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STATE OF INJUSTICE
Why we need a broad vision and deep history in order to understand the current state of criminal injustices in the United States.
Stand too close to horror, and you get fixation, paralysis, engulfment; stand too far, and you get voyeurism or forgetting. Distance matters.
—Eva Hoffman, After Such Knowledge
In December 2006 the South Salt Lake Police Department received an anonymous tip that a local residence was being used for drug dealing. After a week of surveillance, tracking suspected buyers as they came and went, the narcotics detective Douglas Fackrell stopped and interrogated Edward Strieff on suspicion that he had purchased illegal drugs. When Fackrell learned from a dispatcher that Strieff had an outstanding arrest warrant for a traffic violation, the detective searched him and found methamphetamine and drug paraphernalia.
This kind of police activity happens thousands of times every day in the United States: cops stopping and searching poor people on the flimsiest of excuses, behaving in ways that would get the officers in trouble if they treated the rich and middle class in the same way. These arbitrary street stops are the bread and butter of police work. They typically occur anonymously, hidden from justice, their outcomes predictable: the police chalk up another successful arrest. With the help of a publicly paid lawyer the defendant pleads guilty in order to receive a reduced sentence. And the poorhouse jails effortlessly stay jam-packed.
What was unusual about this case was that, a decade later, the arrest of Edward Strieff generated a remarkable dissent from a U.S. Supreme Court justice.
Occasionally the smooth process of punishment without trial is interrupted when the police carelessly treat a big shot as though he is a powerless nonentity or when a public defender, despite being hard-pressed for time and resources, takes a case to trial or, even more rarely, appeals a legal decision to a higher court.
What happened to the retired tennis star James Blake is an example of the police roughing up the wrong African American. In 2015 a New York officer, James Frascatore, mistook Blake for another black man suspected of credit card fraud and slammed Blake to the ground outside a hotel. Unlike the overwhelming majority of black men who have been similarly accosted, Blake made his experience a public matter and eventually settled with the city for damages. He also had the resources and patience to file a grievance of police misconduct with the city’s Civilian Complaint Review Board, a process that took more than two years to complete, and concluded with the prosecutor asking only for Frascatore to be docked ten days of vacation pay. Even this kind of token victory is a rarity.1
Edward Strieff is the one-in-a-million defendant who had the good luck to be represented by a public defender who saw an opportunity to raise a constitutional challenge to the misuse of police power. Typically, defendants like Strieff end up in jail unable to make bail, and sooner or later they plead guilty rather than do “dead time” while waiting for their case to be decided. Contrary to the widely held impression—derived from police procedurals and courtroom dramas on television—a trial by jury is rare, and a debate about constitutional issues provoked by an illegal arrest is even more rare.
Strieff was not a typical defendant. At the time of his arrest, as the brief by his lawyer, Joan Watt of the nonprofit Salt Lake Legal Defenders Association, stated, the police “had no idea whether Strieff was a short-term visitor, or a permanent resident, or the pizza delivery man.” She moved to suppress evidence gathered during the stop on the ground that the police had exceeded their authority. Utah’s Supreme Court agreed, finding that Strieff’s Fourth Amendment right to security against unreasonable search and seizure had been violated. But on appeal the U.S. Supreme Court, in a 5–3 decision written by Justice Clarence Thomas, upheld the power of the police to stop and search people on the street on the basis of nothing more than a hunch and an outstanding traffic ticket. Strieff’s guilt was affirmed.2
The decision of the Supreme Court was expected, given its long-standing tendency to make it difficult for civilians to prevail in complaints against the police. What stands out in the Strieff case, however, was Justice Sonia Sotomayor’s brutally frank and caustic dissent. Although Strieff is white, Sotomayor used the occasion to express her views about police and race as well as class. “Writing only for myself,” she noted, the police treat too many people as though they are “second-class citizens,” and “it is no secret that people of color are disproportionate victims of this kind of scrutiny.”
Drawing on a long tradition of African American critics of racial injustice—from W.E.B. Du Bois and James Baldwin to Michelle Alexander and Ta-Nehisi Coates—and expressing herself with a passion not usually heard from the highest court in the land, Sotomayor declared:
This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be catalogued. We must not pretend that the countless people who are routinely targeted by the police are “isolated.” They are the canaries in the coalmine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.3
Justice Sotomayor’s “countless people” make up a sizable segment of American society. Police arrest about fourteen million people annually in the United States; sixty-five million people have a criminal record; and at least twenty million have been incarcerated at some point in their lives. On a single day state and federal prisons and local jails hold 2.3 million people; another 3.7 million are on probation, and 840,000 are on parole, subject to restrictions and conditions that limit their civil rights.4
That means nearly seven million people are enmeshed in criminal justice institutions that employ, at a minimum, another 4.3 million people as police and guards and in other capacities at a cost of hundreds of billions of dollars.
