Commodified Justice and American Penal Form

Abstract

This article seeks to analyze American penal law, ideology, and culture through the lens of Marxist theories of commodification and commodity fetishism. It first introduces the “first-order commodification of justice,” that is, the positing of a quantitative equivalence between offense and punishment. Next, it introduces the “second-order commodification of justice,” that is, the notion that the benefits of a particular penal regime can be reckoned alongside other social goods, mediated by the general currency of “utility.” It then considers some of the consequences of this commodification for the cultural meanings of justice and punishment in American culture. It pays particular attention to how the commodification of justice interacts in a mutually reinforcing way with racism. It concludes by arguing that commodified justice can perhaps be overcome through a transition to restorative/transformative justice paradigms, effectuated by an anti-capitalist, prison-industrial-complex abolitionist political praxis.

Keywords: criminal law, Marxism, commodity fetishism, ideology, restorative and transformative justice, race and capitalism, abolition