As Immanuel Kant famously contends, “one man ought never to be dealt with merely as a means subservient to the purpose of another.” Society ought not punish offenders simply for the benefit of others. To avoid these perceived moral failings of utilitarianism, retributivism envisions the state as a neutral and dispassionate actor who imposes punishment only as a moral imperative of society. The Wire again provides a useful lens through which to interrogate this view of the state.
In one of the most profound moments in the series, Avon Barksdale’s nephew D’Angelo, a lieutenant in the family drug organization, teaches his young street crew that “the king stay the king” and that the pawns die early. Using the pieces of a chess game, D’Angelo explains how everyone in the “the game” has a role and few, if any, can transcend those roles. While the king has the queen and all of the pawns to “watch his back,” the pawns are frequently sacrificed to protect the more powerful pieces and have no one to shield them from the brutality of the game. If we read the chess board as yet another metaphor for the American city, D’Angelo’s teachings draw parallels between the “king” and the powerful state actors and between the “pawns” and those who are dispensable in society. Virtually every political decision in The Wire, including decisions about whom to punish and why, are ultimately designed to preserve political power and ensure the personal and institutional success of those with voice and capital. In the most blatant ways, political candidates manipulate crime and punishment to increase their votes and make their careers by running on tough-on-crime platforms regardless of whether those platforms provide fair and effective strategies for controlling crime. The politics of crime is easily discernible in the mayoral campaign of Mayor Clarence Royce and his challenger, Tommy Carcetti. While Royce makes the Baltimore police department a scapegoat for rising crime, Carcetti incites fears by publicizing murdered witnesses and demonizing Royce for refusing state funding for a witness protection program.
Beyond the mayor’s office, the Baltimore police follow investigative leads that score quick political points and avoid media backlash; the highest ranking state officials routinely prioritize the arrest of low- and mid-level drug traffickers who are economically expendable over high-ranking drug lords who have financial ties to politicians; the district attorneys pursue and avoid cases that will advance or derail their careers, respectively; and judges make decisions that ensure their reelection. Any notion of the state as a neutral arbiter ignores the role of politics and the democratic process in the administration of punishment.
Contrary to the series title, The Wire, which denotes a complex wiretapped investigation of money-laundering and deep-in drug suppliers, the police wire detail is an outlier in the Baltimore Police Department and is constantly in jeopardy throughout the series. The various wire details, intermittently targeting Avon Barksdale, Kintell Williamson, and Marlo Stanfield, have no support among the police commanders, who routinely assign the worst detectives to the detail. Because politicians have long measured police productivity and effectiveness by arrest numbers and clearance rates, the commissioners have little use for the lengthy, complex, and expensive investigations needed to ensure the arrest and prosecution of source drug suppliers and business developers who profit from drug money. By targeting street-level drug offenders in socially disorganized neighborhoods like the Franklin Terrace projects of West Baltimore, the department bosses can earn political favor and advance their careers quickly and cheaply. In contrast to the underground drug trade, which is more likely to thrive in middle-class neighborhoods, the open-air drug markets depicted in The Wire are common in the streets and alleys of poor communities where it is easier for police to make multiple, rapid arrests. Because urban drug dealing is so visible in these communities, the media, elected officials, and law-abiding residents are more likely to pressure police to take action. To meet these demands, officers make quick arrests with hand-to-hand undercover buys, and detectives seize drugs and sometimes guns to toss on a table at a press conference.
The most dramatic show of police priorities occurs at the end of the first season when Deputy Commissioner Ervin Burrell orders Sergeant Cedric Daniels and the Barksdale detail to raid all of the known Barksdale stashes to appease the commissioner’s desire for “dope on the table." At the press conference that follows, the commissioner stands before the media with drugs and money in front of him and declares in the language of classic expressive retributivism:
“Ladies and gentlemen, what you see on the table in front of you represents our department’s answer to a culture of death and drugs. And when an officer falls in this war, others stand ready to pick up the challenge and carry the fight to the very doorstep of those responsible. Now this is only the beginning I can assure you. But today a message has been sent. And believe me this message has been heard loud and clear by all of those who seek power and profit in the importation and sale of illegal drugs.”
Because the raid occurs after the shooting of Detective Kima Greggs, the press conference also has a secondary symbolic effect of reminding the public that a police life has greater value than other lives.