Compared with other nations, the United States is an outlier in its reliance on prisons and jails. By 2015 thirty-one American states had the highest incarceration rates (per 100,000 population) in the world, higher even than Turkmenistan, a Central Asian country identified by Human Rights Watch as having one of the world’s most repressive regimes. Thirty-eight states lock up a larger proportion of their residents than El Salvador, a country recovering from a civil war and dealing with one of the highest homicide rates in the world.5
When you look carefully, the inequities are blatant: macho policing that is routinely indifferent to human rights in impoverished communities and that reduces citizens and residents to objects of fear and loathing; astonishing cruelties that characterize day-to-day life in jails and prisons, including widespread use of solitary confinement and sensory deprivation in violation of international human rights standards; taken-for-granted and clearly evident institutionalized racism that confirms the widespread prejudice that people of color are the most criminal, most dangerous, and most deserving of social exclusion and persistent distrust.
African American, Latino, Native American, and poor white communities carry the heaviest burden of punishment. By 2014 African Americans, who comprise about 13 percent of the U.S. population, dominated prison statistics: they are incarcerated in state prisons nationwide at five times the rate of whites, and they account for 35 percent of people in prison and jail, 48 percent of those serving life sentences, 56 percent of those sentenced to life without the possibility of parole, and 42 percent of death row prisoners. Although men comprise the overwhelming majority of prisoners, 30 percent of the world’s incarcerated women are in the United States, and African American women’s rate of imprisonment is twice that of white women.6
Most people in the United States are so used to thinking of criminal justice institutions as reserved for the desperate and marginalized, and of criminality as the monopoly of poor folks that these attitudes appear to be predetermined and the way the world works rather than the product of specific historical developments and a double standard that routinely exempts corporate and government perpetrators from punishment.
In 2012 a U.S. Senate committee carried out an exhaustive investigation of illegal operations by the global bank HSBC. After reviewing 1.4 million documents and interviewing seventy-five witnesses, the committee concluded that the bank had reaped massive profits by laundering billions of dollars for drug cartels, pariah states, and organizations linked to terrorism. Mexico’s Sinaloa cartel, which is implicated in tens of thousands of murders, even designed a special cash box that was compatible with HSBC’s teller windows. The bank’s malpractice was not simply a matter of negligence or poor oversight of low-level functionaries but rather stemmed from systematic criminal behavior approved by top executives. “This is something that people knew was going on at that bank,” said then-senator Carl Levin, the Michigan Democrat who chaired the investigation.
Yet nobody went to prison. Nobody was even criminally prosecuted. HSBC’s chief executive officer said he was “profoundly sorry,” and the corporation paid a $1.9 billion fine that represents about four weeks’ worth of profits from its forty million customers worldwide.7
In 2016 Wells Fargo was implicated in similar conduct when the Consumer Financial Protection Bureau revealed that the bank had created as many as 3.5 million deposit and credit-card accounts without the knowledge or permission of consumers. Employees described a toxic work atmosphere in which they were pressured to meet impossible sales goals. “If one of your tellers took a handful of $20 bills out of the cash drawer,” Senator Elizabeth Warren (D-Mass.) told the bank’s CEO during a congressional hearing, “they’d probably be looking at criminal charges for theft. They could end up in prison. But you squeezed your employees to the breaking point so they would cheat customers and you could drive up the value of your stock and put hundreds of millions of dollars in your own pocket.” Wells Fargo responded by firing 5,300 mostly low-level employees, paying a fine of $185 million, and forcing CEO John Stumpf to resign. In 2018 the Consumer Financial Protection Bureau added a $1 billion fine that was more than triply compensated by the windfall benefit from the Trump administration’s Tax Cuts and Jobs Act. No Wells Fargo executives have been criminally prosecuted.8
What Sotomayor calls a “carceral state,” with its obsessive attention to cataloging the dangerousness of working-class communities and turning a blind eye to crimes in high places, was long in the making and involves a wide range of enthusiastic participants. The blame cannot be heaped only on the Trump administration, which came to power dedicated to unleashing the police “to do their job the way they know how to do it,” for the Strieff decision was issued during the Obama presidency amid much talk about criminal justice reforms. Several government investigations already had exposed police lawlessness, and Black Lives Matter activists had forced the world to pay attention to what was happening on city streets.9
The state of injustice is attributable in part to right-wing politicians in both parties who clamor for tough measures, and to the self-interest of professional functionaries who personally benefit from the business of policing and guarding human misery. Among those functionaries are George Zoley, chief executive of a private prison company who personally made $9.6 million in 2017, and the psychologists James Mitchell and John Jessen, whose business received more than $75 million from the CIA to devise “enhanced interrogation techniques” for extracting information from suspected terrorists. They signed off on tormenting prisoners with sleep deprivation, cells filled with mice, naked humiliation, and physical pain. We learned the details of this abuse when some of Mitchell and Jessen’s victims, who had been held in a secret American prison in Aghanistan, sued for compensation and won a settlement.10
But the problem is not limited to a few bad apples such as Mitchell and Jessen. It is endemic, not selective.
