Professor Martha C. Nussbaum: A Conversation on Emotion and Public Policy

This interview is the last part of the Chicago Policy Review’s 20th Anniversary Series. Please visit us here to learn more about the series from our Executive Editors.

When discussing social responses to crime, you mention that punishment implies a recognition of failure of our current mechanisms to prevent crime. Additionally, you say that you are inclined to think that the rational course is to refuse the use of the word “punishment” because it narrows our ideas about how to deal with wrongdoing. Such a shift would mean moving the focus of our criminal justice institutions from retributive justice to crime prevention policy. What role do you see lawyers playing in this new approach?

Well, I think it’s a very complicated multitask social issue. We have to involve people in all parts of society. We have to involve politicians, educators, people who know about nutrition, people who know about family policy, and this is a very difficult task. I think that’s the reason why for so many years society just has not approached crime in this ex-ante way. People would rather just forget about all that and then wait for the crime to occur and come down hard on the offender. If you think about a family and you think about what is necessary in order to bring up a child,  your own child whom you love, you do not wait until the child does something wrong and then discipline the child. You try to give the child a good environment: loving the child, inspiring the child with good examples, feeding the child well, educating the child, and giving the child decent medical care. So I think if we just think about what we would naturally do for our own children––those of us who fortunately have enough money to do those things, then we begin to get the measure of what’s required socially.

So we have to have decent health care. I think that’s one of the first things and, by the way, it has to include things that we don’t usually think about, like dental care, because obviously when you’re applying for a job and your teeth are really bad, then you don’t get that job. So we have to think about all the ingredients of making a person employable. Early, pre-K education is one that I stress in my book because Jim Heckman has shown that if it’s done right, with sufficient attention to nutrition, to work with families, and so on, then it really does have very good long-term results. But of course, employment is a big issue too, so we have to think about what are the obstacles to employment for people. Are they health-related? Do they have to do with prejudice against someone with a criminal record? So we have to look at all of that and I think it really needs a very coordinated social effort, in which we would then delegate different parts of this job to different actors.

Speaking of James Heckman’s groundbreaking empirical research on early childhood intervention and crime, you name racism as one of the reasons why his research has not been fully taken to heart by American society. Do you see other factors in play, for example, the disconnect between scholarly research and broader audiences?

I think there are various problems. What I was saying is that I think we would never conclude that what we would have to do in our own family would be just to neglect the child until it does something wrong, so why do we think that in our society? I think it is because of racial prejudice. It’s not just racial, it has to do with class too, but it is largely racial, namely, “oh, this is the criminal type anyway.” And what Jim’s research shows is that there is an intervention that can make a difference. It is a very expensive intervention because he doesn’t think a program like Head Start is good enough, so we would have to be determined to solve the problem by spending quite a lot of money. And at that point, I think that racism does kick in. People are just like, “oh these are just criminals anyway, we will never solve that” and so on, and I think that’s part of the problem.

I do think you’re right, that there is a need for a  division of labor between people who are doing the cutting edge research and people who communicate that to the public. Jim is trying very hard to set up an international organization now to spread the word about pre-K education. And he knows perfectly well that his own writing, which is heavily mathematical, is not going to reach a broader audience, even when he writes for Scientific American or something, it’s always very, very technical. So we do need that kind of interface. In my own work, that’s why Amartya Sen and I started the Human Development and Capability Association, to have young scholars from many countries come together but also to bring the scholars together with the policymakers. To have that interface because I do feel that’s an essential part of getting this done right.

And we have to involve the media, and we have to get people from the media who really care about this, who are going to write about this, and who are going to take enough interest in the academic results in order to really communicate them correctly. And I think I find that interface much easier to identify and to construct in a small face-to-face country. When I was recently in Colombia, I just was amazed by the fact that government, academics, and journalists were all coming together in the same room for a kind of interactive public discussion. So I can go to Colombia and meet right away with the governor of the province of Antioquia, and I can meet the mayor of Medellin. In my own country, I don’t meet the mayor, I don’t meet the governor. I mean I have, of course, met the President because he was a colleague here, but I don’t feel like I have any communication with him about these issues.

You defend a forward-looking sense of justice, and an approach that privileges social and individual welfare. Every day we see angry outcries for punishment, which nowadays resonate loudly on social media. In democracies, this creates incentives for lawmakers to legislate disproportionate sanctions. Do you think there is an inherent tension between democratic lawmaking and the kind of justice you defend? Could social media be worsening this tension?

