Friday, March 25, 2005

Society Must Be Defended*: Mass Incarceration, Race, and Democracy -- post by Jonathan Simon

* See Foucault, Society Must Be Defended (New York: New Press). Foucault sees the politics of the nation state from the very start as a barely contained race war between dominant communities and their (racial, religious, linguistic, class) others. The war on crime is one variant of this race war.

There is a growing progressive consensus that the effects of mass incarceration now endanger democracy in America, especially (but not exclusively) in the way they transform the social significance of race in America. This consensus is supported by a steadily accumulating body of empirical research that shows the depth and the perverseness of these effects that channel billions in tax dollars into the forced internal migration of larger numbers of young Black and Hispanic men (and now women too) while distributing economic and political gains to ex-urban and rural counties. With a third of all Black men bound for prison at some time in their life, current policies have made incarceration and the panoply of institutions through which people are moved into and out of prison a primary source of socialization and role formation for whole communities. Arrest and incarceration rates for Black women have grown even more rapidly in recent years.

Even some progressives who supported the war on crime as a legitimate response to the apparent social disintegration of the 1960s through the 1980s now concede that at least some of the consequences of incarceration like the effects of voter disenfranchisement and economic exclusion must be addressed (e.g. Senator Clinton’s support for a voting rights statute that would bar permanent felon exclusion in federal elections). Voting is only the most palpable way in which this works a loss for democracy. The growing gap in family wealth (as opposed to income) between White and African American families reflects in part the consequences of criminalizing the social crisis of inner city America from the late 1960s on as it plays out on access to education, property values, structural mismatch in access to better paying jobs, loss of eligible marital partners, etc.

Unfortunately the constitution as it has been read by courts does little directly to disable mass incarceration. The 13th Amendment itself gives us the explicit assurance that slavery can be reborn so long as it is practiced solely on felons (something the South did almost immediately with the Convict Lease system). The 8th Amendment offers little solace either. As long as capital punishment remains constitutional (more on this strand in April), long prison sentences for crimes like being a former felon in possession of a firearm are not going to be perceived as “cruel” and they are hardly “unusual.”

The most racially explicit forms of penal power, like California’s remarkable racial classification for incoming inmates, can and should be challenged on equal protection grounds. Thanks to Johnson v. California, we in California may actually have a public discussion of whether it’s a good idea for the state to help reproduce a system of racialized gang violence as a way of governing prisons. But the Court is unlikely to go very far in challenging the power of state legislatures to determine the purpose and scale of punishment (at least punishment by imprisonment).

Disturbing is the fact that American political culture has long embraced harsh punishment of threatening criminals as a function of democratic governments seeking to protect the common good rather than sinister gesture of monarchical excess. The illustration below of America’s only legal mass execution is a chilling example. The simultaneous hanging of 38 Santee “Sioux” Indian men by federal troops in front of a crowd of white settlers took place in 1862 in Minnesota. The no doubt stylized representation drawn by the 19th century commercial illustrator is in no way subtle about the political significance of the act. The western town rising behind the scaffold, the covered wagons gathered at the side, and the ranks of federal troops lined around the scaffold remind us that this is no spectacle of monarchy, but a disciplined act of social defense carried out against a racialized other defined in no small part by the perceived threat of violent resistance to the white settler race.

The Reconstruction Amendments offered little direct remedy against harsh use of imprisonment or even the death penalty consistent with social defense. Great violence directed at vulnerable minorities, both state violence and the state tolerance of private violence, existed unimpeded for the first half century after the adoption of the Amendments. The Supreme Court did eventually respond to the specter of lynch like conditions in the capital rape convictions of the so called “Scottsboro boys” in Powell v. Alabama 287 US 45 (1932). Anchored in the 14th Amendment’s due process clause, Powell and its progeny opened up federal courts as tools of reforming state and local criminal justice agencies. But as valuable as these rights have been it is not clear whether they offer an effective remedy against mass incarceration. Indeed we might wonder whether the provision of more humane conditions under the 8th and 14th Amendments has not made tolerable a policy of population transfer into a carceral dimension.

If there is a constitutional angle to the fight against mass incarceration it may lie in the survival of key elements of New Deal governmentality now being contested and often in constitutional terms. There is irony aplenty here. New Deal precedents on federal power to regulate social conditions under the commerce power have been relied on to support tough anti-crime measures aimed at addressing populist concerns while recent efforts to attack some of the substantive criminal laws that sustain mass incarceration have raised the banner of limited federal power. Moreover, President Roosevelt and Attorney General Homer Cummings flirted with a war on crime as a hedge against the failure of economic reform that would allow the administration to be vigorously addressing the sense of social collapse during the early stomach dropping years of the Depression. In its effort to produce compliance with its many regulatory initiatives, the New Deal pushed the use of strict liability criminal prosecutions to hold executives accountable for faulty consumer products regardless of whether the defendant had any actual knowledge of the particular circumstances.

But the forms of governance that actually emerged from the New Deal, social insurance, organized labor, regulatory agencies, provided ways of addressing alarming social problems that did not operate primarily on coercive tactics aimed at criminal behavior. Indeed, in some cases, like that of organized labor, the New Deal framework took conflicts that had been channeled into crime and criminal justice (unions were sometimes considered criminal conspiracies, gangs were employed to attack unions and later to protect them) and moved them into a realm of civil law and justice.

Whether or not the social effect of weakening of the risk spreading functions of New Deal governance produces more crime (a difficult question to answer) it seems to have encouraged government itself to view more risks as crime like and amenable to criminal solutions. In a vicious cycle, the politics of crime de-legitimizes remaining systems of socializing risk. The “Leave no Child Behind” law and the new consumer bankruptcy law are only the most recent moves toward dismantling systems of social risk spreading in the name of isolating and controlling “abusers.”

In short, the best way to stop and reverse the destructive effects on democracy of our four decade long war on crime is to shore up and reinvigorate the constitutional framework of New Deal governance. Creating effective forms of governance that address important sectors of risk in people’s lives can compete with the attractions of mass incarceration. Society must be defended, but how?

-- Jonathan Simon