Do not forget the gun manufacturers, prison builders, and surveillance system engineers who service and profit from public agencies, and the knowledge professionals who articulate the logic of punishment.
A city of intellectuals, researchers, policy makers, experts, educators, bureaucrats, and pundits is necessary to figure out the details, make the plans, manage operations, and come up with a plausible rationale for why poor and working-class people are more despicable than those who commit war crimes, cover up government malfeasance, and defraud the public.
To insulate the know-how from its human impact demands a cold, calculating disengagement not unlike what is required to launch a drone or function like the technocrat in Franz Kafka’s fictitious penal colony who created a sophisticated machine to forcibly tattoo the names of crimes on prisoners’ bodies until they slowly bleed to death.11
A real-life architect in Arizona plans a prison in which windows are virtually eliminated and incarcerated bodies are moved “without creating situations in which inmates are together”; a technology company in San Diego invents a long-range acoustic device capable of blasting demonstrators with earsplitting noise, the sonic equivalent of a fire hose; and business consultants market “spit bud” masks that prevent prisoners from hawking at guards and stackable bunks so that more prisoners can be crammed into less space.
Medical and legal functionaries debate which drugs produce the best way to execute people, and the legal system orders the execution of seventy-five-year-old Tommy Arthur, who had been on Alabama’s death row for thirty-four years.
The carceral state puts to work a public relations guru in Hawaii who advises the police to call the homeless “residentially challenged” as they issue them tickets for sitting on the sidewalks in tourist zones; a sheriff’s SWAT team in rural Georgia that boasts an armored Humvee, machine guns, a door-breaching shotgun, and flash-bang grenades to carry out no-knock search warrants; and counterterrorism experts who are eager to construct ways of dividing “the civilian world into two, separating the trustworthy cooperators from the non-cooperators,” and to teach government agencies how “to watch and track everything that moves.”12
Despite so much purposeful rationality, “the ‘system’ itself may be mad,” says the anthropologist Lorna Rhodes in her frank description of a maximum-security prison. Here the lockdown and isolation of prisoners for twenty-three hours a day, constant surveillance, and electronic control of movement generate “raging, depressed, or hallucinating men who ‘knot up’ within the tiny confines of their cells” and make themselves into sites of resistance by hurling body fluids at guards, thereby finding in their desperation a way to violate the prohibition on human contact.
Rhodes’ insights about the immaculately maintained twenty-first-century, high-tech prison that does its best to drive convicts crazy reminds me of Charles Dickens’ visit in 1842 to Pennsylvania’s Eastern Penitentiary. The writer, like many European intellectuals of the mid-nineteenth century, visited the United States to investigate the American political experiment and report to his readers, who were curious for news about innovations in the New World. Several European governments and U.S. states, facing the need to modernize dilapidated prisons or build new ones, wanted to know in particular about the effectiveness of innovative American penitentiaries on the east coast in making prisoners economically productive and submissive workers, just as experts from around the world were dispatched to the west coast more than a century later to investigate California’s efforts to rehabilitate and depoliticize activist prisoners. The United States has always been in the business of exporting its criminal justice policies and institutions.
Prison authorities in Philadelphia were proud to show off to Dickens what they considered to be the latest innovation in prison management. Unlike other prisons in the region, which used the Auburn, or “congregate,” system that assembled prisoners in factory-like workshops during the day and isolated them in cells at night, the Pennsylvania system kept prisoners isolated day and night, working individually in their cells under a code of strictly enforced silence. The Quaker-influenced regime was based on the assumption that prisoners would return to society ready for “honest industry” as the result of deep reflection and penitence.13
Dickens came to a different conclusion. Eastern, he wrote, was indeed a “beautifully—exquisitely—kept and thoroughly well managed” institution but one that subjected prisoners to the “torturing anxieties and horrible despair of hopeless solitary confinement.” Dickens was quickly convinced that the so-called silent system was “cruel and wrong. I never in my life was more affected by anything which was not strictly my own grief than I was by this sight.” Witnessing a new prisoner being put through a degradation ritual that became a daily habit—the placing of a black hood with narrow eye slits over the head—was especially shocking to the visitor. Its purpose was to disorient a newcomer, make him more pliable, and limit interaction with other prisoners. To Dickens it symbolized “an emblem of the curtain dropped between him and the living world … He is a man buried alive; to be dug out in the slow round of years; and in the meantime dead to everything.”14
A sense of humanity compels many people today to feel what Dickens felt more than 175 years ago and to express the conviction that our criminal justice institutions should be profoundly changed, even dismantled and transformed. But indignation and idealism are not enough. Demanding intellectual work also is required. Without conceding a sense of moral outrage at a web of injustices constructed with extraordinary ingenuity and extraordinary inhumanity, we also need to stand back to see the big picture—yet not so far back that we risk becoming voyeurs. Finding the right combination of anger, passion, and analytical complexity is the challenge.15
The expansion of the U.S. criminal justice system in recent decades is startling, and the investment of public resources in tracking, guarding, and punishing is extraordinary. In 1950 a staff of twenty-three thousand guarded all U.S. jails and prisons. Today more than seven hundred thousand are needed to do the job.
