Draft

Toward a Marxist Analysis of Discretion and Institutional Discrimination in the Legal System

John Leveille

Published online: 7 November 2007 � Springer Science+Business Media B.V. 2007

Abstract This article provides a dialectical materialist examination of the production and

use of the concepts of discretion and institutional discrimination within the criminal courts.

It is argued that existing Marxist accounts of discretion and discrimination, and the rec-

ommendations stemming from these, rely upon theoretical orientations that are

insufficiently materialistic and processual in orientation. The U.S. Supreme Court case of

McCleskey v. Georgia is presented here to illustrate the contradictions that spawned, and

are spawned by, the production and use of these concepts. Contradictions related to the

construction of the subject are identified as essential to the understanding of these

dynamics. The essay concludes by offering a materialist recommendation that judicial

discretion should be supported and institutional discrimination should be rejected.

Introduction

This article provides a dialectical materialist analysis of the production and use of the

concepts of discretion and institutional discrimination within the criminal courts. It is

argued that existing Marxist understandings of the use of the concepts of discrimination

and discretion, i.e. the degree to which a judge makes autonomous, personal or idiosyn-

cratic decisions derived from his or her own unique biography rather than being derived

from formal or informal a priori constraints placed upon him or her, and the recommen-

dations stemming from these rely upon theoretical orientations that are insufficiently

materialistic and processual in orientation.

A number of Marxist and non-Marxist scholars have called for a reduction in the

amount of discretion allowed to judges as a means to address unequal treatment in the

courts, and a number have also claimed that a judicial recognition of the existence of

institutional discrimination would be helpful to address this problem. This paper challenges

both of these ideas. Such arguments about discretion and institutional discrimination rely

J. Leveille (&) Department of Anthropology and Sociology, West Chester University, West Chester, PA 19383, USA e-mail: [email protected]

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Crit Crim (2008) 16:39–52 DOI 10.1007/s10612-007-9044-2

fundamentally upon the same formal rationality that is itself identified here as the principal

source of problems concerning justice in contemporary America (cf. Balbus 1977a). As a

result, such things will not address the fundamental sources of injustices in America—

sources which are located in the structure of the capitalist mode of production. Instead they

may contribute to the maintenance of the existing economic system. An appreciation is

needed for how the capitalist mode of production structures the law, in theory and in

practice, in ways that facilitates the belief that the calls for decreases in discretion and for

the invocation of institutional discrimination will further the cause of justice (Balbus

1977a). Toward this end, I critically review several Marxist and non-Marxist arguments

related to discretion and institutional discrimination and then present an analysis of the

Supreme Court case of McCleskey v. Kemp (1978).

The most fundamental problem with existing Marxist arguments lies in the epistemo-

logical positions taken. In the following pages I take the position that existing Marxist

understandings of concepts of discretion and institutional discrimination have tended to

move from a dialectical materialist epistemology to either or both a positivistic or idealist

form of epistemology, and that this hampers their effectiveness. The latter two forms

emerge unreflexively within and through the capitalist mode of production and do not

readily allow for the type of critical analysis that is advocated here.

Much of the present essay builds upon a critical analysis of the theory of law presented

by Balbus, as developed early in his career. In Balbus’s earlier writings (1977a, b) he

presents a sophisticated Marxist understanding of the working of the criminal justice

system that fuses the base-superstructure model with a Weberian argument about the

growth of formal rationality. (In subsequent writings (e.g. 1982) he largely abandons or

rejects many of his earlier Marxist claims. See below.) Balbus argues that the ‘‘logic of the

legal form and the logic of the commodity form are one and the same’’ (1977a: 575); they

are homologous. Capitalism produces a form of thinking—formal rationality—that per-

meates the cultural domain, including the domain of law. The form of rationality produced

by and demanded of the economy is the same form of rationality—formal legal ratio-

nality—used by judges and others in the field of law. Moreover, according to Balbus

(1977a: 580) the legal form ‘‘functions’’ to maintain the system of capitalism by creating

the image that the legal system is just and fair when in fact it is at its heart unfair.

Balbus’s model provides a solid starting point upon which to develop an understanding

of legal decision making. However, the model calls for further elaboration and modifi-

cation, specifically related to the conceptualizations of: dialectics, the self, and the putative

functionalism of Marxism. Dialectics is not a major element in his understandings of the

commodity form and the legal form (1977b), and it is all but absent in his later work that is

harshly critical of Marxism (1982). He does employ the concept in his early book, The Dialectic of Legal Repression (1977b), but here and elsewhere in his earlier works the use

of dialectics is constrained. Dialectics infuses some parts of the analysis, and appears to

infuse some parts of social reality, but it does not permeate all parts of the analysis or all

parts of social reality. Specifically, dialectics appears to be relevant in social forces

external to individual consciousness and external to the formation or the structuring of

concepts, but for Balbus it does not appear relevant to forces internal to these things. For

example, there is no discussion of the contradictions inherent within the concept of the

legal form. Instead, the legal form assumes a static reality in itself. The law is the synthesis

of dialectical social forces acting upon it. It is merely a static product of the mode of

production. It exists to maintain the existing mode of production. It is in itself, in its

internal formation, not contradictory. In the following pages, I wish to argue that it would

be helpful to apply the concept of dialectics to the internal as well as to the external forces.

