CRIME AND PUNISHMENT: PERSPECTIVES FROM THE HUMANITIES
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STUDIES IN LAW, POLITICS, AND SOCIETY Series Editor: Austin Sarat Volumes 1–2: Volume 3: Volumes 4–9:
Edited by Rita J. Simon Edited by Steven Spitzer Edited by Steven Spitzer and Andrew S. Scull
Volumes 10–16: Edited by Susan S. Sibey and Austin Sarat Volumes 17–33: Edited by Austin Sarat and Patricia Ewick Volumes 34–36: Edited by Austin Sarat
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STUDIES IN LAW, POLITICS, AND SOCIETY VOLUME 37
CRIME AND PUNISHMENT: PERSPECTIVES FROM THE HUMANITIES EDITED BY
AUSTIN SARAT Department of Law, Jurisprudence & Social Thought and Political Science, Amherst College, USA
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CONTENTS LIST OF CONTRIBUTORS
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EDITORIAL BOARD
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PART I: CONSTRUCTING THE ‘‘DEVIANT’’ SUBJECT REGULATING DESIRE AND IMAGINATION: THE ART AND TIMES OF DAVID WOJNAROWICZ Mysoon Rizk
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THE END OF MAGIC: SUPERSTITION AND ‘‘SO-CALLED SORCERY’’ IN LOUIS XIV’S PARIS Lynn Wood Mollenauer
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‘‘THE LAW AGAIN. THE PRECIOUS LAW:’’ BLACK WOMEN RADICALS AND THE FIGHT TO END LEGAL LYNCHING, 1949–1955 Dayo F. Gore
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PART II: THE PHILOSOPHICAL CONTEXT THE PARADOX OF PUNISHMENT Wendy C. Hamblet ‘‘‘TORN’ BETWEEN JUSTICE AND FORGIVENESS: DERRIDA ON THE DEATH PENALTY AND ‘LAWFUL LAWLESSNESS’’’ David A. Brenner v
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CONTENTS
CRUELTY, COMPETENCY, AND CONTEMPORARY ABOLITIONISM Michael Cholbi
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BEYOND CONTROL AND RESPONSIBILITY: THE BEAUTY OF MERCY Joo Heung Lee
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PART III: INSIDE THE PENAL APPARATUS ASSIMILATION, EXCLUSION, AND THE END OF PUNISHMENT Henry Kamerling
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‘‘WORST OF THE WORST’’ Donna L. Van Raaphorst
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REVISITING THE DEMOCRATIC PROMISE OF PRISONERS’ LABOR UNIONS Susan Blankenship
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NOBODY HERE IS INNOCENT: CULTURAL VALUES, PEDAGOGICAL ETHICS, AND THE PRISON CLASSROOM Deborah S. Wilson
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PRISON, COLLEGE, AND THE PARADOX OF PUNISHMENT Daniel Karpowitz
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LIST OF CONTRIBUTORS Susan Blankenship
Public Administration, Kentucky State University, USA
David A. Brenner
Department of Modern and Classical Language Studies, Kent State University, USA
Michael Cholbi
Department of Philosophy, California State Polytechnic University, USA
Dayo F. Gore
Women Studies Program, University of Massachusetts, USA
Wendy C. Hamblet
Department of Philosophy, Adelphi University, USA
Henry Kamerling
History Department, Queens University of Charlotte, USA
Daniel Karpowitz
Department of Political Studies & Director, The Bard Prison Initiative, Bard College, USA
Joo Heung Lee
Humanities Department, Wright College, Chicago, IL, USA
Lynn Wood Mollenauer
Department of History, University of North Carolina-Wilmington, USA
Donna L. Van Raaphorst
Department of History, USA
Mysoon Rizk
Department of Art, University of Toledo, OH, USA
Deborah S. Wilson
English Department, Illinois Central College, USA
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EDITORIAL BOARD Laura Gomez University of New Mexico
Gad Barzilai University of Washington and Tel Aviv University
Carol Greenhouse Princeton University
Paul Berman University of Connecticut
Piyel Haldar University of London
Roger Cotterrell University of London
Thomas Hilbink University of Massachusetts
Jennifer Culbert Johns Hopkins University
Desmond Manderson McGill University
Eve Darian-Smith University of Massachusetts
Jennifer Mnookin U.C.L.A.
David Delaney Amherst College
Laura Beth Nielsen American Bar Foundation
Florence Dore Kent State University
Paul Passavant Hobart and William Smith College
David Engel State University of New York at Buffalo
Susan Schmeiser University of Connecticut
Anthony Farley Boston College
Jonathan Simon University of California, Berkeley
David Garland New York University
Marianna Valverde University of Toronto
Jonathan Goldberg-Hiller University of Hawaii
Alison Young University of Melbourne ix
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PART I: CONSTRUCTING THE ‘‘DEVIANT’’ SUBJECT
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REGULATING DESIRE AND IMAGINATION: THE ART AND TIMES OF DAVID WOJNAROWICZ Mysoon Rizk ABSTRACT More reverberant today than ever, given the current legal and political climate, artist David Wojnarowicz’s victorious lawsuit in 1990 against evangelist Donald Wildmon’s American Family Association tangled with still relevant contexts: plight of the NEA, disastrous AIDS pandemic, and continuous church/state involvement in public debate over social values, including individual rights to sexual representation and artistic expression. Yet strangely, the artist remains largely absent from both ‘‘culture wars’’ narratives and the general record. Increasing his visibility and arguing his significance, this essay re-inserts Wojnarowicz into history, his work profoundly challenging what he called ‘‘the illusion of the ONE TRIBE NATION.’’
WHO EXACTLY IS TRYING TO CENSOR THIS MAN? In 1990, the New York-based queer artist David Wojnarowicz (1954–1992) initiated a lawsuit against generously funded ‘‘decency’’ group, the American Crime and Punishment: Perspectives from the Humanities Studies in Law, Politics, and Society, Volume 37, 3–32 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)37001-3
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Family Association (AFA) and its Executive Director Donald E. Wildmon. ‘‘Limited purpose public figure’’ Wojnarowicz (‘‘Voy-na-row-vitch’’) was responding to a misrepresentative, defamatory, and arguably pornographic pamphlet issued by the Reverend Wildmon (Wojnarowicz v. AFA, & Wildmon, 745 F. Supp. 130, 1990, p. 147). The Tupelo, Mississippi-based Christian corporation had targeted every member of Congress in protest of National Endowment for the Arts (NEA) monies awarded the work of this Red Bank, New Jersey-born artist. With a mailing list of millions, they had also distributed to 178,000 church-leaders, plus radio, television, and print media outlets, together with individual AFA members. On June 25, after a daylong non-jury trial in a packed courthouse, the United States District Court, Southern District of New York, amazingly determined in favor of alleged pornographer Wojnarowicz. As a result of Wildmon’s own testimony, in fact, the artist-plaintiff won financial damages. That day, moreover, the judge imposed a permanent injunction barring further distribution of the leaflet in question and requiring 178,000 mailed correctives. The pornography-obsessed Reverend, meanwhile, amplified his mailing list. Indeed, despite the court’s injunction, plaintiff’s lawyers later found out, the AFA brazenly continued fundraising, using the libelous, censorious, and now unlawful pamphlet for at least a few more years (see Wojnarowicz v. AFA, 772 F. Supp. 201, 1991). They persisted in what was, after all, highly effective rhetoric by slandering an already extremely marginalized artist, mindlessly derogating his work, and falsely charging the NEA with being manipulated by perverse minorities. Fifteen years later, however, Wojnarowicz would seem to have evaporated from their sight-lines, no longer needed as inflammatory target, long since cleansed away. A search of his name on the AFA website, for example, yields zero results. The NEA, after all, no longer needs monitoring, having suspended, for example, individual artist programs. Fully mediated today, the AFA seems stronger than ever, Wildmon offspring and devotees actively keeping up the ‘‘family’’ business. Wojnarowicz, by contrast, since 1992, when he died of AIDS-related illnesses after a several-year period of severely degraded health, has been corporeally absent. Although his voice was once in the thick of civic debate, even when sick, he has since been ‘‘disappeared’’ from public domain. The AFA, having already strenuously angled for his eradication, need no longer concern themselves, given the artist’s current invisibility even in the history of art, not to mention history of American cultural democracy.1 Strangely, nevertheless, trace effects of his words, works, and deeds linger in public memory. His name may remain withheld, even permanently obliterated, yet his example – as someone who would normally be understood as having no
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access to, much less able to make use of, the law, both of which he nevertheless did – continues inspiring others to act, even posthumously, including in civil protest. Eleanor Heartney (2004) recently made a case for Wojnarowicz as Catholic artist, calling him a ‘‘postmodern heretic.’’ Going further, consider regarding him a patron saint of liberty and democracy. The artist himself had a history of nominating candidates for sainthood, particularly other outlaws whose works and life stories helped him survive his own childhood (see Passaro, 2000). His works often served as devotional objects in tribute to such inspirational mentors as Arthur Rimbaud, Jean Genet, and William Burroughs, but also as vehicles for healing power, especially as imagined to be experienced by Wojnarowicz himself. His own participation in reshaping the social order was lifelong – from the 1960s when still a nameless teenager at Black Panther rallies in Central Park to the 1980s when in his mid-30s, an anonymous AIDS activist as well as PWA (person living with AIDS) at an ACT UP ‘‘die-in’’ in front of the Food and Drug Administration, fighting for acceleration of HIV drug trials. It seems appropriate, therefore, but also, in a sense, ‘‘miraculous’’ that, a week after he died, a spontaneous assembly erupted in his honor as ‘‘political funeral,’’ in Richard Meyer’s words (2002, p. 273). Hundreds of people marched for blocks with signs of him, his works, and his words on placards later reduced to ash by bonfire in what Douglas Crimp would surely have considered ‘‘mourning and militancy’’ (2002, p. 129; see also Meyer, 2002, pp. 273–275). In the weeks afterward, moreover, surviving partner Thomas Rauffenbart hurled the artist’s own ashes through the fence and onto the grounds of the White House, in tribute to his infamous 1989 essay, ‘‘Post Cards from America: X-rays from Hell,’’ imagining: what it would be like if friends had a demonstration each time a lover or a friend or a stranger died of AIDSy. Their friends, lovers, or neighbors would take their dead body and drive with it in a car a hundred miles an hour to washington dc and blast through the gates of the white house and come to a screeching halt before the entrance and then dump their lifeless form on the front steps. It would be comforting toymark time and place and history in such a public way (Wojnarowicz, 1990b, p. 109).
Even during his lifetime, in response not only to the AIDS crisis but also to efforts at censoring expression, Wojnarowicz’s public and political gestures inspired countless others – including tributes paid to him by artist friends, like Kiki Smith, Nan Goldin, Karen Finley, and Zoe Leonard. Yet he was also appropriated, duplicated, even co-opted, the latter increasingly after he
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died. Wildmon, after all, was by no means the only one to covertly sample this now largely forgotten artist’s work. Wojnarowicz frequently made use of the image of sewn lips, giving compelling form to the ACT UP slogan ‘‘SILENCE ¼ DEATH.’’ Thus, months after trouble began with Wildmon, Wojnarowicz appeared with sewn lips – using red vertical stitching – on the cover of High Performance, accompanied by the headline, ‘‘Why is Reverend Donald Wildmon Trying to Censor This Man?’’ The following season, moreover, presumably with the artist’s permission, the periodical redeployed the same photograph to advertise for magazine subscriptions. Much more recently, in the weeks leading up to the 2004 presidential elections, and presumably without permission, the artist’s gesture of sutured lips would seem to have initiated a series of voter-registration campaign images (see Ives, 2004). Without bothering to acknowledge him as source, however, Times Square billboards featured such pop cultural icons as Andre´ 3000 and Christine Aguilera with their own mouths held shut – the latter with lips sewn by red cross-stitching a satin ribbon – and the words, ‘‘Only you can silence yourself.’’ (Ives, 2004) Yet, such ‘‘thieving’’ of imagery inundates the history of art, particularly postmodern art, including Wojnarowicz’s own practice. He himself, after all, must have once seen a medieval Viking icon of Norse god Loki the trickster with ‘‘lips [vertically] sewn shut’’ though he never acknowledged such a source (Hyde, 1992). Indeed, Wojnarowicz frequently employed the device of objects sewn together, especially using red yarn. In addition to the injunction against the slanderous pamphlet in the June 1990 trial of Wojnarowicz v. AFA, 745 F. Supp. 130, the artist also won dismissal of defendants’ motion to transfer proceedings to Mississippi. Later judgment held them in violation of the New York’s Artists’ Authorship Rights Act, its constitutionality importantly affirmed by the ruling. The plaintiff’s claims were dismissed, however, for copyright infringement, violation of the Lanham Act, and defamation, the standard to prove being higher given Wojnarowicz’s ‘‘public’’ status. Furthermore, that the Court awarded the artist ‘‘nominal damages in amount of one dollar’’ might, at first, seem negligible (p. 132). After all, the previous year, not-for-profit organization AFA had raised $5.2 million dollars in contributions whereas Wojnarowicz had required Medicaid2 (p. 133). In fact, as he later joked, a dollar was enough to buy ‘‘an ice cream cone or condom,’’ but Wojnarowicz never cashed the priceless document bearing Wildmon’s signature and located, today, in a New York public library (Phillips, 1990, p. 240). In having to pay the artist even a buck, the evangelist had to enter a discursive arena in which tangled the plight of the NEA, contested consideration
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of the AIDS crisis, and church/state involvement in public debates over social values regarding any individual’s rights to sexual representation and artistic freedom. Having stigmatized Wojnarowicz, having reduced him to vermin, Wildmon nevertheless became compelled not only to hear his ‘‘dirty’’ testimony, plus that of an art expert, but also to abide by Court’s decision for opponent’s right to the commercial viability of his work, its proof of potential in the dollar. In one of his last paintings, a monumental map relating church and state, Wojnarowicz stitched a copy of Wildmon’s check into the canvas border, that is until the PWA, one day, in the ragged months approaching death, punched it out of the image, leaving its red strands hanging.3 Taken as a whole, the artist’s actions, deployed with little to gain and everything to lose, continue to reverberate as profound challenges to the very myth driving the AFA/Wildmon platform as well as contemporary law and politics, in Wojnarowicz’s words, ‘‘the illusion of the ONE TRIBE NATION. ycalled AMERICA.’’4 (1991, p. 153) In the time leading up to and immediately succeeding this remarkable, revealing, yet bizarrely neglected chain of events, Wojnarowicz v. AFA (1990) generated as well as was subject to a flurry of ‘‘texts’’ in the forms of media coverage; judicial, legislative, congressional records; art, poetry, literature, theater, dance, performance, and music. In the years since, however, despite the artist’s crucial role in this saga, Wojnarowicz became ignored, including by cultural histories, academic scholarship, contemporary art discourse, and the multitudes he inspired. If ‘‘why is Reverend Donald Wildmon trying to censor this man?’’ seemed appropriate to ask in 1990, these days, one might replace the evangelist’s name with, say, ‘‘cultural theorists,’’ ‘‘art historians,’’ or ‘‘historians.’’ This essay considers the AFA’s own expert appropriations and decontextualizations, stratagems that ambushed yet notably rivaled the art of Wojnarowicz who rightfully should be acknowledged for innovative and postmodernist tactics. At the same time, I am equally concerned to emphatically re-insert the artist in the ‘‘culture war’’ narrative as well as challenge his absence from the contemporary general record, especially given his own invaluable modeling for how better to construct history.
THE DREAD AND STIGMA OF PLAGUE’S ‘‘EPIDEMIC LOGIC’’ If postmodernist approaches can be attributed to both David Wojnarowicz and Donald Wildmon, the latter appears specifically deft in the technique of
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stripping works of art of intended meanings or associations, before transforming them into sites rife for new, derogatory agendas. Ignorant at best, dissimulating at worst, Wildmon’s techniques only superficially resemble Wojnarowicz’s openly searching and vulnerable deconstructions. All the same, both men expressed outrage toward society and preoccupied themselves with its moral and spiritual bankruptcies. Indeed, both are ‘‘guilty’’ of employing ‘‘illness as metaphor’’ – despite Susan Sontag’s sound, sober, and compelling admonitions against what is, after all, common for humans: Nothing is more punitive than to give a disease a meaning – that meaning being invariably a moralistic one. Any important disease whose causality is murky, and for which treatment is ineffectual, tends to be awash in significance. First, the subjects of deepest dread (corruption, decay, pollution, anomie, weakness) are identified with the disease. The disease itself becomes a metaphor. Then, in the name of the disease (that is, using it as a metaphor), that horror is imposed on other things. The disease becomes adjectival. (Sontag, 1990, p. 58)
One could say that both DW’s employ disease ‘‘adjectivally,’’ each respectively attending to perceived evidence of moral decay, each one’s ‘‘AMERICA’’ astronomically distant from the other’s.5 Should we conclude that David and Donald need each other, if for no other reason than to draw energy from the Other’s perceived objectionability? If, in fact, their positions are equally balanced, however, then whose morality should count the most and why? Although, each man regarded the rival a clear example of the corruption in question, between their visions and representations, motivations appear entirely at odds. In the face of legal prejudice and compulsive heterosexuality, Wojnarowicz challenged the notion that bodies are fundamentally obscene, whether naked, sick, martyred, (homo)sexualized, or otherwise. He fore grounded the AIDS crisis as a criminal example of social injustice. He advocated, moreover, for expanding rather than constraining imagination. His energies represented precisely the kind of minority voice whose legality, today, in the age of global terrorism, would seem highly unlikely, even if such speech were protected under law. To borrow from Michel Foucault (2001), Wojnarowicz operated as if a ‘‘parrhesiastes’’ – a truth-teller, especially one who ‘‘speaks truth to power,’’ conveying ‘‘fearless speech.’’ Such conscientious disclosure surely trumps Wildmon’s own confabulations. By contrast with Wojnarowicz, the AFA deceitfully delivered regressive and restrictive prescriptions for entertainment culture and public health policy. They hypocritically sought to regulate and discipline any social behavior out of accord with apparently puritanical and seemingly monolithic brands. When Wildmon began his grass roots campaign in 1976, his goal
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was to spread the word, what he thought was his own conviction, that society was afflicted by a moral cancer: What we are up against is not dirty words and dirty pictures. yIt is a philosophy of life which seeks to remove the influence of Christians and Christianity from our society. Pornography is not the disease but merely a visible symptom. It springs from a moral cancer in our society, and it will lead us to destruction if we are unable to stop it. (Quoted in Selcraig, 1990, p. 24)
In sharp relief next to Wojnarowicz, himself also invoking the spirit of Jesus Christ, Wildmon’s static diagnosis of society rested primarily on sterilization, eradication, and total homogenization of ‘‘AMERICA’’ rather than tolerance of difference and heterogeneity. Yet both of them envisioned an apocalyptic, millennialist future, skewed civilization on a disastrous decline. Still, whereas Wildmon blindly invented a life without disease, Wojnarowicz experienced and conveyed life as disease. The Reverend’s position demanded permanent and distinct ordering, especially with regard to sexuality and the innately ‘‘dirty’’ human body – whether due to original sin, abominable deed, or even imagined projection from a condition of panic and anxiety brought on by decades of what Linda Singer (1993) called ‘‘epidemic logic’’ (p. 29). By the 1980s, the so-called ‘‘decade of disaster,’’ Wildmon had acquired a national following, accumulating an immense mailing list through alliances with other right-wing coalitions (see Larabee, 2000). By 1989, having successfully pressured commercial sponsors to pull support from television and movies exhibiting symptoms of degenerate values, like Martin Scorcese’s film adaptation of The Last Temptation of Christ based on Nikos Kazantzakis’ novel about a doubting and sexual Christ, Wildmon and AFA trained their sights on the NEA’s ‘‘dirt.’’ Meanwhile, from 1977 until 1992, Wojnarowicz had been making art about the global alienation of human experience, its mechanization and regulation by a postindustrial, technological, nearly virtual world, and its concomitant estrangement from nature and spirituality.6 A writer from the start, by 1987, his tone became strident after many close friends had died of AIDS and he himself was diagnosed as HIV-positive. Consider his proclamation in the controversial 1989 essay, ‘‘Post Cards from America’’: ‘‘When I was told I’d contracted this virusyit didn’t take me long to realize that I’d contracted a diseased society as well.’’ (1990b, p. 106) His imaginary gaze, during these years, focused on experiences, issues, complications, and contradictions of ‘‘being queer’’ in homophobic society, not to mention
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poor, artist, live-in caretaker of friends with AIDS, and he himself a PWA, thus subject to social prejudice and governmental inaction. Characterizing queer identity calls, by necessity, for ‘‘fluid and disruptive’’ approaches, as Robert McRuer asserts in The Queer Renaissance, briefly citing the life and work of Wojnarowicz7 (1997, p. 26). Like Audre Lorde, Edmund White, and Tony Kushner among others McRuer discusses, Wojnarowicz resisted permanent boundaries, fixation, and stasis. Indeed, the artist’s characterizations of ‘‘queerness’’ appear to dodge straight-jacketing by the kind of ‘‘binary branding’’ Foucault describes on how ‘‘the plague gave rise to disciplinary projects’’: The constant division between the normal and the abnormal, to which every individual is subjected, brings us back to our own timeythe existence of a whole set of techniques and institutions for measuring, supervising and correcting the abnormal brings into play the disciplinary mechanisms to which the fear of the plague gave rise. (Foucault, 1979, p. 199)
As if attempting to resist being coercively classified, in the midst of evertightening controls, Wojnarowicz and his work struggle to reconcile with rather than disinherit their own contradictions. Neither the artist nor the work can be accurately pegged in such oppositional systems as abnormal/ normal, queer/straight, dirty/clean, nihilistic/spiritual, or sick/healthy – not to mention art/life. Although ‘‘Post Cards’’ was frequently reduced by critics to a few controversial and arguably objectionable remarks attacking powerful men, very few bothered to address Wojnarowicz’s fundamental and alarming question: what if we lose the right to ‘‘one of the last frontiers left for radical gesture,’’ that is, ‘‘imagination’’? (1990b, p. 108) To be living with HIV/AIDS in today’s culture, to be regarded as ‘‘carrier,’’ already means compromising one’s public actions, especially in sexual relations, however mutual. Now that such activities have been freighted with regulation, restraint, surveillance, and puritanical moralizing, Wojnarowicz’s concerns seems even more critical. Today, simply imagining though never realizing an act seems as equally suspect as the act itself and increasingly actionable, especially during a war on terrorism. Yet, even then, evidence of shifting attitudes became clear, or so ‘‘Post Cards’’ argues, in the case, for example, of the New York Times book reviewer who regarded a novel – and, by implication, its author – as ‘‘promiscuous,’’ while asserting that, ‘‘in this age of AIDS,’’ writers ‘‘should show more restraint’’ (1990b, p. 108). Then again, has it ever been possible to examine libertinism, even in the context of fiction, without being branded morally dissolute (even if only setting out to ban it)?
