On March 11, 2020, BYU Law students gathered for a forum featuring Professor Ekow Yankah of Cardozo School of Law in conversation with BYU Law Professor Paul Stancil. Professors Yankah and Stancil examined issues of race, criminal theory, and punishment as they relate to mass incarceration. Professor Yankah holds degrees from the University of Michigan, Columbia Law School, and Oxford University. His work focuses on questions of political obligation and its interaction with justifications for punishment.
The criminal justice system in the United States holds nearly 2.3 million people in state and federal prisons, juvenile correctional facilities, local jails, military prisons, and immigration detention centers, making the United States the world’s leader in incarceration. “If deterrence was the goal, our criminal law system would look very different.” Professor Yankah said. “People often leave prison with nothing more than advanced criminal skills.” He described modern day incarceration in the U.S. as a “throw away” prison culture and argued instead for a culture of rehabilitation. “We cannot imprison our way out of social problems,” he said. “Instead of asking,‘what did you do wrong and what’s the appropriate punishment’ we can ask, ‘how can we rebuild you as a citizen so you can rejoin us?’”
Professor Yankah said that while there are many factors that drive mass incarceration, some communities are impacted more than others. He noted that people of color “do worse at every point in the criminal justice system.” In these communities, he said, individuals become desensitized to jail time, much like a child becomes numb to the threatening behavior of an abusive parent. “These people aren’t wondering if they will be struck, they know it’s coming. They focus instead on negotiating the number of blows,” Professor Yankah said.
Professor Yankah believes Americans are unique in the sense that they are constantly reinventing themselves. He suggested that this optimistic impulse toward rebirth can be applied to a reformation of the criminal law system but that it will require those who stand in positions of power to remember where we have been. “We are all born in a particular generation—the way things are seems like the way they have always been,” he said. “The result is that we often don’t see the deep, structural, abiding racial problems that exist because we tell ourselves ‘we solved that.’” The solution, said Yankah, is to “keep the receipts” so that as a nation we remember what we have done well and what has been deeply destructive. “Religious and civic faith compel us to move forward,” he said. “If we want a system of reform, those who have been favored bear the weight of that reform.”
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