I think that is possible; certainly the Internet is a place where people can vent and express anything without giving a rational argument, so it can lead to this kind of group polarization that has been discussed in the psychological literature. But I have to say that I think mass incarceration is such a disastrous failure, and people are waking up to that. And there’s an increasing consensus—extraordinary in this time—and even both Republicans and Democrats are agreeing that very harsh sentencing for nonviolent offenses is a big mistake.

I think one reason why people are waking up to this is that it is just so expensive. It costs about $55,000 a year to incarcerate one individual and as the prison population ages, with these very long sentences, that’s getting more and more expensive because of the medical care. So maybe the motives are not always philosophical but, for one reason or another, people are waking up to the fact that this doesn’t work. Now we need to have the next discussion, which is what we do if we realize that we can’t just use prison as a panacea for social problems. Then we have to start thinking about housing, education and so on.

You also explain that when facing crime, societies should look for strategies that shift the focus from punishing to a “capabilities” approach, that is nutrition, education, and healthcare, among others. This idea creates a fascinating link between your research on anger and public policy, which you later reinforce when discussing disgust. How can emotions be incorporated into modern empirically-based public policy research?

Let me first of all say that I do not think we should stop thinking about punishing totally. There will always be some crime, and I think the right approach to crime is also forward looking in terms of specific deterrence, general deterrence, incapacitation, and reform. So we must continue to think about those things, and there we really, really need more good empirical research. Because if what we want to know is not just what satisfies our retributive feelings, which I argue against, but rather what kinds of punishment actually produce good empirical results in terms of deterrence, we’ve got to do that research. And I think it’s because people are retributivist that they don’t bother to look for the empirical evidence.

But we also need more research on all aspects of social welfare policy. About what kinds of housing programs are productive––that has been discussed for many years but the discussion is still going on. Obviously, we’ve come to the conclusion that these big housing projects were just crime factories and those have been dismantled, mixed-income housing has been taking over. But we still don’t have enough sense of under what conditions mixed-income housing works, what else has to be in place––like what kind of other opportunities for young people, in order to cut into the festering gang culture, and produce genuine opportunities for young people. So we need more empirical research about things like employment.

Nowadays a lot of my colleagues are very interested in things like “Ban the Box”––that is where, in the first application for a job, the candidate does not have to divulge a criminal record.  There’s a movement afoot to see what happens if we make it no longer required, if we even forbid people from having to check the box that they’ve been arrested. It’s getting rid of that source of very strong prejudice in the first employment interview. What kind of results does that have? There’s a lot of very interesting empirical work going on around this so we are waiting to see the results on that. And of course, it is difficult to do that work because what they typically test is  predicated on arrest rather than actually on charges or convictions. Arrest itself is likely to be racially biased. So there are many, many problems. We also have to do much more good empirical work on profiling. It is widely used still, but then we have to see, does that really do anything to prevent crime?

So there are just so many areas to study. On another front , we want to study the benefits of policies that might require some expense, to enhance the diversity of educational institutions, various different types and levels of affirmative action. Our new law school dean, Tom Miles, has done some very important empirical work—he has a PhD in economics as well as being a law professor—about how diversity in judicial panels improves the quality of deliberation. So just seeing race from many different points of view and, in Tom Miles’ case, seeing how racial diversity enhances institutional functioning, can certainly give us incentives to foster that in our educational institutions or in law firms, which are now paying attention to that research in the way that they hire our students.

So I think there are just endless projects that have not yet been done that would be good to do, but there’s a lot of good work going on too. And in fact, in law, right now, empirical scholarship is a growing in the highly prestigious area of law and economics.

You argue that anger has a lot to do with our desires for control, our personal insecurities and our fixation with ranking and relative status. Could current merit-focused education be fostering this status-driven obsession that you see so intertwined with anger? What other factors could be leading to this?

It’s an old, old problem. I just saw Hamilton in New York and I loved it, but you know it’s a great reminder that the competition among males for honor is deeply ingrained in the fabric of our society. And Hamilton had, of course, the more genuine aspiration to do something great, but he also had the desire for honor. And you see Washington trying to steer him toward the real ambition and away from the honor, and Burr is the one who’s just totally poisoned by competitive envy and competitive honor. And actually, because two days ago was the anniversary of the Hamilton-Burr duel, I read a letter of Hamilton’s that a friend sent to me where Hamilton says, ‘you know I don’t really think dueling is very good, and I shouldn’t really join in these bad examples but if I want to get anything done in society, I have to take my place in the relative hierarchy of men’—I’m paraphrasing of course… And he is saying basically, ‘I have to join the competition game in order to be respected, in order to get anything done.’ And that’s very sad, and he lost his life for that reason. He was saying, ‘why did I accept the invitation to a duel when in fact he lost his son already in a duel’.