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‘‘Post Cards’’ enters the fray of public debate on AIDS and freedom of expression, offering quiet, cogent, bristling, powerful, and much needed honest disclosure of personal feeling, including the persistence of physical desire long after the body deteriorates. Initially, the essay documents the vivid details of being a PWA, or a friend to one who drops by just to talk. The time of day is late afternoon and they sit to either side of David’s cluttered kitchen table, struggling for ways to reconcile themselves with unanswerable states of mind. Listening quietly to his friend asking, ‘‘What’s left of living?,’’ Wojnarowicz takes in his own strange but familiar landscape: The table is filled with piles of papers and objects; a boom-box, a bottle of AZT, a jar of Advil (remember, you can’t take aspirin or Tylenol while on AZT). There’s an old smiley mug with pens and scissors and a bottle of Xanax for when the brain goes loopy; there’s a Sony tape-recorder that contains a half-used cassette of late night sex talk, fears of gradual dying, angers, dreams, and someone speaking Cantonese. (1990b, p. 105)
The informal, eclectic list bespeaks, in part, of the intricacies and convolutions of dealing with the syndrome, especially in years when acquiring medical knowledge had to happen on one’s own or in collaboration with others similarly afflicted, as opposed to under the protection of an often prejudicial health care system. After transitioning to a passage in which the artist indicates feeling total alienation, as if he came from another planet, the essay proceeds to unabashedly blast public leaders for their dragging responses to the crisis, a sentiment still resonant in contemporary times. After all, despite global statistics revealing its predominant impact on heterosexuals, women, and people of color, AIDS remains inextricably and detrimentally linked to not only homosexuality, drug addiction, and prostitution, not to mention ‘‘dirty pictures,’’ but also, and most importantly, a desire for public shaming. Wojnarowicz unapologetically names names and criminal deeds by the likes of U.S. Senators Alphonse D’Amato and Jesse Helms, U.S. Representative William Dannemeyer, New York City Mayor Edward Koch, Roman Catholic New York Cardinal John O’Connor, and others. Holding such public officials responsible for the punitive disaster AIDS became, and wishing to punish them back, the artist simultaneously and freely fantasizes scenarios of retaliation against them. For months afterward, however, Wojnarowicz was called to account for his potentially righteous if inflamed accusations, especially toward ‘‘Heads of State.’’ Few took notice of his attacks on ‘‘Heads of Culture.’’ Indeed, ‘‘Post Cards’’ re-frames the 1989 NEA controversies over Andres Serrano and Robert Mapplethorpe, the
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latter also stricken by AIDS, and repositions the art world as ultimate culprit of censorship, a dangerous move for any artist: ‘‘Jesse Helms is, at the very least, making his attacks on freedom public; the collectors and museumsydo theirs at elegant private parties or from the confines of their self-created closets.’’ (Wojnarowicz, 1990b, p. 108) That Wojnarowicz’s rhetoric in ‘‘Post Cards’’ appeared to attack not only church and state but also culture perhaps helps us fathom the exertions of the Reverend Wildmon and many others including gallery director Susan Wyatt, NEA Chairman John Frohnmayer, and such political figures as Dana Rohrabacher, George H.W. Bush, and Oliver North. The essay’s implicit worry, however, remains with us as long as we perceive harm in people’s ‘‘fantasies’’ that, as Wojnarowicz insisted, at least for himself, offer ‘‘momentary comfort’’ and ‘‘distance fromyoutrage’’ (1990b, p. 108). It was in this context of concern for loss of imagination, today more relevant than ever, that the beleaguered artist voiced the self-proclaimed wishful thinking to ‘‘douse Helms with a bucket of gasoline and set his putrid ass on fire or throw rep. William Dannemeyer off the empire state building.’’ (p. 108) As Meyer (2002) has eloquently noted, however, in Outlaw Representation, one of the few invaluable treatments regarding Wojnarowicz, art censorship, and homosexuality, the artist importantly framed such speech by voicing frustration at not only public servants but also political correctness and the ‘‘thought-police’’ who criticize even fictional expression for describing anything but ‘‘monogamous or safer sex’’ (Wojnarowicz, 1990b, p. 108). Inconsolable Wojnarowicz offers the fundamentally ethical anguish of physical affliction, the need for psychological relief from suffering, for example, by uninhibited fantasizing: ‘‘At least in my ungoverned imagination, I can fuck somebody without a rubber.’’ (1990b, p. 108) Yet this ‘‘immaculate’’ sentiment, however much or little it momentarily consoled its author, remained to critics a clear example of excess in need of ‘‘restraint.’’
DECENCY CAMPAIGNS AGAINST REPRESENTATIONS OF SEX, DRUGS, AND LIFE AS DISEASE Established in September 29, 1965 during the presidency of Lyndon Johnson, the NEA survived with little to no controversy until 1989.8 Its history bears reviewing, despite numerous treatments of it, given that few have bothered to incorporate Wojnarowicz as more than incidental to the
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account though, in fact, he remains central. Thanks to the same Reverend’s mailing list, in fact, the governmental agency for support of the arts suddenly came under fire in June of that year, as Congress intensified debates on funding the likes of Andres Serrano and Robert Mapplethorpe, or, in the words of Senator Jesse Helms, ‘‘obscene and indecent’’ art. Granted, there had been periodic challenges, including Congressional, during the NEA’s first 25 years. For example, a 1975 controversy over Erica Jong’s partially funded Fear of Flying manifested in a vocal exchange between Senator Helms and then-NEA Chair Nancy Hanks, neither having read the book (see Zeigler, 1994). The arts agency nevertheless endured while experiencing dramatic to steady and annual increases in congressional funding. Stephen Dubin (1992) points out that during the NEA’s first 19 years, only two funded works made a Heritage Foundation checklist of potential sites of controversy. In both cases, it is worth noting, concern was expressed about the explorations of homosexual themes. Between 1984 and 1991, the number of contested works rose to 27. By 1989, moreover, after swift and relentless attacks from the political and religious right, the NEA went into legislative crisis and lost funding for almost a decade. It was subsequently hobbled, with government funding no longer granted to individuals. The original NEA-funded targets of Republican attack had been a traveling Mapplethorpe retrospective intended for but canceled by the Corcoran Museum in Washington, DC; and one work from Serrano’s ‘‘Fluids’’ series entitled Piss Christ (1987), spotted by an AFA member. That diligent watchdog duly alerted Wildmon who notified everyone on the mailing list getting the American legislature’s full attention. Under pressure from Helms and others, Congress passed measures, including prohibiting the NEA from sponsoring: obscene materials including but not limited to depictions of sadomasochism, homoeroticism, the sexual exploitation of children, or individuals engaged in sex acts and which, when taken as a whole, do not have serious literary, artistic, political or scientific value. (Vance, 1990, p. 51)
The ultimate consequence of the new legislation, the so-called ‘‘Helms Amendment,’’ as Carole Vance and others have argued, was a chilling effect – despite the fact it was even overturned in 1991 (see Lewitzky v. Frohnmayer, 1991, 754 F. Supp. 774). Artists, the art world, and arts funding organizations, grew rapidly wary of becoming objects of ‘‘dirt’’ hunts and censorship campaigns on the order of the McCarthy era, but now directed toward internal rather than external public enemies (see Wallis, Weems, & Yenawine, 1999).
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Indeed, examples of self-censorship surfaced a few months later, in the actions of both alternative gallery director Susan Wyatt and head of the NEA John Frohnmayer, in specific response to Wojnarowicz. Prior to a November opening of an exhibition at New York’s Artists Space, Wyatt decided to warn ‘‘two people at the NEA’’ about what was being funded. As her gallery depended on federal support to survive, perhaps she hoped to avert another Mapplethorpe or Serrano-like controversy. Wyatt drew attention to Wojnarowicz’s ‘‘Post Cards’’ essay, expressly written for the exhibition catalog (see Goldin, 1989). She was certain the ‘‘unnerving’’ essay would invite more controversy than the art in the gallery that would also feature Wojnarowicz9 (Loughery, 1990, p. 22). Wyatt suggested funding only the show especially since, as she had hastily scrambled to determine, the Mapplethorpe Foundation was willing to underwrite the catalog. ‘‘Post Cards from America: X-rays from Hell’’ was indeed targeted by NEA Chair John Frohnmayer as he tried rescinding the grant already awarded the Soho gallery for Witnesses: Against Our Vanishing, a show about AIDS, curated by photographer Nan Goldin who had commissioned Wojnarowicz’s essay. On the day before the opening, attempting to forestall another Serrano or Mapplethorpe-like scandal 6 months later, Frohnmayer flew up to New York for a face-to-face with a standing room-only crowd of angry gallery supporters. Conductor Leonard Bernstein backed Wyatt, Goldin, and scores of artists impacted including ‘‘Post Cards’’ author.10 After a heated discussion and shouting match between Wojnarowicz and Frohnmayer who called the essay too ‘‘political,’’ the NEA head ultimately agreed to reinstate federal agency funds for the exhibition – but not the catalog (see Hess, 1989c). Frohnmayer’s decision in 1989 to rescind federal money for the Witnesses catalog became subject to further scrutiny in 1990 when Wojnarowicz had a retrospective exhibition at the Galleries of Illinois State University, in Normal, funded by a $15,000 NEA grant (see Hess, 1989a). When the Tongues of Flame catalog happened to reprint the ‘‘Post Cards’’ essay – together with Wojnarowicz’s art and several additional texts by him and others – neither liberal nor conservative voices lost an opportunity to spotlight this apparent NEA policy contradiction. In fact, in the case of both Witnesses and Tongues of Flame, funding had been awarded already – even before the Serrano-Mapplethorpe brouhahas. At the same time, right-wing scavenging turned with even greater ferocity on the homoerotic, seemingly antireligious, and ultimately fantastical details in Wojnarowicz’s complex collages and cinematic writings. In February 1990, for example, U.S. Representative and former Ronald Reagan speechwriter Dana Rohrabacher sent incendiary missives to all of
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his colleagues complaining about the NEA. Preposterously branding Wojnarowicz a ‘‘nihilist,’’ Rohrabacher cluelessly trashed Tongues of Flame as an ‘‘orgy of degenerate depravity.’’ From one of the artist’s earliest collages, moreover, the Californian Republican reproduced a corner detail, featuring Wojnarowicz’s altarpiece of Jesus Christ taking on one of contemporary life’s prevailing sins – becoming a junkie. As Wojnarowicz v. AFA (1990) court testimony makes clear, Untitled (Genet) joins a lifelong body of Wojnarowicz work campaigning against heroin addiction. Christ’s depiction, moreover, was triggered by having just seen a mountain of disposed hypodermic needles outside the rural country window of a Parisian friend’s diabetic grandfather, before returning to New York in 1978 to find close friends in the youthful throes of getting hooked. During the June 25, 1990 trial, Wojnarowicz testified to being ‘‘a highschool dropout andyteenage runaway who for a time earned a living as a prostitute.’’ In addition to plaintiff and defendant, testimony also came from expert witness, director of Education at New York’s Museum of Modern Art Philip Yenawine, who stated that Wojnarowicz ‘‘has AIDS’’ (quoted in Span, 1990, p. D4). Wildmon and colleagues would indeed have classified high school dropouts, teenage runaways, male prostitutes, potential drug addicts, and PWAs as representatives of morally decadent minorities. However, not only did Wojnarowicz openly acknowledge this information but he also declared, according to the trial coverage, thatyhis artwork [seeks] ‘‘to force the public to confront’’ the ravages of the disease [AIDS]. ythat by presenting ‘‘a field of information’’ in his work, which might include small images of sexual activity, he intended his work to be accepted ‘‘without hysteria, in the same way that one looks at a Greek vase.’’ (Honan, 1990, p. C14)
It is worth noting that the legal team introduced as evidence reproductions of three such ancient vases, each depicting the so-called homoerotic imagery. In fact, Wojnarowicz’s art frequently made use of such sources canonical to Western civilization. Rohrabacher, however, by extracting Christ’s mass-produced depiction personally modified by Wojnarowicz for addicts, thoroughly mangled the multiply cropped detail’s intimacy with the pictorial context the artist specifically selected for it. The Congressman ignored, for example, what surrounded a still intact altarpiece: a World War II image of the vast and shadowy recesses of a medieval cathedral bombed by the Nazis and being examined and photographed by Allied military personnel. Fixated on ‘‘filth,’’ the fascistic politician also missed what Wojnarowicz isolated in an opposite corner from Christ: a cartoon mercenary indiscriminately firing
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automatic rounds into the vaulted ceiling while an appropriated host of painted angels descend unharmed. Rohrabacher neglected to note, moreover, that both church and ‘‘main-lining Christ’’ are actually backdrops to a larger figure, a 3/4-size portrait, based on a photograph by Brassaı¨ , of Jean Genet, one of Wojnarowicz’s heroes and candidates for sainthood. The 1979 collage, modest in size, served as hagiographic offering toward the spiritual apotheosis of Genet, a process already underway (see Sartre, 1963). Visualizing the French homosexual writer of a violent underworld, a prisoner for many years who experienced being both homeless and a prostitute, helped Wojnarowicz survive his own inherently hostile conditions. In March 1990, President George H.W. Bush himself got involved in the war against ‘‘depravity’’ when he sent the same decontextualized image of Christ in a memorandum to John Frohnmayer, the NEA Chair he had appointed. It read: I know you are as offended as I am by the attached depiction of Jesus Christ. I send along this note not in any critical vein whatsoever, but simply to inquire if there isn’t anything we can do about excessive cases like this. (Quoted in Trescott, 1993, p. D4)
Finally, in April, the Reverend Donald Wildmon and company followed through with their own high-stakes propaganda campaign entitled ‘‘Your Tax Dollars Helped Pay For These ‘Works of Art,’’’ the double quotation apparently indicating Wildmon’s refusal to concede Wojnarowicz’s aesthetic intentions (Phillips, 1990, p. 240). The very pamphlets that would be proscribed by the Court in a few months were sent in envelopes marked: ‘‘Caution – Contains Extremely Offensive Material.’’ (Wojnarowicz v. AFA, 1990, p. 134; see also Parachini, 1990) Like Rohrabacher, Wildmon expropriated minute details from the Normal exhibition catalog’s complex imagery, including the Untitled (Genet) Christ.11 From six other large, figurative collages, moreover, Wildmon excised 13 small details, reproducing and misrepresenting the additionally decontextualized fragments as complete works by Wojnarowicz the ‘‘pornographer.’’12 Not all of the excised images were explicitly sexual in content: in addition to Christ, for example, there were depictions of ritual purification as well as dancing. Nevertheless, in an accompanying cover letter, Wildmon accused the NEA of ‘‘being ‘captive to a morally decadent minority which ridicules and mocks decent, moral taxpayers while demanding taxpayer subsidies.’’’ (quoted in Honan, 1990, p. C14) Despite the outcome of Wojnarowicz v. AFA (1990), and perhaps encouraged by the seemingly miniscule settlement, members of the far right continued their cultural rampage. The Reverend Wildmon called for the
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organization of a ‘‘fighting unit’’ to legally attack the ‘‘left-wing secular groups’’ targeted as enemies of the AFA, including ‘‘homosexuals, abortionists, pornographers, child molesters and ‘humanists’’’ (Phillips, 1990, p. 240). A few months later (September 1990), Los Angeles-based lawyer David Fordyce, on behalf of a group of individual plaintiffs, unsuccessfully sued the NEA for supporting the Wojnarowicz retrospective that purportedly exhibited an ‘‘open and notorious hostility toward religion’’ (see Fordyce & Knickerbocker, 1991; see also Associated Press, 1990, p. D3). However, Fordyce and his clients, many of whom had seen neither exhibition nor catalog, were unable to demonstrate that they had ‘‘suffered spiritual injury’’ as a result of either (‘‘Limiting Freedom,’’ 1990, September 5). By 1992, moreover, Patrick Buchanan, in his first failed run for the Republican primary, rounded off debates by televising political advertisements accusing (the first) President Bush of funding art that ‘‘glorified homosexuality’’ and ‘‘pervert[ed] the image of Jesus Christ’’ (quoted in Lichtenstein, 1992, p. 35). Even former CIA-operative in Central America, Oliver L. North, wrote fund-raising letters for the cause, reproducing Wojnarowicz’s heroin Christ.