How we came to live in a society that still selectively processes millions of people as though they are “dead to everything” and what we can do about it are the subjects of this book. Beyond These Walls is a call to think in new and bolder ways about familiar issues, such as what prisons might have in common with barrios, ghettos, and reservations, and to consider the importance of unfamiliar issues, such as the central role played by private security in policing and how the public welfare system catalogs and dehumanizes poor women in ways that are similar to how the jails catalog and dehumanize poor men.
First we need to see the breadth of the problem and not be limited by a focus on only the most publicized issues, such as urban police violence, mass incarceration, and the sensational felony cases that come to mind when we think about crime control in the United States. No question, these issues are important, but much more happens under the auspices of criminal justice institutions. Moreover, criminalization is only one of many ways to exercise coercive power and social control.16
Beyond splashy government commissions calling for a restoration of trust in criminal justice in the United States and the daily spectacle on YouTube of police killing people, the wheels of injustice grind away invisibly, turning petty mischief and personal idiosyncrasies into crimes.
Local authorities have the power to invoke “civility codes” to banish the “disreputable” poor from city centers without judicial review. Administrative bodies that do their work in relative obscurity return parolees to prison. Sex offenders and debtors can be sentenced to incarceration by means of civil proceedings. City councils, hard up for funds, enable the police to make arrests for “manner of walking,” saggy pants, loitering in a park, even firing up a barbecue in the wrong place. The jails are full of people sitting out tickets for minor infractions they cannot afford to pay.
Women and children are direct victims, not simply collateral damage: imprisoning their family members deepens community poverty, aggravates interpersonal violence, and sharpens divisions between women and men. One in every twenty-eight children now has an incarcerated parent whose family is bilked as much as $25 for a fifteen-minute in-state phone call.17
Criminal justice is generally framed as a local and state issue, with the federal government occasionally mobilized to set standards and issue new policy guidelines, such as during efforts to professionalize policing in the 1920s. Academics, journalists, and politicians typically make a distinction between the everyday stuff of policing and guarding and the federal preoccupations with homeland security and border control. In contrast, Beyond These Walls argues that crime control is as much a national as a local issue and that an important and deeply rooted relationship exists between local law-and-order campaigns and national mobilizations against perceived threats to the nation’s moral-political health.
How can we understand, for example, the cultural construction of the “black criminal” without tracing how for decades during the twentieth century the nation’s leading law enforcement agency, the FBI, employing a panoply of dirty tricks, did its best to halt, slow down, and undermine the struggle for civil rights? The criminalization of sexuality is similarly influenced by national policies. When the federal government announced during World War I that sexually predatory women were sapping the vitality of male conscripts, or during the Cold War that leftists and gays were a threat to national security, local police forces obliged by carrying out raids and roundups that ruined the lives of hundreds of thousands of people.
The functions of intelligence and security agencies, such as the CIA, FBI, and Department of Homeland Security, are intimately tied to what happens every day in criminal justice agencies. Federal campaigns against subversion, immorality, movements for social justice, undocumented immigration, and terrorism have significantly shaped local policing and state legislation. There is a symbiotic relationship between efforts to criminalize and demonize groups in the United States and the deployment of criminal justice operations on behalf of U.S. foreign policy, as exemplified by the role played by the U.S. Office of Public Safety (OPS, part of the U.S. Agency for International Development from 1962 to 1974) in helping client states crack down on progressive movements in Latin America. In the case of Chile, OPS enabled the military to topple the democratically elected Salvador Allende government.
Domestic counterinsurgency operations are routinely entangled with everyday criminal justice operations, as in maintaining public order at political events and monitoring social movements; typically they focus on the same communities targeted by the local police. In July 2014 New York police arrested Eric Garner for selling loosies (single cigarettes) without a license. Officer Daniel Pantaleo used a chokehold, which is prohibited by departmental regulations, on the African American father of six. Witnesses reported that Garner gasped for breath and said, “I can’t breathe” eleven times before passing out. Garner was dead by the time he reached the hospital. In December of that year, when a grand jury failed to indict Pantaleo, who had been the subject of previous civil rights lawsuits accusing him of abusing people he arrested, thousands took to the streets in anger. Instead of protecting the right to protest, undercover agents infiltrated organizations, such as Black Lives Matter, and accessed their internal communications and text messages to collect evidence for criminal prosecution. This practice of trying to discredit and criminalize groups critical of the police has a long history, going back at least to the early days of the FBI in the 1920s.18
Many urban police departments have large intelligence units, with agents even posted abroad. To criminalize activists the police regularly invoke laws relating to disorderly behavior, trespass, and illegal assembly. In 2017 several states passed legislation that restricts the right to protest; the laws included increased penalties for blocking traffic and for “disobeying a public safety order.”19
The millions of people employed in criminal justice are not only public cops and prison guards, and their work does not stop at the U.S. borders. From the war in the Philippines at the beginning of the twentieth century through the Cold War to today’s counterterrorism operations, the United States has always exported advice, expertise, personnel, and equipment to client states in the name of fighting crime and subversion. By the early 1970s, for example, more than seven thousand police officials—more than half of whom were from Latin America—had received counterinsurgency training in the United States. When the George W. Bush administration told the Iraqi government in 2003 how to set up Abu Ghraib prison, where prisoners were routinely humiliated and tortured, the advice represented a long-standing and routine practice. Today global issues pervade every aspect of criminal justice policy, from border control to drug enforcement to urban security.20
The work of criminalizing, punishing, excluding, marginalizing, humiliating, subordinating, and discarding large groups of people does not only take place in criminal justice institutions. It involves millions of functionaries at an extraordinary and mostly unaccountable cost. A variety of public and private agencies have the authority to impose punishments and hardships, ostracize large numbers of people, and whittle away basic rights. This process is sometimes referred to as carceral, as in Justice Sotomayor’s usage, to capture the myriad ways—public and private, formal and informal, legal and political—in which they exercise social control.
