Strictly Taboo: Cultural Anthropology's Insights into Mass Incarceration and Victimless Crime

35 Pages Posted: 14 May 2014 Last revised: 24 Feb 2015

See all articles by Brennan Hughes

Brennan Hughes

United States Government - Judicial Branch

Date Written: July 4, 2014


I argue that cultural anthropology can explain two persistent riddles of American criminal justice: (1) Why do we have mass incarceration when mass incarceration is ineffective and socially destructive? (2) Why do we have victimless crimes when criminal law is ostensibly based on the utilitarian harm principle?

One answer is found in the anthropological “survivals” known as “uncleanness” and “taboos.” These visceral, often subconscious, feelings function to preserve order, the status quo, and class distinctions. Despite the gains made in civil rights, nonwhites and the underclass remain “the other,” and they threaten to “contaminate” the majority population. Crime itself, as a threat to social stability, has become charged with a powerful ability to attract and repel. Crime and criminals are described using terms for dirt and feces. The majority culture’s response to crime (which is linked with its unconscious response to the lower class and minorities) is to expel such pollution into sealed containers called prisons. The ritualism of civic religion completes the purification process.

Deeply felt taboos also persist concerning sex and drugs. While marijuana possession and use harms no one but the user, marijuana is historically taboo on account of its association with minorities and radicals. Incest is criminalized and sex with minors is hyper-punished because they violate deeply felt sexual taboos.

I argue that one promising solution is to help people develop a stronger taboo (through education) that can cancel out the dehumanizing taboos toward criminals (just as the taboo against homophobia has supplanted the taboo against homosexuality). We will continue to overpunish until hyper-punishment itself becomes repulsive.

Keywords: Mass incarceration, overcriminalization, punishment, taboo, survivals, uncleanness, civic religion, crime, dirt, criminal law, medical marijuana, marijuana legalization, marijuana, incest, sodomy, pedophilia, taboos, sex, prisons, vice, vices, victimless crime

Suggested Citation

Hughes, Brennan, Strictly Taboo: Cultural Anthropology's Insights into Mass Incarceration and Victimless Crime (July 4, 2014). 41 New England Journal on Criminal and Civil Confinement 49 (2015), Available at SSRN: or

Brennan Hughes (Contact Author)

United States Government - Judicial Branch ( email )

London, KY 40741
United States

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