis's overall methodology in her critique of the prison certainly seems, broadly speaking at least, Foucaultian. Although there is only one explicit reference to Foucault's work in Davis's book, Are Prisons Obsolete? (2003, pp. 40

41), the central argument of the book has a distinctively Foucaultian ring to it. She

begins by arguing that prisons have a history, that they are contingently evolved

institutions, and, thus, that they can and must be imagined otherwise. As she puts it

in the introduction: "At bottom, there is one fundamental question: Why do we take

prison for granted?" (2003, p. 15). The answer to this question, according to Davis,

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314 A. Allen

is that we take the prison for granted both because it performs social, economic, and

ideological functions, and because images of the prison have become so pervasive

in our popular culture and media that the prison has become a seemingly permanent

feature of our cultural and social imaginary. As a result, "the prison has become a

key ingredient of our common sense. It is there, all around us. We do not question

whether it should exist" (2003, pp. 18-19). And yet, Davis insists, the prison is a

historically contingent institution: "the prison as we know it today did not make its

appearance on the historical stage as the superior form of punishment for all times.

It was simply?though we should not underestimate the complexity of this

process?what made sense at a particular moment in history" (2003, p. 43). In other

words, it is a contingent social institution that developed at a certain point in history for particular reasons and that has (falsely) come to seem natural, normal, and

necessary.

Not only does the prison have a history, that history is deeply problematic, inextricably linked, as it is in the United States at least, with racism and the legacy

of slavery. Once we are aware of that history, we as readers are compelled to

interpret the present structure of the prison system in a different light. In the wake of

this powerful historical argument, which has also been advanced by the sociologist

Loic Wacquant (2002), it becomes extremely difficult, if not impossible, to think of the pervasive and persistent racism of the prison system?evidenced by, among

other things, the vast racial disparities in rates of incarceration?as merely

contingent features of that system. For instance, one might naively think?as right

wing commentators are fond of implying?that the reason that black men are so

overrepresented in prison populations is that they commit more crimes. Against this

view, Davis insists on a distinction between law-breakers and criminals. Davis

analyzes the constitution of the "criminal" in much the same way as Foucault

analyzes the constitution of the delinquent or the homosexual. Whereas the law

breaker is simply a person who happens to have committed some illegal act, as most

of us have done at some point in our lives, the criminal is constituted as a specific?

and deviant?personality type. The intertwined relations of racism, sexism and class

exploitation that crystallize in the prison system both criminalize certain commu

nities?primarily people of color and the poor?and, at the same time, mark

criminality as a racially and class-inflected category. "Thus," Davis writes,

if we are willing to take seriously the consequences of a racist and class-biased

justice system, we will reach the conclusion that enormous numbers of people are in prison simply because they are, for example, black, Chicano,

Vietnamese, Native American or poor, regardless of their ethnic background.

They are sent to prison, not so much because of crimes that they may have

indeed committed, but largely because their communities have been crimi

nalized. (2003, p. 113)

What I have been trying to call attention to here is the way in which Davis's critical

theoretical explanatory diagnosis of the racialized pathologies of the American

prison system takes the form of a genealogical argument, one that is, broadly

speaking, Foucaultian. Davis takes something that seems to many to be normal,

natural and necessary and argues that it is actually historically contingent and so

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shot through with relations of domination as to be deeply problematic. In this way, Davis challenges us to confront and interrogate what Foucault once called the

"contemporary limits of the necessary" (Foucault 1997, p. 313). Inasmuch as she is

engaged in a critical-genealogical explanatory diagnosis of the contingent features

of our social world that have been falsely naturalized, she is engaged in critique, as

Foucault understood it.

This comparison of Davis with Foucault is instructive, I think, both because it

helps us to uncover some distinctive features of Davis's position and because it

makes clear the ways in which she moves decisively beyond Foucault. For instance,

consider the fact that although Foucault is widely regarded as a major theorist of the

prison system, and although much of Discipline and Punish is devoted to a study of

the prison as a model for punishment, Foucault's primary concern in that text seems

not to be the prison per se. Insofar as he is interested in the prison at all, he is

interested in it as a vehicle for understanding the power of normalization in

contemporary societies. As the closing line of Discipline and Punish reads: "At this

point I end a book that must serve as a historical background to various studies of

the power of normalization and the formation of knowledge in modern society"

(Foucault 1977, 308). There is, then, a sense in which it is misleading to think of

