N*gga Theory: An Interview with Professor Jody Armour

Jody Armour is a law professor at the University of Southern California. He studies the intersection of race and legal decision making as well as torts and tort reform movements. He has also taught about the intersection of social justice, Hip Hop culture, and the law in a workshop titled Race, Rap and Redemption.

In his first book, Negrophobia and Reasonable Racism: The Hidden Costs of Being Black in America, Armour examined three core concerns of the Black Lives Matter movement — racial profiling, police brutality, and mass incarceration. His new book, N*gga Theory: Race, Language, Unequal Justice, and the Law, is a radical, philosophical response to our longstanding urge to morally distance ourselves from criminals, famously exemplified by Chris Rock in his comedy bit from 1996, “I love black people, but I hate n*ggas.” 

Amanda Knox

Your stated goal is to challenge the distinction, and to promote solidarity between, law-abiding people and non-law-abiding people. Why is that important to you?

Jody Armour 

Because if we do want to make deep cuts in mass incarceration, which is a value that in 2020 many people endorse and espouse ― if it isn’t, a lot of this isn’t going to matter much to you ― but if that is a serious concern of yours, as it is for more and more Americans, then you’re going to need a way of thinking about blame and punishment, crime and punishment, that’s very different than the way you’ve become accustomed to. I’m distinguishing those two right now. Blame and punishment versus crime and punishment. Blame goes to suggest culpability. You can commit a “crime” but not necessarily have subjective culpability, not necessarily have blame for committing that actus reas. But the main point of the book, with respect to your question, is unless we radically overhaul our moral framework when it comes to thinking about criminals and non-criminals, blame and punishment, we will never be able to make deep and lasting cuts in racialized mass incarceration. The majority of people in our state prisons, which is where 87% of our prisoners reside, are there for violent or serious offenses. Only five to six percent of prisoners in state prisons are there for a low level nonviolent drug offense. When you’re only trying to make allowances for low level nonviolent drug offenders, you’re not asking very much of your audience. All you’re saying is, “Ordinary people, use your ordinary, everyday, conventional moral framework, and from that conventional moral framework, you’ll see that sending low level nonviolent drug offenders, who are really no different from you and me, sending them away to jail for long periods of time is draconian.” You can get an acknowledgment of that from the conventional moral framework. But if you say, “I want you to make allowances for somebody who committed homicide, a brutal assault, armed robbery, rape, I want you to feel compassion for this violent wrongdoer,” that requires an overhaul. To get people to that point requires an overhaul of their conventional moral framework that has been rooted in values of retribution, retaliation, and revenge. And I’m arguing for a new moral framework that embraces redemption, reconciliation, restoration, and rehabilitation. So that is why I think it’s important that I attack the distinction between good and bad people, the wicked and the worthy, the criminal and the non-criminal, because I want to eliminate the foundation anyone has to say, “Those criminals aren’t worthy of my care and concern because they’re morally bad people. I’m morally superior to them. So who gives a damn about what happens to them?” That’s been our attitude for a long time. It’s still the attitude of many people. And that’s what this book is trying to take on. 

Amanda Knox  

I almost think you’re selling yourself short by saying that all of these arguments are only relevant for people who are interested in addressing mass incarceration. It also speaks to everyone’s interest in having a safe society. It also gets into free will and how the terms of conventional morality ― choice, personal responsibility, subjective culpability ― all of these terms are inadequate. Why is that? 

