Racialized mass incarceration has been a river fed by many streams, but by far its biggest tributaries have been the moral, legal, and political lenses through which ordinary people both inside and outside the black community look at black criminals, especially serious or violent ones. Accordingly, Nigga Theory weaves together critical reflections on morality, law, and language in the form of political communication.
It’s the absence of doubt—the moral certainty that one is righteously doing the right thing—that deliberately kills people, by strapping on a bomb and walking into a crowd of tourists, for instance, or by strapping down a man in a chair and injecting, gassing, shocking, or shooting him to death. Nigga Theory argues for less certainty and for more epistemic humility in our moral discourse, and criminal condemnations of black wrongdoers on five different, interlocking levels.
First, drawing on Tommie Shelby’s Dark Ghettos: Injustice, Dissent, and Reform and its Rawlsian critique of America’s unjust basic social structure35 (John Rawls insisted on reciprocity in his theory of justice), Nigga Theory asks whether or not denizens of dark ghettos owe a duty to obey the laws of an intolerably unjust social system. Those who justify punishing desperately poor black criminals on “paying a debt to society” grounds assume a social system in which the burdens and benefits of social cooperation are fairly (or at least not intolerably unfairly) distributed, and that laws benefit everyone. So, as a kind of debt for the benefits gained, everybody owes obedience to those laws; someone who breaks the law owes something to those who do not, because he has acquired an unfair advantage. Punishing him takes from him what he owes, exacts that debt, and thereby restores the equilibrium of benefits and burdens. Nigga Theory debunks this “Gentlemen’s Club” picture of the relation between black folk and society, exposing the emptiness of the claim that the state—as The People’s representative in criminal prosecutions—is morally justified in punishing truly disadvantaged black criminals to make them pay their “debt” to society.
Second, even if, under a Rawlsian analysis, the state retains the moral right to punish morally condemnable (albeit unjustly oppressed) black offenders, anti-black bias—buried, or not, in the cognitive unconscious of ordinary judges and jurors—undermines the reliability, impartiality, and fairness of such moral condemnations.
Third, the moral condemnations of any wrongdoer of any race cannot be trusted at a philosophical level because the phenomenon of moral luck—the radically counterintuitive findings of moral philosophers like Thomas Nagel and Bernard Williams that all praise, blame, and moral responsibility hinge on fortuity—undermines the rationality and legitimacy of all moral condemnation.36 The “self” is a tissue of contingencies and one’s moral status a crapshoot, and this provides a fresh framework and vocabulary for thinking about ancient questions of free will and blameworthiness.
Fourth, Nigga Theory considers the moral responsibility of the United States itself (again, We the People) for the criminal behavior of many violent black wrongdoers. It identifies two grounds for such responsibility: the general criminogenic social conditions (like extreme social disadvantage that the state fosters or lets fester), and federal and state policies that helped jumpstart the crack plague of the 1980s and 1990s. Federal and state governments bear major responsibility for crime caused by chronic unemployment, grinding poverty, crumbling schools, inadequate health care, food and shelter insecurity, hunger and homelessness, and the foreseeable carceral consequences. A violent offender’s bad choice or criminal intent does not break the causal chain between racial oppression and criminal wrongdoing in black communities—it is a foreseeable link in that causal chain for which those who maintain our unjust social order bear responsibility.
Fifth, according to conventional legal theory, violent black offenders—black murderers, for instance—are merely “found” or discovered during the “fact-finding” process of a criminal trial by jurors acting as fact “finders.” In reality, black murderers are not “found” like discoverable facts of nature, they are socially constructed, manufactured, minted, if you will, in DA offices, on benches, and in jury boxes by prosecutors, judges, and jurors. To expose where bias lives in the substantive criminal law and its processes, and how judges and juries socially construct black murderers, Nigga Theory refutes and remodels criminal law’s prevailing paradigm of mens rea (criminal intent), the law’s ancient and foundational requirement of moral blameworthiness. Under the mens rea requirement, a killing without malice is manslaughter rather than murder; a criminal killing with malice is murder. But in most criminal trials, a decision needs to be made by the jury about the existence of malice. Because ordinary people unconsciously and routinely make biased moral judgments of black wrongdoers, as studies have shown, they more readily find that a violent black offender acted with murderous mens rea than a similarly situated violent white one. Nigga Theory will cast serious doubt on the reliability, objectivity, and trustworthiness of criminal conviction as a test of the most morally blameworthy Blacks.
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And Nigga Theory is not just interested in the criminal courtroom. Whenever the moral turpitude of black wrongdoers becomes the topic of the moment on talk radio, in coffee shops, and around water coolers, another potential site for the biased social construction of wicked black criminals becomes active. As neurological studies have recently helped establish, the dominant brand of anti-black discrimination in post-civil rights era America is not active racial animus but unconscious racial bias. This analysis will show why epistemic humility should temper our contempt toward serious black wrongdoers inside and outside the courtroom.
Such humility can bring with it a new approach to justice. Instead of corrupt processes of assessing blame, we can have a complex, balanced understanding of causality. Instead of putting people to death we should be putting them right. Instead of seeking retaliation and retribution, we should set out to reform and restore. Instead of wreaking revenge, we should find ways to generate redemption.
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A Royal typewriter and the Queen’s English. I personally witnessed their power to kick open the locked door of a black man’s prison cell. Creative word work and symbolic communication—including transgressive, disreputable, and uncomfortable words and symbols—have the power to produce social change and promote racial justice. When Colin Kaepernick took a knee during the national anthem to protest lethal police misconduct against black people, his nonlinguistic form of symbolic communication was a political act with social and political consequences. In the last presidential election, the word “deplorable” became a fiercely contested form of political communication. A core question of Nigga Theory—because it is, finally, a theory of justice—is whether radically progressive black artists and writers can, by fiercely contesting its meaning, bend the N-word into an instrument of political communication that can promote solidarity with black criminals, including violent ones. A new radically progressive moral and political framework calls for a radically new rhetoric, one that in style rejects respectability politics and in substance rejects its moral dichotomies. Can the N-word figure in such a rhetoric? Moreover, in matters of transgressive words and symbols more generally, how can we tell the difference between the cutting and the bleeding edge?
Immediately after Ice Cube had performed “Fuck tha Police” and other classics in Race, Rap, and Redemption, the ill-fated Dean of our law school read him the following USC Law School resolution on stage in front of a packed auditorium of students and faculty. It recognizes Cube—and through him other politically relevant “gangsta” rappers—as a wordsmith and scholar. As I wrote the resolution, I knew the genre that Cube pioneered did not need the imprimatur of a major research university to vindicate its value as an effective form of oppositional political communication. Still, it felt good to see it get such recognition just the same.
Be It Resolved:
A Resolution under the seal of the USC Gould School of Law.
Whereas Ice Cube, a rap pioneer and virtuoso lyricist, has led
a musical revolution with brutal, profound, and politically
charged music,
Whereas Ice Cube’s searing music rails against injustice and takes to task an oppressive social order that traps Blacks and other
minorities