The Impossibility of Criminal Justice Ethics: Toward a Phenomenology of the Possible

In Search of the Ethical in the Phenomenology of Domination Found Within Criminal Justice Practice

MacIntyre’s (1988) observation, which explores the relationship between domination and those dominated, reveals a phenomenology—a relationship that is certainly unintended given MacIntyre’s philosophical orientation and proclivity—that is predicated upon the conditions of a specific type of rationalized domination, and its influencing effect on those dominated. Taken from this perspective, unjustified domination occurs when the conditions of such forms of domination fail to recognize the degree to which the characteristics of those dominated are the result of a process of social construction and not the ontological nature of those individuals who are required to endure those conditions. Once these socially constructed categories of meaning are exposed, the transformation of the phenomenology of domination becomes possible. Such an observation holds a variety of implications for the construction of a criminal justice ethics. In fact, by exploring the various contexts of criminal justice practice and the phenomenology these evoke, the possibility of a criminal justice ethic starts to come into focus.

Take, for example, the context of offender rehabilitation. What type of phenomenology does this relationship reveal? Although the answer to this question will always be predicated upon the specific encounter between correctional staff or therapist and the offender, it will emerge from the contextual realities of the penitentiary or parole/probation environment, which will include a variety of lived-meanings for both participants in this relationship. If, for example, the offender refuses to agree with the agenda of correctional staff, this stance may be used as a justification to deny parole or to deny certain privileges normally offered to those individuals more amenable to institutional rules. If resistance occurs as a result of this initial “impasse,” solitary confinement may be imposed, which in turn may evoke a more pronounced round of resistance from the individual and provide further evidence to correctional authorities for the need of more stringent modes of punishment. This cycle can be unending.

It is important to recognize that the way in which this initial impasse is resolved, will likely determine whether or not this encounter will “evolve” as suggested. The possibility for a more successful resolution of the initial problem will likely be determined by the way in which each stance is socially constructed by each participant. If as therapist I view any resistance by the offender as proof of his ontological inability to change, the ethical stage has been set, and further domination will likely follow. If, on the contrary, I view the offender’s stance in a less confrontational way and take up the fact of their resistance as an opportunity to meet the individual where they currently are, perhaps a more productive resolution will be found. A similar type of phenomenological encounter can be recognized within the current controversy of police shootings.

Trayvon Martin: The Phenomenology of the Encounter With the “Raced” Other

What seems to be most pronounced within the phenomenology of encounters between police and African American suspects—encounters that are all too often resolved fatally—is the presumption of an ontology of danger that configures every aspect of the social visibility of blackness (Butler, 1993; Polizzi, 2013, 2016; Yancy, 2013). If the social visibility of blackness, regardless the specific social context(s) of its appearing, is exclusively configured within an ontology of danger or threat, it is difficult to imagine how these lethal outcomes are to be avoided. If as an officer I arrive at a potential crime scene and immediately construct those individuals with whom I encounter as dangerous based solely on their ethnicity, my stance toward them will likely be more aggressive in tone. This dynamic was very much in play in the killing of Trayvon Martin even though that incident did not involve an actual encounter with police.

It will be recalled that George Zimmerman presumed Martin’s criminality based upon his presence in that neighborhood, which recently had experienced a rash of burglaries that Zimmerman apparently attributed to a unidentified Black suspect(s). Even though by all accounts Martin was not doing anything that would support the belief that he actually intended to commit some type of illegal action, Zimmerman was convinced of his criminality and his guilt and started his pursuit. Although Zimmerman would ultimately be found not guilty of homicide by a Florida jury, which affirmed his claim of self-defense, Martin was not afforded the same type of legal protection. Even though it was Zimmerman who was the clear provocateur in this situation, it was Martin who was held responsible for not ignoring the personal threat he perceived from Zimmerman’s unrelenting pursuit. For Martin, there was no legal right to stand his ground, perhaps because the law was not written for him or those like him. If one is constructed as a perpetual manifestation of criminality, danger, or threat, self-defense is not accessible for you because you are the danger that the law intends to address (Gordon, 2013; Wills, 2013).

In all of the examples discussed above, the construct of unjustified domination can be witnessed. The phenomenology that emerges from these encounters reflects the various ways in which this experience of domination is actually configured. Taken from this perspective, it is important to recognize that the phenomenology of a given event reveals a specific social context, a specific set of lived-meanings that is directly implicated within individual experience. The face-to-face encounter between correctional staff and inmate, between police officer and Black suspect, between George Zimmerman and Trayvon Martin, are already situated within a context of varied socially constructed meanings, which are inseparable from these events. The very fact that something seems to be amiss in these encounters reflects how the given situation confronts the reality of these taken-for-granted social meanings, which exist prior to the actual event.