40 J. Leveille

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In a similar vein, Balbus does not sufficiently interrogate the concept of the self. Instead,

he appears to accord the self a transcendent reality, one that is impervious to the structuring

of concepts dictated by history and the mode of production (cf. Althusser 2001, 2005a, b;

Foucault 1973); one that does not appreciate the dialectical realities of the self. It is telling

that in his abandonment of his earlier embrace of Marxism he continued to embrace

psychoanalytic formulations, particularly of the self. This testifies to his belief in a tran-

scendent essence of a self, a concept of the self somehow immune from an inquiry into its

emergence and structuring in real history. The concept of the self for Balbus appears as an

essential, fixed and transhistorical entity that does not have a history and is not struc-

tured—is not conceptualized—by the specific historic and material conditions within

which the term is used.

The third issue concerns the putative functionalism of Marxism. Balbus (1977a) claims

that the legal form functions to maintain the capitalist mode of production. There are

numerous problems with such a formulation. One such issue relates to the selective use of

dialectics noted above. Balbus uses dialectics selectively in understanding the workings of

the base-superstructure (e.g. 1977a, b) and does not use dialectics in an analysis of the

structuring of the content of the superstructure. The base produces concepts of laws which

are in themselves contradictory. In addition to the lack of dialectics present here, this

formulation is based upon a mechanistic base-superstructure model, which assumes the

base and superstructure are discrete entities that mechanistically interact with one another

and that the former determines the latter. (Interestingly, in his later recantation of Marxism

(1982) he presents a much more elaborated understanding of the base-superstructure only

to reject the entire model. See below.) In the following pages, I argue that the legal form is

riddled with contradictions and that one should not see the legal form as being separate

from and determined by the commodity form in such a rigid fashion. Instead, one should

see all of these things as part of a totality that is infused with dialectics (Althusser 2005b).

A Review of Reiman’s Marxist Criminology

A Marxist criminology should dialectically relate the material and the ideal in lived

realities. A difficulty with some Marxist informed work in the criminology and criminal

justice literature is that scholars have erred not because they have not effectively and

dynamically addressed materialism and idealism, but that they have tended to embrace a

mechanistic position.

In Reiman’s otherwise excellent work, The Rich Get Richer and the Poor Get Prison (2001), such issues materialize. His is a form of analysis that relies upon homology and

stops short of questioning the structuring of concepts. Law, he says, reflects the relations of

capitalism:

[T]he ideological nature of law reflects the real relations in which exchangers stand

to one another. The written law, even the institutions of law (from lawmakers to law

enforces), are not the source of law. They reflect real, objective relations between

members of a capitalist society, relations that exist, so to speak, on the ground first

and only later on the page or in the courts for that matter (2001: 217).

Aside from a further discussion of the ways in which the law presents an inverted (i.e.

ideological) view of the world, Reiman does not take the analysis any further. He does not

dynamically relate the material and ideal in practice. Instead, he parcels them out, as if they

are timelessly distinct things interacting in a void. Lukacs (1986) perhaps would

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characterize this as ‘‘pure formal thought.’’ He refers to this, albeit indirectly, in his

discussion of praxis:

[P]raxis can only be really established as a philosophical principle if, at the same

time, a conception of form can be found whose basis and validity no longer rests on

that pure rationality and that freedom from every definition of content. In so far as

the principle of praxis is the prescription for changing reality, it must be tailored to

the concrete material substratum of action if it is to impinge upon it to any effect

(1986: 126).

The truth or falsity of Reiman’s analysis, however, may not be found in the above. The

truth may be found in the implications for its usefulness, its implication for practice. And it

is here that I most disagree with his analysis. In Reiman’s conclusion to his book he makes

a series of recommendations. One of these is a call for a reduction in discretion as a

solution to the problems found in the criminal justice system. He writes, ‘‘[w]e must

narrow the range in which police officers, prosecutors, and judges exercise discretion, and

we must develop procedures to hold them accountable to the public for the fairness and

reasonableness of their decisions’’ (2001: 199).

Such a recommendation suggests that one could advance the cause of justice without

changing, or recognizing the need to fundamentally change, the economic order within

which we live. Yet Reiman himself argues that the economic order determines the laws.

More important, however, is the conceptual assumption underlying Reiman’s recom-

mendation. Discretion is left as an unexamined concept, one that hides within it a

conceptualization of the self as subject, as a universal and timeless thing. In short, he relies

upon a conceptualization of the subject that is itself a product of the formal rationality of

capitalism. As Althusser (2001, 2005a) notes, the ideology of the transcendent subject—a

subject embodying timeless and universal properties—is a bourgeois production, a myth.

While describing how Marx evolved into an ‘‘anti-humanist’’, Althusser writes: ‘‘It is

impossible to know anything about men except on the absolute precondition that the

philosophical (theoretical) myth of man is reduced to ashes’’ (2005a: 229).

Perhaps most importantly, Reiman’s recommendations are built upon the productive

logic of capitalism that has led to the very injustices he seeks to redress. By calling for the

reduction of discretion he is calling for judges and others to be forced to act in the mode of

alienated, mechanical workers in a factory, or perhaps a more contemporary example

would be in the mode of a McDonald’s worker.