Foucault as a theorist of the prison at all. The prison functions for him not so much

as a topic of interest in its own right (though he clearly did, for a time anyway, have

a political interest in the prison system that was informing and motivating his

philosophical work), but as both an exemplar of the peculiarly modern mode of

power that he wanted to expose and critique and as seamy underside of the project

of the Enlightenment. As he notes in a famous passage from Discipline and Punish:

"The 'Enlightenment,' which discovered the liberties, also invented the disciplines"

(Foucault 1977, p. 222). Like Foucault, Davis is interested in the connection between the institution of the

prison and Enlightenment conceptions of rights and liberties. Indeed, she points out

that the very idea of incarceration as a form of punishment only makes sense against

a backdrop of the presumption of individual rights and liberties. As she puts it, "if

the individual was not perceived as possessing inalienable rights and liberties, then

the alienation of those rights and liberties by removal from society to a space

tyrannically governed by the state would not have made sense" (Davis 2003, p. 44). Unlike Foucault, however, Davis emphasizes the extent to which the individual as a

bearer of rights and liberties is presumed to be both white and male. Moreover, she

suggests that the existence of a prison population that is denied the rights and

liberties of full citizens somehow underlies the perception on the part of those of us

who are free that our rights and liberties are being preserved. In this regard, Davis

wonders: "Why were people so quick to assume that locking away an increasingly

large proportion of the US population would help those who live in the free world

feel safer and more secure? ...Why do prisons tend to make people think that their

own rights and liberties are more secure than they would be if prisons did not

exist?" (2003, p. 14). Given the racial make-up of the prison population, the

implication is that the freedom and rights of the presumptively white male subject

depend in some fundamental way on the denial of rights and liberties to the

racialized others who populate the prisons.

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316 A. Allen

Also like Foucault, Davis is no doubt interested in exposing the relations between the prison as an institution and broader societal relations of power and domination, in particular, racism, sexism, and class exploitation on a global scale. But unlike

Foucault, Davis seems to me to be much more concerned with the prison per se,

which she views as both a decisive symptom and a contributing cause of many of America's social pathologies. As she puts it, "the expanding system of prisons

throughout the world both relies on and further promotes structures of racism even

though its proponents may adamantly maintain that it is race-neutral" (Davis 2003, p. 86). Indeed, Davis strongly suggests, though she does not explicitly claim, that the prison is inherently rather than merely contingently or incidentally racist, that racism is "so deeply entrenched in the institution of the prison that it is not possible to eliminate one without eliminating the other" (2003, p. 26).

Thus, whereas Foucault traces the birth of the prison as a means to the end of

exposing the mode of power unique to Enlightenment modernity, Davis examines the ways in which modern racism, sexism, class exploitation, and the legacy of

slavery are inextricably bound up with the prison as an historically, culturally, and

socially specific and concrete institution. In so doing, she also challenges us to

imagine, indeed, demands that we imagine the death of the prison as a necessary means to the end of developing a truly just, non-racist society. With this ethico

political, anticipatory-utopian, critical-theoretical demand, Davis moves decisively beyond the Foucaultian framework that structures her diagnosis of the prison. Unlike Foucault, she is willing to imagine and to call unequivocally for progressive, emancipatory social change. Moreover, Davis grounds her prison abolitionism in a

deeply humanist vision. In addition to her critique of the prison system on the basis of its implications in the legacy of slavery and racism, she also critiques imprisonment as an inherently inhumane practice, and ends her book by gesturing toward a more humane approach to justice. In and through her call for progressive emancipatory social change and her grounding of this emancipatory vision in an account of a more just and humane world, Davis does what Foucault's genealogy of

the prison is unable to do: to fulfill what Benhabib identifies as the second,

anticipatory-utopian, aspect of critical social theory. However, Davis's normative

vision of a more humane and just world is not without its own difficulties. In the next section, I turn to a critical analysis of this alternative account of justice.

Imagining Justice Otherwise? Beyond the Prison

Philosophical discussions of justice are typically divided into two main categories that are then treated more or less separately: distributive justice, focusing on the just or fair distribution of societal burdens and benefits, and retributive justice, concentrating on justifications for punishment. In the last 50 years or so,

philosophical and public policy discussions of the latter have focused increasingly on retributivist accounts of punishment, that is, accounts in which punishment is

justified not in consequentialist terms on the grounds of its rehabilitative or

deterrence effects?as Davis points out, it has become increasingly obvious that the

prison system accomplishes neither of these goals?but instead on the grounds of

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moral desert. The offender, according to this approach, deserves to be punished, in

some versions because of the harm that he or she has caused to the victim and to

society at large, in other versions (inspired mainly by Kant and Hegel, though there are precursors of this view in Socratic dialogues, as well) because the offender has a

right to be punished and that to fail to do so is to fail to respect his or her moral

autonomy.