CONTEMPORARY ART AS DEMOCRATIC ENGAGEMENT WITH THE ‘‘OUTSIDE’ AS A FUTURE HORIZON’’ In both art and life, Wojnarowicz contributed powerfully to the growing social legacy of testimony about public impact on private experience while repeatedly testing the limits, a kind of balance imagined by Judith Butler: The task is to refigure this necessary ‘‘outside’’ as a future horizon, one in which the violence of exclusion is perpetually in the process of being overcome. But of equal importance is the preservation of the outside, the site where discourse meets its limits, where the opacity of what is not included in a given regime of truth acts as a disruptive site of linguistic impropriety and unrepresentability. (1993, p. 53)
As many have said about the AIDS crisis itself, Wojnarowicz and his work help make visible societal ‘‘fault lines’’ – the cracks or fissures indicating areas of fundamental and tragic lapses in the late-twentieth century between society and the individual, between art and politics (see, e.g., Singer, 1993; Treichler, 1999). Wojnarowicz helps underscore the importance of active imagination not only to the formation of art but also to the struggle of shaping a participatory democracy.
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By stridently insisting on his desire to display the naked human body in all its indelicate glory, Wojnarowicz demonstrated not only refusal to give in to the social pressure of self-censorship but also response required to battle what Lisa Duggan has termed ‘‘sex panics’’: While often promoted by relatively powerless but vocal minorities hostile to cultural difference, they have been enthusiastically taken up by powerful groups in an effort to impose a rigid orthodoxy on the majorityy. The time has come to argue forcefully for the complete deregulation of consensual sexuality and its representations. (Duggan, 1989, pp. 26–27)
By stepping up to the role of outspoken persona in the guise of abnormal, and by redefining or reshaping the conventional boundaries of the public sphere, Wojnarowicz embodies the subversive, libratory, and trickster-like performative subject independently characterized by Butler, Duggan, Michael Warner, Lewis Hyde, and many others.13 Nevertheless, in the 12 years since he died, the NEA has been restricted to organizations rather than individuals, art and imagination appear at risk of being fully administered, homosexuality has become an even greater taboo, and AIDS is with us still. We inhabit a thoroughly militarized world, preoccupied with international struggle, technologized to the brink of environmental disaster, and constantly ‘‘fundamentalized’’ by religious constituencies keen to censor dirty, naked, sexual, and, by association, ‘‘sick’’ bodies. Nearly 25 years later, both in memory and present fact, sluggish official response to the HIV-AIDS global pandemic, accompanied by a de facto punishment of anyone or anything even remotely associated with the taint of contagion, remains notorious. We are still beset by ‘‘culture wars’’ while simultaneously stuck with what Laurie Garrett has called the ‘‘collapse of global public health’’ (Garrett, 2000; see also Garrett, 1994). Throughout human history, there have always been shifting weather cycles and natural cataclysms intertwined with epidemic disease, yet we live in a time when such events demand unified global response, the United States still a key player. At the same time, responses by postindustrial nations like ours typically arrive in company with regulatory practices and moralizing attitudes that foreclose funding, for example, any discussion of condom use in the context of sexually transmitted microorganisms. While ‘‘natural’’ disasters like AIDS present unprecedented and seemingly insurmountable public challenges, all such global tragedies offer opportunities for increasing system tolerance of difference, including cultivating more constructive attitudes toward disease and, more importantly though more difficult, the diseased themselves.
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Post-World War II society has long been wracked by a ‘‘culture war’’ mentality that shut down the possibility of peaceably co-existing with one’s antagonists. Throughout the 1950s and 1960s, in the wake of the frightful McCarthy hearings, ‘‘Cold War’’ rhetoric reached a feverish pitch that helped justify going to war in Indochina. Such strategizing also manifested itself through American endorsement of an artistic avant-garde (e.g., Jackson Pollock), as if to underscore a national message of rugged independence, an ideology of expressive freedom. Thus could be modeled the practice of no governmental interference in the formation of public culture, no strings attached to particular form or content – unlike what was presumed to be practiced in the Soviet bloc – but this policy was only useful for as long as there appeared to be Cold War enemies. The fiction of clean divisions, in that earlier era, between opposites like good and evil – no matter that each wholeheartedly believed the other side’s claims false – more dramatically sets off a radicalization that followed, not just in Cold War relations but also culture at large. Whether in the context of contemporary art, or critical theory, from the 1950s through the 1980s, various cultural forms emerged that abandoned strict social mores, static gender constructions, firmly regulated representations, and limited global address. Come 1989, moreover, the trend toward extremes appeared to culminate in the ‘‘end of history,’’ as the critical demise of nearly all Soviet and Soviet-style governments gave way to presumably more democratic possibilities, even in the case of the People’s Republic of China, now a cultural mainstay in contemporary art. With Cold War enemies no longer the objects of demonization, however, American rhetoric shifted internally as if in an effort to cleanse the system from within, with homosexuality, marked by AIDS, as public enemy number one. One of the many artists being scapegoated on what proved to be spurious grounds, Wojnarowicz could stand in for the outsider George H. Mead (1918) characterized as critical to formations of a civil public. Mead was describing life after World War I, and democratic communities that need to demonize something as other in the dynamic of aspiring to a stable social order. Much more recently, William Connolly (1995) illustrated similar social impulses, employing the case of African-American convict Dontay Carter to suggest that freedom resides with dangerousness, including any refusal to conform to hegemonic categories. To the religious right, Wojnarowicz seemed the perfect subject for condemnation, having been a child prostitute, runaway, high school dropout, drug user, trespasser, vandal, criminal, homosexual, deviant, slut, punk, etc. No matter that, with closer examination, the artist turns out to be not only more highly moral
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and ethically grounded than most critics, not to mention a more expert collagist and charismatic, stentorian performer, but also articulate, compassionate, funny, and unabashed about being politically incorrect, as made clear by ‘‘Post Cards.’’14 Alongside fighting for the civil liberties of people living with AIDS, Wojnarowicz’s contestations in public arenas for the ‘‘complete deregulation of consensual sexuality and its representations,’’ in Duggan’s words, long preceded the 1989 culture wars. Most closely, between 1985 and 1987, Wojnarowicz was the principal caretaker for one of his best friends, the wellknown and greatly admired recluse art photographer Peter Hujar, who died of AIDS-related illnesses in 1987. Despite persistent rumors to the contrary, the two were only initially and briefly involved in sexual relations, remaining ‘‘just friends’’ long afterward, like brothers, or father and son, until the older Hujar’s death. Both men, even with a support system of other friends, such as registered nurse Anita Vitale, nevertheless struggled with the bigotry of health care, rigidity of public policy, and a very human medical establishment. Like many of his works, Wojnarowicz’s autobiographical memoir Close to the Knives (1991), which reprints the ‘‘Post Cards’’ essay, offers powerful description of the exhausting degradations experienced by those seeking treatment for maligned sickness (see Wojnarowicz, 1991). Hujar had long rented the second-floor space at the corner of Second Avenue and Twelfth Street – where was located the very kitchen table, originally Peter’s, described in ‘‘Post Cards.’’ Hujar had instructed that his loft be left to Wojnarowicz who learned of his own sero-positivity after his friend died. Yet, for 2 years, Wojnarowicz had to wage protracted legal campaigns against the landlords over his tenant’s rights. Having occupied the apartment full-time the previous 2 years as live-in nurse, Wojnarowicz eventually won the right to stay on two conditions: that he leave if a cure for AIDS were ever found and that, at his own death, he does not turn the property over to any other person with AIDS, such as his own widow and, since 1986, partner, Tom Rauffenbart. Surely, such pioneering efforts are worth remarking in the context of subsequent legislative reform regarding AIDS, homophobia, and health as well as tenants’ rights, at least in the state of New York. Social philosopher, influential orator, and human societal litmus test, the artist Wojnarowicz willingly and repeatedly put his own life on trial for the sake of defending principles of free speech, freedom of expression, civil rights, and public policy. In 1990, moreover, as the first of many artists to take legal action in response to rampant conservative attacks, Wojnarowicz resisted the insidious tendency toward self-censorship while thrusting the debates over
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collective values into judicial, artistic, and other public arenas. By allowing the artist to speak for himself, the courtroom of Wojnarowicz v. AFA (1990) was arguably more dispassionate than that of Congress where rhetoric often revolves around highly selective smear tactics. If such choices no longer seem remarkable, consider that Wojnarowicz inserted himself in these domains prior to the present cultural moment, pervaded by ‘‘Law and Order’’ episodes, courthouse theater, and ‘‘reality’’ television in which inconsequential players stake significant claims while under public scrutiny. His acts, moreover, inspired other artists to follow suit. For example, other individuals and groups also began protesting revised governmental policy by returning the grants they had been awarded – since accepting NEA grants required the recipient’s signature and allegiance to the obscenity clause passed by Helms and ilk. After he was forced to resign his post at the NEA, even John Frohnmayer became an ardent proponent of freedom of expression.15 Most remarkably, during the next 8 years, the ‘‘NEA 4’’ – Karen Finley, John Fleck, Holly Hughes, and Tim Miller – repeatedly challenged the agency’s restrictions on artistic content, despite relentless heavy-handedness by Congress and successive presidential administrations (see, e.g., Finley, Fleck, Hughes, Miller, and National Association of Artists’ Organizations v. National Endowment for the Arts, & Frohnmayer, 795 F. Supp. 1457, 1992; 100 F.3d 671, 1996; 112 F.3d 1015, 1997; NEA v. Finley et al., 524 U.S. 569, 1998). The legal battle having begun in 1990, when grants were revoked ‘‘for apparently political reasons,’’ a 1992 decision by federal district court ‘‘declared unconstitutional the Congressional mandate that all NEA grants uphold ‘general standards of decency,’’’ because it was in violation of the First and Fifth Amendments (Wallis, 1993, p. 29). The Clinton Administration appealed this decision and won, then Finley et al. appealed and won, but ultimately, in 1998, the government prevailed against Finley and colleagues, when the U.S. Supreme Court upheld the congressionally mandated ‘‘decency’’ requirement, that local communities had the right to define their own, however inflexible, ‘‘general standards.’’ Revolving around artistic imagination, such cultural war skirmishes reveal creative expression in the form of ‘‘actions’’ or ‘‘performances’’ embedded in life: a form of art activism, social maintenance, even legal struggle that works to re-elasticize the buffers against ever-tightening restrictions on individual liberties. To the extent that always shifting earthly terrains continue to make human civilization stumble, examining such case histories helps illuminate the fracturing of relations between individual expression and imposed standards of decency paraded as ‘‘general.’’
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X-RAYS OF CIVILIZATION REVEAL MILLIONS OF TRIBES Wojnarowicz had feelings of impending mortality that preoccupied him throughout his life and compelled him to construct a record of his experience before he disappeared from the Earth. He was also driven by seeing no reflection of himself in the world around him – that is, until he was introduced to the likes of Rimbaud, Genet, and Burroughs – by experiencing the sensation that he was invisible, and by feeling regularly silenced by ‘‘Heads of Family’’ and ‘‘Heads of State,’’ if not, for a short time at least, ‘‘Heads of Culture.’’ Art served Wojnarowicz as a means of revealing ‘‘everything people are pressured not to reveal’’ (Wojnarowicz, 1990a, p. 117) and effectively provided him with tools for resisting submission to silence and coercion against assembly, as he explained in ‘‘Post Cards’’: Each public disclosure of a private reality becomes something of a magnetyeach public disclosure of a fragment of private reality serves as a dismantling tool against the illusion of a ONE TRIBE NATION; it lifts the curtains for a brief peek and reveals the possible existence ofymillions of tribes, the term GENERAL PUBLIC disintegrates,ythe possibility of an X-RAY OF CIVILIZATIONy. It would dispel the notion that this virus has a sexual orientation or a moral code orythat the government and medical community has done very much to ease the spread or advancement of this disease. (Wojnarowicz, 1990b, pp. 108–109)
During the 1989 culture wars, after he was charged by Congress with promoting anti-religious and nihilistic values, and even as he continued to work as a practicing, still struggling artist, Wojnarowicz took advantage of every opportunity to defend his positions publicly: in print, on talk radio, and TV documentaries, and in face-to-face dialog with his accusers, as with NEAhead John Frohnmayer during the well-attended open-forum meeting over the Artists Space controversy. In the last several years of his life, moreover, he accepted numerous invitations to give public talks as well as performances in schools, museums, and experimental theaters for multiply diverse audiences. A scan of these publics might be charted, in part, by the hundreds of letters the artist received in the last years of his life from strangers, thanking him for his bravery and honesty. For Wojnarowicz, whether or not something actually happened never prevented him from claiming the ‘‘experience’’ as formative. For several years of his life, for example, Wojnarowicz could describe himself as a child prostitute – as he testified in court in 1990 – having documented such experiences from the age of nine. The number of actual incidents, however, need not have been high for their deep impact to be long felt and, ultimately,
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the artist explained, ‘‘I either did what I remember doing or I dreamt I did it and neither really matters’’ – given that both can violently impact on the psyche (Wojnarowicz & Romberger, 1996, p. 19). As a result, Wojnarowicz’s subsequent accounts of prostitution drew upon his own snippets of dreams and other memories. Furthermore, his stories derive from the lives of others like him, including what he observed during years of traveling, and whether witnessed with his own eyes or shared in conversation, even as hearsay. As he discovered historical outsider artists, moreover, like Rimbaud, Genet, and Burroughs, but also Yukio Mishima, Paul Thek, and Peter Hujar, he encountered other people who experienced the feeling of invisibility and his own ‘‘authentic version of history’’ grew to encompass their broad range of stories. The Rimbaud series, his earliest project, involved having friends impersonate while updating the nineteenth-century Symbolist poet’s biography to reflect Wojnarowicz’s twentieth-century concerns. Both his earliest text Sounds in the Distance (1982) and one of the last posthumous collections The Waterfront Journals (1996) also employ such a collage of individual experiences, offering personal accounts clearly not describing the same person each time, much less author Wojnarowicz whose stories are nevertheless thrown into the mixture (see Wojnarowicz, 1982, 1996). To construct chronicles based on records that are both real and imaginary perhaps ideally requires a constant divulging of sources, frequent disclaimers about arbitrary choices or circumstance, a resistance to attempts at closure with regard to interpretation. Yet uncertain and uneasy approaches can trouble audiences that require firmer authority, and even want to forget how the story gets told. In spite of this, Wojnarowicz never failed to signal sites of contradiction – not only those of the world but also his own – or the artificial constructions across incoherent gaps of logic, while continuing to operate from a position in which both the real and the imaginary hold equal value. Of the scores of photographs taken of ‘‘Arthur Rimbaud in New York,’’ none is more alienating than ‘‘teenage’’ Rimbaud masturbating – despite the naked sexuality that so horrifies Wildmon – given that the paper mask retains the same wearily grave expression whether in orgasm, on the subway, in a diner, or outside a Times Square theater (see Wojnarowicz, 2004). Reinforcing the sensation of being a stranger to one’s self, in combination with a shifting or unstable identity, the use of the mask continually subverts the struggle to locate self-determination and self-definition. In the face of an irretrievable past, a threatening present, and an uncertain future, the Rimbaud series, together with other Wojnarowicz projects, laid bare not only the necessity for, but also the complications of, actively constructing a
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personal history as a defense against multiple levels of silencing. Unmistakably projecting his own version of events on to the world, he hoped to continually undermine the ideological pressure of those who saw Americans as a ‘‘ONE TRIBE NATION.’’ Wojnarowicz’s historical records offer a way of visualizing particular and idiosyncratic experience as well as increasing its visible diversity. His work gives shape to the position of being outside society, demonstrates the pervasiveness and variety of this experience, and challenges its material exclusion from general records. At the beginning of each school year, I survey a class of about a 100 students regarding where to locate a work of art’s meaning. Each year, most students assert, ‘‘Art means what the viewer says,’’ a reception-oriented, postmodernist perspective. Arguing that their own opinions remain sufficient for appreciation, evaluation, even rejection of a work, especially in the case of ‘‘modern’’ and ‘‘contemporary’’ art, many of them do not consider it necessary to find out more. One thing students’ faith in their own opinions has confirmed for me is that works of art have lives of their own – long after their creators have gone – and interpretations demand to remain openended. This quality is particularly evident when art gets politicized, especially by a politics wholly separate from the work’s innately political conception, as was the case not only with Mapplethorpe’s ‘‘X’’ portfolio and Serrano’s Piss Christ but also Wojnarowicz’s ‘‘Post Cards’’ essay, ‘‘Untitled (Genet)’’ collage, and ‘‘Rimbaud’’ photographic series. Paying attention to the complex dynamics of any work’s unfolding reception helps underscore the potentially infinite ways in which art has long mattered while helping map out the shifting contours of an era’s particularities including increasingly restrictive codes, depending, of course, on the situation. In a time when all range of ‘‘obscenity’’ may be endlessly transmitted around the world, by high volume and with lightning speed, anonymously and in places of easy availability, including access by children, attacks on works of art as pornographic may seem melodramatic vitriol. At the same time, such public debate seems useful, if only to help clarify the dominant concerns and tensions of a particular era. In a time of global homogenizing, it becomes even more difficult yet critical to acknowledge local intentions and understandings, in as much as such can be apprehended by becoming immersed in another’s culture. The Supreme Court may well be justified in granting communities the right to determine local limits on decency; yet such latitude on needing limits need not be reserved for art but should be also extended to government-sponsored incriminations of art, not to mention inhibitions on free speech, both of which have been greatly facilitated by the U.S. PATRIOT Act.16
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By 2004, ‘‘moral values’’ apparently ruled the minds of voters and determined the morbid outcome of both the American presidency and propositions in several states to restrict ‘‘marriage’’ to ‘‘man and woman.’’ ‘‘Moral’’ and ‘‘marriage’’ appear to be defined and understood in as strict and narrow a fashion as ‘‘torture’’ and ‘‘terrorism’’ came to be seen more recently. Although this trend of a harsher justice preceded the event of the collapse of the World Trade towers, the direction has congealed under the second Bush’s two administrations, such that Geneva conventions can be willfully dispensed with and government-sanctioned acts of torture regarded as justifiable, given the barbarous acts of ‘‘our enemies.’’ In these times, one might expect civil society to become increasingly limited, rigid, and regulated, especially to anyone who is poor, a minority, marginalized, sick, alone, regarded as activist, or even just avant-garde-aspiring artist. Should such disempowered voices manage to somehow be heard anyway, however, cultural wars are bound to continue. In fact, the persistence of culture wars seems unavoidable and maybe even instructive, even if it indicates sharp rents in social fabrics. If nothing else, lively debate facilitates further change, perhaps one day more truly democratic but, for now at least, enough to enter into the record.
NOTES 1. A good example of such omission would be the ‘‘culture wars’’ account provided by Miller and Yudice (2002). Consider as well Wojnarowicz’s glaring absence in the last decade’s score of encyclopedic references and comprehensive monographs regarding contemporary art published by Phaidon Press. See also recent years’ halfhearted efforts to construct an East Village history that manages to diminish the role played by Wojnarowicz while simultaneously fetishizing his art and spirit, such as recent issues of Artforum (e.g., October 1999). Or, take Peter Schjeldahl’s snide comment about the artist in his cranky review of the New Museum’s most recent East Village show (Schjeldahl, 2005). To this day, Wojnarowicz has never been the subject of a monograph by a single author. Even when favorably mentioned, misconceptions persist that ultimately diminish the significance of Wojnarowicz: such as claiming his ‘‘literary’’ more important than ‘‘visual’’ work (Hirsch, 2005; see also Cooper, 1999), or reducing his role as Peter Hujar’s principal caretaker to his having remained a ‘‘longtime boyfriend’’ (Schambelan, 2005) – whereas, in fact, their brief sexual contact long preceded the years when Wojnarowicz was nursing Hujar (unless what is meant by ‘‘boyfriend’’ relates to recent emphatic uses of ‘‘girlfriend,’’ indicating just a friend – someone close though not necessarily intimate in relations). 2. Meanwhile, a few years after the artist died, the City of New York sued the Estate of Wojnarowicz for everything it was worth, recovering close to $100,000 in Medicaid costs.