Jody Armour

This is one of the most important parts of the book, when it attacks the distinction between the wicked and the worthy. The pushback you’re often going to get is, “Why not recognize that distinction? It is real. Aren’t you rehearsing an old debate about free will and saying that these people who go out and do wrong are less morally culpable?” A lot of people would say that that is infantilizing, patronizing. It doesn’t treat them as full moral agents. You aren’t respecting the autonomy of the individual. Those arguments have been out there for hundreds, thousands of years. I wanted to approach this from the standpoint of a phenomenon I see in the law all the time, and that’s the phenomenon of moral luck. The phenomenon of moral luck says, “We’re going to make your moral assessment turn on fortuity. Like, heads, you’re good; tails, you’re bad. It’s something over which you have no control. And making something over which you have no control the basis for a moral judgment about you seems irrational and illegitimate, right? We say, “Moral luck. That’s an oxymoron. You can’t have luck when it comes to morality. You’re talking about people making choices. They have nothing to do with each other.” Well, luck determines whether or not you’re going to go to jail on any given day. On any given day, there are millions of drivers out there on the road behind the wheel of their cars driving, some of them over the speed limit, some of them while they’re looking at their telephones, fidgeting with radios, preoccupied with someone in the backseat, and therefore driving negligently, recklessly even, but they typically get home millions of times a day. And because there’s no accidents, they don’t feel any compunction. They sit back, eat their dinner, and no problem. But a few of those drivers every day have the bad fortune of a kid darting out in front of their car while they’re not keeping a proper lookout. Suddenly they’ve gone from being like about 10 million other drivers that day to being guilty of manslaughter, a felon, morally condemned, viewed as on the other side of a big moral chasm from the rest of us. When the only difference between them and the rest of us is a factor over which neither of us had control. That is moral luck at work. You see it all over the place in attempt liability and criminal law. If you kill someone, you’re blamed and punished more than if they happened to be wearing a bulletproof vest and you don’t kill them. That’s fortuity. And yet, we’re making a lot of blame and punishment turn on that. This phenomenon undermines the rationality and legitimacy of all our praise and blame judgments. 

Amanda Knox

I’ve often thought about this in terms of I’m morally lucky as a woman to not feel aggressive impulses like men do because I don’t have their same testosterone levels. Men commit more crimes because, biologically, through no fault of their own, [they] have different kinds of chemistry happening inside of them.

Jody Armour 

I love that point. I would call that constitutive moral luck. There are three kinds: resultant moral luck, circumstantial moral luck, and what you’re talking about, moral luck in being the kind of person you are, having the character traits that you have. A lot of your character traits are formed, we’re finding more and more, in utero, before you even come out. And then we proceed to judge you on the basis of those personality traits that you have no control over the formation of. 

Amanda Knox

There are lots of people in the world who won’t even touch the idea that free will doesn’t exist, or doesn’t exist the way that we think it does, unconditionally. A lot of people think that if we sort of go down this road, and we accept [that] conditioning leads to people making good choices or bad choices, it would rob our criminal justice system not only its power, but its meaning. Do you agree, or do you think that there’s a way for the criminal justice system to function rationally while also taking into account moral luck?

Jody Armour 

The meaning that they’re concerned about the criminal justice system losing, if we start to view the individual that we judge and condemn as nothing but a tissue of contingencies at the mercy of luck, they’re concerned that wrapping our arms around that insight may make us look toward other factors that determine human behavior than their moral character, their personal responsibility. Is it a fact that poor people are involved in more crime than people who aren’t as poor? The crime rate between middle class blacks and whites is roughly the same. Most of the blacks who are caught up in the criminal justice system are coming from truly disadvantaged backgrounds. So class is certainly playing a significant role in how moral luck is being distributed among different people. Their question is, “What will the criminal justice system look like if we abandon condemnation?” because all we’ve ever known the criminal justice system to be about is moral condemnation. The difference between torts and crimes are torts are about civil compensation, crimes about moral condemnation. The Supreme Court said you have to try to find a mens rea, because more moral condemnation is important when it comes to criminal blame and punishment. If we get rid of that, how do we justify the criminal sanction? How do we justify this big apparatus? Well, hopefully, for one thing, we reduce the size of the apparatus a lot by making a lot of crimes no longer crimes. Marijuana possession used to be a crime. Nonsense. Same sex intimacy used to be a crime. Nonsense. There are a lot of things that shouldn’t be crimes in the first place. Get rid of those, and there are alternative ways to address a person who committed murder or rape, or has committed serial rapes or serial murders. What we don’t want are those people on the street to commit more of those same acts. The black community is real clear on this. They, like all communities, want safety from things like violent assaults, and they want those crimes solved. You can incapacitate someone who is causing immediate, serious harm, but when we do incapacitate these people, as we must, we do so in a humane way. We get rid of things like torture, which is what solitary is. We get rid of a whole lot of conditions of confinement that violate the Eighth Amendment so that these people, when we do incapacitate them, have an opportunity for rehabilitation. I’ll say something maybe even radical. And this is hard for me to say, because I’ve had family members affected by crime, and I’ve been affected by crime and when you’re affected by crime, it’s hard to maintain a rational equilibrium about the subject, but I would say, “Man, maybe nobody does more than 12 years for any crime without going before some kind of parole board.” And then, maybe at a certain other point, there’ll be a presumptive parole, maybe after five more years. I can’t figure out, because our way of thinking about punishment has been so distorted by 40 years of ratcheting up the punitive nets in America. It’s hard for me to even imagine these alternative approaches that can be much more humane and rehabilitative. But we have to, at a moment like this, especially when people are in the street saying we need to rattle the foundations and shake up things. This is what shaking up things means. 