An interesting implication of Davis's work is that it troubles this very distinction between distributive and retributive justice. Davis argues that the punishment industry has become a mechanism for warehousing America's poor and people of

color, exploiting their labor while multinational corporations and private prison contactors reap huge profits, and segregating them into living conditions that are

dangerous, violent, unclean, and inhumane. The implication is that achieving full distributive justice (particularly for the poor and for people of color) will require radically rethinking our approach to retributive justice. This line of argument suggests that contemporary philosophical discussions of justice need to be recast: discussions of distributive justice must also consider the role of retributive justice as

it is currently conceived in exacerbating the oppression of the poor and people of

color, and discussions of retributive justice must face the fact that the so-called

justice system in fact plays a principal role in the dehumanization of those who are

already are oppressed through unjust distributive schemes. As Davis puts it,

effective alternatives involve both transformation of the techniques for

addressing 'crime' and of the social and economic conditions that track so

many children from poor communities, and especially communities of color,

into the juvenile system and then on to prison. The most difficult and urgent challenge today is that of creatively exploring new terrains of justice, where the prison no longer serves as our major anchor. (2003, pp. 20-21)

In addition to troubling the distinction between distributive and retributive

justice, Davis also challenges us to rethink the very idea of justice as retribution.

Historically, there have been different ways of conceiving of retributive justice. As Foucault argues in Discipline and Punish (1977), for example, in the classical era in

Europe, crime was seen as an assault on the authority of the sovereign; as a result,

retributive justice took the form of the spectacular reconstitution of sovereign power, enacted by means of the dramatic and gory public torture and execution of

the criminal. In the modern era, by contrast, the glue that holds the social/political world together is not the power of the sovereign but the rights and liberties of

sovereign individuals, crystallized in the notion of popular sovereignty or collective

self-government. At this historical moment, it makes sense that retributive justice should take the form of the deprivation of precisely those liberties (freedom of

movement, self-determination, and so forth) and rights (for example, voting rights, rights to participation in political process, etc.) that are taken to be foundational for such polities. But these very different conceptions of retributive justice share a common core: the notion that justice is properly thought of as retribution, understood as a kind of institutionalized vengeance, and the acceptance of the

corollary claim that retribution or institutionalized vengeance is itself just. Davis ends her critique of the prison by challenging us to

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318 A. Allen

try to envision a continuum of alternatives to imprisonment?demilitarization

of schools, revitalization of education at all levels, a health system that

provides free physical and mental care to all, and a justice system based on

reparation and reconciliation rather than retribution and vengeance. (2003,

p. 107)

Although some philosophers have tried to distinguish between retribution and

vengeance, and others have claimed that the desire for vengeance is a morally

justified expression of the victim's self-respect, Martha Minow acknowledges that

"retribution can be understood as vengeance curbed by the intervention of someone

other than the victim and by principles of proportionality and individual rights" (1999, p. 12). The question that Davis's work raises and Minow's work explores is

more detail is this: what are we committed to, morally and politically, when we

institutionalize vengeance? Vengeance, as Minow argues, tends to generate further

vengeance, and thus to "set in motion a downward spiral of violence" (1999, p. 10).

Moreover, although retributive justice is sometimes justified on the grounds that it

avenges the harm done to the victim, achieving vengeance?either immediately or

through the mediation of the criminal justice system?often does not make crime

victims feel that justice has been done. Although there would seem to be more to

justice than simply the crime victim's sense of justice having been done?some

crimes, after all, harm not only a specific individual or individuals but the

community as a whole?the fact that the one who is allegedly being avenged is

often left so deeply unsatisfied by the meting out of justice is surely not irrelevant.

But this observation raises the following question: what alternative responses to the

harm caused by some crimes are possible?

For Minow, at the other end of the spectrum from vengeance lies forgiveness. As

Minow points out, vengeance and forgiveness "stand in opposition: to forgive is to

let go of vengeance; to avenge is to resist forgiving" (1999, p. 21). Those who have

been harmed might be encouraged to forgive in order to break the cycle of

vengeance. However, as Minow points out, forgiveness "is a power held by the

victimized, not a right to be claimed" (1999, p. 17). Victims sometimes find it

psychologically impossible to forgive those who have harmed them, and it is

morally inappropriate for anyone but the victim to forgive. The challenge is to find a

way between vengeance and forgiveness, as Minow puts it. Restorative or

reconciliative models of justice are attractive inasmuch as they hold out the promise of this middle path, and Davis makes it clear that her normative vision of a more just

and humane society is grounded in such models. And yet, there are, I think, limits to

this way of understanding justice as well, limits that I would like to explore a bit in

what follows.