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3. According to expert witness, Philip Yenawine, from the lawsuit until his death, ‘‘David’s creative output was virtually nil’’; Wallis et al. (1999), pp. 22–23. 4. Robert McRuer (1997) also cites these words while rightfully asserting the criticality of cultural diversity in his sharp and elegant analysis of one of Wojnarowicz’s key themes; see pp. 26–29. 5. That such metaphoric notions are entrenched was made evident, in the case of NEA v. Finley et al. 524 U.S. 569 (1998), by Justice Antonin Scalia who dissented from the majority’s opinion, citing American president John Adams’ own puritanical attitudes in 1800, as quoted in J. Ellis’ 1979 biography: ‘‘the fine arts were like germs that infected healthy constitutions’’ (p. 597). 6. Seminal sources of information on Wojnarowicz and his work come in the form of exhibition catalogs, such as Blinderman (1990) and Scholder (1999); see also the Aperture issue on Wojnarowicz edited by Harris (1994) and my own unpublished doctoral dissertation (Rizk, 1997). In addition, there are book chapters on Wojnarowicz in Bright (1998), Childs (1997), Heartney (2004), and Meyer (2002). Important periodical literature on the artist includes Deitcher (1989), Durant (1990), Hochfield (1990), Jarrell (1990), Kimmelman (1990), Lippard (1990), Masters (1990a, b), Rose (1988), and Saltz (1989). 7. See also Danielsen and Engle (1995), Douzinas and Nead (1999), Moore (2004), Warner (1993, 2002), Wolfe (2003a, b), and Butler (1990, 1993, 1997). 8. There are many excellent studies on the NEA and recent flaps; Zeigler (1994), for example, provides an informative history of the governmental agency; regarding the culture wars, per se, Dubin (1992) offers excellent coverage, and Bolton (1992) has compiled an indispensable sourcebook of documents; Carr (1993) presents interpretation and criticism in relation to specific works of art; Steiner (1995) struggles to locate art’s place within society, giving abiding tensions between liberalism and fundamentalism; Young (2003) intriguingly discusses contemporary art alongside the trials of ‘‘advance homosexual cases’’; Fiss (1996) similarly seeks to link art with democracy; the World Wide Website of Van Camp (1996) remains a superb resource for freedom of expression issues; and Roma´n (1998) contributes a solid and intricate analysis of theater, performance, and activism in the contexts of the AIDS crisis and persistent homophobia. Recommendations and commentary recently appeared, moreover, from former NEA chairman Ivey (2005). There are also numerous volumes that specifically focus on issues of censorship, especially in relation to charges of obscenity: Clapp (1972) and Sova (1998) offer comprehensive compilations of censorship cases; Hunt (1996) anthologizes a thoughtful historiography of pornography; another anthology, Childs (1997) illuminates an important series of art censorship precedents (including a chapter on Wojnarowicz); White (1997) argues that pornography-related controversies often cloak class issues; Heins (1993) presents philosophical arguments against the censorship of pornography; both Laufe (1978), with regard to theater, and Lewis (1976), with regard to literature, offer insight on cases prior to the 1980s; yet another anthology, Harrison (1995) delineates the instability of moments of censorship; Meyer (2002) examines several twentieth-century examples of art censorship in relation to homosexuality, as does Inde (1998), each also including single chapters on Wojnarowicz; overall, De Grazia (1993) represents one of the best legal and cultural histories available for the twentieth century; see also Meyer (2003).
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9. See also Elizabeth Hess’ detailed accounts of the incidents in her regular columns throughout this period, for The Village Voice, including on November 21, an issue also containing a series of editorial contributions grouped under the title, ‘‘No Business As Usual: Critics Smell the Censor:’’ see Hess (1989, a, b, c); see also Atkins (1989), Levin (1989), Perreault (1989), and Raven (1989). 10. In specific response to the Artists Space controversy, the composer Leonard Bernstein refused to accept President George H.W. Bush’s bestowal of the National Medal of Arts award; the president of P.E.N., novelist Larry McMurtry, released ‘‘a statement on behalf of that writers’ body, denouncing the NEA for failing to encourage difficult, original art’’; and the Abstract Expressionist Robert Motherwell ‘‘offered to replace the funds lost by the NEA’s action’’ to the gallery (Loughery, 1990, p. 23). 11. In an affidavit he submitted as friend of the court, art historian Jonathan Fineberg compared Wildmon’s cropping job to ‘‘focusing on and enlarging all the penises in Michelangelo’s Last Judgment (there are 18) and then calling the painting pornographic’’; see Wallis (1990, p. 45). 12. Altogether, AFA and Wildmon borrowed details from the ‘‘Arthur Rimbaud in New York’’ series (1978–79); Delta Towels (1983); Water fr. ‘‘The Four Elements’’ series (1987); ‘‘The Sex Series’’ (1988–89); Bad Moon Rising (1989); and the multimedia production ITSOFOMO (1989) – the latter an acronym drawn from earlier Wojnarowicz works entitled, ‘‘In the Shadow of Forward Motion.’’ 13. See, for example, Butler (1990), Hyde (1992), and Warner (2002). Drucilla Cornell may also be relevant here; see McVeigh, Rush, and Young, (2001). In terms of artistic collectivism, consider the latest versions of such activities featured in a recent Massachusetts Museum of Contemporary Art (MASSMoCA) exhibition, such as Critical Art Ensemble (CAE) – whose legal travails are still being chronicled; for further information, see Thompson and Sholette, (2004); for more on CAE, see, e.g., Snyder (2005). More aptly, one might think of earlier groups contemporary with Wojnarowicz that also emerged in the decade of the 1980s, such as Group Material, PAD/D, and ACT UP offshoots Gran Fury as well as Testing the Limits; important analyses of these radical collectives who worked to end the AIDS crisis include, in addition to Thompson et al., Bordowitz (2004), Crimp (1991, 2002), Crimp and Rolston (1990), Danzig (1989), Juhasz (1995), Meyer (2002), Roma´n (1998), and Wallis et al. (1999). Although collectivism has traditionally been understood as antithetical to the individual artistic production associated with ‘‘high art,’’ it seems essential to acknowledge Wojnarowicz’s immersion in both practices. 14. For an excellent overview and analysis attempting to distinguish between Wojnarowicz’s activism and definitions of hate speech, see Adler (1996). 15. Frohnmayer (1993) addresses issues of free speech, censorship, and his former tenure as NEA Chairman. 16. Against the crazily unfolding backdrop involving the CAE, an equally strange twist of events recently resulted in the resignation of Chris Burden and Nancy Rubins, two professors and artists protesting UCLA’s refusal to prosecute a student who wielded a gun as part of a performance art piece. Famous, back in the 1970s, for crawling naked across glass, having himself imprisoned, shot in the arm, and crucified on a Volkswagen Beetle, or him shooting at airborne jumbo jets, Burden nevertheless insisted that, these days, i.e., post-September 11, things are different:
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‘‘I think a university is about civilized discoursey. If terrorism is admissible in the classroom as a way to generate discussion and attention, we’ve got a problem’’; see Wilson (2005), p. A9.
ACKNOWLEDGMENTS This essay was drawn from a chapter of the book manuscript, ‘‘Dirty Work: The Art and Times of David Wojnarowicz.’’ It greatly benefited from comments by anonymous reviewers, participants of the 8th Annual Conference of the Association for the Study of Law, Culture, and Humanities (University of Texas – Austin, March 2005), members of the Law and Social Thought (LST) Faculty Working Group (University of Toledo, January 2005), and fellows of the National Endowment for the Humanities Summer Seminar on ‘‘Punishment, Politics, and Culture’’ (Amherst College, July 2004). Previous versions of this essay were presented at the 2nd Annual Censorship Symposium (Department of Theater and Film, University of Toledo, April 2001) and a Fales Library Symposium in conjunction with an exhibition of Estate of Wojnarowicz materials (New York University, February 1999). I am grateful for the research support of both the National Endowment for the Humanities and the College of Arts and Sciences, Humanities Seminar, and LST Working Group at the University of Toledo.
REFERENCES Adler, A. (1996). What’s left?: Hate speech, pornography, and the problem for artistic expression. California Law Review, 84(December), 1499. Associated Press. (1990). NEA Target of New Lawsuit. Washington Post, August 30, p. D3. Atkins, R. (1989). A Dear John Letter. The Village Voice, November 21, p. 109. Blinderman, B. (Ed.) (1990). David Wojnarowicz: Tongues of flame (exhibition catalog). Essays by Carlo McCormick, Curtis White, John Carlin, and David Wojnarowicz. Normal, IL: University Galleries of Illinois State University. Bolton, R. (Ed.) (1992). Culture wars: Documents from the recent controversies in the arts. New York: New Press. Bordowitz, G. (2004). In: J. Meyer (Ed.), The AIDS crisis is ridiculous and other writings, 1986–2003. Foreword, Douglas Crimp. Cambridge, MA: MIT Press. Bright, D. (Ed.) (1998). The passionate camera: Photography and bodies of desire. London: Routledge. Butler, J. (1990). Gender trouble: Feminism and the subversion of identity. New York: Routledge. Butler, J. (1993). Bodies that matter: On the discursive limits of ‘‘sex.’’ New York: Routledge. Butler, J. (1997). Excitable speech. New York: Routledge.
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Carr, C. (Cynthia). (1993). On edge: Performance at the end of the twentieth century. Hanover, NH: Wesleyan University Press. Childs, E. C. (Ed.) (1997). Suspended license: Censorship and the visual arts. Seattle, WA: University of Washington Press. Clapp, J. (1972). Art censorship: A chronology of proscribed and prescribed art. Metuchen, NJ: Scarecrow Press. Connolly, W. E. (1995). The ethos of pluralization. Minneapolis, MN: University of Minnesota Press. Cooper, D. (1999). Odd man out. Artforum, 38(2), 130–131, 168. Crimp, D. (Ed.) (1991). AIDS: Cultural analysis/cultural activism. Cambridge, MA: MIT Press. Crimp, D. (2002). Melancholia and moralism: Essays on AIDS and queer politics. Cambridge, MA: MIT. Crimp, D., & Rolston, A. (1990). AIDS demographics. Seattle, WA: Bay Press. Danielsen, D., & Engle, K. (Eds) (1995). After identity: A reader in law and culture. New York: Routledge. Danzig, A. (1989). Acting up: Independent video and the AIDS crisis. Afterimage, 16(May), 5–7. De Grazia, E. (1993). Girls lean back everywhere: The law of obscenity and the assault on genius. New York: Vintage. Deitcher, D. (1989). Ideas and emotions. Artforum, 27(9), 122–127. Douzinas, C., & Nead, L. (Eds) (1999). Law and the image: The authority of art and the aesthetics of law. Chicago: University of Chicago. Dubin, S. C. (1992). Arresting images: Impolitic art and uncivil actions. London: Routledge. Duggan, L. (1989). Troubleshooters: Sex Panics. Artforum, 28(October), 26–27. Durant, M. A. (1990). Sustained rage in a hostile landscape. New Art Examiner, 18(September), 35–38. Finley, K., Fleck, J., Hughes, H., Miller, T., & National Association of Artists’ Organizations v. National Endowment for the Arts & Frohnmayer, J. E. (1992). 795 F. Suppl. 1457 (Central District of California). Finley, K., Fleck, J., Hughes, H., Miller, T., & National Association of Artists’ Organization v. National Endowment for the Arts. (1996). 100 F.3d 671 (Ninth Circuit Appeals). Finley, K., Fleck, J., Hughes, H., Miller, T., & National Association of Artists’ Organization v. National Endowment for the Arts. (1997). 112 F.3d 1015 (NCA). Fiss, O. M. (1996). The irony of free speech. Cambridge, MA: Harvard University Press. Fordyce, D., & Knickerbocker, Y. v. John, E. Frohnmayer & National Endowment for the Arts. (1991). 763 F. Supp. 654 (District of Columbia). Foucault, M. (1979). In: A. Sheridan (Trans.), Discipline and punish: The birth of the prison. New York: Vintage Books. (Original work published 1975). Foucault, M. (2001). In: J. Pearson (Ed.), Fearless speech. Los Angeles: Semiotext(e). (Original lectures delivered 1983). Frohnmayer, J. (1993). Leaving town alive: Confessions of an art warrior. Boston, MA: Houghton Mifflin. Garrett, L. (1994). The coming plague: Newly emerging diseases in a world out of balance. New York: Penguin. Garrett, L. (2000). Betrayal of trust: The collapse of global public health. New York: Hyperion. Goldin, N. (Ed.) (1989). Witnesses: Against our vanishing. New York: Artists Space. Harris, M. (Ed.) (1994). David Wojnarowicz: Brushfires in the social landscape. Intro. Lucy Lippard. New York: Aperture, 1994.
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Harrison, N. (1995). Circles of censorship: Censorship and its metaphors in French history, literature, and theory. Oxford: Clarendon Press. Heartney, E. (2004). Postmodern heretics: The catholic imagination in contemporary art. New York: Midmarch Press. Heins, M. (1993). Sex, sin, and blasphemy: A guide to america’s censorship wars. New York: New Press. Hess, E. (1989a). Frohnmayer’s Normal Waterloo? The Village Voice, December 12, p. 69. Hess, E. (1989b). Jesse Helms’s nightmare. The Village Voice, November 28, p. 117. Hess, E. (1989c). NEA shoots itself: Frohnmayer targets ‘‘Political’’ art. The Village Voice, November 21, p. 63. Hirsch, F. (2005). David Wojnarowicz at P.P.O.W. and Roth Horowitz. Art in America, 92(9), 143–144. Hochfield, S. (1990). Art and the NEA: Caught in the cross fire. ARTnews, 89(January), 146–149. Honan, W. H. (1990). Multi-media artist sues political action group. The New York Times, May 22, C14. Hunt, L. (Ed.) (1996). The invention of pornography: Obscenity and the origins of modernity, 1500–1800. New York: Zone Books. Hyde, L. (1992). Trickster makes this world: Mischief, myth, and art. New York: North Point Press. Inde, V. R. (1998). Art in the courtroom. Westport, CT: Praeger. Ives, N. (2004). Getting out the vote, with style. The New York Times. Retrieved July 13 from http://www.nytimes.com/2004/07/13/business/media/13adco.html Ivey, B. (2005). America needs a new system for supporting the arts. The Chronicle of Higher Education, 51(22), pp. B6–B9. Jarrell, J. (1990). God is in the details, Wojnarowicz is in the courts. High Performance, 13(Fall), 20–21. Juhasz, A. (1995). AIDS TV: Identity, community, and alternative video. Durham, NC: Duke University Press. Kimmelman, M. (1990). An artist who seeks every opportunity to unnerve. The New York Times, December 9, p. B35. Larabee, A. (2000). Decade of disaster. Urbana, IL: University of Illinois. Laufe, A. (1978). The wicked stage: A history of theater censorship and harassment in the United States. New York: Frederick Ungar. Levin, K. (1989). Inch by inch. The Village Voice, November 21, p. 109. Lewis, F. F. (1976). Literature, obscenity, & law. Carbondale, IL: Southern Illinois University Press. Lewitzky Dance Foundation v. Frohnmayer, J. E., & National Endowment for the Arts. (1991). 754 F. Supp. 774 (Central District of California). Lichtenstein, B. (1992). The secret battle for the NEA. The Village Voice, March 10, pp. 35–37. Limiting Freedom of Expression. (1990, September 5). The Daily Illini (Champaign, IL), p. 16. Lippard, L. (1990). Out of the safety zone. Art in America, 78(December), 130–139+. Loughery, J. (1990). Frohnmayer’s folly. New Art Examiner, 17(February), 20–25. Masters, K. (1990a). Artist sues anti-NEA group for use of his work. Washington Post, May 22, p. C1. Masters, K. (1990b). NEA-funded art exhibit protested. Washington Post, April 21, p. C1.
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McRuer, R. (1997). The queer renaissance: Contemporary American literature and the reinvention of lesbian and gay identities. New York: New York University Press. McVeigh, S., Rush, P., & Young, A. (2001). A judgment dwelling in law: Violence and the relations of legal thought. In: A. Sarat (Ed.), Law, violence, and the possibility of justice (pp. 101–141). Princeton: Princeton University Press. Mead, G. H. (1918). The psychology of punitive justice. The American Journal of Sociology, 23(5), 577–602. Meyer, R. (2002). Outlaw representation: Censorship and homosexuality in twentieth-century American art. Oxford, UK: Oxford University Press. Meyer, R. (2003). The Jesse Helms theory of art. October, 104(Spring), 131–149. Miller, T., & Yudice, G. (2002). Cultural policy. London: Sage. Moore, P. (2004). Beyond shame: Reclaiming the abandoned history of radical gay sexuality. Boston: Beacon Press. National Endowment for the Arts v. K. Finley, et al. (1998). 524 U.S. 569 (Supreme Court). Parachini, A. (1990). Artist sues the Rev. Wildmon over mailing. Los Angeles Times, May 22, p. F1. Passaro, V. (2000). The last outsider. New York Times Book Review, March 12, p. 39. Perreault, J. (1989). The killing effect. The Village Voice, November 21, p. 109. Phillips, C. (1990). Wojnarowicz bags buck. Art in America, 78(October), 240. Raven, A. (1989). Dare to deviate. The Village Voice, November 21, p. 109. Rizk, M. (1997). Nature, death, and spirituality in the work of David Wojnarowicz. Unpublished doctoral dissertation, University of Illinois, Urbana-Champaign. Roma´n, D. (1998). Acts of intervention: Performance, gay culture, and AIDS. Bloomington: Indiana University Press. Rose, M. (1988). David Wojnarowicz: An interview. Arts Magazine, 62(May), 60–65. Saltz, J. (1989). Not going gentle. Arts Magazine, 63(February), 13–14. Sartre, J.-P. (1963). In: B. Frechtman (Trans.), Saint genet: Actor and martyr. New York: Mentor Books. (Original work published 1952). Schambelan, E. (2005). ‘‘Peter Hujar: Matthew marks gallery.’’ Artforum, 43(8), 188. Schjeldahl, P. (2005). That eighties show: Revisiting the east village. The New Yorker, 80(44), 94–95. Scholder, A. (Ed.) (1999). Fever: The art of David Wojnarowicz. Essays Dan Cameron, C. Carr, John Carlin, Mysoon Rizk, & David Wojnarowicz. New York: Rizzoli. Selcraig, B. (1990). Reverend Wildmon’s war on the arts. The New York Times Magazine, September 2, pp. 22–25, 43, 52–53. Singer, L. (1993). In: J. Butler & M. MacGrogan (Eds), Erotic welfare: Sexual theory and politics in the age of epidemic. New York: Routledge. Snyder, M. D. (2005, January–February). Dangerous art. Academe, 91(1), 87. Sontag, S. (1990). Illness as metaphor; and, AIDS and its metaphors. New York: Doubleday. Sova, D. B. (1998). Banned books: Literature suppressed on sexual grounds. New York: Facts on File. Span, P. (1990). Judge blocks anti-NEA pamphlet. Washington Post, June 26, p. D4. Steiner, W. (1995). The scandal of pleasure: Art in the age of fundamentalism. Chicago, IL: The University of Chicago Press. Thompson, N., & Sholette, G. (Eds) (2004). The interventionists: Users’ manual for the creative disruption of everyday life. North Adams & Cambridge, MA: MASS MoCA & MIT.