The foregoing discussion is based upon the appendix to Reiman’s The Rich Get Richer (2001). The book was written largely for an undergraduate readership, and is not intended

as a work of theory. In some of his other writings he provides a far richer Marxist theory of

criminal justice (e.g. 1987). However, his other more theoretical works reveal the same

form of analysis I address above and are subject to the same criticisms. Specifically, in

‘‘The Marxist Critique of Criminal Justice’’ (1987) he describes a ‘‘Marxian theory of law

[that is] a theory of its necessary tendential structure under capitalism …. A theory of the

structure toward which criminal justice systems will necessarily tend in capitalism’’ (1987:

31). The structure ‘‘sets limits’’ upon what the actors can do. In addition to the structure, he

discusses legal ideology. Legal ideology reflects the material base:

Ideology reflects the real way in which capitalism appears to its participants … [T]he

ideological nature of law reflects the real relations in which exchangers stand to one

another. The written law, even the institutions of law, … are not the source of law.

They reflect real, objective, ‘‘legal’’ relations between members of a capitalist

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society, relations that exist … on the ground first, and only later on the page, or in the

courts for that matter (1987: 40) (emphasis added).

He partitions the world into discrete material and ideal component parts, i.e. base and

superstructure, and shows how the latter reflects the former in ways to sustain the economic

system of capitalism.

In ‘‘The Marxian Critique of Criminal Justice,’’ one also finds his disdain for

‘‘dialectical mumbo-jumbo and other epistemological obscurantism’’ (1987: 34) though he

does not explain here who he is specifically addressing, nor does he say why he rejects such

things other than to note that a Marxian theory should show ‘‘that the real world is the way

Marxian theory says it is’’ (1987: 34). Leaving aside the issue of whether one can reject

dialectics and still rightly call oneself a Marxist, it would be helpful if Reiman did more

than simply dismiss out of hand Marxist perspectives that differ from his own.

Discretion and Discrimination in the Criminal Justice System

Reiman is not alone in his recommendation to reduce discretion. Many others—many non-

Marxists—have offered the same recommendation to advance the cause of justice. It is

interesting that the structural logic used by these others is so like that employed by Reiman.

This is seen for example in the undergraduate texts written by Samuel Walker. Walker

(1998) argues that discretion has been steadily reduced in the history of the American

criminal justice system, as the result of the bureaucratization and depoliticization of this

system. He claims that this is a good, though paradoxical, development. It is good, he

claims, because it has led to more fairness. It is paradoxical in that in the earlier years of

American history the criminal justice system was responsive to the ‘‘popular will’’ and was

under ‘‘public control,’’ but it was also riddled with unfairness, corruption, and discrimi-

nation. It was only because the system became less responsive to the public will, through

bureaucratization—and the decline of discretion—that unfairness and discrimination

declined. The reduction of discretion, he says, has and will lead to a more just system. But

a system fundamentally unjust, a system rooted upon exploitation, cannot be adjusted to be

just.

Donald Black is another who embraces attempts to reduce discretion. Black (1989)

constructs a Durkheimian model of the sociology of law and argues there are systematic,

sociological factors at work that are discriminatory. He then outlines a model of an ideal

legal system based upon his concept of ‘‘sociological justice.’’ One of his recommenda-

tions to address the discrimination is the ‘‘desocialization of law.’’ He claims that ‘‘[l]egal

discrimination of every kind – racial, economic, cultural, organizational, etc. – depends on

the amount of social information entering each legal setting’’ (1989: 64); The more social

information, the more discrimination. Therefore, the solution is to eliminate any reference

to social information in the processing of legal cases. Toward that end he embraces a

technological solution, framed as ‘‘electronic justice’’:

However far-fetched it might seem today, the time has come when computers can be

programmed to process complaints and testimony and to select dispositions. Uni-

versalistic treatment could then be achieved simply by using the same program for all

cases. This would accomplish the final step in the desocialization of courts: closing

the courtroom themselves. Law would reach a new evolutionary stage, and trial by

judge and jury would join trial by ordeal and trial by combat in the ancient history of

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law. Unless we have already attained the highest level of legal evolution that will

ever be reached, trial by computer may someday come to pass. Access to justice

would become merely a matter of access to a computer. The capacity of the legal

system would expand almost limitlessly, ending, the old problem of delay in court.

The cost of litigation would plummet. Discrimination would disappear (1989: 71).

The technological solution proposed by Black is ultimately directed at reducing or elim-

inating the human element in judicial decision-making, yet discretion lies at the center of

this judicial decision-making. Black is proposing here to reduce or eliminate judicial

discretion by making the legal system more mechanical.

The implication here is that the subject, subjectivity, should be eviscerated from the

judicial process. Yet the subject is not an ancillary product of the capitalist mode of

production; it is an essential product and producer of this mode (Althusser 2001, 2005a). It

is inconceivable to eliminate the subject, without eliminating capitalism.