Although carceral is linguistically associated with a physical barrier, and thus prison (from the Latin carcer), it is also used symbolically and metaphorically to evoke the range of ways in which the human body can be contained beyond walls—from slavery, in which physical and psychological violence was seamlessly incorporated into the everyday round of life, to contemporary public housing projects that restrict the movement of tenants. “We are in jail outside,” members of the Black Panther Party noted in 1971, “and jail inside.”21
Physical punishments and exclusion include not only prisons and jails but also banishment, exile, transportation, deportation, reservations, and refugee camps. The increasing use of electronic monitoring makes it possible to expand institutional control into people’s everyday lives. Already, enterprising criminologists are developing plans for “technological incarceration” that would monitor prisoners in their homes via ankle bracelets and remote sensors and immobilize violators with electroshock delivered by “Conducted Energy Devices.”22
Punishments extend to placing limits on people’s rights and status, such as denial of the right to vote and access to public services, which typically result in temporal and spatial restrictions that deprive individuals and groups of time to live full lives and the ability to move freely in society. An estimated six million people, for example, are barred from voting because they have a record of felony convictions.23
Now under the auspices of the cabinet-level U.S. Department of Homeland Security (DHS), which was created in 2002 in the wake of September 11 and expanded the following year, immigration control looks and acts much like a criminal justice operation but one that is better coordinated and funded and acknowledges even fewer rights than the criminal courts. Incarceration, surveillance, and deportation are now significant components of immigration enforcement. Detention of undocumented immigrants and documented immigrants accused of crimes has become commonplace, growing from about 20,000 detentions in 1961 to an average of 450,000 a year during the Obama presidency. The number of noncitizens, mostly Mexicans, formally removed from the United States increased sixteenfold from 1986 to 2012, and immigration-related prosecutions saw an unprecedented increase. Under the Trump administration Immigration and Customs Enforcement (ICE) agents became emboldened to round up folks who had committed minor criminal infractions or violated immigration laws. “Before, we used to be told, ‘You can’t arrest those people,’” said a ten-year ICE veteran. “Now those people are priorities again. And there are a lot of them here.” In the first six months of 2017 arrests of undocumented immigrants increased by almost 38 percent over the previous year.24
Policing encompasses much more than publicly funded urban law enforcement, as revealed in cultural and political preoccupations with securing our streets, security measures, security services, national security, securing the border, secure communities, and homeland security. Builders of gated communities seamlessly incorporate security planning, including “armed response,” in the architectural design of suburban communities that are expected to be defensible as well as comfortable.25
Private security operations are an integral component of policing. Private and public policing have long been intertwined, from the second half of the nineteenth century, when business-controlled security forces served as a model for urban police forces, to the long-standing hiring of former police administrators by security firms (whether as employees or consultants), and the innovative function provided by the corporate-security sector in creating and responding to what Étienne Balibar calls the “insecurity syndrome.”26
Today private police perform exactly the same functions as public police, either as subcontracted by government agencies or as the direct employees of industries, businesses, malls, and middle-class communities. As of 2010, security workers outnumber public police by more than 25 percent, and companies that provide personnel and make security-related products are the recipients of government contracts that far exceed the amount of public money spent on criminal justice operations nationally.27
The work of social control stretches from the physical isolation and mind-shredding regimes of maximum-security prisons to techniques of co-optation and psychological manipulation used in schools and other social institutions; from regulating the disorderly behavior of truant children and downtown beggars to cooling out disruptive patients in hospital emergency rooms and patroling the stairwells and corridors of public housing projects.28
The line between agencies of social control and service institutions is often blurred. Public schools, for example, now incorporate security measures in their routine functioning, while prisons and jails increasingly incorporate medical and psychological techniques in the work of guarding. Public welfare in the United States puts millions of women and children in a limbo between desperate poverty and a criminalized status, and the system condemns millions of former prisoners to civil death.29
Criminal justice institutions, whether narrowly or expansively defined, do not monopolize the job of social control. The millions of people who come under their purview do not remain in police cells, criminal courts, reformatories, jails, and prisons. They also are subject to discipline in schools and punishment if they are on welfare; stopped and frisked, entered into data banks, corralled on the streets, and herded out of malls and city centers; deported across borders and locked away in military prisons, black sites, and refugee camps; and engaged in resistance, from hunger strikes in prison to street protests urgently demanding that black lives matter.