Amanda Knox  

You’ve written about how we have a criminogenic social system here in the United States. I was wondering if you could describe some of those criminogenic social conditions, how we could collectively address them, and what a non-criminogenic social system could look like.

Jody Armour 

A criminogenic social condition foreseeably creates criminality. A criminogenic condition might be not having a roof over your head and now trying to figure out where you’re going to lay your weary body at the end of the day. And now you run into all of these laws out there, not only are they putting spikes under bridges, but there are actually laws out there telling you how long you can pause in a given spot and what you have to do while you’re pausing. And suddenly you are committing crimes because you’re violating regulations meant to govern poverty. At some point, you run afoul of them, and now you’re committing crime. Hunger. If I have stomach rumblings and I don’t have any legitimate means available to me for income, I may very well resort to illegitimate means, and now my hunger has been a criminogenic condition. Criminogenic conditions include crumbling schools, joblessness, all the things that people need for dignity and self respect. You don’t even get self respect in capitalist America. I had a young man who came to me saying that his school lost its accreditation and his diploma was now worth toilet paper in the admissions process. He was relegated to a minimum wage job, and on minimum wage in LA you can forget about a car or insurance or anything like that. He was 18. He said he saw an attractive woman across the street. He walked over and said, “I’d love to have coffee with you on 3rd street promenade in Santa Monica on my bus pass.” What response do you think he got when it became clear that they would be going to Third Street promenade on his bus pass? It’s the reaction that we have baked into our social arrangement. Remember that fashionable song a while back? “I don’t want no scrubs. A scrub is a man who can’t get no love from me. Hanging out the passenger’s side of his best friend’s ride, trying to holler at me.” Who wants to be a scrub? If you can’t afford a ride of your own, you’re a scrub. Your dignity and self respect has been defined in materialistic terms. The legitimate means to the American dream, some level of material prosperity, namely education, has been cut off from you because your school lost its accreditation [for] reasons you have no control over. Again, moral luck. And now you realize nothing’s wrong with your aim. You just have to change your target. You still want respect and dignity. And sadly this guy, maybe six months later, I had to go and help bail him out, because he was picked up for standing under a lamppost with some beige rocks in his palm, scrambling for self respect. 

Amanda Knox

Do you think that a stratified society is a criminogenic society by definition?

Jody Armour 

It can be. It doesn’t absolutely. For example, the NBA is stratified. Shorter people don’t make it much into the NBA, but we accepted the stratification as having some legitimacy. Caste systems can have stratification as long as people accept those caste systems. It’s when people start questioning the legitimacy of the stratification, especially if we’re talking about some kind of vertical relationship of dominance and subordination, when the subordinated start to question their subordinate status, and asks for some kind of justification for it, and that justification becomes more and more flimsy, then you have what you’ve had in the streets over the last couple months.