Regular viewers recognize that although the department’s decision to raid Barksdale’s main stash house does lead to the arrest of Westside drug kingpin Avon Barksdale, it effectively ends the wire detail and stops short of the money trail that would incriminate state politicians and powerful businessmen. While profits from the drug trade travel freely and knowingly from the drug dealers to banks, corporations, politicians, and developers, state punishments are selectively reserved for the street dealers who lack power. Detectives who follow the leads beyond the geographic bounds of West Baltimore will be reprimanded. In the very first season, when Detectives Greggs and Ellis Carver stop Senator Clay Davis’s aide, who has picked up a large amount of cash from the Towers, Deputy Police Commissioner Burrell immediately recognizes the likely political implications and orders them to return the money and let the aide go. In later episodes, the linkage of drug money, business development, and political donations becomes much clearer, and political resistance to the Barksdale wiretap investigation is greater. In Season 4, both Senator Davis and developer Andrew Krawczyk contact the mayor to demand that the detectives refrain from issuing subpoenas to track campaign donations. The connection between the wealthy professionals and the drug enterprise is summarized pointedly by Omar Little, who tells Barksdale attorney Maurice Levy in the middle of a cross examination, “I got the shotgun. You got the briefcase. It’s all in the game though, right?” Turning Levy’s own words against him, Omar reminds Levy that they are both “amoral” and “feeding off the violence and despair of the drug trade.” Yet, as The Wire makes clear, only the powerless residents of West Baltimore will be held accountable.
The writers mock crime-control priorities in some extreme and often comical scenes throughout The Wire which vividly demonstrate how personal and political agendas shift resources away from more serious crime-control efforts. In Season 1, one of the only two functioning mobile crime lab units is dispatched to dust for latent prints and take photographs of an empty porch at the home of the city council president whose patio furniture was stolen. In the meantime, there is no mobile crime team available to examine the horrendous scene where Omar Little’s boyfriend’s tortured body is sprawled out in the neighborhood for all to see. In the second season, Police Major Stan Valchek uses his muscle in the police department to convene a detail of sergeants and detectives to mount a personal vendetta against Frank Sobotka, the leader of the local stevedores’ union who upstages Valchek in his gift to a local church. Valchek gets Deputy Commissioner Burrell to support the detail in exchange for votes when Burrell is up for the commissioner’s seat. The local stevedores become the “collateral damage” in the feud when Valchek’s district officers begin ticketing cars on the docks and arresting the workers for early morning drinking.
The police department is not the only target of The Wire’s implicit, and sometimes explicit, critique of the politics of crime control. In one of his many tirades, Detective Jimmy McNulty attacks District Attorney Rhonda Pearlman when she expresses reluctance to go up against Avon Barksdale’s attorney, Maurice Levy, who has considerable political power in the city. As Detective McNulty declares:
“If only half you motherfuckers at the district attorney’s office didn’t want to be judges, didn’t want to be partners in some downtown law firm. . . . If half of you had the fucking balls to follow through, you know what would happen? A guy like [Barksdale] would be indicted, tried and convicted. And if the rest of ’em would back up enough, we could push a clean case or two through your courthouse. But no, everybody stays friends. Everybody gets paid. And everybody’s got a fucking future.”
David Simon’s social commentary in The Wire has much in common with the academic commentary of Michael Tonry, David Garland, Loic Wacquant, Douglas Massey, Bruce Western, and Michelle Alexander, each of whom contends that moral justifications for punishment often mask the primary motivations of the powerful elite who seek to preserve existing power structures and hierarchies. As Wacquant and Tonry contend, American legal institutions have operated as “machinery” to maintain patterns of racial dominance throughout history—first through slavery, then through Jim Crow laws that created urban ghettos, and ultimately through the modern wars on drugs and crime.
Hence, the recent upsurge in black incarceration grew from the need for a new apparatus for the containment of “a population widely viewed as deviant and dangerous.” Focusing directly on the manipulative power of retribution, Douglas Massey argues that “the new emphasis on retribution and punishment was achieved . . . through the deliberate racialization of crime and violence in public consciousness by political entrepreneurs.” Today, police efforts focused on poor communities of color and legislative agendas that mandate severe sentences for the drug and violent crimes for which blacks are disproportionately arrested all perpetuate the history of economic, political, and social dominance that white politicians seek to maintain.