Heidegger’s Existential Phenomenology and the Experience of Others

In his seminal text, Being and Time, Heidegger (2010) explores the “structure” of human existence through his construct of being-in-the-world. Being-in-the-world or Dasein—literally translated as the “there” of being—reflects not only the type of being that human being is but also how being-there reveals the existence of Dasein (Heidegger, 2010; Nancy, 2008; Nelson, 2008; Raffoul, 1998, 2010; Richardson, 2012). For Heidegger being-there reflects what he describes as facticity or thrownness. Thrownness describes the being-there of human existence. To be thrown is to find oneself in a specific social world, which is configured by a set of cultural, historical, and social meanings, which exist prior to my encounter with them. As a result, human existence finds itself in relation to this context(s), which constantly attempts to impose its meaning for human existence.

However, the being-there of human existence cannot be defined as a being-there that is isolated in some type of solipsistically configured world. Rather, being-there also recognizes that human existence is configured by an ontological relationality that finds itself within the context of a shared world, and described by what Heidegger has defined as the being-with of human existence. Being-with describes for Heidegger how human existence finds itself in-a-shared-world-along-side-others. These others are not configured as alter egos, or subjects, but as the very ontological character by which human existence is revealed. To be a being-in-the-world for Heidegger is also to be ontologically open to a being-with-others (Nancy, 2008; Raffoul, 2010). As will be seen later, the very possibility for an ethics for Heidegger becomes predicated upon the ontological call to be open to this other. However, before we begin to explore the ethical possibilities of such an approach, it is important to first discuss what Heidegger has described as the they-self, which is fundamentally implicated in this process.

The they-self describes for Heidegger the way in which human existence is revealed and made meaningful within a given social context(s). The they-self is described by Heidegger (2010) in the following way.

In its being, the they is essentially concerned with averageness. Thus, the they maintains itself factically in the averageness of what belongs to it, what it does and does not consider valid, and what it grants or denies success. This averageness, which prescribes what can and may be ventured, watches over every exception which thrusts itself to the fore. (p. 123)

From this perspective, human existence, Dasein takes up its being-with from the there of its specific existence. As a result, the specifics of this being-there and the specifics of this being-with are configured by the ontic or experiential aspects of a given individual in relationships with others. Perhaps stated more clearly, the ontic reflects the way in which these ontological aspects of being are actually lived. When Heidegger theorizes about the ontological thrownness of human being, he is really describing a type of general structure that becomes manifest within the actual experience of our being-in-the-world; this specific experience of world reflects the ontic manifestation of this ontological structure. What this implies is that human existence always finds itself within a shared world, within the thrown reality of individual being-in-the-world that is configured by a very specific relationship to the they-self and a being-with others.

However, to find oneself in a shared world is not to imply that the meanings of this shared existence are “shared” in the same way. For example, to be a being-in-the-world-as-addict, as-affluent, as-Black, as-criminal, as-deviant, as-gendered, as-poor, as-White-male, or as-mentally ill, all evoke a very specific configuration of the they-self and by implication, reflect that which will be valued and that which will not. Criminal justice practice and the ethical concerns which it seeks to evoke is particularly vulnerable to the whims of the criminal justice they-self and the types of being-with it imposes. If, for example, this manifestation of the they-self decides to devalue certain groups, the potentiality located within this type of being-with becomes configured by the specific realities constructed of this being-there.

If we return to the language employed by Arrigo et al. (2011) or to the observation offered by MacIntyre (1988), it becomes quite clear that the potentiality for human flourishing or the possibility of preventing unjustified domination is fundamentally predicated upon that which the they-self values and that which it does not. If an individual or group becomes devalued by the they-self and designated as that which will be denied success, it is also much more likely that these same individuals may become the “appropriate targets” of unjustified domination. As will be discussed below, the phenomenology of domination imposes itself at every level of this process sparing neither dominator nor those dominated (Arrigo & Milovanovic, 2009). ⁵ Under such circumstances, the possibility for the ethical recognition of this other within this example of being-with becomes placed into considerable question. Unfortunately, the resolution of this ethical challenge is not an easy one.