Black’s recommendations have the same structure as those of Walker, and are similar

to, but different from, Reiman’s. It should be noted that Reiman does not call for the total

elimination of discretion of justice. He complains that sentencing guidelines, while adopted

to reduce discretion and thus further justice, have in fact simply moved the location in the

judicial process whereby discretion, and the enactment of injustices, could occur. He

argues that sentencing guidelines have done little more than shifted discretion ‘‘from

judges to prosecutors (who decide what to charge), and because prosecutors are less

insulated from political pressures than judges this is a step backwards’’ (2001: 199). He

goes on to note that ‘‘neither sort of guidelines need be so rigid as to leave no room for the

expert judgment of judges or prosecutors. Rather, we need rules that hold those officials

accountable for their judgments by requiring them to explain and justify their decisions’’

(2001: 199). Yet one should not lose sight of the form of logic he employs. Not only does

he rely upon an abstracted conceptualization of the subject (see below) but he also notes

that ‘‘accountability’’ is the criteria upon which one should judge the judgers. Yet the

accountability of which he speaks appears to remain floating, detached—an abstract and

abstracted concept embodying rationality, like his other conceptualizations, from the lived,

material realities. Further, the implication is that if a judge could explain and justify their

actions, then they should be allowed discretion. But is the proper mark of assessment that

they should explain and justify their positions, or that they should explain and justify their

positions in a particular way, in a way that productively utilizes an appreciation of the

realities embedded in a materialist dialectic? Reiman’s silence here suggests the former.

But the former is not a practice that advances the awareness of the contradictions nestled in

the capitalist judiciary. Embodied within it is a belief that one could eliminate the meta-

physical problem of justice by abstracting concepts and processes from the real material

existence, but it does not focus upon the genesis of their conceptualizations, i.e. the

economic, historical context.

Discretion and Institutional Discrimination

The problems with calls for reduction in discretion, particularly as a means to reduce

discrimination, are based upon two interrelated concerns: (1) The production of the

essentialized subject, and (2) the contradictions resulting from such productions. The

Supreme Court case of McCleskey v. Kemp (1978) is used here to illustrate these points. In

this case, McCleskey, a black man, was convicted of killing a white police officer in

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Georgia during a robbery and was sentenced to death. McCleskey appealed to the U.S.

Supreme Court claiming that the Georgia sentencing process was racially discriminatory.

David Baldus’ academic research was presented as statistical evidence to the Supreme

Court in support of McCleskey’s claim. His analysis of over 2,000 murder cases clearly

showed that a person in Georgia who kills a white person was much more likely to receive

the death penalty than a person who kills a black person. In other words, he ostensibly

proved the existence of institutional discrimination. McCleskey lost in the Supreme Court

by five to four. The Court ruled that the research did not prove a causal relation between

the existence of institutional discrimination and the intentions of the lower court judges.

Rather, the Court said that ‘‘[a]t most, the Baldus study indicates a discrepancy that appears

to correlate with race.’’

The Court’s decision was framed in part around the issue of the abuse of discretion.

Judges should be allowed discretion, it said. It is an essential part of judicial decision

making. However, if discretion is abused, the respective ruling should be reversed, or at

least be held to be suspect. As Justice Powell writes in his decision: ‘‘Implementation of

these [death penalty] laws necessarily requires discretionary judgments. Because discretion

is essential to the criminal justice process, we would demand exceptionally clear proof

before we would infer that the discretion has been abused.’’ Later Powell writes:

‘‘Discretion in the criminal justice system offers substantial benefits to the criminal

defendant. … [T]he capacity of prosecutorial discretion to provide individualized justice is

firmly entrenched in American law.’’

Embedded in this position are contradictions, contradictions related to the production of

the essential subject in capitalist society. Althusser (2001) discusses this essential pro-

duction in his essay, ‘‘Ideology and the State.’’ ‘‘Ideology,’’ he writes:

[i]nterpellates [i]ndividuals as [s]ubjects… [T]here is no ideology except by the

subjects and for subjects. Meaning, there is no ideology except for concrete subjects,

and this destination for ideology is only made possible by the subject: meaning, by the category of the subject and its functioning. By this I mean that, even if it only

appears under this name (the subject) with the rise of bourgeois ideology, above all

with the rise of legal ideology, the category of the subject (which may function under

other names, e.g., as the soul in Plato, as God, etc.) is the constitutive category of all

ideology … (2001: 115–116).

A contradiction emerges: The Court conceptualizes, i.e. constructs an ideology of, the

subject as the possessor of freedom, i.e. discretion, but it also insists it is or should be slave

to rationality. Justices would abuse their discretion if they fail to employ rationality—more

specifically, if they fail to apply the instrumental rationality of capitalist thinking (cf.

Lukacs 1986; Althusser 2001). If they use discretion by employing rationality, they lose

their discretion. Many non-Marxists—from Foucault (1973) to Weber (1958)—have made

similar or related points about the subject. However, such accounts have been criticized

(Lukacs 1986) for not appreciating the materiality that produced and is produced by such

thinking.

Much of this is evidenced by Justice Powell’s logic. For example, he argues that

‘‘discretion is fundamental,’’ but he qualifies this by noting that the legitimate use of

discretion is delimited. One such way it is delimited is that the reasons given in discre-

tionary judgments must rely upon things that are explainable, rational. He writes: ‘‘where

the discretion that is fundamental to our criminal process is involved, we decline to assume

that what is unexplained is invidious.’’ In other words, if a judge’s discretion is found to be

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enacted based upon rational principles—principles embodied in the Constitution, princi-

ples that conform to the abstracted, capitalist logic—then its use may be legitimate.