Although Simon’s social critique in The Wire is not directed at punishment per se, the criminal justice system cannot escape the producer’s indictment of the city and its institutions. Simon’s biggest complaint is against the capitalist American oligarchy that allows a small group to control the state for corrupt and selfish economic purposes. Consistent with Bruce Western’s effort to trace the prison boom and mass incarceration to the “upheaval in American race relations in the 1960s and the collapse of urban labor markets for low-skill men in the 1970s,” Simon contends that the War on Drugs is one of the many strategies designed to dispense with the 10 to 15 percent of the population that capitalists no longer need in our economy. As Simon complains, “since we don’t need them for work and we are not including them in our social and economic compact, [economic interests ask] what can we do with all of these extra untrained, disconnected bodies? Well, we can monetize them.” In the most sinister interpretation, the state, in partnership with the private sector, makes money from the expansion of prisons and the prosecution of offenders. At a minimum, incarceration reduces competition and preserves wealth and opportunity for those in power by removing the expendable from the job market.
The stories in The Wire lend credence to claims that the War on Drugs was intended to, or at least had the foreseeable effect of, maintaining political dominance by the white majority. Even when government actions are not consciously motivated by animus toward minority groups, policymakers have been deliberately indifferent to the inevitable inequality that draconian drug policies are likely to impose on blacks.
Although Simon asserts that his show is more about class than race, he readily acknowledges that if the drug trade was “chewing up white folk, it wouldn’t have gone on for as long as it did.” This war is about the “other America, the one that got left behind.”
If The Wire teaches us anything about punishment, it should cause us to question the claimed moral superiority of retribution. Contrary to the philosophical rhetoric, it is unlikely that contemporary retributive policies have been propagated by neutral state arbiters seeking to preserve and restore equality. It is even less likely that the stringent retributive policies of today will produce a society that is morally better than one without them. Not only is America ill-equipped to fairly evaluate moral culpability among its lower class, but it has also endorsed laws and procedures that should give us little confidence that “just” and proportionate punishments are meted out to those who “deserve it.”
If retribution fails as a moral justification for punishment in The Wire, consequentialism fares no better. Retribution experienced a revival in the 1970s at least in part because consequentialist objectives failed to reduce crime and society began to question the moral justifications for utilitarianism. Recognizing punishment as an inherent evil, consequentialists maintain that the moral value of punishment can be measured only by the consequences it produces. Thus, punishment may be morally acceptable to the extent that it reduces crime and improves the community welfare. Punishments that cannot achieve these or other positive outcomes may be immoral.
Early consequentialist Jeremy Bentham envisioned a rational actor who weighs the costs and benefits of his or her actions in deciding whether to commit an offense. Law and economics theorists of the mid-twentieth century expounded on that vision when they reasoned that it was possible to decrease future crime by setting up clear rules and incentives through punishment. To have the desired effect, punishment must be sufficiently public to inform others of the potential consequences of crime, severe enough to dissuade others from committing the crime, and certain enough to convince people that there is a high likelihood of punishment if they commit a crime.
Today, although retribution prevails as the leading theoretical justification for punishment in academic discourse, state penal codes still routinely identify various utilitarian justifications, such as deterrence, incapacitation, and rehabilitation, as “morally acceptable” purposes of the state criminal justice system. The most common utilitarian justification for punishment is deterrence, which assumes either that the general public will be deterred from committing crimes by observing others punished or that specific offenders will be dissuaded from future crime by reflecting on their own prior punishments. Presuming that longer and less flexible sentences will have greater deterrent impact, state legislators have endorsed “supermax” prisons and adopted strict sentencing initiatives, such as “three strikes you’re out,” mandatory minimum sentences, and “truth in sentencing,” in their effort to reduce crime. As a result, incarceration rates in the United States have grown exponentially over the past few decades and are now higher than any other Western country.
Notwithstanding these developments, crime has not declined at rates that economists and politicians anticipated given the increase in harsh punishments. Documenting what Jeffrey Fagan and Tracey Meares call a “paradox of punishment,” The Wire provides a vivid narrative to amplify what we know empirically—that contemporary crime-control policies are not effective as either a specific or a general deterrent to crime.
While mass arrests in cities like Baltimore should have cleared out the drug dealers and made drugs harder to find, there are always more young, disadvantaged black males willing to risk incarceration, injury, and even death to buy and sell drugs in the same or different locations. The Wire suggests that whatever deterrent effect contemporary punishments might have on these young men is undermined in poor, urban communities by the impact of concentrated poverty, residential isolation, and social disorganization caused by failing state institutions.
Excerpted from "Punishment in Popular Culture" edited by Charles J. Ogletree Jr. and Austin Sarat. Published by NYU Press. Reprinted with permission of the publisher. All rights reserved.