Central to the pursuit of a criminal justice ethics is the following question: How do we establish such a possibility when the very strategy of this type of practice regularly devalues the target of its project? It seems philosophically contradictory to pursue an ethical strategy that contains within it a process of devaluation that renders any discussion of the ethical effectively moot. Given that the they-self of the criminal justice machine tends to conflate the act of crime with the existence of its perpetrator, actor and act become configured into a singular manifestation of a type of human being whose ethical worth is placed into question. Although any number of examples within criminal justice practice could be employed—the recent focus on police shootings, the process of rehabilitation and reentry and the continued use of solitary confinement—to argue this point, the contemporary proliferation of the use of supermax confinement provides a powerful context by which to begin to explore this idea.

In his article, “A Culture of Harm: Taming the Dynamics of Cruelty in Supermax Prisons,” Haney (2008) explores how the supermax penitentiary environment helps to influence and justify various examples of deliberate indifference or worse. Haney (2008) observes that

. . . this heightened probability comes about in part as a result of the very assumptions on which supermax prisons are based and in which correctional staff members are more or less steeped—the end product of what I will characterize as “ideological toxicity.” (p. 958)

The toxic ideology of the supermax environment to which Haney alludes emerges from both institutional narratives, which construct the offender as socially irredeemable and the structural architecture employed to confine this group of inmates. In fact, each become mutually reinforcing. It will be recalled that Alcatraz—the unofficial first supermax facility in the United States—was intended to house America’s most notorious criminals and gangsters of its day. However, it is important to recognize that the purpose of Alcatraz was not simply to function as a traditional prison; rather, its architecture and strict disciplinary regime also intended to create an environment that was not all that different from the setting of solitary confinement.

With the construction of Alcatraz, a different type of correctional philosophy was put into play; one that rejected the utility of rehabilitation for that of the utility of rationalized retribution. Although the federal penitentiary at Marion was initially envisioned to replace Alcatraz, and usher in a new age of rehabilitative possibility, within the span of just 10 years, it too came to employ a variety of correctional strategies that were in many ways worse than those practiced at the institution it was created to replace (Rhodes, 2004; Richards, 2015; Ward & Werlich, 2003). As this attitude of rationalized retribution spread to a vast number of state correctional systems in the United States, the use of severe confinement strategies to incapacitate the worst of the worst offenders would therefore require an architectural structure capable of maximizing the punitive utility of this process. As Haney (2008) observed, abuse within such a context is nearly inevitable.

Supermax prisons are built on a modal of profound deprivation. They are structured to deprive prisoners of most of the things that all but the most callous commentators would concede are basic necessities of life—minimal freedom of movement, the opportunity to touch another human being in friendship or with affection, the ability to engage in meaningful or productive physical or mental activity, and so on. (Haney, 2008, p. 967)

Under such conditions, the very humanity of the individual is called into question, which over time can erode the ethical focus of penitentiary staff. ⁶ The abusive tone set by the architectural environment of the penitentiary and the strict regime which it evokes helps to further reinforce or even legitimize the abuse of those so confined. “The extreme deprivation, the isolating architecture, the technology of control, and the rituals of degradation and subjugation that exist in supermax prisons are inimical to the mental health of prisoners” (Haney, 2008, p. 960). A concomitant result of such practices is that staff may come to emulate the type of relational attitudes that this architecture and strategy seems to invite.

Within such a phenomenology, the apparatus of supermax confinement helps to construct and legitimate a relationship to the they-self of the criminal justice machine that fundamentally devalues the very humanity of those under its control (Polizzi, 2017). This process of devaluation begins when the individual is designated as appropriate for this level of custody, which in turn helps to reinforce the legitimacy of the conditions this individual will be forced to endure. Once constructed as irredeemable by the “facts” of this type of incarceration, the phenomenology that follows will likely be structured upon this conclusion.

Over the past two decades, the proliferation of supermax confinement has ushered in an evolving attitude toward criminality that is becoming more and more focused upon identifying those individuals appropriate for rehabilitation and those who are not.

Toward a Criminal Justice Ethics and the Phenomenology of the Possible

Perhaps the most daunting challenge facing a phenomenology of the possible—as this relates to criminal justice ethics—is the degree to which the ontological gap between offender and non-offender can be sufficiently healed. As was discussed above, the very possibility of a criminal justice ethics is called into question by the continuing practice of solitary confinement and supermax incarceration. The continued “normalization” of such correctional strategies has helped to widen the gap between offender and offender, and offender and citizen. As a result, a type of circle logic can be recognized, which seeks to legitimize the continued use of this type of incarceration strategy by validating the constructs that this process creates (Arrigo & Milovanovic, 2009; Polizzi & Maruna, 2010; Sykes, 1958/2007; Ward, 2010). If the rationale for these extreme methods of incarceration is predicated upon the need to control “the worst of the worst,” it should not be surprising that the physical structure of such a practice lends logical reinforcement to that “belief.”