Punishment is not a single, decisive act with clear parameters and time limits. The arrestee, the incarcerated, the suspect, the welfare recipient, and the deportee are subject to an unfolding process in which they become a category of person to be followed, tracked, documented, and constantly made visible, as if they had a blazon attached to their clothes or a tattoo permanently imprinted on their body. “I know that on the day after my release,” Oscar Wilde wrote to his literary executor from a jail near London in the late 1890s, “I will merely be moving from one prison into another, and there are times when the whole world seems to be no larger than my cell, and as full of terror for me.”30
Former prisoners typically “carry their prison with them into the air, and hide it as a secret disgrace in their hearts,” Wilde observed after doing two years at hard labor, picking oakum, and walking a treadmill. Having been convicted of “gross indecency,” namely “the love that dare not speak its name,” he left prison a broken man and died three years later, convinced that the state had abandoned him “at the very moment when its highest duty … begins. For me,” he wrote, “the world is shriveled to a handsbreath, and everywhere I turn my name is written on the rocks in lead … I have come … from a sort of eternity of fame to a sort of eternity of infamy.”31
Half a century later the 120,000 Japanese Americans and Japanese immigrants in the western United States who were incarcerated without trial during World War II on suspicion of potential subversion experienced deprivation and indignities before, during, and after their imprisonment. Officials from the War Relocation Authority, authorized by Franklin D. Roosevelt’s Executive Order 9066, gave them only a few days to prepare for their banishment. They were told to pack only what they could carry and were not informed of their destinations. Aside from hardships in prison, the experience, Karen Inouye writes, had a “long afterlife” and left her family “in a constant state of distress and uncertainty about their safety and future.” After his release her father would buy cars only from U.S.-owned companies so that his patriotism would not be questioned.32
Through rituals of “social death,” to use the sociologist Orlando Patterson’s evocative term, large groups of people are simultaneously excluded and included, made marginal and integrated, a part of society and “yet apart from it.” It is a dynamic as well as destructive process that both discards people deemed expendable and makes them subordinate and potentially useful: deported workers who can be recalled when needed; formerly incarcerated people who are tracked into menial service work; welfare recipients “working off their debt to society” and thus depressing the wages of government workers; and marginalized urban youth competing with the most recent immigrants for part-time, minimum-wage work.33
Second, making sense of this extensive, complex, and multilayered labyrinth of social control requires a historical investigation of how the past bleeds into the present and how the present transforms the past.
“America is famously ahistorical,” a sardonic Barack Obama observed in 2015. “That’s one of our strengths—we forget things.” This tendency is visible from both sides of the political divide. The Right conveniently ignores how the police and courts target crime only in poor and working-class communities and invokes the need for authoritarian measures as though this is a new idea. The Trump administration’s views about crime and justice represented a sharp shift to the right and a break with the prevailing discourse of modest and selective change promoted by leading Republicans and Democrats in 2015–16, but they were not unprecedented. When Donald Trump injected racist rhetoric of unvarnished law and order into his presidential campaign, grossly exaggerating the problem of “illegal criminal immigrants” and calling for a ban on “other countries’ undesirables,” what he said was both shocking and familiar. Shocking because it was at odds with a growing political consensus about the need to reduce the incarcerated population, rein in the police, and give the states some economic relief from the cost of prisons. Familiar because it resurrected and polished up deeply embedded cultural imagery that has considerable staying power.34
The Left has a tendency to make extravagant claims about the exceptional horrors of the current U.S. prison system—that it is, for example, “historically unprecedented and internationally unique”—forgetting about, inter alia, regimes of terror in the American South after the defeat of Reconstruction and in fascist Europe in the 1930s and 1940s. Critiques of police hawkishness generally go no deeper than discussions of SWAT teams in the 1970s and acquisition of armaments during the Iraq War, ignoring how the modern police originally were organized along military lines in the late nineteenth century. The weapons and technology may have been upgraded, but the assumptions and attitudes about the need for a strong state to hold the line against the “dangerous classes” has an established pedigree.35
This is not to suggest that the present is merely history repeating itself or that nothing has changed significantly in the last 150 years. Continuities in the racial composition of who gets arrested and incarcerated run deep, and national initiatives against progressive organizations are nothing new. But today’s racist police practices are not simply a holdover from the past. They have been given new life and new rationales in a society marked by segregated housing and education, and inequalities of the job market, that are quite different from conditions associated with slavery and Jim Crow. Similarly national security and counterterrorism operations in the wake of September 11 have been much more complex and extensive than the campaigns waged against communists, socialists, feminists, and civil rights activists in the early twentieth century.