And I think it’s everywhere, it’s in our academic institutions, where the competition for honors makes it so easy for that to poison academic endeavor. And we try so hard here in this law school, where we have lots of ambitious people, obviously, to create a culture where we are really pursuing ideas for their own sake, not just for the sake of honor, but it really is an effort, because the definition of masculinity in American society is a heavily competitive definition. I don’t know what societies you would ever find in which that wasn’t the case, I mean there certainly are some probably. But the trouble is the thing that Hamilton said, that you need the ambition to have a successful society. However, that’s so easily confused with this competitive striving for honor that you probably never find a really ambitious society that doesn’t have that poison inside. So what you need are wise leaders like George Washington who know the difference and who are going to steer people toward one and away from the other, but you don’t always get that.

In the last part of your book you talk about revolutionary justice and mention as examples of non-anger politics, Mahatma Gandhi, Martin Luther King Jr., and Nelson Mandela. These cases seem to put political leadership at the center of your argument. Do you see these types of leaders thriving in today’s world?

Well, I think anger is often connected to a sense of helplessness, and I think that white men, in particular, are feeling dispossessed for several reasons. Globalization is taking jobs away. Jobs in manufacturing and construction just don’t exist in the same numbers anymore. And a different demographic is moving into the jobs that they think belong to them. And these people are feeling helpless rather than thinking how should we solve the employment problem, how should we solve the globalization problem. It’s just too big; it’s hard to get your head around. So just striking out at the people––let’s say Mexicans or women or whoever seems to be taking your jobs away, seems to be a much easier way of regaining lost control. And I think Donald Trump’s whole campaign is about giving the illusion of control, without really solving the problem. So that’s my big problem with Mr. Trump. I think that’s all over the place. Now, what kind of leaders would we need? Obviously, in all the three cases I talk about, Mandela, King, and Gandhi, there was a lot of anger around. What those leaders did that was really great was not only to give people advice about non-anger and love being superior to hate but also to point the way forward to an intelligent resolution of society’s problems.

In the case of Gandhi, where the job was to found a new nation, that meant you didn’t need just Gandhi, the inspiring guy, you also needed Nehru, the politics guy, and you needed Ambedkar, the law guy. And they had to all work together. How much they didn’t get along is notorious but still they had to somehow work together in order to solve the nation’s problems. So I think in our society too, we need several different kinds of people, we do need people who are inspiring, and I do see that leadership coming from a lot of local leaders in this country, particularly from the churches. I have to say, why was it that in South Carolina, after those terrible murders, people reacted with love and forgiveness, rather than anger? It was because of the life they had been leading in their church. But not only from the churches, I actually think that there are other social movements that help people struggle against anger. I have to give the gay community great credit after Orlando. You did not see an outburst of destructive rage but rather a public demonstration. We are not going to pretend to be like everyone else, we are going to show ourselves with all our differences but also to manifest our commitment to love.

So I think there are communities all over this country who are pursuing those values, and what we need is for political leaders to tap into that, to recognize the value in that, and then for legal leaders to figure out ways to turn all that into law. Now in terms of civil rights for gays and lesbians, I think that has been happening really, very nicely. I’ve written quite a lot about that movement over the years and I think we have a number of ingredients. We do have leaders who have put themselves out in the forefront of that movement, including legal leaders like Justice Kennedy on the Supreme Court, but we also have figures in the arts who have created a public sense of the reality of lesbian and gay lives for a public that pretends they don’t know anything about them. Hollywood has played a really good role in giving people a sense that these are real people. They are very different and there are many different kinds of people, and they are people you would like to have as friends. I think the use of comedy has been particularly effective in sitcoms like Will & Grace and Modern Family. So I think in that movement you can get a sense of what one might do.

Now with race it’s much trickier because quite frankly people are terrified of African-Americans, a lot of people are, and it’s much harder to get over that fear than with gays and lesbians. It was not really fear of them, the people who opposed marriage equality were more a little, I don’t know, grossed out or something, but they didn’t really think that gay men were going to rape their wives. With race, there has to be a much more complicated dialogue. Now I think that our president has played his hand very, very well in this respect. He has to be very careful not to present himself as the angry black man because that’s what everyone is terrified of, but he has presented himself with dignity, and yet made a very strong statement about the importance of black lives, of course, a statement that also respects the police and respects law enforcement. So I think he’s done his part, and I think there are plenty of people in the legal community working hard on this. There are also plenty of people in the communities working on things like community policing, but we still have a long way to go.

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