Justice without the 'Just' is just ICE: The Chilling Use of Retributive Justice in Unjust Detention

Author: A. Hannah Spadafora

The latest news on immigration crackdowns concerns the forced removal of children from their deported parents custody and potential ‘adoption’ by individuals still within the United States—perceived by many to be illegitimate, and little more than kidnapping. This follows stories on the large number of missing undocumented immigrant minors; though the specifics are more nuanced than the headline, the event brings up both hopes that this will allow youth to go under the radar of deportation officers and the fears that they'll fall victim to abuse, exploitation, or trafficking. These stories have come out at the tail end of 2019, which has seen an uptick in continued publicized attention on ICE raids, deportation and court processes, and deplorable conditions at immigrant prisons. Reports from immigrant prisons show families divided, both within the centers and in splits between interned individuals with their family on the outside. Protester offers of donations of basic living goods and volunteer time have been turned away at the doors (though there are other ways to donate), and even senators visiting select camps have witnessed incidents of dehumanization (such as, atrociously, women being told to drink water from toilets). United States citizens have been wrongfully taken due to forgetting their ID, and being presumed to be an immigrant during public-site raids; upon release, there have been reports of extreme weight loss, nutritional deprivation, interned persons lacking beds, and other basic needs such as self-care/medical supplies going uncared for.

Disturbingly, there have been deaths from neglectful and abusive procedures, including deaths from mental illness and of children. For those who survive, lasting psychosocial effects are expected, and also not surprising, considering the traumatic effect of being placed in literal metal cages while being deprived of needs like fresh food, sanitation, and medical care—after having been kidnapped by ICE officers using specialized technology to target immigrant community members. There is additional anxiety heaped upon them as to whether they will be released back into the United States, or sent abroad—sometimes to a country they may never have been to during ages of conscious memory, or to a place equivalent to the home they may have sought escape from and/or that is plagued by to continuing state, gang, or terrorist violence, or severe lack of infrastructure, economic stability, and life opportunity (though thankfully there is also a decent bit of pushback to situationally dangerous deportations, as response.)

Due to these horrendous conditions, in recent months notable public figures have highlighted that these centers share key characteristics with other isolation facilities, such as George Takei's reflection on the centers segregating individuals of Japanese heritage during WWII in the United States and Alexandria Ocasio-Cortez's comparison of the detention centers to concentration camps holding individuals of Jewish, Roma, and disability communities (amongst others) in the same era across Germany. These features include selective targeting, inhumane and unsanitary living standards, deficient nutritional provisions, lack of necessities, insufficient medical care, overcrowding, being held without legal due process or guaranteed attorney access, and, outside the camps, dehumanizing public conversations about the people stuck suffering inside. While not quite yet in the genocide phase, many activists have voiced support for categorizing the centers as equivalent to mid-stage concentration camps—and taking the need to shut them down seriously.

The reason that we think this is okay is because we have been raised in a disciplinarian culture in a nation (perhaps, a world) that has been desensitized to the use of retributive justice. As a scholar with former research experience involving project interview and letter correspondence with the formerly/currently incarcerated individuals as well as literature review knowledge of correctional practices across the states and abroad, I find it notable how immigrant prisons act as more harmful and unregulated units of the extended U.S. prison system. The key features of this retributive model of justice in both settings are dominance, punishment, unyielding rules, demonizing rhetoric, and acts of violence committed against the condemned—but additionally the act of condemning others based not just on deviant behavior, but also by creating propaganda to besmirch practices associated (in stereotype, exaggerated account, or easily misunderstood reality) in ways that cloak the persecution of assigned aberrations of identity in ‘rational’ discourse. This is how public speech can jump from they took our jobs to let’s build a wall to let’s deport millions of people to chants of send her back aimed at senators born in this country. No where is the action of retributive punishment more clear than inside U.S. jails and prisons.