Beyond These Walls is a dynamic genealogy that zigzags in time, searching for persistent patterns and ruptures in history. The targeting of African Americans, from chain gangs to solitary confinement, is central to this investigation, but a wider lens makes clear that historically this kind of victimization is neither exclusive nor unusual. The carceral imagination is quite prolific, as illustrated during the nineteenth century in the use of prison-like reservations to contain Native Americans, ethnic cleansing campaigns to rid rural communities of Chinese immigrants and herd them into Chinatowns on the west coast, and the demonization of Mexican immigrants that made lynching during the California Gold Rush a regular occurrence.
In critical discussions of policing and prisons, race is the most obvious and visible master narrative. But other important social dynamics are at play. Modern urban policing was originally organized to control working-class European immigrant communities, and to this day the people who end up in jails and prisons are almost exclusively drawn from the most impoverished communities. If you search the cells of the more than 2.3 million people incarcerated, you will be hard pressed to find more than a handful of upper-middle-class and wealthy felons in each institution, just enough to give the impression that, in Anatole France’s memorable adage, “the law, in all its majesty, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” The incarceration of a leading political figure, such as former member of Congress Anthony Weiner, who received a twenty-one-month sentence for sending sexual texts to a fifteen-year-old girl, is so rare that it provokes a media frenzy.36
Also, criminal justice institutions have been centrally involved in attempting to keep women subordinate and in line, and in policing the boundaries of heterosexuality. In 2017 many Republican-controlled state legislatures rushed to enact laws, according to a former editor-in-chief of the New England Journal of Medicine, that “treat pregnant women like errant children.”37 Current efforts to limit access to abortion services, criminalize public welfare, and provoke moral panics about the dangers of sexual diversity have a long history, going back to the early-twentieth-century eugenics movement.
It is not possible to determine whether today’s carceral state is unprecedented, as some critics have suggested, in part because relatively reliable, albeit incomplete, data on criminal justice institutions have been available only since the 1960s and in part because the experiences of different historical eras are not easily transferable.
How, for example, can we compare today’s mass imprisonment with the extraordinarily high death rate of African American convict laborers in the South after the Civil War? Or with the disproportionate incarceration of Chinese immigrants in California following the Gold Rush? Or with the forced transfer of Native American children to boarding schools in the late nineteenth and early twentieth centuries? Or with the cramming of Mexican immigrants into Los Angeles jails in the 1930s? Or with the widespread institutionalization of the mentally ill in the 1950s?38
Rather than trying to quantify the relative harmfulness or magnitude of these injustices, I look at parallels, continuities, and breaks with the past and try to understand how these deeply rooted tectonic fissures trouble the here and now.
Third, it is important not to overstate the power and reach of the state. While the state is indeed extensive, multifaceted, and resourceful, it is not omnipotent or coherent but rather full of tensions and internal conflicts, more like Kafka’s penal colony than Orwell’s Big Brother.
Pick up any book on prisons, police, and crime, and you will find widespread use of the phrase “criminal justice system” to designate a group of interrelated institutions, framed by criminal laws and implemented by government: police, courts, jails and prisons and community corrections, probation and parole, and juvenile justice.
The use of system is problematic because it obscures the chaos, decentralization, and irrationality that typically characterize what passes for criminal justice in the United States. Recognizing what Primo Levi called the “grey zones” that permeate institutions of social control is important.39
Political consensus may have gelled, for example, around the rhetoric of the “war on crime” in the 1970s or “war on drugs” in the 1980s, but no national plan of action existed, nor did cities, regions, and states coordinate their efforts. Shifts in criminal justice policies usually occur haphazardly and chaotically, reflecting responses to crises, partisan political decisions, and global events. Capital punishment, although authorized by the U.S. Supreme Court, is carried out in only a few states. More than half of the thirty-nine executions carried out in 2013 took place in Texas and Florida. Even at the height of the prison boom, penal practices varied widely by region: rates of imprisonment per 100,000 adults ranged from 1,300 in Oklahoma and 1,130 in Texas to 350 in Maine and 450 in the District of Columbia. More recently, while New Jersey’s prison population dropped by 35 percent, North Dakota’s increased by 20 percent.40
The sense of unity of purpose is a delusion. Commentators from different ends of the political spectrum point out that the criminal justice apparatus “has gone astray, lost in a dark wood of its own making,” and is dysfunctional and unraveling. Whatever goes on in the name of criminal justice, it is not an organized system. Instead I prefer to refer to “criminal justice institutions” and describe what they do as operations, thus conveying the idea of the exercise of organized power for specific purposes and of procedures performed on a living body.41
This distinction is not a mere linguistic quibble. Recognizing the irrational and fragmented nature of the carceral state means that space exists for a politics of critical resistance. Recent events suggest that social activism and organized opposition can have far-ranging impact on criminal justice institutions, which always bend to the arc of power but are vulnerable to movements from below. For example, collectively planned hunger strikes by isolated, degraded, and demonized prisoners, held in solitary confinement for decades in a remote hellhole of a prison in northern California, were what forced prison officials in 2015 to negotiate a reduction in cruel and usual punishments. Highly localized, often spontaneous street protests that quickly morphed into the Black Lives Matter movement were able to command a meeting with a president and issue a manifesto of political demands. And in the wake of the killing of seventeen people at Marjory Stoneman Douglas High School in Florida in February 2018, widespread protests by students, many of whom had never previously participated in political activism, jolted a former U.S. Supreme Court justice into calling for repeal of the Second Amendment.42
However, for reformers and activists, the years from 2010 to 2016 represented hope and possibility more than achievements, a trend that is symptomatic of previous efforts since the early twentieth century. Despite unusually bipartisan political efforts to reduce the prison population during the Obama administration the results were disappointingly modest and in some states ineffective. Though California, for example, has reduced the number of people in its state prisons, it still spends almost eight times more per prisoner than it spends on each K–12 student.43
Extraordinary attention may have been paid in recent years to the killing of citizens by police, but the number of deaths has not changed and was about the same for the first six months of 2017 as in 2016. According to nongovernmental accounts, police are still killing about three people every day, with young African American men aged fifteen to thirty-four nine times more likely to be killed than white young men. One in sixty-five deaths of young African Americans is attributable to police actions. And after all the task forces, investigations, and exposés in the 2010s, the structure, philosophy, and governance of policing remained essentially unchanged.