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Treichler, P. (1999). How to have theory in an epidemic: Cultural chronicles of AIDS. Durham, NC: Duke University Press. Trescott, J. (1993). Bush on art vs. ‘‘filth’’: Papers cite his role in NEA controversy. The Washington Post, June 7, p. D4. Van Camp, J. (1996). Freedom of expression at the national endowment of the arts. Long Beach, CA: Julie Van Camp and American Bar Association, 1996, 1997, 1998 (On-line: http://www.csulb.edu/jvancamp/intro.html). Vance, C. S. (1990). Misunderstanding Obscenity. Art in America, 78(May), 49–54. Wallis, B. (1990). Wojnarowicz show riles right-wingers. Art in America, 78(June), 45. Wallis, B. (1993). Clinton to NEA 4: Drop dead. Art in America, 29(June), 29. Wallis, B., Weems, M., & Yenawine, P. (Eds) (1999). Art matters: How the culture wars changed America. New York: New York University Press. Warner, M. (Ed.) (1993). Fear of a Queer planet: Queer politics and social theory. Minneapolis: University of Minnesota Press. Warner, M. (2002). Publics and counterpublics. New York: Zone Books. White, H. (1997). Anatomy of censorship: Why the censors have it wrong. Lanham, MD: University Press of America. Wilson, R. (2005). Going out with a bang. The Chronicle of Higher Education, 51(22), p. A9. Wojnarowicz, D. v. American Family Association [AFA] and Wildmon, D.E. (1990). 745 F. Supp. 130 (Southern District of New York). Wojnarowicz, D. v. AFA, & Wildmon, D.E. (1991). 772 F. Supp. 201 (S.D.N.Y.). Wojnarowicz, D. (1982). Sounds in the distance. London: Aloes Books. Wojnarowicz, D. (1990a). Biographical dateline. In: B. Blinderman (Ed.), David Wojnarowicz: Tongues of flame (exhibition catalog, pp. 113–118). Normal, IL: University Galleries of Illinois State University. Wojnarowicz, D. (1990b). Post cards from America: X-rays from hell. In: B. Blinderman (Ed.), David Wojnarowicz: Tongues of flame (exhibition catalog, pp. 105–109). Normal, IL: University Galleries of Illinois State University. Wojnarowicz, D. (1991). Close to the knives: A memoir of disintegration. New York: Vintage Books. Wojnarowicz, D. (1996). The waterfront journals. Intro. Tony Kushner. New York: Grove Press. Wojnarowicz, D. (2004). Rimbaud in New York, 1978–79. New York: Roth Horowitz Gallery. Wojnarowicz, D., & Romberger, J. (1996). Seven miles a second. New York: DC Comics. Wolfe, C. (2003a). Animal rites: American culture, the discourse of species, and posthumanist theory. Chicago: University of Chicago Press. Wolfe, C. (Ed.) (2003b). Zoontologies: The question of the animal. Minneapolis: University of Minnesota Press. Young, A. (2003). ‘‘Into the blue’’: The image written on law. In: A. Sarat & J. Simon (Eds), Cultural analysis, cultural studies, and the law (pp. 327–351). Durham: Duke University Press. Zeigler, J. W. (1994). Arts in crisis: The national endowment for the arts versus America. Chicago, IL: A Cappella Books.
THE END OF MAGIC: SUPERSTITION AND ‘‘SO-CALLED SORCERY’’ IN LOUIS XIV’S PARIS Lynn Wood Mollenauer ABSTRACT Through an analysis of the French crown’s investigation into the greatest scandal of Louis XIV’s reign, this article examines the unstable boundary between sin and crime at the height of the Catholic Reformation in France. The prosecution of the suspects in the Affair of the Poisons, it argues, allowed a key change in the French state’s definition of crime. In 1682, the crown decriminalized magic. It continued to prosecute ‘‘so-called magicians,’’ however, because their practices were deemed sacrilegious. Any person convicted of ‘‘treason against God’’ was therefore sentenced to the most severe form of execution inflicted under French law: to be burnt alive. Louis XIV’s determination to ensure social order and religious orthodoxy was made manifest in the state’s rituals of punishment.
In the fall of 1678, the Parisian police received an anonymous tip that a conspiracy to poison the king had been hatched. Their investigation into what quickly became known as the Affair of the Poisons led directly to a criminal magical underworld thriving in the heart of the capital. According
Crime and Punishment: Perspectives from the Humanities Studies in Law, Politics, and Society, Volume 37, 33–52 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)37002-5
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to police and judicial records, this loosely knit community of magicians, sorceresses, and renegade priests was busily peddling love charms, demonic rituals, and arsenic-based poisons known as ‘‘inheritance powders’’ throughout the city.1 Clients, typically women seeking to rid themselves of husbands or rivals for a lover’s affections, allegedly purchased solutions of hemlock, vitriol, or arsenic from sorceresses who also provided instructions on how to best administer the poisons that they sold.2 Victims were furnished shirts treated with a type of arsenic (the poison was supposed to irritate and then leach into the skin), served food and wine laced with poisonous mushrooms, and given enemas containing mercuric chloride (Nass, 1898). Even Louis XIV’s official mistress was suspected of trying to poison her royal lover in a fit of jealous rage. The investigation into the affair further suggested that countless Parisians – including a number of the highest-ranking women at court – had commissioned love potions and rituals of Christian magic from the denizens of the criminal underworld as well. Louis XIV reacted swiftly to the growing scandal. He immediately appointed a special commission to try all suspects, regardless of rank, implicated in the affair. Its investigations were to be directed by Nicolas de la Reynie, head of the Parisian police.3 The king selected 13 magistrates from the parlement of Paris, which functioned as the supreme court for approximately half of the kingdom, to serve on the new commission.4 The Chambre de l’Arsenal (the commission was named after the building in which it met) was a deluxe production in the genre of the seventeenth-century theater of justice. Their proceedings a state secret, the magistrates sat in judgment in the basement of the Arsenal, the windows draped in black cloth and the only light in the hall provided by flaming torches. These torches lent the tribunal its unofficial name, the Chambre Ardente or Burning Chamber. The Chambre de l’Arsenal followed standard French criminal procedure as recently revised by the Edict of Saint-Germain-en-Laye in 1670 (Boulanger, 2000). Its rulings were without appeal, although the king reserved the right to modify sentences. If the judges found a suspect guilty of a capital crime, they customarily ordered that he or she be put to the question, or tortured, before execution in order to extract the names of any accomplices (Silverman, 2001).5 As the affair ran its course, Louis XIV closely monitored each detail of the proceedings, receiving updates each morning on the suspects’ interrogations and the judges’ deliberations from his Minister of War, the marquis de Louvois (Lebigre, 1989). By the time the king dissolved the Chambre de l’Arsenal in 1682, its judges had investigated over 400 of his subjects, sending 36 to their deaths, four to
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the galleys, and 34 into exile. The remainder – of those the police could find – received sentences that ranged from reprimands to periods of banishment. Approximately 60 suspects were never tried at all; Louis XIV considered their potential testimony regarding the magical activities of his mistress and courtiers to be too inflammatory to be heard even by his hand-picked judges. These suspects were instead placed in solitary confinement for the rest of their lives, chained to the wall of one of France’s fortresses and forbidden to speak even to their jailors. To bring the three-year-long scandal to a final close, Louis XIV issued a royal edict that regulated the sale of poisons (the first of its kind in Europe) and decriminalized witchcraft in France. All those alleging to perform ‘‘so-called acts of magic,’’ it declared, were simply frauds ‘‘who profane all that religion holds most sacred.’’ (Edict du Roy pour la punition de differents crimes, 8 August 1682). The Sun King, in effect, forbade his subjects to believe in magic. Scholars studying the Affair of the Poisons have traditionally concentrated upon historical detective work, attempting to determine whether a plot to poison Louis XIV actually existed and the extent of his mistress’s involvement in it. Most have dismissed the investigation of the magicians and sorceresses caught up in the scandal as the last hurrah of witch-hunting in France, soon to be extinguished by enlightened royal fiat (Mongre´dien, 1953; Lebigre, 1989; Petitfils, 1977). This article will instead consider the affair within the context of Catholic Reformation social disciplining, in which Crown and Church collaborated in an effort to enforce religious orthodoxy and social order after the Council of Trent (the Catholic Church council that met in the mid-16th-century to define Catholic orthodoxy). It will argue that the prosecution of the members of the criminal magical underworld of Paris is best understood as part of a larger Catholic Reformation drive to eradicate superstition and discipline lay piety. As scholars such as Brian Levack have noted, the French crown’s proclamation that magic was ‘‘so-called sorcery’’ did not so much decriminalize witchcraft as reify it, dividing it into three component parts: fraud, superstition, and sacrilege (Levack, 2001). The sorceresses who continued to dispense love potions and gambling charms were not branded a threat to society, therefore, because they practiced harmful magic or were agents of a demonic conspiracy to destroy Christianity, but because they profaned religion and corrupted the faithful. The city’s sorceresses and magicians were considered guilty of sacrilege, impiety, and the misuse of holy things because their spells and rituals exploited a Christian magical tradition that had its roots deep in the Middle Ages. Since their spiritual transgressions placed the entire community at risk of divine retribution, they were
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condemned to suffer the most extreme forms of punishment inflicted during the old regime. By the later half of the 17th century, the efforts of the Gallican church to enforce a comprehensive system of parochial conformity and to promulgate the code of religious practice enjoined by the council of Trent had achieved almost universal success.6 External observance and devotion were at their apogee as Catholics attended Mass each Sunday and holy day as required by both canon and state law. Every year, the faithful fulfilled their paramount obligation, that of Easter communion, knowing that if they failed in their duty they hazarded excommunication and even privation of Christian burial (Delumeau, 1977). French Catholics also received an increased amount of religious instruction as part of the post-Tridentine Church’s mission to encourage and discipline lay religious behavior. By 1650, parish priests taught almost all children at least a rudimentary catechism as the missionaries who crisscrossed the country instructed their parents. Over the course of the 17th century, more French men and women than ever before were exposed to the precepts, practices, and priests of the Catholic Church (Bossy, 1970; Briggs, 1989; Farr, 1995). As part of its reforming drive, the Catholic Church intensified its longstanding campaign against superstition. As Stuart Clark warns, the modern usage of the term ‘‘superstition,’’ with its connotations of secular skepticism, can obscure the deep seriousness with which it was regarded in the premodern era. Since the 12th century, theologians had defined superstition as ‘‘religion’s opposite’’ (Clark, 1997). Following the scholastic Thomas Aquinas, Catholic thinkers differentiated between two major categories of superstition. The first, ‘‘service to the true God, but in an inappropriate or incorrect manner,’’ was further subdivided into ‘‘false worship’’ and ‘‘irrelevant or excess worship.’’ Excess worship was marked by an exaggerated piety. It might entail multiplying Church rituals beyond what was officially enjoined or assigning baseless meaning to details of Catholic ritual. The second and more malignant category of superstition, ‘‘service to a false god, but in the manner due to the true’’ included vain observance, divination, and idolatry (as well as Judaism and Islam), all of which were defined as ‘‘perversions of true worship’’ (Clark, 1997, p. 478). As a violation of the first commandment, idolatry was the primary transgression committed by Christians, taking second place only to heresy in the hierarchy of spiritual offences (Bossy, 1985b). The Catholic Church broadened its offensive against the sin of superstition over the course of the early modern period. By the 15th century, maleficia, or the performance of harmful magic, came to be classified as a
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form of idolatry. Witches committed a heinous act of false worship, reasoned theologians such as Jean Gerson, when they forged a pact with the devil in exchange for their powers. By the beginning of the 16th century, popular magical practices too were branded as idolatrous. Wearing magical amulets, engaging in magical healing practices, telling fortunes – all constituted vain observance because they entailed the expectation of unnatural results from natural sources. When God created the universe, Catholic theologians held, he endowed each and everything in it with particular attributes. If an effect brought about in the natural world exceeded the scope of its God-given properties, that result could only be the consequence of a miracle (a highly unlikely event) or a diabolic pact (Clark, 1997). Intentions, in this view, were irrelevant. Even if the pact with the devil was tacit, entered into unknowingly by someone who had no intention of renouncing God, the fault remained. ‘‘Those things that cannot naturally bring about the effects for which they are employed are superstitious and belong to a pact entered into by devils,’’ thundered Jacobus Simancas in the widely read inquisitorial manual, Institutiones Catholicae (Clark, 1997, p. 481). The faithful were repeatedly cautioned against the dangers of superstition throughout the Catholic Reformation. The catechism published by the Council of Trent in 1566 insisted that ‘‘those who give credit to dreams, divination, fortune-telling, and such superstitious illusions’’ were violators of God’s first law (Clark, 1997, p. 500). The same sentiment was soon echoed in the teachings of the Gallican Church. The most widely used confessional manual in 16th-century France charged priests to instruct their congregations that believing that magic, necromancy, and divination were even possible a sin against the first commandment. The consequences of such activities were dire. As a 1583 church council in Bordeaux tersely explained: ‘‘those who are involved with magic and divination or who place their trust in diviners commit a horrible crime and are excommunicated’’ (Clark, 1997, p. 469). By the eve of the Affair of the Poisons, the Gallican Church’s assault on superstition reached a positive crescendo. Jean-Baptiste Thiers, a parish priest from Chartres, published his four-volume polemic, Treatise on Superstitions according to Holy Scripture, Conciliar decrees, and the sentiments of Church Fathers and Theologians, in 1679. Thiers’ work envisioned a purified religion in which the Roman Catholic Church reserved exclusive claim to the realm of the supernatural for its practices, rituals, and personnel. Following the work of earlier theologians, Thiers identified magic, witchcraft, and deviant religious practices as ‘‘false and superfluous cults.’’ Those who attempted to divine the future, he continued, always committed a
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mortal sin. The cure´ warned of the spiritual dangers posed by popular magical practices. Of particular concern were spells or charms that abused the sacraments, particularly the Eucharist. Offering the most sweeping definition of vain observance to date, Thiers also labeled as superstitious any activity ‘‘whose results involve useless or ridiculous ceremonies instituted neither by God or Church’’ (Monter, 1983, p. 123). The Gallican Church’s mounting crusade against popular superstitions was not simply a matter of doctrinal hair-splitting. By proscribing superstition, the Church forbade any number of common practices that were still considered perfectly licit by their adherents, as those who were summoned before the judges of the Chambre de l’Arsenal attested. The court observer Madame de Se´vigne´ shrugged at the news of an arrest warrant issued for a prominent courtier, ‘‘the things of which she is accused consist of mere stupidities, things she herself has mentioned time and time again, as one does after visiting one of these so-called sorceresses’’ (Se´vigne´, 1972, Vol. 2, p. 818). Visiting palm readers, carrying one’s caul in the belief that it offered preternatural protection, using holy oil as a love potion – all seemed to Louis XIV’s subjects, aristocrat as well as artisan, unlikely to compromise their eternal salvation or the public good (Ravaisson, 1866–1904). The Sun King’s judges, however, disagreed. The credulous clients of Paris’s sorceresses needed to be shown the error of their superstitious ways and those who led them astray needed to be driven from the kingdom. The concepts of sin and crime were so closely entwined during the 17th century that neither religious nor political authorities distinguished particularly between them7 (Riley, 1990). As the work of John Bossy and James Farr has argued, the criminalization of sin had its roots in late medieval Catholic reform. The decrees of the Council of Trent intended to discipline lay piety continued the trend; the council explicitly defined as criminal any sin that compelled a baptized Catholic to require the sacrament of confession (Bossy, 1985a; Farr, 1995). The Tridentine association between sin and crime spread north through the efforts of lay religious organizations such as the Company of the Holy Sacrament, whose noble members dedicated themselves to stamping out ‘‘public sins’’ (pornography, prostitution, and begging, among others) in order to create a morally pure society (Tallon, 1990; Ranum, 1979). French theologians too linked sin and crime in popular devotional tracts. L’Homme criminel by the early 17th-century Oratorian Jean-Franc- ois Senault, for example, stressed a particularly Augustinian vision of original sin that described Adam’s disobedience to God as an offence of ‘‘criminal man.’’ Priests similarly confirmed the connection between the moral and social order and urged their parishioners to follow the dictates of
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both church and state. ‘‘Religion is nothing other than a bond thatysubjects us to Gody[This bond]ysubsumesyall the duties and all the obligations which hold men together [in a civil society],’’ preached the Parisian cleric Louis Bourdaloue (Farr, 1995, pp. 39–40). The Gallican Church’s conflation of sin and crime was enshrined in the jurisprudence of the French state. Offences against religion that might conceivably have come under the purview of ecclesiastical courts were instead tried under royal law. Louis XIV’s life-long concern to ensure that his subjects adhered to the teachings of the Roman Catholic Church manifested itself in a series of ordinances that disciplined his subjects’ religious lives and enjoined a strict Catholic Reformation morality. His most famous act in this regard was of course the 1685 Revocation of the Edict of Nantes, the culmination of his prolonged campaign to outlaw Protestantism, but his crusade to eradicate irreligion was comprehensive in the extreme. In the name of public order, his courts vigorously enforced earlier ordinances against heresy, sacrilege, and blasphemy. Heresy, the most serious of violations, threatened to divide the kingdom; sacrilege insulted God, because ‘‘to insult the things of God is to insult God himself’’; and blasphemy (subject of a series of sporadically severe ordinances, the last issued in 1681) threatened to bring divine anger down upon the entire community (Garnot, 1990). The king also issued edicts that required that Sunday be kept as a holy day, that Lenten fasts be observed, condemned clerical misconduct, and ordered the incarceration of prostitutes (Riley, 2003). In effect, Louis XIV’s criminal code punished those who broke the Commandments. While it was the duty of subjects to obey God and king, as Bishop Jacques-Be´nigne Bossuet reminded his monarch in 1662, it was the duty of the king to support the Church’s mission to establish ‘‘good morals and true piety’’ by eradicating all ‘‘public crimes’’ (Riley, 2001, p. 6). Louis XIV paid heed to his court preacher’s injunction when he established the first police force in Europe five years later. He chose the devout Nicolas de la Reynie to head the new force and charged him to maintain public order in the capital. Not only were La Reynie’s officers directed to attend to matters of general security, but they were also instructed to monitor the morals of the city’s inhabitants. To root out blasphemers, gamblers, and those who indulged themselves in ‘‘debauchery and riotous living,’’ the police were authorized to pay neighborhood informants a percentage of the fines leveled on convicted offenders. Police agents too conflated sin and crime; they used the terms interchangeably to describe the misconduct of Parisians under investigation in the weekly reports that they sent to the king. For La Reynie’s police as well as Bishop Bossuet’s parishioners, both sin and crime risked divine
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displeasure for the entire community. Sinners might violate the laws of God while criminals ignored the laws of God’s lieutenant Louis XIV, but both offenses constituted disobedience to authority – and this posed a threat to the divinely ordained social order (Bossy, 1985a). The magistrates of the parlement of Paris (from whose ranks the judges of the Affair of the Poisons had been drawn) had long agreed with such an assessment. As historians such as Stuart Clark and Robert Muchembled have argued, the Tridentine ideals that infused 17th-century French society contributed to a ‘‘sacralization of justice’’ in which members of the judiciary came to envision themselves as ‘‘custodians of religion as well as law’’ (Clark, 1997, p. 587). Judges consequently regarded transgressions such as those perpetuated during the Affair of the Poisons as serious breaches of public order, but the crime of witchcraft was not the focus of their attention. As the court of appeal for over half the country, the Parisian parlement had not upheld a death sentence for witchcraft in over 50 years. The work of William Monter and Alfred Soman has effectively demonstrated that the parlementaires of Paris became increasingly chary of upholding lower court convictions for witchcraft over the course of the 17th century (Monter, 1997; Soman, 1992). Magistrates at the appeals courts were not only reluctant to countenance procedural irregularities or the relaxation of legal standards of proof – the only methods by which someone accused of a manifestly impossible crime could be convicted – but were doubtful of the reality of witchcraft as well. As Michel de Montaigne (himself a retired judge) famously remarked in a 1588 essay, ‘‘how much more natural that our mind should be enraptured from its setting by the whirlwind of our own deranged spirit, than that, by a spirit from beyond, one of us humans, flesh and blood, should be sent flying on a broomstick up the flue of his own chimney’’ (Montaigne, 1991, p. 1168). A majority of Parisian magistrates soon came to embrace Montaigne’s skeptical attitude. As early as 1610, for example, a sentence handed down by the parlement of Paris dismissed testimony concerning the witches’ sabbat as an illusion (Soman, 1989). Historically, the judges of the parlement of Paris were far more concerned with prosecuting sacrilege than witchcraft (Monter, 1997). Trying the suspects of the Affair of the Poisons therefore provided the judges of the Chambre de l’Arsenal an opportunity to cleanse the capital of those whose truck with magic, based as it was on the power of holy things, so clearly corrupted the teachings of the Catholic Church. Thus, theologians and magistrates alike agreed that rooting out the members of the criminal magical underworld was of paramount importance. Their spiritual offences, as well as their secular ones, threatened the ‘‘right order’’ of the city.