Contemporary correctional practices in jails and prisons across the United States vary, but retributive justice has been a staple feature for most of the last century—a model of addressing deviance via punishment. It is the war on crime, the war on drugs, and the war on poverty that all somehow amount to impoverished, addicted, and otherwise in need people being locked up and shuffled around in buildings and rituals lacking human warmth. It is a process that turns individuals into numbers and seas of identical uniforms, and that okays bribery to do labor at pennies an hour for slight shave offs of release time while overcharging—sometimes in triplicate—for basic necessities. Incarceration keeps the imprisoned away from their families as well as healthy and unhealthy social networks alike. Moreover, often individuals are released with little reform to show for the extensive damage that has been done to their lives. It is a skewered system, that has for most of a century put away low level drug and property crime violators but at times failed to prosecute or sentence sufficiently violent offenders such as rapists and white-collar criminals with outrageous wealth from theft. Further, it’s harmful to society and the individual with its’ limited effectiveness against deterrence and recidivism, evident in the lack of research support for the effectiveness of character or circumstance improvement that led to initial incarceration, as well as the long term, difficult if not impossible to come back from interruption of the lives careers, and potential of imprisoned individuals ‘in the system.’

The reinforcement of punitive models of discipline is about power as control over others behavior rather than power as capacity to affect change in the world. Ideology driven by blame, both earned and in the absence of blame earned, often is targeted at easy scapegoats—people who look, act, and create things that don’t fit into the controlled visions of either a conformist and uniform nation that mirrors the group trying to maintain oppressive power, or an unequal nation of the powerful and those who bow to that power—that old superiority trip, bullies in the schoolyard saying, How dare you step in our playground, you weird losers? then pushing the outsiders down, taking their lunch and activity money, and threatening to beat them up if they show their face in their clubhouse again.

Bullies get off in feeling like they are better than others, and on the act of controlling others—physically, emotionally, mentally, or in the vigilance of invasive monitoring of other’s private behavior in the absence of any real threat to safety. Retributive justice is also about control. It holds high the judge, jury, and executioner; it is held up every time we ask whether someone is worth our mercy and every time a proclamation is made that “Well, they deserved it.” It’s embodied in the egocentric idea that if others don’t do what we want, or if they don’t remind us of ourselves, that it’s okay to hurt them as penalty, or compliance motivation. It has nothing to do with understanding internal motivation, putting ourselves in the shoes of another’s circumstance, nor with talking with people as if they are human beings—and everything to do with keeping people in cages, depriving them of necessities in what essentially amounts to a type of torture, and potentially sending fellow human beings back to zones of unthinkable situations that we would shudder to ever step foot in. In this climate, Foucault is far from outdated.

This isn’t to say that justice practices in the world or even in our country are exclusively retributive. Alternate models exist abroad and in rare corners of our own country—usually falling into the categories of rehabilitative and restorative justice. Rehabilitative justice is based in the idea of treatment of a person in ways that will rehabilitate them to being acceptable members of society. It has long been touted as progressive, but largely ignores social-political context within which crimes are committed, nuance between crime type, and the social-political-economic context with which crimes are defined. The psychological impact of rehabilitative practices that may reinforce shame for minor crimes where there is contestation of the definition of deviance (such as events tied to substance use) or extent of blame of legal transgressions seen as signs of weak character (such as with some types of mental illness) seems to also require research to it’s effect on the ultimate goal of returning individuals back in wholeness to society and reconnecting people with their humanity. Medical, behavioral, and cognitive therapy models can be helpful tools but they have been challenged as insufficient; they do not go as far as restorative justice.

Restorative justice aims to address the social wrong committed in a way that makes it up to the victims or rectifies the social harm committed. This innovative model focuses on resolution of past events and restoration of a person. It often involves practices where people will communicate with the other person(s) harmed, will try to make amends via social actions for the victims or in the community, and face squarely what they’ve done—and what they still yet can do. It takes justice out of the role of mere punishment and establishes it as a mechanism to try to make things a little more right, in direct response to the wrong that has been done in the world.

Significant reforms to the system are required for repair of the justice we seek—both inside prisons in labor, commerce, living standards, physical/mental healthcare, and programs of opportunity, as well as outside prisons in policing, court, and legal practices. Though it would be an amazing transformation, it’s difficult to imagine the United States soon emulating open prisons such as those in Finland, Norway, Denmark and Sweden, or practices of 21 year maximum sentence limits (even for murderers) held in Norway, or the Netherlands models of social living and law that have led most prisons to shut down for lack of offenders to fill them, or the general safety Japan is known for giving to individuals even if they fall asleep drunk on the street. Adaptations of restorative justice give hope however to the first sparks of what will hopefully turn into long term and larger scale reforms. Whether these reforms will reach immigrant detention centers, or if we will reverse course to shut down the practices all together as abhorrent, remains to be seen.

