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July 22, 2014

"Strictly Taboo: Cultural Anthropology's Insights into Mass Incarceration and Victimless Crime"

The title of this post is the title of this notable new paper by Brennan Hughes available via SSRN.  Here is the abstract:

I argue that cultural anthropology can explain two persistent riddles of American criminal justice: (1) Why do we have mass incarceration when mass incarceration is ineffective and socially destructive? (2) Why do we have victimless crimes when criminal law is ostensibly based on the utilitarian harm principle?

One answer is found in the anthropological “survivals” known as “uncleanness” and “taboos.” These visceral, often subconscious, feelings function to preserve order, the status quo, and class distinctions. Despite the gains made in civil rights, nonwhites and the underclass remain “the other,” and they threaten to “contaminate” the majority population. Crime itself, as a threat to social stability, has become charged with a powerful ability to attract and repel. Crime and criminals are described using terms for dirt and feces. The majority culture’s response to crime (which is linked with its unconscious response to the lower class and minorities) is to expel such pollution into sealed containers called prisons. The ritualism of civic religion completes the purification process.

Deeply felt taboos also persist concerning sex and drugs. While marijuana possession and use harms no one but the user, marijuana is historically taboo on account of its association with minorities and radicals. Incest is criminalized and sex with minors is hyper-punished because they violate deeply felt sexual taboos.

I argue that one promising solution is to help people develop a stronger taboo (through education) that can cancel out the dehumanizing taboos toward criminals (just as the taboo against homophobia has supplanted the taboo against homosexuality). We will continue to overpunish until hyper-punishment itself becomes repulsive.

July 22, 2014 at 01:19 PM | Permalink


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"We will continue to overpunish until hyper-punishment itself becomes repulsive."

I find the analysis superficial. The fact is that these trends come and go. For example, America has been under the sway of the Victorian-era cult of the child for well over a century. The "hyper-punishment" of sex offenders did not spontaneously arise out of the ether but rather is part of a long-term historical trend. Indeed, if one goes back sixty years the social acceptance of heterosexual pedophilia and homosexuality were the inverse of today. Indeed, to the extent that pedophilia was even remarked upon negatively it was because of its association with homosexuality via groups such as the NMBLA (national man-boy love association.) This transformation of pedophilia from being associated with homosexuality sixty years ago to being associated today with heterosexuality has nothing to do with cultural taboos. Indeed, if the author's thesis is correct one would expect this role reversal to have lead to less punishment for pedophiles because heterosexuality is still considered more culturally normative than homosexuality in the public's mind. There is much more at work here than a modern version of lustratio.

Posted by: Daniel | Jul 22, 2014 4:30:00 PM

I would like to see direct action groups of victims and families of victims. Bring direct action, such as the lash, to the lawyer internal enemy. Do not kill them, because that would merely please their replacements. Lash them. To deter.

Posted by: Supremacy Claus | Jul 24, 2014 3:16:23 AM

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