What does it mean to conceive of justice in restorative rather than retributive

terms? Whereas retributive justice focuses on inflicting punishment in return for some harm, restorative justice seeks to repair the harm and to restore the communal

and societal bonds that were injured by that harm. Although advocates of retributive

justice sometimes defend the practice of punishment on the grounds that it respects the moral autonomy of the wrong-doer, from the perspective of restorative justice,

incarceration as a form of punishment does precisely the opposite. It not only fails to

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treat prisoners as a full moral agents, it also effectively casts them out of the human

community altogether, depriving them of, as Davis puts it, "access to their families,

their communities, to educational opportunities, to productive and creative work, to

physical and mental recreation" (2003, p. 38). Prisoners are relegated to "an

isolated existence marked by authoritarian regimes, violence, disease, and

technologies of seclusion that produce severe mental instability" (2003, p. 10). In

today's supermax prisons, which are becoming increasingly common, "there is no

pretense that rights are respected, there is no concern for the individual, there is no

sense that men and women incarcerated in supermaxes deserve anything

approaching respect and comfort" (2003, pp. 50-51). The prison industrial complex treats its inhabitants as less than human, as what Davis calls "the detritus of

contemporary capitalism" (2003, p. 16). As the famous Stanford Prison Experiment seems to suggest and as the more recent experience of Abu Ghraib seems to confirm

(see Zimbardo 2007), the dehumanization of prisoners may well be a "normal"

psychological response to the way the institution of the prison itself?in particular the complex power relationship between guards and prisoners?is structured.

Davis's proposed strategies for decarceration-decriminalization of drugs and sex

work, a functional health care system that provides mental health care to all

members of society, a revitalization of the education system, rebuilding our nation's

inner cities, repairing the economic devastation wrought by global capitalism?

would no doubt vastly decrease the number of people who are subjected to the

power of the prison system. And yet, it is no doubt also true that these strategies would not eliminate all crime. So the question would remain, how are we to deal

with such crimes in a more humane way? Davis gestures toward restorative justice

as a model that respects the humanity of both offender and victim, that helps victims move beyond their feelings of anger, violation, and helplessness and that treats

offenders as persons who are capable of engaging in the work of moral and social

repair. Restorative justice aims not at retribution but at reconciliation. But what is

reconciliation, and what does it require? And, more specifically, what sort of

reconciliation might we hope to achieve in the context of criminal justice? In her essay, "Reconciliation for Realists," Susan Dwyer conceives of

reconciliation as the "narrative incorporation" of disruptions or tensions to our

sense of self (2003). Assuming a narrative conception of the self, Dwyer argues that

certain events, such as being the victim of crime, produce severe and identity

threatening disruptions in our self-understanding. Although it may not be possible or

even desirable to overcome or eliminate the resulting tensions, Dwyer argues that

they must be incorporated into our personal narratives in order for us to be able to

continue to make sense of our lives. Dwyer argues that reconciliation is a process

that makes this narrative repair possible by bringing two (or more) different and

apparently incompatible descriptions of the event in question into what she calls

"narrative equilibrium" (2003, p. 100). Something like this model of reconciliation seems to be implicit in the various experiments in restorative or reconciliative

justice that are currently being carried out, experiments to which Davis alludes

favorably. In these experiments, after much background work with a mediator,

victim and offender sit down together, and each has the opportunity to tell the other

the impact the event has had on their lives, to talk about what led up to the event,

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320 A. Allen

and to figure out together how best to move forward, possibly including some

specific plan for restitution or reparation. Such experiments are now being conducted in a variety of countries (including the United States, Canada, and New

Zealand), and at various points in the criminal justice process (for example, as

diversion from sentencing, as a condition of parole, and so forth), mostly with non

violent crimes and with juvenile offenders. Advocates of such experiments not only maintain that they are more humane, they also claim that are more psychologically satisfying for victims and that they reduce rates of recidivism.