A second contradiction produced in this ruling stems from the same source: the

conceptualization of an autonomous, essential, transhistorical subject. This contradiction

has been framed in many different ways, whether it is viewed as the conflict between

psychology and sociology, self and society, or methodological individualism versus

methodological holism, the issue here is the same: Capitalist logic inevitably produces a

way of thinking that parcels out reality and creates two distinct realities, each having causal

autonomy; each having their own separate realities (many have rejected the essential

qualities of this division, see for example Bourdieu (1977)). But all such calls, ‘‘dialec-

tical’’ or otherwise, uniformed by a materialist understanding, ultimately lead back toward

the dichotomy: Social behavior is caused by either forces internal to the individual or by

forces external to the individual, i.e. forces acting upon the individual. As long as one

conceives of the self as subject and object distinct from and interacting with an external

world through a capitalist logic that relies upon abstract conceptualizations independent of

a materialist theory, then the contradictions will remain (cf. Foucault 1973: 303–343).

The contradiction appears in the McCleskey case with the introduction of Baldus’

rational, scientific study on institutional discrimination. Institutional discrimination is a

product of this bifurcated, capitalist thinking. It is, like other sociological concepts of

methodological holism, a concept that is said to be real and autonomous, having a power

and a source unique and independent of the individual actors’ motivations.

Contradictions unfold in Justice Powell’s opinion. On the one hand, he seems to

acknowledge the legitimacy of scientific evidence (Justice Powell writes: ‘‘The Court has

accepted statistical proof of intent to discriminate in certain limited contexts.’’ And ‘‘this

Court has accepted statistics in the form of multiple-regression analysis to prove statutory

violations under Title VII of the Civil Rights Act of 1964.’’). On the other hand, a rational,

scientific argument must be capable of demonstrating proof, i.e. the concrete causal

connections between social conditions and the judge’s decision.

At the center of the Court’s rejection was its claim that even though Baldus’ research

showed systematic effects, it failed to ‘‘prove’’ a causal relationship between these sys-

tematic effects and the individual actions of judges in the lower courts. As Justice Powell

writes in his majority opinion: ‘‘Even Professor Baldus does not contend that his statistics

prove that race enters into any capital sentencing decisions or that race was a factor in

McCleskey’s particular case.’’ Powell repeatedly referred to the lack of proof of intent to

discriminate to support the majority ruling. For example, he writes: ‘‘we hold that the

Baldus study is clearly insufficient to support an inference that any of the decision-makers

in McCleskey’s case acted with discriminatory purpose.’’ In short, the Court argued there

was a lack of evidence connecting systematic, sociological forces (i.e. the Baldus evidence

of institutional discrimination) to the psychological level (i.e. the level of individual

discrimination).

Such thinking embodies a form of what Lukacs calls ‘‘the antinomies of bourgeois

thought’’ (1986: 110). The Court does not recognize the relationship between the structures

of institutional discrimination and individual actions because it employs a form of thinking

that precludes such recognition.

A third set of contradictions produced in this case revolve around the role of the

anticipated consequences of a ruling in the decision making process of the Court. The

Court, as noted, rejected the legitimacy of the claims of institutional discrimination

because there was a lack of ‘‘proof’’ connecting the facts presented by Baldus’ work with

the intentional actions of the lower court judges. The Court however did not stop there in

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its ruling. It argued that the practical consequences of ruling in favor of McCleskey would

be so harmful to the integrity, to the abstract purity, of the judicial process that it could not

be allowed. Specifically, the Court suggested that if they agreed with McCleskey and

Baldus, and if it accepted the claims of institutional discrimination, then where would the

limit be in deciding when institutional discrimination was or was not present? It would

seem that any black person convicted could then claim discrimination. Justice Powell

writes for the majority:

[T]he claim that [McCleskey’s] sentencing rests on the irrelevant factor of race easily

could be extended to apply to claims based on unexplained discrepancies that cor-

relate to membership in other minority groups, and even to gender. Similarly, since

McCleskey’s claim relates to the race of his victim, other claims could apply with

equally logical force to statistical disparities that correlate with the race or sex of

other actors in the criminal justice system, such as defense attorneys, or judges. Also,

there is no logical reason that such a claim need be limited to racial or sexual bias. If

arbitrary and capricious punishment is the touchstone under the Eight Amendment,

such a claim could – at least in theory – be based upon any arbitrary variable, such as

the defendant’s facial characteristics, or the physical attractiveness of the defendant

or the victim, that some statistical study indicates may be influential in jury decision

making. As these examples illustrate, there is no limiting principle to the type of

challenge brought by McCleskey.

It is as if the Court felt compelled that the argument about the lack of ‘‘proof’’ was

insufficient in itself, and that it was necessary to demonstrate the practical consequences

that would likely ensue if the Court ruled that institutional discrimination is a legitimate

fact.

These principles—the lack of proof and the practical consequences, i.e. no ‘‘limiting

principle’’—are redundant and contradictory. One or the other of these is a sufficient

embodiment of the logic at hand. Alternatively, a concern for proof is a call to apply

abstract, disembodied rationality, and a call to consider the practical is a rejection of this

abstract.

Social Relations of Production

It would take another paper to adequately discuss the contradictions in the social relations

of production in judicial decision making and the relation between this and the use of the

concepts of discretion and institutional discrimination. Yet an explanation of the issues

inherent in the production and use of these concepts should not ignore the topic of the

social relations of production entirely. A brief discussion of these relations is therefore

presented here.

