N*gga Theory. Jody David Armour

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СКАЧАТЬ in America and racialized mass incarceration, thus absolving America of accountability for the foreseeable and violent criminal consequences of its unjust basic structure. Through such distorting lenses, there is no moral equivalence between social oppression and self-destruction—that is, between Medgar, Martin, Rosa and a murderer or an armed robber serving a life sentence. Nigga Theory begs to differ.

      Death penalty cases provide another illustration of how the lenses of Nigga Theory differ from approaches to blame and punishment that seek to garner greater support and leniency for wrongdoers solely by focusing attention on those who are more appealing when looked at through conventional moral lenses. The great rhetorical force of DNA exonerations—the possibility of executing the innocent—has played a big role in the decline in public support for the death penalty over the last 20 years. For instance, Republican Governor George Ryan of Illinois, once a supporter of capital punishment, declared a moratorium on executions in the state, then granted clemency to all 171 inmates on death row, after 13 Illinois inmates who had been convicted and condemned to death were exonerated, some just hours before their scheduled lethal injections. “Until I can be sure that everyone sentenced to death in Illinois is truly guilty,” said Ryan, “no man or woman [facing execution] will meet that fate.”

      But Nigga Theory rests on the premise that the greatest driver of mass incarceration and threat to racial justice in criminal matters is not false convictions of factually innocent people or excessive sentences for low-level nonviolent offenders, but rather the disproportionate blame and punishment of guilty black people who have committed serious or violent offenses. Just as deep cuts in racialized mass incarceration cannot come simply from diversion programs for low-level nonviolent drug offenders, deep racial injustices in capital punishment cannot be remedied simply through the protection of innocent people from wrongful convictions and executions. In fact, just as focusing decarceration efforts on low-level nonviolent drug offenders perversely deepens the plight of most American prisoners, focusing anti-death penalty efforts on avoiding the execution of innocent people can deepen the plight of most death row inmates because the factual guilt of most may not be in any real doubt. My dad was given a life sentence despite his factual innocence, but he’d be the first to tell you that the factually guilty far outnumber the factually innocent behind bars. Certainly Stanley “Tookie” Williams, whose execution by the state of California I fought and then wrote a play about—called Race, Rap, and Redemption—was factually guilty of committing multiple premeditated murders. Innocent black people disproportionately condemned to death can be readily recognized as victims of social oppression, whereas guilty wrongdoers are routinely viewed as authors of their own demise, echoing the “social oppression of innocent Negroes” vs. “self-destruction of guilty niggas” dichotomy embraced by proponents of respectability politics and refuted throughout this book.

      By keeping attention trained on serious, violent, and guilty wrongdoers, Nigga Theory makes clear its rejection of even an error-free death penalty. Even if we achieve practical certainty about a person’s factual guilt, and thus save all the falsely accused innocent lives that can be saved by wringing that kind of error out of the criminal justice system, the determination that a factually guilty person is deathworthy is profoundly and directly a moral judgment about their subjective culpability and just deserts, and this moral judgment can be just as rife with error, bias, and arbitrariness as factual, killer-identification “whodunit” judgments. The excessive blame and punishment of guilty black offenders, especially the violent and serious ones who most inflame the urge for retaliation and revenge, is a much more pervasive and pernicious problem, running throughout every phase of the criminal justice system, than the problem of wrongful convictions or executions of innocent blacks (which is not meant, at all, to minimize the grave seriousness of the latter).

      In order to break out of the trap of mass incarceration, we, as a society, need to rethink the basic processes of our criminal justice system through the moral and legal lenses of Nigga Theory, lenses that expose a system corrupted by racism of an absolutely mundane, everyday kind, and corrupted at every level:

      At the level of arrest.

      At the level of charging.

      At the level of factfinding.

      At the level of trial.

      At the level of sentencing.

      It is the project of Nigga Theory to interrogate the system at every one of these levels in order to expose where racial bias lives in the criminal law and adjudication of just deserts.

      —

      Harvard University law professor Randall Kennedy, in Race, Crime, and the Law, urged morally innocent and law-abiding “good Negroes” to distinguish and distance themselves from morally culpable and criminal “bad Negroes”—a classic instance of the politics of respectability. This same wicked-worthy moral dichotomy runs through popular culture, figuring centrally in a famous standup routine by iconic black comedian Chris Rock (Bring the Pain, 1996), in which he paces the stage and declares that “it’s like there’s a civil war going on in black America” between respectable, law-abiding, lovable “black people” and disreputable, criminal, blameworthy “niggas.” He liberally sprinkles his long and sneering rant against morally condemnable black wrongdoers with the trenchant punchline: “I love Black People, but I hate niggas.” As James Boyd White points out, jokes, like all texts, are invitations to share the speaker’s response to the world, an invitation which we accept through our laughter,17 and implicit in Rock’s joke is a political invitation to sharply distinguish between a law-abiding and morally upright “us” and a criminally blameworthy “them.” It’s an invitation to niggerize black wrongdoers, which black audiences in packed auditoriums merrily accepted through peals of laughter and a chorus of “amens,” “uh-huhs,” and “preach!” No utterance in the English language more forcefully distinguishes and distances a respectable “us” from a contemptible “them” than the N-word, no word drives a deeper moral and political wedge between the worthy and the wicked, no epithet more utterly otherizes its referent.

      Nigga Theory instead appropriates the N-word’s unparaphrasable power, the power it has to morally condemn and otherize criminals, especially violent black ones, and instead uses it as a term of art in a radically progressive theory of blame and punishment, a theory crafted to shake the foundations of all our conventional condemnations of criminals, including the most violent and forsaken black ones. I could adopt professor Kennedy’s more genteel language and call this brand of Critical Race Theory “Bad Negro Theory,” but “Bad Negro” doesn’t otherize wrongdoers as forcefully or condemn them as contemptuously as the N-word. In the hands of black speakers and writers, the N-word can be a jagged-edged assault weapon that draws blood or a healing scalpel that sutures the places where blood flows. I reclaim this reclaimed word by both denying any substantive moral basis for using it to divide the worthy from the wicked and, at the same time, embracing its healing, bonding, unifying force.

      This book also uses the racially charged N-word to keep race itself front and center in the discussion of mass incarceration, and to pointedly reject the canard pushed by leftists, liberals, and conservatives that class trumps race in our criminal justice system. Yet more proof that race takes priority came across my timeline as I was writing this Introduction: a viral video, in which a phalanx of cops physically assaults a black student at Columbia University because he looked like he did not belong in those hallowed halls of ivy. I’ve had many similar experiences.

      What do they call a black man getting a Columbia degree?

      A nigga.

      What do they call one who has already earned said degree?

      A nigga.

      What do they call one like me who’s a chaired law professor with degrees from Harvard and Berkeley?

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