As attractive as this model of justice seems, however, there are also limits to it. In

some cases, particularly in cases of violent crimes such as kidnapping or rape or the

murder of a loved one, reconciliation may not be psychologically possible for the

victim. Especially in cases of rape, it may be too much to require of a rape survivor

that he or she sit down across the table from her or his rapist and engage in dialogue. It even seems possible to me that some people could do things that would justify their removal from the human community, if not for purposes of punishment, then at

least for purposes of public safety. Acknowledgements of these kinds of limits are

evident in the writings of advocates and practitioners of restorative justice, who

emphasize that not all cases are appropriate for mediation or reconciliation. Both

parties have to be open to a sincere engagement with the other in order for the

process to work. As Dwyer points out, reconciliation depends upon background

conditions of trust (2003, p. 101). This is why it makes sense to speak of

reconciliation in the context of spouses or friends who have experienced a

devastating fight or betrayal. It also makes sense to talk of reconciliation in the

context of political communities that are struggling to reconstitute themselves in the

wake of collective traumas or crimes. Background conditions of trust are no doubt

severely eroded and a common sense of history undermined by horrors such as

apartheid and genocide, and yet, political communities can call on some common

ground, even if that is simply a common vision of the future of the polity, or a

shared set of political ideals, in their struggles for reconciliation. The question is, what kinds of background conditions have to be in place in order for reconciliation to work as a model for dealing with crime, particularly violent crime? And to the

extent that those conditions are presently lacking in American society, how can they be fostered? And in cases where reconciliation is not possible, what would our

alternatives be? And, finally, how might the process of reconciliation be structured to ameliorate rather than recapitulate the asymmetries of power that may well exist

between the parties to the dialogue? More specifically, one might wonder whether or not it makes sense to presume

that the background conditions of trust necessary to make restorative justice work

are actually present in American society, particularly across lines of race and class.

To the extent that such conditions are lacking, the legacy of slavery and racism is

surely largely to blame. In other words, the worry is that Davis's normative vision of

a more humane and just society might be undercut by her own powerful critical

diagnosis of racial and class subordination. As appealing as the discursive, narrative

model of reconciliation that informs Davis's vision of a more just and humane

society is?and the assumption that individuals can come to see the world from the

point of view of the other and that they can be transformed both cognitively and

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emotionally through open and frank dialogue with someone who has harmed them is an appealing one?this vision can only make sense in the context of conditions of

basic trust that are effectively undermined by the subordination relations that structure race and class relations in America. To complicate matters further, one

might raise the basically Foucaultian worry that the structure of the dialogue situation itself might in some cases obscure rather than ameliorate existing relations of power, subordination, and inequality, particularly when these have been

internalized by racially or otherwise subordinated subjects. In other words, the challenge for Davis is ultimately that of thinking through the

relationship between the explanatory-diagnostic and anticipatory-utopian aspects of

her critical theory of the prison. How, in other words, can she articulate a feasible and defensible normative vision of a better and more humane society in light of her own extremely powerful critical-genealogical diagnosis of the complex intertwining of slavery, racism, and the prison system? Perhaps the best way to begin to answer this question is to say that truly confronting the issues raised by Davis's abolitionism would require us, as a society, to engage in the kind of open and

public dialogue that would articulate some sort of shared understanding of our common humanity and ethical vision for our future, across lines of race and class. In

light of Davis's explanatory-diagnostic critique of the prison, her humanist vision seems to call for and to depend upon reconciliation at a higher level, namely, for the

political reconciliation of an America that has been and remains deeply divided and

damaged by the crime and trauma of slavery.

References

Arendt, H. (1958). The human condition. Chicago: University of Chicago Press.

Benhabib, S. (1986). Critique, norm, and utopia: A study of the foundations of critical theory. New York:

Columbia University Press.

Davis, A. (1998). Racialized punishment and prison abolition. In J. James (Ed.), The Angela Davis reader

(pp. 96-107). Oxford: Blackwell.

Davis, A. (2003). Are prisons obsolete? New York: Seven Stories Press.

Dwyer, S. (2003). Reconciliation for realists. In C. A. L. Pr?ger & T. Govier (Eds.), Dilemmas of reconciliation: Cases and concepts (pp. 91-110). Waterloo, Ontario: Wilfrid Laurier University Press.

Foucault, M. (1977). Discipline and punish: The birth of the prison. (A. Sheridan, Trans.). New York:

Vintage. Foucault, M. (1997). What is enlightenment? In P. Rabinow (Ed.), Ethics: Subjectivity and truth:

Essential works of Michel Foucault, Vol. 1 (pp. 303-319). New York: The New Press.

Minow, M. (1999). Between vengeance and forgiveness: Facing history after genocide and mass

violence. Boston: Beacon Press.

Wacquant, L. (2002). From slavery to mass incarceration: Rethinking the 'race question' in the US. New

Left Review, 13, 41-60.

Zimbardo, P. (2007). Stanford prison experiment: A simulation study of the psychology of imprisonment conducted at Stanford University. Retrieved August 21, 2007 from http://www.prisonexp.org

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Justice and Reconciliation: The Death of the Prison?

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