Judges relate to each other, and judges relate themselves to those they judge. A number

of contradictions appear in the structure and assessment of the reasoning of the judges

when compared to their understanding of the proper reasoning of others. As noted, the

Supreme Court ruled that discretion was a crucial component in decision making, par-

ticularly in cases of discrimination. However, this discretion could be abused, and as such

rendered invalid and deemed to have no merit, i.e. when there is no evidence showing a

connection between the intent of the judge to discriminate and the facts of institutional

discrimination.

Toward a Marxist Analysis of Discretion and Institutional Discrimination 47

123

Yet when one looks at the logic by which justices understand the culpability of criminal

defendants and compare this to the logic championed for the judges themselves, a number

of contradictions appear. How is a judge to rule in a case in which a criminal defendant

says he or she does not know why he or she committed an act, i.e. when a defendant offers

no rational intent, or any intent that is capable of being communicated, to commit a crime?

For example, a gang of teenagers beats up and kills a homeless person, and the members of

the gang get tried. The teenagers say they did not know why they did it. Yet the judge

would most certainly ignore the fact that there is no rational connection between the fact of

killing and the intent, but would surely find the defendants guilty.

The structure of the case provides contradictions. (The structure is homologous, but the

realization of the case reveals the lived contradictions.) On the one hand, the Supreme

Court in McCleskey says a person, i.e. a judge, should base his or her decisions upon a

rational assessment of the facts, and the person’s actions should be assessed based upon

whether they did or did not do this. Rationality lies here in the ability to produce a

legitimately understood causal connection between the reason for the act and the act itself.

On the other hand, the causal connection between the teenage, murderer’s reason for the

act and the act itself is deemed to be something less than the crucial factor in deciding the

case. Instead, the judge would rule upon the heinous nature of the facts of the case, i.e. he

would rule on the irrational murdering of a homeless person. The ‘‘rationality’’ of the act is

not here the essential criteria in the judge’s decision. Instead, it is based upon the act, and

upon a conceptual distinction between the intent and the act, i.e. the intent does not matter.

Yet on the other hand, the logic of the Supreme Court and its relation to discretion and

discrimination and the logic employed by the teenager can be viewed as compatible:

Rational action is action that shows a connection between intent and action; irrational

action shows no such link. The former should be embraced; the latter repressed. In both

cases, this is indeed what happened. In sum, contradictions emerge in these social relations

as the result of the capitalist production of the category of the subject.

Conclusion

A number of criticisms of the present analysis can be anticipated. This essay suggests that

formal legal rationality as a product of capitalism is a force in judicial decision making;

one that goes hand in hand with incessant pressures to reduce judicial discretion. One

might claim that judges have made, do make, and will make, decisions on any number of

grounds other than formal legal rationality—based upon anything from common law, to

religious beliefs, to formal philosophical principles, to personal idiosyncrasies. To suggest

that judges can, do and will make decisions based upon such things is to suggest a

philosophical position that ideas exist independent of social contexts, and that there is no

systematic relationship between the forms of thought and the mode of production. Many

non-Marxists, as well as Marxists, would disagree with this assumption, as I do here.

Judges are not machines, but their reasoning is also not autonomous from the structuring

influences of the mode of production within which they operate.

Another complaint might be that the foregoing analysis does not provide any realistic

proposal to address the problems of justice discussed herein. Suggestions to increase

discretion and to eliminate, or at least to question, appeals to things such as institutional

discrimination, appear on their surface hardly to conform to leftist sympathies. Yet this is

one of the points raised here—one must question the difference between a leftist position

informed by dialectical materialism and a liberal position that implicitly or explicitly

48 J. Leveille

123

tolerates or supports a capitalist order. An analysis thoroughly infused with a dialectical

materialist perspective will not look like a liberal, humanistic approach that calls for

tinkering with the capitalist mode of justice. It calls for far more substantial changes. At the

heart of this analysis is a rejection of proposals to address the fundamental problems of

justice in capitalism that do not recognize the centrality of a dialectical materialist epis-

temology. Such proposals tend ultimately to view the world in mechanistic terms, and such

proposals tend to make humanistic, liberal assumptions about the self. Neither of these can

stand under the light of a dialectical materialist analysis.

One might also question the validity of the base-superstructure model upon which the

present argument is based. Balbus (1982) does this in his apparent rejection of his earlier

Marxist elaboration of a theory of law. Briefly, Balbus rejects the base-superstructure

model because it is tautological and non-falsifiable. However, the claims of tautology are

either based upon a logic that would dismiss all social scientific claims (particularly claims

about cultural forms—whether Marxist or non-Marxist) as being tautological, thus ren-

dering all forms of social theoretical inquiry mute, or they are based upon the functionalist

assumptions noted above that characterize some Marxist formulations. These functionalist

assumptions are rejected in this paper. The criticism that the base-superstructure model is

not falsifiable raises the issue of the criteria and the epistemology to be used in assessing

the validity of a model. Calls of falsifiability suggest a positivist or idealist epistemology

(indeed they echo the works of Karl Popper) rather than a dialectical materialist episte-

mology. This is not to suggest that the claims made here are not, or should not be, subject

to evaluation. Rather, the form of evaluation, empirical or not, must be done within a

framework that does more than perpetuate an epistemological frame, and a mode of

production, that intrinsically is antagonistic to the forms of justice implicitly championed

here (cf. Habermas 1971). A model of empirical research should reflexively understand the

role of research in society and the relationship between this researcher, the knowledge

produced, and the historical and material contexts within which the research exists

(Habermas 1987, 2003).