Amanda Knox 

How can [we] understand how hopelessness and resentment and hostility and alienation and ultimately malice can be a part of the new moral framework for understanding why some disenfranchised people commit their crimes, and how we can account for it?

Jody Armour 

That’s one of my hardest determinist arguments that I make. The hard determinist turn I take is that malice itself is a product of social conditions. And once I make it a product of social conditions, then we’re collectively responsible for it. A lot of people say that we collectively aren’t responsible, even if we create these criminogenic conditions, for the wrongdoing of criminals, because they make these bad choices. And those bad choices break the causal chain between those bad criminogenic conditions and the wrongful acts that they went out there and committed.

Amanda Knox 

The “not all poor people” argument. 

Jody Armour 

Right, exactly. And so we’re not responsible for their bad decisions as the collective actors who have created and maintain those criminogenic conditions. It’s a move to absolve us collectively of responsibility and accountability for the wrongdoing of criminals by saying, “Your volitional act [was] the proximate cause of the harm, and our act may have set the stage and may have been the ‘but for’ cause, but [your] wicked intention to commit a wrongful act breaks the causal chain.” In criminal law, we call that the novus actus doctrine. And there is some real weight for that doctrine. But there’s another doctrine that does make us responsible for the wrongdoing of others. Like somebody leaving keys in their car, and a joy rider coming along, seeing the keys in the car, jumping in the car, and joy riding and hitting a pedestrian and causing his death, for example. Well, the person who left the keys in the car may be liable. We do have a legal framework that allows us to hold us collectively accountable even for intentional wrongdoing, as long as it’s foreseeable. And so that’s one of the arguments I’m making in this book. Once we’re able to shift our focus from the internal moral deficiencies of the wrongdoer and look at all these other external determinants of conduct, then we can start to attribute that wrongful conduct more readily to where it should be attributed, to our collective decisions to create and maintain criminogenic conditions. Now, that’s not all crime. That doesn’t explain all crime. It explains a lot of it, though, and so much of it that it’s hard to say when it is or isn’t a factor. 

Amanda Knox

I’ve even heard Sam Harris and Daniel Dennett argue about this, specifically over whether or not free will exists. Sam Harris takes the stance of, “Well, if you really look hard enough, you won’t find free will,” because you aren’t really the author of your own thoughts and intentions. And Daniel Dennett takes the stance of, “Well, sure, if you want to talk about absolute free will that’s unconditioned, absolutely, it doesn’t really exist. But when you’re talking about the pragmatic difference between someone holding a gun to your head versus you just deciding to steal something, there should be a pragmatic distinction.” He furthermore makes the distinction between a poor person who is going to steal food and the Bernie Madoff’s of the world, who enjoy privilege and security and commit crimes anyway. But do you think that even a macro social factor like capitalism could explain his crime? Or is that just crazy? 

Jody Armour

Oh no. Economic systems help to create dispositions in people and citizens who participate in that economic system. Oh, yes. How you organize your work life does affect your values. If we assume that in a highly stratified society in which we have a kind of casino economy that hands out rewards in a oftentimes very random and capricious way, that might lead to a lot of resentment by people who don’t benefit from the rigged system. Especially once they see how rigged it is, and if they’re told that their worth is measured by their material possessions and accumulation. Which is what we were talking about with the young man who was told that his bus pass was not a sufficient basis for him to hold his head up high when you walk down the street. 

Amanda Knox 

I want to talk about the retributive urge. Let’s define what the retributive urge is in your theory, how that manifests itself. But furthermore, about whether or not our retributive urge is also determined, or not? I don’t know. I’m just sort of getting into this, like, weird philosophical space.