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Despite the concerted efforts of Church and Crown to enforce religious orthodoxy and discipline lay piety over the course of the Catholic Reformation, a criminal magical underworld continued to prosper in the French capital. As the investigation into the Affair of the Poisons progressed, it appeared increasingly evident that Parisians shared an insatiable appetite for things magical. Duchesses to day laborers were apparently turning to the occult to pursue their desires in clear defiance of the Church’s injunctions against superstitious practices. When interrogated, the Sun King’s subjects stated that they had purchased spells for every conceivable purpose, from ensuring luck at cards to assuaging the pangs of unrequited love. While the Christian magical practices of the city’s criminal underworld were seemingly embraced by scores of Parisians, they were anathema to the Catholic hierarchy of Church and state. Without exception, even the simplest violated Catholic Reformation religious doctrine. Invocations known as oraisons, for example, constituted the mildest form of superstition, that of unnecessary or superfluous worship (Monter, 1983). Oraisons usually contained a linguistic hodgepodge of Christian imagery and prayers as well as ‘‘debased’’ holy languages (Latin, Greek or Hebrew). To cure a toothache, read one seized by the Paris police, touch the painful tooth while repeating, ‘‘galbes galbat galdes galdat’’ three times during Mass. For protection from sword wounds (popular among male aristocrats in this age of almost constant warfare), said another, repeat six times each morning, ‘‘I arise in the name of Jesus Christ, who was crucified for me. Jesus, please bless me, Jesus please guide me, Jesus, please govern me well and guide me to eternal life. In the name of the Father, the Son, and the Holy Spirit’’ (Archives de la Bastille, 10,387). While this spell might appear to be perfectly licit, its appearance in several magical handbooks of the day suggests that its users were not drawing a clear distinction between religious and magical practices and were thus indulging in superstition. Even the invocations of fortune-tellers (the visiting of who constituted vain observance) misappropriated Holy Scripture and prayer. Water diviners allegedly called up visions of the future in a bowl of water by chanting: ‘‘Alpha, Agla, Ley, in the name of the clavicule of Solomon and the book that God presented to Moses, and you Alpha, and you Agla, and you Ley, I command you on the part of the great living God, who created the heavens and the earth and the four elements, the Holy Spirit, the sainted Trinity of Paradise, that you appear’’ (Ravaisson, 1866–1904, Vol. 5, pp. 440–441). The word ‘‘AGLA’’ in this spell stands for the Hebrew phrase, ‘‘Ata Gibor Leolam Adonai,’’ or, ‘‘Thou art mighty forever, lord’’ (Kieckhefer, 1989).
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The most popular magical items for sale in the city were those that promised to assuage the pangs of unrequited love. Almost all entailed the misuse of the holy; magical practitioners exploited the common belief that holy things granted special powers over the passions of others and employed consecrated items in love magic (Ruggerio, 1993). Crucifixes, holy water, chalices – all were appropriated by the city’s sorceresses.8 The sorceress La Voisin, for example, sold holy oil to lovelorn clients; the women were told that if they rubbed it onto their lips, any man they kissed would fall hopelessly in love. The magician Lesage reportedly went so far as to assure his clients that his love potions (concocted of holy water, salt, sulfur, and incense) were particularly effective because he mixed up his recipes in the shadow of a crucifix containing a fragment of the true cross of Jerusalem (Ravaisson, 1866–1904, Vol. 6, p. 19). Rituals of love magic that co-opted the sacramentals of the Catholic Church compounded vain observance with superfluous practice, the ‘‘useless or ridiculous ceremonies not instituted by God or Church’’ referred to by Thiers (Monter, 1983). For a considerable fee, the sorceress La Voisin and her partner could be hired to conduct a ceremony during which she lit candles that had been burned during a Mass, intoned Latin prayers to the Trinity, and then inscribed the names of the would-be lovers in wax before throwing them into an open flame to be literally and figuratively melded together (Ravaisson, 1866–1904 Vol. 5, p. 377). Paris’s magical underworld made particular use of even the most sacred property of the Church: consecrated hosts. In doing so, they committed the most serious type of sacrilege, treason against God (Muchembled, 1993). The Eucharist, considered by Catholics to be the actual flesh and blood of Christ, was far more valuable to magicians than holy water or holy oil, for a consecrated host was considered to possess the most powerful of miraculous properties that could be redirected for illicit use. Hosts were even put to use in rituals of necromancy, when the power of the central mystery of the mass was used to compel powerful demons to obey the necromancer who had summoned them (Ravaisson, 1866–1904, Vol. 6, p. 385) Necromancy had long been condemned by the Catholic Church as idolatrous; the use of hosts in demonic ceremonies compounded an already mortal sin. Hosts had long been used in myriad spells and ceremonies, as Thiers’ Traite´ des superstitions attests. Well into the 17th century, for example, shepherds were regularly and severely condemned by the parlement of Rouen for stealing hosts to feed to their flocks in the belief that this would protect the sheep from wolves and disease, and for obtaining hosts to use ‘‘with certain words in order to seduce girls’’9 (Monter, 1997, p. 531). During the Affair of the Poisons, the abbe´ Guibourg confessed that he had often employed hosts to
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such amatory ends in the sacrilegious rituals he performed for his clients. On an unconsecrated host, he wrote the name of his client and that of the person his client wished to have fall in love with her. The renegade cleric then celebrated mass with the inscribed host, carefully placing it under a clean wafer to hide it from view. He elevated both hosts during the mass, but consumed only the untouched one. Guibourg returned the newly consecrated host to his client and told her to grind it into fine powder and mix it into her beloved’s food10 (Ravaisson, 1866–1904 Vol. 6, p. 307) It was renegade clerics such as the abbe´ Guibourg who perpetuated the most pernicious transgressions of all during the Affair of the Poisons. Priests were in fact the linchpins of Paris’s magical underworld, for only they could channel the sacerdotal power that was believed necessary to the working of the most powerful forms of magic. It is here that we can speculate that the regular attendance at mass enjoined on the faithful had a consequence unanticipated by the council of Trent. It did enable an increasing number of Catholics to witness the weekly miracle performed by the priest as he elevated the host, transforming a simple wafer into the body and blood of Christ. Parishioners correctly understood that priests could perform this sacrament because they had been consecrated by the Church and thus possessed a unique access to the divine. However, the investigation into the Affair revealed that many Catholics continued to believe that the sacerdotal power that allowed priests to perform the miracle of the mass could be diverted to other uses. As had their medieval counterparts, many in the 17th-century believed that if a priest merely recited part of the liturgy over the head of a supplicant, that person’s petition to Heaven would be granted (Ravaisson, 1866–1904, Vol. 6, p. 374). Parisians accordingly paid renegade clerics to celebrate mass over amulets or charms to render the magical item still more powerful. One abbe´ confessed, for example, that he had said masses over a charm for winning at dice, the dice themselves, the rope with which a man had been hanged, a love potion concocted out of flour, menstrual blood and sperm, and a scrap of paper that when ground to powder and sprinkled over someone, would cause that person to fall passionately in love and ‘‘do all that the other wants’’ (Ravaisson, 1866–1904, Vol. 6, p. 247) The investigation into the Affair of the Poisons revealed that the city’s renegade clerics had moved far beyond consecrating charms for the lovelorn. Several clerics arrested during the Affair of the Poisons confessed that they had developed a uniquely sacrilegious ceremony of demonic love magic that took the crime of ‘‘treason against God’’ to previously unimagined heights. The amatory mass allegedly lured forth demons for the purpose of establishing control over another’s ‘‘heart, mind and will.’’11 (BN MS fr.
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7608 ff. 214–224) The steps of this mass mirrored those of its licit counterpart.12 It required that the priest be robed in his vestments and use Church paraphernalia: altar, chalice, and pyx to hold the consecrated hosts. Like an orthodox mass, the amatory version required a witness to say the responses. Unlike an ordinary mass, it also required candles made of ‘‘new yellow wax and the fat of a hanged man,’’ a mattress, and a newborn baby (Ravaisson, 1866–1904, Vol. 6, pp. 232, 332). The abbe´ Guibourg, arrested in 1679, described to his interrogators an amatory mass that he claimed to have celebrated over the ventre of a living woman. (Ventre translates as ‘‘stomach,’’ but in the 17th century was used as a polite term for female genitals, (Klairmont-Lingo, 1999).) The sorceress La Voisin commissioned the mass for a client of hers suffering from unrequited love. The woman was directed to stretch naked on the mattress that had been placed over the altar and place her head on a pillow held by an overturned chair. A napkin was spread over her stomach, a cross set upon it and the chalice positioned on her belly. Once everything was in place, the abbe´ declared, he approached the altar, robed in his alb, stole, and chasuble. He took a sheet of virgin parchment, upon which the client had written her wishes, and placed it under the chalice.13 He then said mass ‘‘in the ordinary way, as one is accustomed to hear it’’ but added a crucial change – he read aloud his client’s wishes from the virgin parchment as he elevated the host (Ravaisson, 1866–1904, Vol. 6, p. 300). These wishes were addressed to the demons that were to be enticed into the ritual by the blood of a sacrificed infant. The abbe´ stated that he took ‘‘the infant’s body, opened the heart to draw out the curdled blood within it’’ and ‘‘put it in a vase prepared for that effect,’’ to which he also added ‘‘pieces of the consecrated host, and this was taken away by the woman on whose stomach he had said the mass’’ to be used as a love philter14 (Ravaisson, 1866–1904, Vol.6, p. 372). The sacrileges the renegade priests carried to such novel extremes were probably never so acutely seditious as in the decade of the 1670s, the chronological center of the Catholic Reformation in France. Protestantism was intellectually decadent and well on its way to legal extinction in France, and the only viable religiously subversive alternative to Reformation Catholicism was Jansenism. Within this context, Louis XIV and his judges took very seriously the physical probability of the travestied masses and as well as the other magical rituals. Like a majority of devout, orthodox Catholics of the period, they were genuinely shocked by the revelations of the renegade priests’ sacrileges. In catering to the illicit desires of their clients, the clerics confessed they had undermined the tenets of the Catholic Church in ways previously undreamt of. Their amatory masses presented a
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challenge to Catholic orthodoxy, completely devoid of theological content, yet alarmingly attractive to a wide – and ostensibly devout – audience that included a number of Louis XIV’s own courtiers. Such subversion was understood to endanger the very core of French religious values. In so doing, those magical practices threatened the state that relied upon the teachings of the Catholic Church to maintain order. The determination of Louis XIV and his magistrates to enforce religious orthodoxy and ensure social order was made manifest in the state’s rituals of justice. The French criminal code reflected a hierarchical conception of punishment in which the level of the criminal’s suffering was to correspond to the gravity of the offence. Sentences were carefully calibrated to communicate the state’s disapprobation to the crowds who gathered to watch the edifying spectacles enacted in the place de Gre`ve (Garland, 1991; Barnes, 1994). Petty thieves were branded and whipped, incorrigible blasphemers had their tongues pierced by hot irons, and parricides’ right hands were severed before execution (Andrews, 1994). Formal shaming ceremonies exacerbated physical suffering; the public and abject apology, or amende honorable, was meant to dishonor the prisoner as he begged remission for his sins (Farr, 2003). The trial papers of those whose offenses were deemed particularly reprehensible (such as sodomy, blasphemy, or lese majesty) might also be ritually burned on the scaffold, symbolically expunging even the memory of their crimes (Soman, 1989). The punishments of those convicted can thus be read as evidence of the weight accorded their transgressions. At no point during the Affair of the Poisons was a member of the criminal magical underworld condemned solely for malefices (evil spells) or necromancy. The sternest measures of old regime justice were instead meted out to the sorceresses and magicians whose charms and ceremonies polluted the sacramentals of the Catholic Church.15 Even those convicted of using poison, a crime e´norme (the category that included the gravest of crimes), received lesser penalties. Poisoners were sentenced to perform public apologies before they were hung in the public square. (Hanging, prescribed for the majority of those who committed capital crimes, was envisioned as the least painful method of execution) Although the members of the magical underworld were most often sentenced for multiple offences, the crime of sacrilege was the key exacerbating factor for the judges of the Chambre de l’Arsenal. Those convicted of sacrilege, or sacrilege in conjunction with another offence, were forced to perform public apologies before the doors of Notre Dame and then hung before their bodies were burned (Archives de la Pre´fecture de Police, AA-4).16 Those convicted of treason against God,
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the most malignant form of sacrilege, received the harshest and rarest of sentences. They were condemned to perform public apologies and then burned alive at the stake. The French criminal code reserved burning alive for the perpetrators of the most atrocious crimes. Such was the price paid by at least two of the renegade priests of the Affair of the Poisons for their flamboyant sacrileges. Dressed only in a shirt with the hangman’s rope dangling around his neck, holding a heavy candle of white wax, each was forced to beseech the forgiveness of God, the king, and justice for his actions in a public apology performed before the cathedral of Notre Dame. The priests were then conducted through the city streets to the place de Gre`ve, where they were burned alive in a pyramid of kindling stacked so high that only their heads could be seen. Old regime law envisioned a pedagogic function for its exemplary punishments; the expression of the state’s abhorrence for those who ‘‘insulted God’’ could not be overlooked by the crowd who witnessed the convicts’ ashes being cast to the wind. But what of the punishments meted out to the clients of Paris’s sorceresses and magicians? The extant sentences of the Chambre de l’Arsenal suggest that the judges considered them to be credulous rather than criminal. When clients were arrested (and the vast majority were not) they were likely to be dismissed with a warning about patronizing the city’s sorceresses. However, a battle for his subjects’ ‘‘hearts and minds’’ was waged outside Louis XIV’s judicial theater. It seemed to the king and his magistrates that the thousands of Parisians who kept the city’s fortune-tellers, palm-readers and the like in business were in need of a lesson illustrating the true nature of such magical chicanery. To that end, the police lieutenant La Reynie encouraged two prominent playwrights to put on a work that would encourage the Parisian public to view the so-called sorceresses in the proper light (Funck-Bretano, 1977). A tremendous spectacle, La Devineresse opened in November 1679 (Lebigre, 1989). The play ridiculed the credulous clients of two unscrupulous con artists making their fortune by posing as a sorceress and a magician. Although the Affair of the Poisons was never alluded to explicitly, it was clear to all that the play depicted people like the sorceress La Voisin, her partner, and their foolish clients. Like those of La Voisin, the clients of the fictional sorceress sought spells that would protect them in battle, charms for larger breasts and younger-looking skin and the opportunity to converse with the devil. La Reynie must have been heartened by the results of his attempt to encourage Paris to laugh at the ‘‘so-called sorceresses,’’ as the play sold out for an unprecedented five months, the longest run ever recorded at the time (Yarrow, 1971).
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Louis XIV closed the three-year investigation into the Affair of the Poisons in 1682. (The investigation had not yet run its course, but there was no other way to prevent the sacrilegious magical activities of his official mistress from becoming public knowledge.) The judges of the Chambre de l’Arsenal were returned to their regular duties at the parlement. To ensure that criminals of such magnitude never again corrupted the peace and order of the kingdom, the king issued a royal edict against ‘‘fortunetellers, magicians and enchanters.’’ The edict’s rhetoric echoed that of the Gallican Church’s crusade against superstition. ‘‘All practices and acts of magic or superstitions,’’ it read, ‘‘either profaning the text of Holy Writ or the Liturgy, or saying or doing things which cannot be explained naturally’’ were prohibited. While the edict officially decriminalized witchcraft in France, the practice of magic remained very much a crime – a crime of fraud, of superstition, and of sacrilege. Counterintuitively, the denial of the reality of witchcraft did not lead to greater leniency but greater harshness in punishment; ‘‘so-called sorcery’’ might be fraudulent, but it still posed a grave danger to the ‘‘right order’’ of the kingdom. Therefore, the Sun King promised corporal punishment for any ‘‘evil-minded persons’’ who ‘‘augment and compound superstition with impiety and sacrilege, under pretext of working so-called acts of magic or other deceptions.’’ Such criminals were ‘‘condemned by divine and human law,’’ not because they dabbled in the supernatural – for that was declared to be impossible – but because they debased religion itself: ‘‘They infect and corrupt the will of our people andyprofane all that religion holds most sacred’’ (BN MS fr 21,730 f. 115). Louis XIV and his ministers, concurring with the fiery sermons of Bishop Bossuet, identified the ‘‘so-called sorcery’’ as an abomination before God (Riley, 2003). The edict of 1682, however, was intended to accomplish more than contain the superstitious magical practices so popular in the capital. Like the play La Devineresse, it also sought to extirpate belief in the efficacy of the magic that those sorceresses offered for sale. The government declared all magical practices to be false and identified its practitioners as nothing but ‘‘so-called magicians.’’ According to the Crown, sorceresses and the like could not perform feats of magic, but merely commit sacrilege and fraud as they bilked their superstitious clients. France could only be safe from such miscreants if Louis XIV’s subjects embraced the practices and teachings of the Catholic Church, as their king had recently resolved to do.17 The royal edict that in the next century would appear to reflect as an enlightened dismissal of witchcraft as ‘‘mere superstition’’ was entirely characteristic of Louis XIV’s attempt to legislate a new moral order. Like contemporaneous royal edicts that forbid blasphemy, proscribed impiety, and demanded
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religious uniformity, it was policed by agents whose mandate to maintain public order did not distinguish between religious and criminal transgressions. The investigation into the Affair of the Poisons thus allowed the French crown to establish a greater control over both the souls – and the bodies – of its subjects.