What is to be done? Institutional discrimination, as a meaningful concept that advances

a materialist understanding of the social processes governing the world, is dependent upon

discretion, but not upon the limited form of discretion embraced by persons such as Justice

Powell in the McCleskey case. Instead, institutional discrimination only has import if it is

engaged through the use of discretion that transcends the denuded concept of rationality—a

formal capitalist rationality—and incorporates a materialistic understanding of the pro-

cesses of social relations that produced the discrimination. Further, and as an aside:

whatever the merits of the concept of institutional discrimination, it would be enhanced

greatly if it could be embedded within a materialist framework that related it directly to

issues of class. The concept of institutional discrimination is a disempowered one if it

is viewed solely through a lens of capitalist rationality, i.e. formal legal rationality. It

produces no further examination of the contradictions spawning it, and the contradictions

spawned by it, if in its analysis it is dismissed for a lack of ‘‘proof.’’

Discretion is more foundational. It is through the embrace of discretion that the

contradictions inherent in the capitalist modes of being can be brought to light and debated.

The task is to support discretionary judgments that state, or more probably suggest, a

realization of the sources of the contradiction and of the materialist foundations of the

issues at hand.

What might this imply for the practice of judicial decision making, and is it realistic to

assume that increased discretion will foster greater justice? One could imagine a range of

possible ways in which this practice could be realized. The range is defined by the relative

Toward a Marxist Analysis of Discretion and Institutional Discrimination 49

123

degree to which the sensibilities argued for here are in accord with the dominant sensi-

bilities employed in the existing criminal justice system. At the most extreme, one could

imagine a radically, foreign set of moral and legal practices that would most likely shock

and perhaps disgust the consciousness of contemporary society. Such a sensibility could

perhaps best be thought of by using the analogous ways that contemporary Americans look

with disgust or revulsion upon some of the moral and legal practices of cultures very

different from their own. For example, the ancient Mayan practices of human sacrifice, or

one or another of the brutal rituals of pre-Columbian North American civilizations, or

closer to the traditions of contemporary America, the forms of moral and legal practices in

the European Middle Ages such as those described by Foucault at the beginning of

Discipline in Punish, where he presents graphic and horrific depictions of a person being

drawn and quartered. All of these are radical affronts to our sensibilities. I am not nec-

essarily suggesting we should embrace a sense of justice akin to one or another of these,

but a dialectical materialist understanding does suggest a new sensibility that is perhaps

almost as radically different from our own as is the difference between our current sen-

sibilities and practices and those noted above. The fact that Marxism emerged with a

Western tradition infused with Enlightenment sentiments suggests that any new sensibility

may not be as foreign as the above examples are to our current ways of being.

On the other hand, one could imagine a far less dramatic change in sensibilities, but one

that also congers up uncomfortable questions about the rightness of a proposal to increase

discretion. For example, a call for increased discretion may call up images of a judge in the

Jim Crow South convicting an African-American because he is African-American. Might it

not be argued that many of the injustices perpetrated by the courts in American history

were the result of discretion, not the result of its absence? As such, how could one conceive

that increasing discretion might be a step forward?

The increased discretion being advocated here entails new sensibilities and new sets of

practices, and it is one that is accompanied and informed by the theoretical insights

outlined above. Absent of the theoretical foundations, discretionary judicial practices

would most certainly be of the sort in which rich, white males act in explicit discriminatory

ways to maintain the status quo. Even if in an imagined world an increase in a theoretical

informed discretion is allowed, it must be expected that judicial practices will range widely

with some likely to resemble ‘‘liberal’’ or left sensibilities and others likely to reflect

discriminatory intent, mimicking in one form or another any of the historical forms of

discrimination employed in the courts in American history.

If such a situation as this were to be realized—one in which discretion is embraced and

a wide array of judgments, from the palatable to the repugnant, are then made, then this

opens up the possibility for the interrogation of the concepts of justice and for a critical

analysis to occur.

One could offer two other practical arguments in support of increased discretion. The

first is an argument in the negative: The proposals to decrease discretion championed by

Marxist or non-Marxists have not and will not foster any changes in practice or in theory

that would challenge the fundamentals of the capitalist system and its logic. As such,

decreasing discretion will not advance justice at all, and will only contribute to the

maintenance of a belief that justice can and is being realized in contemporary capitalist

societies.

A second practical argument revolves around the realities of the criminal justice system

in America today: A cursory look at the criminal justice system in contemporary Amer-

ica—a system that embraces a reduction in discretion allowed—shows an incredibly large

and increasing number of people in prison and on probation and parole. Moreover, a huge,

50 J. Leveille

123

disproportionate part of these populations come from the minority and the poorer classes of

our society. One need not cite the litany of facts that clearly and unequivocally reflect this

problem. Has the massive ballooning of the prison populations in the last thirty years, and

of the poor and minorities in prison, been the result of a judicial system that favors

discretion or eschews it? For example, three strike laws and all the rest have wrecked

havoc not only upon those sent to prison, but on the minority and poor communities outside

of the prisons.

