Renegotiating the Boundaries of Guilt
J.D. Candidate 2012, UCI Law
We have reached an impasse. As our criminal and immigration systems continue to coalesce, we are increasingly unable to have rational problem-solving discussions about these key issues. Certainly, we need to think outside of the box to reach effective solutions in these areas. But the purpose of this article is not to offer any new solutions to prison overcrowding, mandatory minimums, undocumented people, bordercontrol, or any related issue. Rather, my project is to address the perceived imbalance in bargaining power between this debate’s interested parties. Criminal and immigration law discussions have traditionally centered on the rights and responsibilities of the guilty: criminals and the undocumented. To achieve my intended goal, rational debate, we need to take several steps back and agree on some fundamental principles. The natural starting point is a central concept in both fields: guilt. For purposes of the Voice word count, I will only provide a brief summary of my full argument, but I invite readers to challenge my assumptions and help me develop this concept.
Starting at the highest level of abstraction, I will look at guilt through a philosophical lens. My starting point is Thomas Nagel’s concept of “moral luck.” Nagel challenges the traditional concept of guilt by pointing to roughly four ways we are disturbingly subject to luck: the kind of person we are, the kinds of problems and situations we face, the antecedent circumstances that determine our actions, and the eventual decontrol of our actions. Contrast “moral luck” with the proposition that human existence is necessarily in a state of guilt. Some argue that our existence necessarily displaces other forms of existence. Every time we eat, something else dies; every time we claim ownership of property, we exclude others, and so on. Together, these arguments at minimum lead us to question the presumption that law breakers are categorically distinguishable from the law abiding majority.
Moving down one level of abstraction, I will look at guilt through an international lens. America’s rise to international superpower has been at the expense of economies and political systems across the globe. This is especially true for the indigenous nations of America (the legacy of Manifest Destiny) and much of Latin America (the Mexican- American War, NAFTA, and various military interventions). When these policies result in mass migration, we project guilt back upon migrants. Instead of accepting our guilt as a nation, we, literally, close ourselves off from the world by building a massive border wall and criminalize the entry of displaced people.
Moving down once more, I will look at guilt through a domestic lens. America’s history of slavery should have ingrained a deep sense of guilt in the white racial majority. Instead, that guilt has been projected back upon former victims and intensely magnified. Rather than having an open and healthy discussion about race, the white majority embraces a penance-free theory of colorblindness. Rather than atoning for slavery and Jim Crow, we lock away anyone who reminds us of it.
In sum, reasoned discourse requires that we resist falling into binary notions of guilt. By taking the moral high ground, the racial/political majority is able to institute dehumanizing criminal and immigration policies. Our subconscious tempts us to send away faces that demand our remorse. But by joining in a shared sense of guilt, we can move past polarized notions of justice. By sharing guilt, we are better able to recognize a shared humanity and begin working collaboratively on a shared set of problems.