However, it would be disingenuous to maintain that the most daunting challenge evoked by this type of correctional strategy is situated solely within the gap between ethical theory and correctional practice: it is not. A more subtle gap or subtext exists within the context of theory itself. Although a variety of ethical theoretical approaches may be employed to explain the process by which ethical conclusions are constructed, they are not always so successful in establishing exactly who will “qualify” for this ethical consideration and who will not. Generally speaking, such moral systems appear to be exclusive in their logical reasoning concerning the breadth of their ethical scope, but often are unable to address the practical divide that the problem of alterity so powerfully evokes.

The problem or ethical challenge of alterity, of the otherness of the other in criminal justice practice, has unavoidable implications. Who is this other that we encounter within the context of criminal justice practice and how do we respond? Is this other like me or are they in some way alien, totalized as an ontologically not/I? (Levinas, 1969). Regardless the specific ethical position that we embrace, there is no guarantee that this stance will be witnessed within everyday encounters with this other. We may hold certain truths to be self-evident; we may state our fidelity to this or that ethical position, but if we have not thoroughly explored how this relates to every other, our actual encounter may look rather different.

It is also important to recognize how our relationality to the other, also makes accessible the “other that is also us,” in the sense that the otherness, our own existence, is often the very thing that can liberate us from this phenomenology of domination. When we attempt to endure the other as an open possibility, we are also inviting ourselves to do the same.

It will be recalled that the face-to-face encounter described by Schutz (1932/1972) and described by Berger and Luckmann (1966) constructs a type of relationality that emerges from the immediacy of such experience (Polizzi, 2016). Schutz observes that

to this encounter with the other person I bring a whole stock of previously constituted knowledge. This includes both general knowledge of what the other person is as such and any specific knowledge I may have of the person in question. (p. 169)

Most germane to this discussion, of course, is how this “stock of previously constituted knowledge” influences the immediacy of my current encounter with this “other.”

Regardless of the specific iteration of the deontological ethic one embraces, such a position does not necessarily guarantee that every individual will actually be ethically recognized by the same. If this type of recognition is included within such an ethical frame of reference, there is still no guarantee that the said practitioner will actually evidence such a belief in their daily life. For example, when Jefferson proclaimed in the American Declaration of Independence that “we hold these truths to be self-evident that all men are created equal,” to whom is he referring? It seems reasonable to conclude that what appears so self-evident to this “we” is not inclusive of “all men,” unless of course that actually means, literally all (only) men, but even with that interpretation, it would still not be a very inclusive ethical statement.

Similarly, if we were to take up a utilitarian ethical stance, we would be confronted with a similar problem. If the desired result of such an ethical practice is to arrive at a place that evokes the greatest good, how is this greatest good constructed and by whom? Once again, perhaps, we would rely upon that which is self-evident. However, it is also self-evident that the trajectory of that pursuit of the good will likely reflect the “we” that has legitimized its import and social value.

Criminal Justice Ethics and the Jungian “Shadow”

If the possibility—the overcoming of the impossible—of a criminal justice ethic is predicated upon the confrontation with the challenge of the other, perhaps the Jungian configuration of the “shadow” can shed some light on this problem. Jung (1959) described the shadow as

. . . a moral problem that challenges the whole ego-personality, for no one can become conscious of the shadow without considerable moral effort. To become conscious of it involves recognizing the dark aspects of personality as present and real. (p. 8)

As a moral problem, the shadow reflects those aspects of the ego personality that are incongruent with the conscious identity of the individual (society) and as a result are only recognized (projected) as “something” that exists outside of the projecting psyche (Maruna, Matravers, & King, 2004). Such a process assumes that this shadow “material” remains repressed within the unconscious of the individual or the “unconscious” of a given society or institution and is only indirectly accessed through the process of projection.