NOTES 1. Many of the records concerning the Affair of the Poisons have been published in Franc- ois Ravaisson, ed., Les Archives de la Bastille: Documents ine´dits (Paris: A. Durand et Pedone–Lauriel, 1866–1904), Vols 4–7. The majority of the unpublished records are found in the Bibliothe`que National MS franc- ais (hereafter BN MS fr.) 7608, the Archives de la Pre´fecture de Police (hereafter APP) AA-4, and the Bibliothe`que de l’Arsenal, Archives de la Bastille (hereafter AB) MS 10,338–359. 2. Seventy-four percent of those executed for the crime of poison during the Affair were women, lending credence to 17th-century stereotype that poison was a crime committed predominantly, if not exclusively, by women. 3. La Reynie and Claude Bezin de Bezons were made rappoteurs charge´s de l’ instruction. As rappoteurs, La Reynie and Bezons directed the investigation and submitted detailed reports to the judges of the Chamber. Their recommendations served as the basis of the judges’ rulings. 4. Louis XIV appointed M. Robert as the procureur ge´ne´ral of the commission and Ms de Boucherat, Breteuil, Bezons, Voisin, Fieubet, Pelletier, Pommereuil, and d’Argouges to serve as conseillers d’Etat. He named Ms Fortia, Turgot and d’Ormesson as well as La Reynie maıˆtres des requeˆtes. The king also appointed two doctors and two apothecaries to examine any physical evidence and furnish medical and toxicological reports to the judges. (Ravaisson, Vol. 5, pp.237–238). 5. Under the criminal ordinance of 1670, torture could be applied either to elicit a confession before guilt was ascertained (the question pre´paratoire) or after a verdict of capital punishment had been reached, to discover the names of accomplices (the question pre´alable). Prisoners could be sentenced to ‘‘ordinary’’ torture (la question ordinaire) or the more intense ‘‘extraordinary’’ torture (la question extraordinare). During the Affair of the Poisons, French authorities employed two methods: the boot and the water torture. In the first, the prisoner’s feet and legs were placed in a wooden mold and ‘‘coins’’ or wedges (four for the ordinary, four more for the extraordinary) were driven into the sides of the boot, causing the mold to tighten and crush the prisoner’s bones. In the second, the prisoner was stretched naked over a short stool placed in the small of the back, hands and feet tied and pulled in opposite directions. He or she was then forced to swallow four coquemards (a coquemard measured roughly three pints) of water, distending the stomach almost to bursting and nearly drowning the prisoner. For the extraordinary, the prisoner was bent backwards over an even higher stool, causing greater distention of the stomach, and forced to drink four more jugs of water. See Lisa Silverman (2001) for an explication of the uses of judicial torture during this time period.
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6. While the Gallican Church never formally accepted the decrees of the Council of Trent, it did adhere to the spirit of the reform that they put forward (see James R. Farr, 1995, p. 53). 7. As Philip Riley points out, two popular 17th-century dictionaries explicitly linked sin and crime. In Le dictionnaire universel d’Antoine Furetie`re of 1690, crime is defined as ‘‘An action against natural or civil lawythere is no crime that will not be punished in this world or the next.’’ Pierre Richelet, Dictionnaire franc- aise of 1680 asserted that crime ‘‘signifies a fault meriting punishment. Enormous fault. Sin.’’ (Philip K. Riley, 1990, p. 40, f. 21). 8. Euan Cameron suggests that the insistence of Catholic Reformation theologians in the power of holy things (such as holy water, holy herbs, or making the sign of the cross) and holy rituals (such as exorcism) must have ‘‘reinforced, rather than diminished, popular belief in the power of words and rituals to heal all ills.’’ (Cameron, 1998, p. 185). 9. See also Robert Mandrou, 1968, pp. 507–511 for cases in which equally severe sentences were handed down in 1687, 1692, and 1703. 10. See variations on this use of consecrated hosts in Ravaisson, 6:307, 408, and 468. On other cases involving consecrated hosts, see Lanette (1984). 11. For descriptions of other amatory masses, see the notes taken by La Reynie during the interrogations of the abbe´ Guibourg, BN MS fr. 7608 ff. 214–224 and 231–238. See also Ravaisson, Vol. 6, pp. 332–333 and 369–374. 12. The amatory masses allegedly celebrated during the Affair of the Poisons were related to black masses but nonetheless differed from the true black mass in significant ways. The black mass is a form of Satan-worship; the ceremony parodies the licit mass and is intended to culminate in the appearance of the devil in either human or bestial form. These renegade priests, however, followed the framework of the orthodox mass, intending not to parody it but to harness its miraculous powers. On the black mass, see Butler (1998). 13. Virgin parchment, according to contemporary magical treatises, was manufactured from the skin of a stillborn baby or the caul of a newborn (Cohen & Cohen, 1993). 14. Projet d’un rapport de M. de la Reynie au Roi, undated. Ravaisson (Vol. 6, p. 372). Allegations of the ritual sacrifice of infants have a history as old as Christianity itself. Over the course of the centuries, the accusation has been leveled against early Christians and medieval Jews as well as early modern witches. See, for example, Hsia (1988), N. Cohn (1977) Europe’s Inner Demons: An Enquiry into the Great Witch Hunt London 1–59 and C. Ginzburg (1990). Ecstasies: Deciphering the Witches’ Sabbath (New York) for detailed examinations of the persistent myth of ritual murder in European history. However, it is possible that the priests who described these amatory masses may not have only been adding lurid details to spice up their confessions. The infants sacrificed at the masses may well have been aborted fetuses or prematurely born infants provided by the abortionists and midwives of the criminal magical underworld. Statements from those who witnessed the ceremonies corroborate this idea. The daughter of La Voisin, for example, described the infant that she saw sacrificed at an amatory mass allegedly celebrated for Louis XIV’s mistress as ‘‘born before term.’’ She also attested that she had seen a priest concoct a love potion with pieces of the body of an infant aborted by La Lepe`re. (BN MS fr. 7608 f. 249).
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Certainly the logic of such a ritual is in keeping with the extensive range of charms and ceremonies of reproductive magic available in 17th-century Paris. 15. Impiety and profaning holy objects earned stiff penalties, of heavy fines and 9 years’ banishment. 16. The convictions listed above total as follows: poison, 11; selling poison, 4; knowing of the use of poison, 3; poison, impiety, and profaning the holy, 2; poison, abortion, seductions, impiety, and profaning the holy, 1; poison, evil spells, and impiety, 1; sacrilege, impiety and profaning holy objects, 8; sacrilege, impiety, and evil spells, 2; evil spells and impiety, 3; conjurations and poison, 1; le`se-majeste´ divine, 3; le`se-majeste´, 3; knowing of le`se-majeste´, 3. APP AA-4. 17. Observers remarked that Louis became increasingly devout following the Affair of the Poisons. The Archbishop of Sens attested, ‘‘The slow and hesitant change in the King’s attitude and behavior became more clearly markedy. He grew less secretive about his newly–found virtuousness and no longer fearedyto replace the amorous intrigues which had amused him hitherto with the sincere practice of religion.’’ Quoted in Ziegler (1966).
ACKNOWLEDGMENTS I owe a great debt of gratitude to the members of the 2004 NEH Summer Seminar, ‘‘Punishment, Politics, and Culture’’ for the invaluable and creative suggestions they offered while this project was underway. I would also like to thank the journal’s anonymous reviewers for their insightful critiques. Preliminary versions of this article were presented at the 2004 Annual Meeting of the American Historical Association and the Annual Meeting of the Association for Law, Culture, and the Humanities held in March 2005.
REFERENCES Primary Archives de la Pre´fecture de Police AA-4. Bibliothe`que de l’Arsenal, Archives de la Bastille MS 10,338–359. Bibliothe`que Nationale Manuscrits Franc- ais 7608. Corneille, T., & Donneau de Vise´, J. (1971). In: P. J. Yarrow (Ed.), La Devineresse. Exeter: University of New Hampshire Press. Montaigne, M. de. (1991). The complete essays. In: M. A. Screech (Ed., Trans.), New York: Penguin Books. Ravaisson, F. (1866–1904). Archives de la Bastille: Documents ine´dits. Paris: A. Durand et Pedone-Lauriel. Se´vigne´, M. de. (1972). In: R. Ducheˆne (Ed.), Correspondance. Paris: Gallimard.
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Secondary Andrews, R. M. (1994). Law, magistracy, and crime in old regime Paris 1735–1789. Cambridge: Cambridge University Press. Bossy, J. (1970). The counter-reformation and the people of Catholic Europe. Past and Present, 47, 51–70. Bossy, J. (1985a). Christianity in the West 1400–1700. Oxford: Oxford University Press. Bossy, J. (1985b). Moral arithmetic: Seven sins into Ten Commandments. In: E. Leites (Ed.), Conscience and casuistry in early modern Europe. Cambridge: Cambridge University Press. Boulanger, M. (2000). Justice et Absolutisme: La Grande Ordinance Criminelle d’Aouˆt 1670. Revue d’Histoire Moderne et Contemporaine, 47, 7–36. Briggs, R. (1989). Communities of belief: Cultural and social tension in early modern France. Oxford: Oxford University Press. Butler, E. M. (1998). Ritual magic. London: Sutton Publishing Ltd. Cameron, E. (1998). For reasoned faith or embattled creed?: Religion for the people in early modern Europe. Transactions of the Royal Historical Society, 8, 165–187. Clark, S. (1997). Thinking with demons: The idea of witchcraft in early modern Europe. Oxford: Oxford University Press. Cohen, T. V., & Cohen, E. S. (1993). Words and deeds in renaissance Rome: Trials before the papal magistrates. Toronto: University of Toronto Press. Cohn, N. (1977). Europe’s inner demons: An enquiry into the great witch hunt. New York: Meridian Press. Delumeau, J. (1977). Catholicism between Luther and Voltaire: A new View of the counterreformation. Philadelphia: Burns and Oates. Farr, J. R. (1995). Authority and sexuality in early modern Burgundy (1550–1730). New York: Oxford University Press. Farr, J. R. (2003). Death of a judge: Performance, honor, and legitimacy in 17th-century France. Journal of Modern History, 75, 1–22. Funck-Bretano, F. (1977). Le Drame des Poisons. Paris: J. Tallandier. Garland, D. (1991). Punishment and culture: The symbolic dimensions of criminal justice. Studes in Law, Politics, and Society, 11, 191–222. Garnot, B. (1990). La Le´gislation et la Re´pression des Crimes Dans la France Moderne, XVIe-XVIIIe sie`cles. Revue Historique, 293(1), 75–90. Ginzburg, C. (1990). Ecstacies: Deciphering the witches’ sabbath. New York: Penguin Books. Hsia, R. P. (1988). The myth of ritual murder: Jews and magic in reformation Germany. New Haven: Yale University Press. Kieckhefer, R. (1989). Magic in the middle ages. Cambridge: Cambridge University Press. Klairmont-Lingo, A. (1999). The fate of popular terms for female anatomy in the age of print. French Historical Studies, 22(3), 335–349. Lanette, C. (1984). Les Practiques Magiques dans la Valle´e de la Risle Sous Louis XIV: Enqueˆte et Re´pression Judiciaires. Actes du 107e Congre`s National des Socie´te´s Savantes, 1, 313–337. Lebigre, A. (1989). L’ affaire des poisons. Brussels: Editions Complexe. Levack, B. (2001). The decline and end of witchcraft prosecutions. In: B. Ankarloo & S. Clark (Eds), Witchcraft and magic in Europe: The eighteenth and nineteenth centuries. Philadelphia: University of Pennsylvania Press. Mandrou, R. (1968). Magistrats et sorciers en France au XVIIe sie`cle: Une Analyze de Psychologie Historique. Paris: Librarie Plon.
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Mongre´dien, G. (1953). Madame de Montespan et l’Affaire des Poisons. Paris: Hachette. Monter, E. W. (1983). Ritual, myth, and magic in early modern Europe. Brighton: Harvester Press. Monter, E. W. (1997). Toads and eucharists: The male witches of Normandy. French Historical Studies, 20(4), 563–595. Muchembled, R. (1993). Le roi et la Sorcie`re: l’Europe des Buˆchers, XVe–XVIIIe sie`cles. Paris: Descle´e. Nass, L. (1898). Les Empoisonnements sous Louis XIV. Paris: Carre´ et Naud. Petitfils, J. C. (1977). L’Affaire des Poisons: Alchimistes et Sorciers sous Louis XIV. Paris: Albin Michel. Ranum, O. (1979). Paris in the age of absolutism. Bloomington, In: Indiana University Press. Riley, P. K. (1990). Michel Foucault, lust, women, and sin in Louis XIV’s Paris. Church History, 59, 35–50. Riley, P. K. (2003). A lust for virtue: Louis XIV’s attack on sin in seventeenth-century France. Westport, CT: Greenwood Press. Ruggerio, G. (1993). Binding passions: Tales of magic, marriage and power at the end of the renaissance. Oxford: Oxford University Press. Silverman, L. (2001). Tortured subjects: Pain, truth and the body in early modern France. Chicago: University of Chicago Press. Soman, A. (1989). Decriminalizing witchcraft: Does the French experience furnish a European model? Criminal Justice History, 10, 1–30. Soman, A. (1992). Sorcellerie et Justice Criminelle: Le Parlement de Paris (16e–18e sie`cles). London: Ashgate. Tallon, A. (1990). La Compagnie du Saint-Sacrement (1629–1667): Spiritualite´ et Socie´te´. Paris: Les Editions du Cerf. Ziegler, G. (1966). At the court of Versailles. New York: Dutton.
‘‘THE LAW AGAIN. THE PRECIOUS LAW:’’ BLACK WOMEN RADICALS AND THE FIGHT TO END LEGAL LYNCHING, 1949–1955 Dayo F. Gore ABSTRACT This article examines the early post-World War II civil rights organizing of black women radicals affiliated with the organized left. It details the work of these women in such organizations as the Civil Rights Congress and Freedom newspaper as they fought to challenge the unjust conviction and sentencing of black defendants caught in the racial machinations of U.S. local and state criminal justice systems. These campaigns against what was provocatively called ‘‘legal lynching’’ formed a cornerstone of African American civil rights activism in the early postwar years. In centering the civil rights politics and organizing of these black women radicals, a more detailed picture emerges of the Communist Partysupported anti-legal lynching campaigns. Such a perspective moves beyond a view of civil rights legal activism as solely the work of lawyers, to examining the ways committed activists within the U.S. left, helped to build this legal activism and sustain an important left base in the U.S. during the Cold War.
Crime and Punishment: Perspectives from the Humanities Studies in Law, Politics, and Society, Volume 37, 53–83 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)37003-7
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DAYO F. GORE The law again. The precious law. The law has got Mrs. Ingram, all right. The same old law that killed Willie McGee. Yvonne Gregory (1951)
The National Association for the Advancement of Colored People’s (NAACP) court-based activism has served as an important narrative in detailing black resistance and the emerging civil rights movement of the post-World War II era. The story of the NAACP’s civil rights legal activism during this period often emphasizes the strategies of trained lawyers, carefully selected test cases, orderly protest and ‘‘innocent’’ victims – with their innocence defined by their image as upstanding, hardworking and mostly law-abiding black citizens (McNeil, 1983; Tushnet, 1987; Kelley, 1993; Greenberg, 1994). But, placed within the context of the long civil rights movement of the twentieth century, legal challenges to desegregation reflect only one strategy among many in which black activists engaged the U.S. legal system to push for equality and justice. In fact, when examining civil rights legal activism in the early postwar years, the most common and attention grabbing strategies did not involve civil suits and test cases, but advocacy and protest campaigns for black defendants caught in the racial machinations of U.S. local and state criminal justice systems that were provocatively framed as ‘‘legal lynchings’’ (Tushnet, 1987; Meier & Bracey, 1993, p. 8). Both the NAACP and the Civil Rights Congress (CRC), supported by the Communist party USA (CP), emerged as leading organizations in advocating for black defendants during the 1940s and 1950s. Each organization represented seemingly opposing legal strategies and developed an often tense, and at times openly hostile, relationship (Cox, 1951; Record, 1964; Niason, 1985; Goodman, 1994; Ransby, 2003). Considerable scholarly work has examined aspects of criminal defense civil rights legal activism, highlighting cases in which black defendants were unjustly convicted and harshly punished (Martin, 1985; Lawson, Colburn & Paulson, 1986; Cortner, 1986; Wright, 1990; Rise, 1992; Goodman, 1994). Yet, as historian Charles H. Martin (1987, p. 25) points out, the success of the NAACP legal strategies and absences produced by anticommunist politics, have led most scholars to overlook the work of ‘‘left-wing legal defense organization[s]’’ that ‘‘served as an alterative to the NAACP in the late 1940s and early 1950s.’’ Since the publication of Martin’s work on the CRC in 1987, scholars have worked to include the behind-the-scenes legal maneuvers and conflicts that emerged over competing political ideologies and strategies in legal lynching cases. However, in explaining the activism of the CRC and other left
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organizations, scholars still tend to concentrate on their conflicts with the NAACP and provide few details about the organizations on-the-ground work (Record, 1964; Shadron, 1991; Rise, 1995). This tendency often provides only a cursory understanding of left-leaning organizations and frequently relies on oft-repeated stereotypes of communist activism, which at best paints them as politically irrelevant and at worst, as opportunists. In addition, these efforts reinforce the image that the CP-influenced strategy of combining legal defense with mass protest always ‘‘engendered a reactionary fear of radicalism’’ and adversely affected black defendants (Rise, 1992, p. 474). Not only does this limited interpretation shortchange our historical understanding of postwar legal defense efforts and mass organizing, it also erases the contributions of a left pole of organizations and individuals, whose work posed powerful critiques to liberal ideals of ‘‘the precious law.’’ In particular, we lose sight of a dynamic group of black women radicals,1 including such figures as Lorraine Hansberry, Beulah Richardson, Yvonne Gregory and Maude Katz White, who organized around African American civil rights during the 1940s and early 1950s and whose political vision and strategies would resonate in future legal defense cases (Martin, 1987; Horne, 1988). This article traces the work of these women who lent their time and energy to free unjustly convicted black defendants. It highlights their strategies in advocating for black defendants, the ways such strategies infused with their own political visions and shaped the broader spectrum of civil rights activism. Through paid and unpaid work, these black women radicals (with the support of other progressive activists) led the charge in articulating a radical civil rights politics that connected the mistreatment of African Americans within the U.S. legal system, to the daily economic and social injustices black people encountered because of the U.S. government’s investment in a system of white supremacy. In addition, women radicals also tied in an explicit discussion of the politics of sexual racism2 that often undergirded these cases and brought to the fore black women’s experiences with the U.S. legal system. Such political tactics helped to illustrate to the world that the U.S. legal system, particularly in the South – with its unfair and harsh treatment of black defendants – simply served as a more acceptable, but often just as deadly form of lynching (Martin, 1985; Royster, 1997). In centering the civil rights politics and organizing of these black women radicals, a more detailed picture of the CP-supported CRC and Freedom newspaper emerges, specifically around their anti-legal lynching campaigns for Willie McGee, the Martinsville Seven and Rosa Lee Ingram cases.
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Such a perspective moves beyond a view of civil rights legal activism as solely the work of lawyers and those deemed as leaders, to examining the ways committed by activists, particularly black women within the U.S. left, helped to build these efforts and sustain an important left base in the U.S. during the Cold War. In addition, it provides a more complete picture of the dynamics shaping CP and NAACP interactions, as well as the possibilities and limits of radical civil rights politics.
POSTWAR POLITICS AND THE EMERGENCE OF BLACK WOMEN’S LEADERSHIP In many ways, the postwar period reflected a unique moment in civil rights legal activism and black women’s visibility. By the end of World War II, with the continued strength of the March on Washington Movement, the issuance of President Roosevelt’s Executive Order #8802 banning racial discrimination in all federal jobs and continued calls from African Americans to tie the victory over fascism abroad to the defeat of Jim Crow at home, the state of black citizenship and equality became central issues in national and international politics (Dudziak, 2000; Singh, 2004). Unfortunately, the idea of building a racial democracy in the United States soon became a taboo subject. By 1947, the United States government increasingly promoted the nation as the symbol and purveyor of democracy. As this imperialist vision took center stage, it brought to bear a growing national emphasis on cultural conformity and the narrowing of America’s political spectrum (May, 1988; Corber, 1993; Singh, 1998). Postwar rhetoric, under the guise of shoring up the nation, championed a ‘‘return’’ to an idealized construction of the (white) woman as homemaker and a redefining of racism, which ignored its history of economic and political oppression. Therefore, although mainstream political rhetoric centered on questions of race and gender, particularly in relation to citizenship and U.S. democracy, the U.S. government fought to contain these discourses within a manageable framework. In regards to this shift in racial discourse Mary Dudziak (2002, p. 13) writes: The primacy of anticommunism in postwar American politics and culture left a very narrow space for criticism of the status quo. The narrow boundaries of Cold War-era civil rights politics kept discussions of broad-based social change, or a linking of race and class, off the agenda.