The greater thing is, even if restorative justice reforms are made, the progressive system of restorative justice rests on the premise of a misdeed committed. This premise remains unfulfilled in any sufficient way by the people trapped in immigrant detention centers that currently are steeped in harsh retributive, neglectful, and harmful practices. If we’re going to talk about justice, it’s impossible not to note how the greater misdeeds committed in cases of ‘undocumented immigrants’ aren’t by the detainees, but the officials themselves—from inside the detainment facilities to inside the offices decreeing the practices variously legal, acceptable, mandated, or as ‘fake news.’ It is unclear if these state powers can be restored or rehabilitated, though it seems likely at this point they will also escape punitive retribution—despite the act of kidnapping, mistreating, and harming others being much more horrific than crossing a border in hopes of a better life—indeed, in hopes of escaping poverty and violence, both of which are present in ICE raid and detain practices.

It’s not surprising, though very disheartening, to see the principles of retributive justice taken to the extreme against vulnerable populations. Immigrant families and children are being removed from our communities, and it’s not hard to understand why many see this as a removal occurring under a not-well-cloaked ploy to erase the positive impact migrated groups have on shaping the United States (especially at a time when white supremacist movements have solidified in terrifying acts.) Deportation will stop ‘them’ taking our jobs; they shouldn’t have crossed the border; they did so illegally—or so the propaganda justifying racist law and practice shouts.

This paints the world as a competition, neglecting the opportunities for collaboration. This distorted jerk’s paradise-fantasy imagines a nation that no longer recruits highly skilled talent from across the world for fields there are insufficient competitive applicants to fill, nor relies on menial labor from undocumented individuals trying to stay under the radar of immigration raids (even in cases of being forced to change professions due to work restrictions.) Cases of Americans inadequately trying to perform agricultural or other often-migrant-populated work—losing these jobs or snubbing their nose at joining industries that traditionally exploit higher levels of undocumented labor forces—are left out of this scapegoating. It ignores America as a country of immigrants constantly fighting to be let into the melting pot—to be accepted and seen as equal—and celebrates America as a country of conquerors who selectively decided time and again who lives, who dies, who works, who is enslaved, who rules, and who does all these things by proud force of violence.

Groups supporting these policies are deciding, once again, in a repetition of history, that this is okay. That this is what we want our country to stand for. That this is the interference and violence we are rooting for our government to lash out onto other human beings. We act like these situations are unique, that they happen every few decades, that they are the product of a minority of groups that range from viciously racist and ignorant to coldly calculating in the name of practicality. We say things like Never again after the Holocaust and after the Japanese internment camps and after the genocides that have taken place across the world, from Indonesia to Germany to Rwanda to the entire era of the founding of the region that is now the United States to Yemen. If we really mean, never again, than we need to make sure it’s not now. We need to change our practices of dealing with deviance from laws, and we need to make sure that we agree on what the laws should be—rather than the laws being made by a slim percentage of humans that belong to the upper-ownership class, who will always be invested in making people illegal. We must stop these high-powered entities from pointing the blame away from themselves for fucking the world over, passing around torches before hiding in their mansions, far from the burning world, as soldiers march to their orders.

It’s easy to perpetuate problematic practices in the name of tradition. It’s time to break custom and call bullshit. This is easier said than done in the face of loud voices and big guns. The right thing isn’t always the easy thing, however, and so long as we rationalize away the harm of other human beings, we’re all in danger.

Hannah Spadafora is the founder and editor of The Conscious World, and a researcher currently focused on economic anthropology, public policy, and social change (see: The Meaningful Work Project.) She is trained as an applied social cultural anthropologist (M.A.) with a heavy background in social political philosophy (B.A.), comparative religion (B.A.), English (minor), psychology (minor), and journalism/mass media (HS), and has experience across the ground level of office, academic, publication, and service industry professions. Previous research projects have focused on justice and human rights, and music fandom. Former classes taught include introduction to anthropology's four subfields (biological, archaeological, social-cultural, linguistic) and student success/first year program classes; these featured themed content on history, performance, ethics, imperialism, biographies, media, and contemporary events. Manuscripts in the works include a fantasy/sci-fi influenced dystopian novel series, as well as non-fiction writing projects on Buddhist/anthropological ethics and public policy; visual anthropology and community performance; and a more informal funny/self-help centered book, How to Fail at Buddhism.  These are written around remote jobs that pay the most basic of bills, but not the soul. An Idealist to the end, clearly. 

Article: Justice without the 'Just' is just ICE: The Chilling Use of Retributive Justice in Unjust Detention

Column: The Current World

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