Jody Armour  

I like it. That’s what all of this is. I recognized the retributive urge as a sometimes vague and amorphous and hard to define quantity. Sometimes it’s mixed with retaliation. Sometimes it’s mixed with revenge. You’re only supposed to want retribution against people who deserve punishment. That retributive urge should only be directed at people who deserve to be punished. So, if you prove that someone is innocent, in a world of retributivists, then supposedly their retributive urge would not be stoked. They would say, “If a person’s innocent, I don’t feel any retributive urge toward that person who caused that harm, and therefore, I’m not going to seek to punish them in any way.” That seems to be kind of how we think it works. The urge to inflict pain and suffering on another deliberately because they deserve to suffer for their wrongdoing, that would be the purest form of the retributive urge. And if you really feel that way, and I wish everyone always did, then if I explained to you that this person doesn’t deserve blame because they had a bad childhood, then your retributive urge is supposed to go away. But I think we kind of know that it doesn’t necessarily go away just because you heard that somebody came from a bad childhood. You may still feel a retributive urge, even if you hear that explanation, and you may think that they either deserve the punishment in spite of coming from the bad childhood, because they still have choice, or you could feel like, in the name of retaliation, you want to strike back. An eye for an eye. Just pure retaliation. “I don’t care how subjectively culpable you are and what stories you have to tell me about your horrible upbringing that would all go toward subjective culpability and moral judgments. That would all be relevant to a retributive moral framework, but in a retaliatory moral framework, I care about payback. That’s all I care about. Pay back.” I have in the book the example of a fire burns up this nightclub. Hundred people perish. It’s a negligent accident. The judge gives him three years, which you typically give somebody for an accident, but a lot of the victims say he deserved at least three years per victim. So 300 years in prison. They had shifted to a retaliation framework. And revenge is another motive. Revenge can say, “I’m going to punish you more than you deserve.” Retribution would say, “I’m only going to punish you as much as you deserve.” But revenge says, “Take out two eyes for an eye.” When I’m talking about retributive urge, it can kind of float back and forth among those different senses. There’s nothing more bipartisan than the retributive urge on the left and right. We feel a desire to see what we view as bad people suffer their comeuppance. I’m telling you, my comrades on the left, you have to do something about taming your retributive urge, because a lot of you people on the left, marching, saying, “Decarcerate now! Decarcerate now!” you’re saying you’re against the New Jim Crow racialized mass incarceration, and you want to make deep cuts in it, and you’re ready to do the uncomfortable things it’s going to take to make deep cuts in it, and then you turn right around and vent your own retributive, punitive impulses when you’re confronted with a wrongdoer from a dominant group and a victim from a socially marginalized, or subordinated group. So, for example, Brock Turner. A lot of those progressives would have said that, if you were having an abstract discussion with them, about raising the age of crime to 25, but when they see that a member of a historically and currently socially marginalized group, women, suffers a serious sexual assault by a member of a dominant group, a white male, the only way many of us think that you can show care and concern for that victim’s wellbeing, interests, dignity, and rights is by punishing her victimizer as punitively as possible. The more you drop the hammer on him, the more you show you care for the victim. That’s the political, social currency we’ve been using in this country for a long time. When Amber Geiger came into the wrong apartment, Botham John’s apartment, and shot him dead, she made a super negligent stupid mistake. No way around that right? But I had a lot of people get very heated at me for saying that I thought that a murder conviction was unnecessary, that manslaughter was sufficient, because she made a stupid mistake and stupid mistakes, negligent mistakes, even reckless ones, we deal with in our criminal justice system under the manslaughter rubric. That would adequately vindicate Botham John’s interest and show that we’re ready to show compassion for wrongdoers, because unless we start showing compassion for violent wrongdoers, which Amber Geiger was at that point, we’re not going to make deep cuts in mass incarceration. It’s just not going to happen. That’s what I mean about inhibitions of our retributive urge and a kind of embrace of our epistemic humility, recognition of the need for epistemic humility when we’re making moral judgments of others. Of course we need to keep violent wrongdoers from victimizing ordinary citizens. You just have to do that. We all know we have to do that. But we have to do it in a humane way. We have to do it in a just way, meaning we’re going to do something about having let it get to that point. And it’s going to take a revolution. That’s all. At the end of the day, Amanda, I’m arguing for a revolution in our consciousness when it comes to blame and punishment, morality, law, and even the nature of language itself.