The effect of projection is to isolate the subject from his environment, since instead of a real relation to it there is now only an illusory one. Projections change the world into a replica of one’s own unknown face. (Jung, 1959, p. 9)

The process of projection becomes a type of “protective” unconscious mechanism, which protects the subject from the morally challenging nature of this content. Although in some ways similar to the Freudian conceptualism of the defense mechanism, “shadow projections” reflect the process by which this unconscious material is redirected away from consciousness (Maruna et al., 2004). As a result, this content remains unconscious and split off from ego consciousness, making its integration into conscious awareness impossible. The “considerable moral effort” to which Jung alludes, becomes unnecessary under such circumstances for the simple reason that this now “conscious” material is not identified as mine, is not “owned” as Maruna et al. (2004) correctly observe and only becomes recognizable within the manifestation of some immoral “other.” Such a theoretical vantage point is particularly useful in any conceptualization of a criminal justice ethic, given that such a process is fundamentally concerned with the confrontation of the collective shadow.

The shadow, which is in conflict with the acknowledged values, cannot be accepted as a negative part of one’s own psyche and is therefore projected—that is, it is transferred to the outside world and experienced as an outside object. It is combated, punished, and exterminated as “the alien out there” instead of being dealt with as “one’s own inner problem.” (Neumann, 1973, p. 50)

Any possibility of a criminal justice ethics must confront the psychological challenge imposed by the manifestation of the criminal shadow. As was discussed above, these shadow projections are what fuels those attitudes which construct such individuals as “the worst of the worst,” thereby justifying unjustified dominion. However, the “moral certainty” from which such attitudes emerge are totally cutoff from the immediacy of such unconscious material that can only be recognized in this criminal other. Such a convenient recognition of the evilness of the other deflects any need, for either the individual or a society, to confront the shadow in any immediate way; so is the case with theoretical approaches to theories of criminological ethics.

Much like the unrecognized and unclaimed shadow projections of individuals or society, ethical theory in criminal justice is confronted by the same shadow problem. Within this context, individuals may embrace a specific theoretical perspective, while still failing to recognize the process by which certain individuals are found to be less worthy of the same ethical consideration. Whether this dynamic is recognized within the context of “unjustified domination” or within the inhumane attitudes of certain prison staff working in supermax penitentiaries, the discussion of ethics almost becomes a superfluous consideration, rendered moot by the realities of such inhumane environments. Individuals working in these environments become psychologically vulnerable to the normalization of institutional harm and over time become less able to respond to the ethical erosion these environments tend to support.

As a “moral problem,” the Jungian shadow represents a psychological process that is unwilling or unable to recognize its own complicity in the very thing that has become so morally repulsive. This process illuminates the moral challenge to which Jung alluded. If the possibility for the recognition of evil always remains somewhere out there, always contextualized within the constructed image of a given individual, social group, or foreign country, the integration of this shadow material becomes impossible. Without integration, the moral problem remains and the certainty that drives it continues to evoke this unrecognized harm.

Heidegger and Originary Ethics

It could perhaps be argued that any attempt to configure a notion of ethics from Heidegger’s phenomenology is guaranteed to fail, for the simple reason that the philosopher neglected to formulate such an ethical system (Caputo, 1987; Nancy, 2002, 2008; Raffoul, 2010). The correctness of such a conclusion, however, is contingent upon the way the question is asked. If Heidegger’s failure is related to his unwillingness to establish a prescriptive system of normative values, then, the observation is correct (Caputo, 1987; Nancy, 2008). However, it is only correct given that Heidegger’s intent was not to create another moral system but to deconstruct the very foundation of that tradition.

Heidegger does not propose moral norms, but attempts to re-think the very site of ethics; by way of a critique of the metaphysical tradition, he attempts to re-appropriate the phenomenological and ontological origins of what has been called “ethics” in our tradition. (Raffoul, 2010, p. 222)

From this perspective, Heidegger attempts to rethink the question of ethics or what has been called the ethicality of ethics, by exploring its relationship to being. Such a philosophical strategy redirects the discussion of ethics away from notions of applied morality or subjective will or agency (Heidegger, 1993; Raffoul, 2010). As an originary phenomenon, “Heidegger provides an ontological analysis of ‘being-with,’ that is, the originary being-with-others of Dasein that renders moot the question of accessing another mind through empathy” (Raffoul, 2010, p. 222). By situating his deconstruction or destruction of ethics within the ontology of Dasein’s being-with, the ethical is now configured as an originary characteristic of being itself (Heidegger, 1993, 2010; Nancy, 2008; Raffoul, 2010).

As an ontological characteristic of Dasein, being-with reflects the relationality of being itself. As such, being-in-the-world-with-others is presenced as an ontological fact of existence prior to any ontic configuration of the same. However, because Dasein always finds itself in the world, always finds itself thrown, the originary ethicality of being-with is often covered over by the imposing demands of the various manifestations of the ontic “they” (Richardson, 2012). Within this context, the very potentiality of being-in-the-world is thwarted by the deficient solicitude such a relationality evokes.

