Yankah — Critical Engagement
In “Good Guys and Bad Guys,” Ekow Yankah makes the argument that the simplistic division we often make between good guys and bad guys is pervasive, and even foundational, in our culture (1022). So frequently the good guys are portrayed as heroic, perfect, and morally flawless, while the bad guys always fail and rarely have any redeeming qualities. This, Yankah argues, has permeated into criminal law, which is dangerous for many reasons. For one, it “conceptualizes the state as good and the criminal as bad” and makes criminals permanently stained by their crime and fundamentally unredeemable (1025). Put another way, Yankah believes that linking criminal actions to character defects is dangerous, since it creates a permanent criminal class of moral inferiors who are disenfranchised, and perpetually ostracized by society (1027, 1029). He further writes about how the exclusion of felons from things like voting and employment relegate them to the status of second-class citizens (1032). Even if character were to be a valid way to assess or define criminals, he notes that determining someone’s character is difficult and unreliable, if not impossible, and can lead to discrimination based on arbitrary attributes (1036). Yankah then begins a discussion on the legal equality found in the United States Constitution that preceded notions of empirical, factual, moral, or social equality. This he uses as a foundation for an act-based theory that punishes based on the actual actions of the criminal without referring to character and preserves equality before the law.
This piece by Yankah is convincing in many ways. His introductory story, where he was labeled as a “good guy” and the foreigner as a “bad guy” based on bias and arbitrary reasons, was compelling. His arguments about the unreality of extremes of purely good and purely bad people were valid — I think people (even heroes) are extremely complex. Even the most moral people have struggles and flaws, and most people we label as immoral still have redeeming qualities. I also agree with him that focusing on the criminal actions themselves instead of trying to discern (maybe incorrectly) someone’s character is probably a fairer way of applying the law so that there is no bias or differential treatment based on subjective assessments of other people’s character. I also his appreciated his discussion of the US Constitution and how the Founding Fathers prioritized legal equality even when they did not believe in factual equality.
That being said, I think there are a few problems with Yankah’s arguments and examples. At one point, he references the Nazis treatment of the Jews during the Holocaust and states, “viewing a group of people as fundamentally different has always been a necessary first step in imposing mass harm” (1025). While there certainly can be injustices within the justice system that need reforming, I think comparing the judgment of a class of convicted criminal felons to racial discrimination or the horrors of the Nazis is completely misguided and not at all parallel. This is a weak comparison that, at least to me, fails to bring home the point. I also think that while character-based judgment should not be the main method of the justice system, it is inevitable that conclusions about the characters of felons will and should be made. While some crimes may allow for more compassion and leniency and may have been perpetrated for reasons other than character flaws, felonies like murder, rape, kidnapping, etc. should be judged harshly and they do reveal massive character flaws. By committing crimes such as these, criminals knowingly subject themselves to the ostracization of society and forfeit many of the rights that upstanding, law-abiding citizens have. In my opinion, laws disenfranchising felons (preventing them from voting) and the fact that they often cannot find jobs should be legal and valid, in order to protect innocent people in society from future crimes being committed against them by repeat offenders. It could be argued that more reforms need to be made in the criminal justice system to rehabilitate criminals instead of solely punishing them, but until that happens or they show a genuine change of character in some other way, I understand how character-based judgements about criminals, especially convicted felons, can be valid and appropriate (although, again, an acts-based system may be more ideal).
Yankah, Ekow N. (2004) Good Guys and Bad Guys: Punishing Character, Equality and the Irrelevance of Moral Character to Criminal Punishment. Cardozo Law Review, 25(3), 1019–1068.