Agential Epistemic Injustice and Collective Epistemic Resistance in the Criminal Justice System

ABSTRACT

This paper offers an analysis of how the American criminal justice system sets unfair constraints on the epistemic agency of detained subjects and promotes unfair negative consequences on the exercise of their epistemic agency. In Section 1, I distinguish three different kinds of agential epistemic injustices: those that occur when subjects are only believed when they are deprived of epistemic agency (as shown by Jennifer Lackey’s analysis of false confessions); those that occur when the subject’s exercise of epistemic agency is nullified or diminished by the cancelling or subversion of the force of their speech acts (illocutionary silencing/flipping); and those that occur when the subject’s exercise of epistemic agency is nullified or diminished by being given no uptake or negative and inhibitory uptake in a way that short-circuits the perlocutionary effects of their speech acts (perlocutionary silencing/flipping). In Section 2, I discuss ways in which epistemically oppressed subjects can resist agential epistemic injustices by augmenting and protecting their epistemic group agency through what I call epistemic activism, that is, resistant epistemic group action carried out by them collectively and sometimes in coordination with allies.

KEYWORDS:

• Epistemic agency
• epistemic activism
• epistemic injustice
• epistemic neglect
• silencing
• testimonial insensitivity

Acknowledgments

I am grateful for the comments and suggestions I received on prior versions of this article from Melanie Altanian, Jennifer Lackey, Gaile Pohlhaus, and other participants at the workshop Epistemic Injustice in the Aftermath of Collective Wrongdoing (University of Bern, 2019). I am also grateful for the detailed and tremendously helpful feedback I received from the reviewers Federica Berdini and Yarran Hominh.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. Just as it is justified for a criminal justice system to constrain the freedom of movement of suspects so that they do not interfere with the criminal investigation, it is also justified to constrain the suspects’ communicative agency and freedom of communication while the investigation is in process so that they cannot communicate with subjects who can destroy or alter evidence.

2. False confessions are a clear example of the phenomenon of extracted speech analyzed by McKinney (2016).

3. Note that the communicative mistreatment can transform the original speech act of seeking help into a different illocutionary act (e.g. seeking special treatment) or into a perlocutionary act (e.g. distracting or overburdening the guards). In either case the original illocution becomes nullified and replaced by a different kind of speech act (whether a different illocution or a perlocution). I am grateful to one reviewer for pointing this out to me. I will focus on the perlocutionary in 1.3, but my focus there will be on perlocutionary effects, not on perlocutionary acts as such. One of the overall aims of this essay, as one reviewer put it, is to explain ‘how an institutional culture comes into effect or is maintained by individual-level speech acts.’ We can view an institutional culture (e.g. the carceral culture at DCDF) as a perlocutionary effect – that is as formed and maintained by speech acts – which is why analyzing institutional epistemic injustice in terms of the communicative and epistemic agency of members of the institution in question is so crucial.

4. I am grateful to one reviewer for pointing out these connections with Bierria’s account of agential injustices. I will also cite Bierria’s powerful account in Section 2 to echo her discussion of resistant agency and to connect it with my discussion of collective resistance against agential epistemic injustices.

5. Note that these are not completely separate avenues of resistance and transformation: collective action can lead to institutional reform, and institutional reform can facilitate collective action.

6. See my (Forthcoming a, Forthcoming b).

7. Davis (2003) is one of the pioneer scholars who have argued that nothing short of prison abolition will stop the injustices and systematic oppression of the American criminal justice system. Although I am very sympathetic to this view, I also think that radical and continued reforms can be the path toward abolition of carceral institutions as we know them, but the debate between prison reform and prison abolition is beyond the scope of this article.

8. Bierria defines ‘transformative agency’ as follows: ‘action intended to fundamentally overturn conditions of systematic oppression, especially (but not exclusively) through collective action, such as through community organizing, movement building, or political advocacy. Transformative agency endeavors to challenge the structural and hermeneutic conditions that facilitate the displacement of some agents and the distortion of their actions.’ (2014, 139).

9. The kind of collective epistemic agency exercised in the cases of epistemic activism that I examine here should be understood on the model of what I call ‘chained action’ in chapter 5 of The Epistemology of Resistance (2013). Note that what I call ‘chained action’ is not collective in Gilbert’s (1989) sense of a fully unified group agent in which all members of the group share the relevant intentions; rather, chained action is collective in the broader and looser sense of bringing together the converging actions of multiple agents that connect with each other (intentionally or non-intentionally) to bring about some change larger than the changes envisioned by any of the participating individual agents, amplifying their agency and deepening the impact of the individual acts. As an anonymous reviewer of this article suggested, this is well illustrated by the work of Rosalva Aída Hernández Castillo on educational interventions in Mexican women’s prisons and the ways in which those educational actions reverberate and connect with other kinds of anti-carceral actions. Hernández and Aída (2015) shows how a writing workshop focused on the life histories of the indigenous female prisoners at a particular Mexican detention center ultimately ended up as the impactful writing collective Sisters in the Shadows Editorial Collective of Women in Prison.

10. The First Five Grieving Committee’s founding document is available at https://amplifyvoices.com/2016/03/28/the-first-five-grieving-committee-who-we-are-what-we-stand-for/. Evidence of the impact of their epistemic activism, including gaining the attention of the Durham County Sheriff directly, instead of his subordinates, is archived at amplifyvoices.com.

Additional information

Notes on contributors

José Medina

José Medina is Walter Dill Scott Professor of Philosophy at Northwestern University. He works primarily in critical race theory and social and political epistemology. His books include The Epistemology of Resistance (2013), and he is a recipient of the North-American Society for Social Philosophy Book Award. His recent and ongoing scholarship addresses epistemic dysfunctions and pathologies of public discourse and ways of resisting them through collective action and forms of activism that he terms ‘epistemic activism’.