Althusser’s work sheds some light upon this entire discussion in his understanding of

the conceptualization of the subject within an historical materialist framework. The subject

goes to the heart of humanism. Within this framework he analyzes the differences between

what he calls un-real (or bourgeois) humanism and real (or socialist) humanism. ‘‘Real

humanism presents itself as the humanism that has as its content not an abstract speculative

object [i.e. the subject], but a real object …. [T]o find the content of this new humanism

you must look in reality – in society, the State, etc.’’ (2005a: 242). Un-real humanism—the

form of humanism that dominates ideological formulations in existing capitalist society,

Althusser says, contains within it the seeds of its own destruction.

He notes that the conceptualization of two distinct realms, of man and of the ‘‘ensemble

of social relations,’’ in un-real humanism is not only ‘‘inadequate,’’ but ‘‘designates an

action to be achieved, a displacement to be put into effect’’ (2005a: 243). The con-

tradictions produced through the conceptualization of the self in opposition to the social, he

says, cries out for action. To find ‘‘reality,’’ it is necessary to ‘‘turn to society, and to

undertake an analysis of the ensemble of the social relations’’ (2005a: 243). He continues:

In the phrase real-humanism, in my opinion, the concept ‘‘real’’ is a practical

concept, the equivalent of a signal, of a notice board that ‘‘points out’’ what

movement is to be put into effect and in what direction, to what place, must there be

displacement to reach the real earth rather than the heaven of abstraction. … But it is

then that the shocking paradox appears: once this displacement has been put into

effect, once the scientific analysis of this real object has been undertaken, we

discover that a knowledge of concrete (real) men, that is, a knowledge of the

ensemble of the social relations is only possible on condition that we do completely

without the theoretical services of the concept of man … (2005a: 243–244).

Althusser says we must embrace a ‘‘radical displacement,’’ and once this is done, our

attention will be turned to that which matters:

The concepts whereby Marx thought reality … never ever again introduced as the- oretical concepts the concepts of man or humanism; but other, quite new concepts,

the concepts of mode of production, forces of production, relations of production,

superstructure, ideology, etc. This is the paradox: the practical concept that pointed

out for us the destination of the displacement has been consumed in the displacement

itself, the concept that pointed out for us the site for investigation is from now on

absent from the investigation itself (2005a: 243–244).

Althusser continues by noting that the contradictions inherent in the concept of man or

humanism constitute a ‘‘transition-break’’ which opens up a new problem. He says that

‘‘internally unbalanced concepts appear at certain times in history which simultaneously

belong to an older ideological universe and to a new one’’ (2005a, b: 244). The present

essay is meant to illustrate this claim.

Capitalist formulations of discretion, of the subject, of humanism, produce, and are

produced by, contradictions in and through social relations—contradictions which will

Toward a Marxist Analysis of Discretion and Institutional Discrimination 51

123

erupt into discourse, and all of this should be encouraged. However, as long as the

parameters of the debates about discretion and institutional discrimination within the

judicial process are delimited by conceptualization of the transcendent subject, i.e. a vessel

containing transhistorical truths, it will be difficult to produce critical understandings of the

material foundations of the subject. Nevertheless, it is only through critical engagement,

through the support of discretionary judgment, that such possibilities could be realized.

References

Althusser, L. (2001). Ideology and ideological state apparatus. In Lenin and philosophy and other essays (pp. 85–126). New York: Monthly Review Press.

Althusser, L. (2005a) [1965]. Marxism and humanism. In For Marx (pp. 219–248). London: Verso Press. Althusser, L. (2005b) [1965]. On the materialist dialectic. In For Marx (pp. 161–218). London: Verso Press. Balbus, I. (1977a). Commodity form and legal form: An essay on the ‘relative autonomy’ of the law. Law

and Society Review, 11(3), 571–588. Balbus, I. (1977b). The dialectics of legal repression. New Brunswick: Transaction Books. Balbus, I. (1982). Marxism and domination. Princeton: Princeton University Press. Black, D. (1989). Sociological justice. New York: Oxford University Press. Bourdieu, P. (1977). Outline of a theory of practice. Cambridge: Cambridge University Press. Foucault, M. (1973). The order of things. New York: Vintage Books. Habermas, J. (1971). Knowledge and human interests. Boston: Beacon Press. Habermas, J. (1987). The theory of communicative action. Boston: Beacon Press. Habermas, J. (2003). Truth and justification. Cambridge: The MIT Press. Lukacs, G. (1986) [1968]. Reification and the consciousness of the proletariat. In History and class con-

sciousness: Studies in Marxist dialectics (R. Livingstone, Trans.). Cambridge: The MIT Press. Reiman, J. (1987). The Marxian critique of criminal justice. Criminal Justice Ethics, 6(1), 30–50. Reiman, J. (2001) [1979]. The rich get richer and the poor get prison. Needham Heights: Allyn and Bacon. Walker, S. (1998). Popular justice: A history of American criminal justice. Oxford: Oxford University Press. Weber, M. (1958). Science as a vocation. In H. H. Gerth & C. W. Mills (Eds.), From Max Weber. New

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