“Don’t be too nice” to suspects, President Trump told a gathering of police officers in July 2017. Emboldened by the support of the president, when St. Louis police cleared the streets of demonstrators in September following the acquittal of a white cop for killing yet another black man, they appropriated the popular chant of the protest movement—“Whose street? Our street!”—and abandoned any pretense of professional neutrality.44
“I am aware of how much work is left unfinished,” Obama said in a comprehensive criminal justice policy statement issued just before he left office.45 Yet some significant sectors of the carceral state were not even up for reform before Trump became president. Deportations and incarceration of immigrants during the Obama administration reached a record high with almost no opposition from Congress. Nor was there any political outcry about millions of women denied welfare or about the treatment of those on welfare as though they are inherently criminal or about the billions of dollars contracted out with little accountability to the private sector for homeland security.
Fourth, we need to grapple with the legacy of stubborn resistance to meaningful structural change. A historical perspective enables us to face many frustrated efforts to significantly transform criminal justice agencies and to consider why so many reforms in the past soured or even made matters worse for the intended beneficiaries. Not all reforms are equal. Great harms are often committed in the name of benevolence.
Top-down criminal justice reformism has a long history. “Houses of correction,” the forerunner of the modern prison that emerged in the Netherlands in the sixteenth century, replaced brutal public punishments with brutal punishments administered behind walls. Prisoners who resisted forced labor could be locked in a water cellar, where they had to pump out the water day and night to keep from drowning. Nothing was soft or sentimental about the first penal reformers.46
Perhaps the most famous example of idealism gone badly wrong is the Quakers’ promotion of the silent system of solitary confinement in Pennsylvania in the late eighteenth century. “In its intention,” Dickens wrote in a letter after his visit in 1842, “I am well convinced that it is kind, humane, and meant for reformation; but I am persuaded that those who devised this system of Prison Discipline, and those benevolent gentlemen who carry it into execution, do not know what it is that they are doing. I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers.” About 130 years later the American Friends Service Committee, a Quaker organization, acknowledged “the blunders that an uncritical faith can produce.”47
Many benevolent reforms advocated by middle-class philanthropists and professionals turned out to have a nasty, repressive underside and sometimes a topside that expanded rather than reduced the net of social control. The child-saving campaign during the Progressive Era rounded up working-class kids for petty infractions and sent them to highly regimented youth prisons for reformation. Between the world wars the eugenics movement justified the involuntary sterilization of tens of thousands of working-class women in the name of protecting racial purity. The policy of indeterminate sentencing in the 1960s added time to prisoners’ sentences in the guise of rehabilitation.
A close inspection of past criminal justice campaigns undertaken in the name of reform reveals the heavy hand of managerial imperatives and a politics of pacification rather than a commitment to social justice. But the historical record is not all bad news. A bottom-up tradition, mostly submerged and forgotten, offers some insights about the possibility of structural reforms that alleviate suffering, improve people’s everyday lives, and attempt to change the assumptions and governance of criminal justice.
Long before civil rights and black power organizations in the 1960s tried to make the police more accountable to communities they policed, before prisoners in the 1970s actively participated in building revolutionary organizations and made Malcolm X and George Jackson into popular heroes, there were writers, poets, artists, activists, and visionaries who took on the carceral state and imagined a world that does not require such a massive apparatus of social control. Revisiting this tradition is important, not out of nostalgia for what might have been or to search for a lost blueprint of radical change, but rather to help us understand the immense challenges we face.
Copyright © 2018 by Tony Platt