For Heidegger, solicitude reflects the ontological characteristic of Dasein’s relationality to being-with-others. As an existence that is ontologically defined by this quality of being-with, Dasein finds itself as a being-in-the-world-with-others (Heidegger, 2010). However, this relationality is not the relationality between an individual Dasein and things or a type of relationality that constructs others and world as an epiphenomenal artifact of consciousness; rather, such a configuration of being reveals that aspect of existence which reflects the openness of being-with that is situated in a world shared with these others.

The being to which Dasein is related as being-with does not [emphasis added], however, have the kind of being of useful things at hand; it is itself Dasein. This being is not taken care of, but is a matter of concern. (Heidegger, 2010, p. 118)

However, as Heidegger (2010) clearly observes, all too often this manifestation of concern is configured by the fact that Dasein finds itself within various modes of a deficient being-with-others. “These indifferent modes of being-with-one-another tend to mislead the ontological interpretation into initially interpreting this being as the pure objective presence of several subjects” (Heidegger, 2010, p. 118). As a result, the ontic manifestations of being-with help to conceal ontological implications of the ethicality of being-with. Heidegger attempts to resolve this problem through his discussion of the constructs of leaping in and leaping ahead.

Leaping in and leaping ahead are viewed by Heidegger as two positive modes of concern: one which temporarily takes over the care of the other until they are able to do so on their own, and one which reflects the potentiality-for-being yet to be recognized. These constructs or modes of being are particularly useful to this discussion, insofar as they describe the various ways in which deficient modes of being-with may be affectively overcome. Given that criminal justice practice is fundamentally grounded within this ontic configuration of relationality, their potential importance should not be overlooked.

It seems relatively uncontroversial to maintain that all of criminal justice practice—incarceration or rehabilitation—become easily recognizable within these modes of concern or being-with. To take over the care of the other, to displace the other is central to criminal justice and rehabilitative practice. But can or does this criminal justice mode of being-with also allow for the possibility of legitimately recognizing the potentiality-for-being?

Regardless where this conversation or confrontation takes place, whether that be within the possibilities of human flourishing proposed by Arrigo et al. (2011), within the frame of unjustified domination observed by MacIntyre, or within the context of the Jungian shadow, the notion of concern helps to configure this specific manifestation of human ethicality and relationality. To leap in without also recognizing the potentiality-of-being (Arrigo et al., 2011) is to dominate the other in such a way that rejects the possibility for any other type of being-with-others. Once the possibility or potentiality-of-being becomes configured by constructions such as being-in-the-world-as-addict or being-in-the-world-as-criminal, as exclusive philosophical categories, the potentiality-for being is lost and with it any legitimate discussion of ethics as well. ⁷

As modes of ethical possibility, Heidegger’s notion of concern reflects the immediacy of the event of being, not as a subjective possibility, but as an ontological responsibility. To “respond” to this event is, as Raffoul (2010) would maintain, to take up the call of being. ⁸ However, such a call is not configured by that of an isolated “self”; rather, it reveals the opening of being itself, which in turn reestablishes the relationality of Dasein’s being-with-others, that is, a fundamental characteristic of human existence. Within this context, there is no ethical system of value to apply, only the recognition.

Closing Reflections

What the above discussion has attempted to explore is the philosophical challenge that a criminal justice ethics demands. How we arrive at a resolution of these problems will not come through a reformulation of ethical theory or an applied system of normative value; rather, it will be recognized through our willingness to endure the event of correctional/rehabilitative practice. Our involvement in this event does not require that we turn away from the practical implications of correctional and rehabilitative practice, only that we recognize what is at stake when we take up this encounters as we will.

For example, the moral problem evoked by the Jungian shadow is not that dissimilar from Heidegger’s conceptualization of deficient solicitude. Each reflects a narrowing of human potentiality as this relates to ontological possibility (Capobianco, 1993). Regardless the specific correctional context, to configure this individual as ontologically immoral or evil, is to effectively establish a different category of human that is no longer worthy of ethical consideration. When we devalue the offender in our care, whether that be within the context of institutional practice or within the rehabilitative relationship, we do damage to not only that specific intersubjective encounter but also to the very potentiality of being itself.

To be responsible here—to have been struck, always already, by the event and call of being. Responsibility designates such an event by which being “enowns” humans. It represents human beings’ very belonging to being, as well as their essence as humans. (Raffoul, 2010, p. 248)