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Such efforts had a particularly isolating effect on African American civil rights activists, especially those within the black left who emphasized connections between national and international politics (e.g. Jim Crow and colonialism/fascism, and U.S. racism), as well as economic exploitation and structural inequalities (Horne, 1986; Von Eschen, 1996). Even with these limitations, civil rights activists found within mainstream discussions of equality, freedom and emerging debates about race and gender, useful tools for creating fractures within a narrowing political and social landscape (Meyerowitz, 1994). As dominant (and left) politics more explicitly addressed gender and racial issues, many activists, particularly African American and women radicals, were able to exploit these openings (Horne, 1986; Weigand, 2001). Such emphasis placed black women in an unique position to speak to both issues. Thus, as the nation increasingly focused on an idealized image of the nuclear family and women as ‘‘homemakers,’’ black women radicals sought to use these discussions to address the realities of black mothers, daughters and wives who lost their sons, brothers and husbands, and sometimes their own freedom, to racial violence and legal lynching. In sometimes troubling ways, the CP responded to the shifting political landscape by seeking to increase the role of African Americans and women in the movement. In particular, taking note of the perspectives articulated by black women activists – and feeling pressure from black women themselves – the party strove to address issues relevant to black women and promote black women’s leadership within the U.S. left (Jones 1948, 1949). Furthermore, because Cold War anticommunism successfully deterred more mainstream organizations from taking up civil rights politics and radical activism, black women activists interested in civil rights organizing were often drawn to left-leaning civil rights organizations that relied on support from the Communist party USA. In this way, many black women activists who might otherwise have found organizing support in more mainstream organizations were drawn into a leftist milieu. The increased leadership of black women in civil rights activism also reflected the growing crackdown on visible left leadership. Despite its revolutionary theories, the CP still relied on a structure of male leadership. Thus, when anticommunist attacks were launched against visible CP leadership, this usually meant men. Leading party luminary Ben Davis, activists James Jackson and William L. Patterson of the CRC, all black men at the forefront of the party’s civil rights work, faced harassment and federal prosecution during the late 1940s and early 1950s, leaving black women radicals, both longtime organizers and newly politicized activists, to fill the
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void. This is not to imply that black women radicals did not also come under attack. But overall, black women held less visible positions of leadership, and therefore did not face as intense direct investigation for their activism. It was within this context of political limitations and opportunities that black women radicals secured key positions within leading left organizations and became powerful political voices in the struggle against legal lynching.
DEFINING LEGAL LYNCHING Postwar activism challenging the systematic conviction and harsh sentencing of black defendants reflected the shifting terrain in the continued restriction of African American’s right to due process and equal protection under the law. In the early 1900s, African American-led anti-lynching crusades successfully publicized the racial violence of southern lynch mob justice and exposed the ‘‘threadbare lie’’ that lynching operated to punish black male rapists and to protect white womanhood (Royston, 1997; Hall, 1983). Pressured into a response, the U.S. government, while refusing to pass antilynching legislation, increasingly pushed for a reliance on the authority of state and local police and the criminal justice system to mete out punishment for real and imagined transgressions (Raper, 1933; Kaufman-Osborn, 2002). By the 1920s, this shift began to take hold as many liberals, opposing lynching and seeking to calm white citizens’ demands for swift justice, joined the call for reliance on the legal system to convict black criminals (Hall, 1993; Wright, 1990). One of the main arguments of the Association of Southern Women for the prevention of Lynching situated lynching as ‘‘a menace to private and public safety’’ and asserted that it ‘‘tends inevitably to destroy all respect for law and order.’’ In place of the barbarity of lynching, these white women advocated a reliance on ‘‘law and order’’ as a more humane and stabilizing alternative. Yet as one black critic noted, such a turn to ‘‘law and order’’ without addressing white supremacy could be read as ‘‘a cold-blooded proposal to regularize lynching under legal forms’’ (quoted in Hall, 1993, p. 197). In many ways, this increased emphasis on court justice for black defendants reflected some of the worst fears of black critics. As the state increasingly asserted responsibility for the policing and punishment of African Americans who transgressed social boundaries and rules, the force of white supremacy and racial discrimination became hidden within the working of the law. Local and state police forces, lawyers and judges regularly
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disregarded the civil rights of black defendants, employed coercive tactics and condoned blatant racism, to ensure the speedy conviction and harsh sentencing (often execution) of black defendants regardless of their innocence or the evidence. Furthermore, poll taxes, which demanded that voters pay a fee, and other jury restrictions in the Jim Crow South excluded African Americans and most poor whites from participation making trials by all-white male juries the norm, if not the law (Wright, 1990; Brundage, 1997). These legal alternatives to lynching did not mean an end to the extralegal lynching. In fact, legal lynching often relied on the coercive threats of mob violence and extralegal lynching to contain black communities, prejudice juries and limit resistance to legal injustices. The brutal murders on Christmas Day 1951 of activists Harry T. Moore and his wife Harriette V. Moore for their civil rights activism around a case in Groveland, Florida, attest to this (Lawson et al., 1986). Yet, the performance of ‘‘fair trials’’ allowed local politicians and law enforcement to valorize their commitment to ‘‘law and order’’ and deny charges of racial inequality in the legal system (Wright, 1990; Kaufman-Osborn, 2002).
THE SCOTTSBORO CASE: A PREWAR MODEL FOR POSTWAR PROTEST The 1931 campaign to halt the legal lynching of the so-called ‘‘Scottsboro Boys,’’ in Alabama, became one of the first organizing efforts to bring national and international attention to the discriminatory treatment of black defendants, particularly those accused of interracial rape in southern states. Led by the CP-backed International Labor Defense (ILD), the success of the Scottsboro campaign marked a political highpoint for the CP and set the bar for much of their future legal defense activism. Moreover, many of the organizing strategies, political analyses and organizational conflicts that emerged out of the Scottsboro case would resurface again in later campaigns (Horne, 1988; Goodman, 1994). The case involved nine young black men, ranging in age from 13 to 21, who while illegally riding the railroad through Alabama were arrested in Scottsboro. Initially arrested for fighting with a group of white youth, the charge was change to rape when it became clear that they had traveled in a boxcar with two white women. Although a mob of angry whites gathered as word of the accusations spread, local police forestalled a lynching by calling in the National Guard. Twelve
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days later, the nine defendants were all convicted and sentenced to execution (Naison, 1983; Goodman, 1994).3 The ILD responded by immediately sending representatives to Scottsboro to investigate, make contact with the defendants and their families and eventually offer their legal services. As legal representatives for all nine defendants, ILD lawyers appealed the verdict all the way to the U.S. Supreme Court and successfully gained new trials for all. The ILD, under the direction of a young William Patterson, proved savvy in its negotiation of the legal system when it hired Samuel Lebiowitz (a white non-affiliated New York lawyer) to handle the new trials, restrained local protest activities and appealed every violation of due process. Thus, these new trials marked the first in a series of trials, convictions and reversals that would keep the case in the courts for years to come. The ILD court activism coincided with an even more vigorous campaign of mass mobilization. Through national protest marches, letter writing campaigns and fundraising efforts the ILD raised the case of the Scottsboro boys to a cause ce´le`bre. ILD and mostly white CP activists worked closely with the family in these efforts, recruiting several of the defendants’ mothers for an international speaking tour and providing funds to the defendants to ease the harshness of imprisonment. These efforts proved successful in halting the execution of all nine defendants and forcing the state to drop charges against five of the defendants. The ILD’s early commitment to and continued investment in the Scottsboro case provided the CP with an unparalleled public platform from which to articulate its revolutionary analysis. It also proved a boon for the party’s work within the black community. The massive campaign drew closer to the party a number of black activists who would go on to be key leadership in postwar civil rights politics, including black women radicals Maude White, Claudia Jones, Louise Thompson (the future wife of William Patterson) and Esther Cooper. The ‘‘reds’’ outreach and work with black organizations and activists earned them a reputation as committed fighters for black equality (Bates, 1997; Naison, 1983; Horne, 1988; Kelley, 1990). While the ILD’s early efforts paid off in raising public awareness of the case and providing the CP with legitimacy with black communities throughout the nation, it also placed them into direct conflict with the NAACP. The NAACP’s distrust of CP-affiliated organizations was fueled by anticommunism and a belief that the party’s emphasis on publicity and mass protest were primarily to benefit their own political agendas and reap financial gains from the sensationalized cases. During the Scottsboro trials, Walter White and the NAACP leadership refused to work with the ILD and fought to supplant them as legal representations first by offering their own lawyers
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and then working to get the defendants to sign with famed Southern attorney Clarence Darrow. Walter White viewed the CP’s outspoken politics as ‘‘lunacy’’ in such a racially charged case. The NAACP publicly portrayed the CP as willing to risk the lives of black defendants in the name of revolutionary principles. They also argued that the CP’s strategies enraged southern authorities, fed the image of black civil rights as a communist plot and squashed any hopes of leniency for defendants (Goodman, 1994).4 From the perspective of the CP and other left-leaning organizations, the NAACP reflected a narrow vision of civil rights activism that dismissed the power of mass mobilizations, and was overly invested in a conservative legalistic approach to civil rights activism. They derided the NAACP for its commitment to reforming a legal system that was clearly broken and for what they viewed as the Association’s willingness to compromise on issues for political expedience and acceptance by the liberal mainstream (Cox, 1951; Goodman, 1994). Despite these tensions for most civil rights activists, and the left in particular, the mobilization around Scottsboro had revealed the political power African American-based civil rights struggles held in highlighting the hypocrisies of the U.S. legal system and drawing mass support from black communities and anti-racists whites. With these experiences, under their respective belts, both the CP and the NAACP carried the valuable lessons garnered from the Scottsboro campaign into their postwar civil rights activism.
SPACE TO DO THE WORK: THE CIVIL RIGHTS CONGRESS AND FREEDOM NEWSPAPER The CRC and Freedom newspaper emerged as two of the key spaces from which black women radicals carried out the fight against legal lynching during the early postwar years. Both organizations maintained national offices in New York City and strong connections to the CP. Formed as a multiracial coalition of leftist and progressive organizations, the CRC dedicated itself to defending the civil rights of all oppressed people, as it addressed black civil rights struggles and the growing attacks on CP members. In this effort, the Congress formed local chapters throughout the nation, including Los Angeles, New Orleans, Miami, Atlanta and Greensboro, NC. By 1948, with the new leadership of black Communist and lawyer William L. Patterson, the CRC became a major advocate for black people trapped in the U.S. criminal justice system.5 Freedom newspaper was founded under
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the leadership of Paul Robeson in 1950 during the height of anticommunist assaults on the U.S. left and Robeson’s own legal battles with the State Department. With an editorial board that included some of the leading figures in the black left such as Robeson, Shirley Graham, Louis Burnham and Alpheaus Hunton, the paper defined itself as a fierce advocate within black communities for ‘‘real liberation’’ and ‘‘cooperation with our true friends in labor and progressive social action’’ (‘‘Editorial,’’ 1950, p. 4). Both organizations exploited the prominence of their respective leaders to tap into bases of support within black communities and progressive forces internationally. Moreover, both organizations relied on the powerful skills and leadership of black women activists to carry out the work. In campaign organizing, strategizing and everyday tasks, an eclectic group of black women radicals, ranging from committed members of the CP to nonaffiliated civil rights activists, provided crucial political vision. The CRC depended on the work of staff members and party activists Haloise Moorehead Robinson and Maude White Katz, as well as numerous volunteers including renowned elder stateswoman Mary Church Terrell and Brooklyn-based activist Ada Jackson. Additionally, black women radicals were significant forces in sustaining important local chapters of the CRC. For example, Esther Cooper Jackson, a member of the CP and former organizer in the South, supplied a strong political voice and effective organizing skills to the Michigan chapter of the CRC, particularly around the Rosa Lee Ingram case and The Committee to Defend Negro Leadership (Pintzuk, 1997).6 The emergence of women’s leadership in the CRC did not come without struggle. William Patterson faced several pointed criticisms for his gender politics and was forced to negotiate black women activists’ increasing calls for independence from the CRC. Aubrey Grossman, a lawyer and organizational secretary, acknowledged the difficulties that CRC had in supporting women’s leadership, as he wondered, ‘‘how does it happen that women who have been the backbone of chapter leadership in many key chapters from the beginning have not been represented in the top national leadership’’ (Grossman, n.d.)? However, by 1952, increased anticommunist attacks and women’s demands for leadership would alter this lack of representation, particularly as black women activists developed independent committees to lead campaigns. Freedom newspaper included among its staff emerging black women writers Lorraine Hansberry and Alice Childress as well as emerging actress and poet Beulah Richardson (later known as Beah Richards). Its editorial board also included a number of black women radicals such as labor
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organizer Vicki Garvin, writer Yvonne Gregory and Shirley Graham, the new wife of W.E.B. DuBois. In addition, black women operating within this left sphere often moved fluidly between the two organizations. The women of Freedom often contributed time and energy to the CRC’s organizing around the cases they wrote about, while civil right activists such as Bessie Mitchell (the sister of one of the Trenton Six) carried bylines in the pages of Freedom. Yvonne Gregory, who – in addition to her staff position at Freedom – would in 1951 become the executive secretary of the CRC-affiliated Women’s Committee for Equal Justice (WCEJ) perhaps best exemplified this fluidity.7 With the contributions of these dynamic black women radicals, the CRC and Freedom newspaper provided vocal support and an alternative political message to many of the most significant civil rights criminal defense cases during the postwar years. These activists formed campaigns to stop the executions of black men unjustly convicted of raping white women, including Willie McGee in Mississippi and the men that made up the Martinsville Seven in Virginia, and provided unparalleled leadership in a decade long effort to reverse the imprisonment of Rosa Lee Ingram and her two sons in Georgia. They also mobilized around cases that the NAACP proved unable or unwilling to take-up such as the case of the Trenton Six, a group of black men falsely arrested and convicted for murder and robbery during a massive police hunt in Trenton, New Jersey (Dean, 1949). In taking on these cases, black leftists sought to challenge the daily injustices black people in the United States faced at the hands of white supremacy. Such politics moved beyond a traditional civil rights agenda. Black women radicals added their analysis of interconnected oppressions, which exposed the practice of sexual racism, framed civil rights within a broader social and economic justice politics and highlighted the importance of black women’s leadership in political work that often privileged masculinists visions of freedom. These insights helped to position the CRC and Freedom newspaper as crucial public spaces for discussions of civil rights activism and the intersections of race, gender and economic politics.
THE NEW SCOTTSBOROS: WILLIE MCGEE AND THE MARTINSVILLE SEVEN CASES The Willie McGee case became one the first CRC campaigns to draw widespread national and international attention. Despite the affiliation
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of communist organizers, the case emerged as one the most sensational campaigns against ‘‘legal lynching,’’ garnering support from a wide range of celebrities and personalities including black entertainer Josephine Baker and Albert Einstein. Willie McGee, a black truck driver, was arrested in 1945 for raping Willametta Hawkins, a white woman from Laurel, Mississippi. Accused, by Willametta and her husband, of entering their home and committing the rape while her husband slept in the next room, McGee confessed to the crime after days of torture. A lynch mob atmosphere surrounded the 1-day trial. Despite little evidence of rape and common knowledge within the community that Hawkins and Willie McGee knew each other (which contradicted Hawkins’ story and testimony), an all-white jury convicted and sentenced McGee to be executed after deliberating for less than 3 minutes. The CRC inherited the case from its merger with the National Federation for Constitutional Liberties, as McGee’s attorney embarked on the first appeal to the Mississippi Supreme Court. In all between 1945 and 1950, the CRC would employ three different trial attorneys (strategically all locally based white men) and a host of supporting cast lawyers affiliated with the CRC, including in the final efforts New York-based Bella Abzug and southern activists John Coe. The case would also include three appeals to the Mississippi Supreme Court, two retrials of Willie McGee and five stays of execution. The first appeal proved successful in arguing that the judge’s denial of a change of venue request produced an unfair trial. After a second conviction in Hattiesburg, Mississippi, McGee’s new attorney Dixon L. Pyles, won an appeal based on the exclusion of blacks from local juries. In March 1948, Willie McGee faced a third trial in Laurel and was again convicted by an all-white jury, although several black jurists were included in the pool. This time the state Supreme Court let the conviction stand and McGee’s execution date was set (Martin, 1987; Horne, 1988). These legal defeats set the CRC’s mass mobilizations efforts in full motion. As Willie McGee’s execution date neared in 1949, the Congress launched its ‘‘Save Willie McGee’’ campaign. Through mass-produced literature, protest rallies and organizing delegates to travel to Mississippi, the Congress sought to raise awareness of the case and place increasing pressure on local and state governments. They publicized the case as a frame-up arguing that the police tortured a confession out of McGee and ignored black witnesses that placed him on the other side of town at the time of the attack. The CRC also launched an intense letter writing and petition campaign (Martin, 1987; Horne, 1988). Drawing on the strategies it had employed during the Scottsboro case, the Congress sought to build strong relationships with McGee and his family. Through their Prisoner’s Relief
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Fund the CRC provided Willie McGee’s wife, Rosalee McGee, with much needed financial aid and kept both Rosalee McGee and Bessie McGee, Willie McGee’s mother, involved in and informed of their activities. Women, especially black women radicals, were key participants in all phases of the campaign, from organizing rallies and producing publications to participating in delegations. Maude Katz White, Lorraine Hansberry and Haloise Moorehead all participated in delegations that traveled to Jackson, Mississippi. Shirley Graham also traveled to Jackson to chronicle a protest effort during the final hearings to gain a stay of execution for McGee, in which a group of protesters were arrested (Graham, 1951; Popham, 1951). However, their participation took on increased significance as the CRC publicized recently acquired information that McGee and Willamette Hawkins had ‘‘sustained a (sexual) relationship for several years before the alleged rape’’ (‘‘The Case of Willie McGee: A Fact Sheet,’’ n.d.). McGee’s lawyers had held off presenting the information during the trials for fear of the unwritten southern law that ‘‘a Negro who has relations with a white woman must die’’(‘‘The Case of Willie McGee: A Fact Sheet’’). But, as the case wound through the appeals process in late 1950 and 1951, the CRC hoped to use these explosive facts to highlight the workings of sexualized racism in the South. They published this new information in widely distributed fact sheets and press releases, proclaiming the state was executing Willie McGee simply because he was a black man. Yet, few mainstream newspapers picked up these new details except to reference accusations of perjured testimony (Popham, 1951). In early 1951, CRC activists continued to push the point. They organized a white women’s delegation to Jackson to illustrate the broad range of support for McGee (including white women) and forestall local outrage over challenging the veracity of Hawkins testimony and by association, the virtue of white womanhood. Led by Bay Area CRC activist Decca Treuchaft (also known as author Jessica Mitford), the delegation strategically included a large number of women who claimed roots in southern states (Patterson, letter, 1951; Mitford, 1977; Horne, 1988). Yet, the most vocal and powerful support for Willie McGee and the veracity of this new information of an interracial affair came from his wife, Rosalee McGee. In a July 1950 affidavit, Rosalee McGee attested to the affair and the decision by lawyers to not address the relationship during the trials for fear of inciting an even greater lynch mob atmosphere. In her affidavit, McGee detailed her knowledge of the affair including Mrs. Hawkins’ flirtations with her husband, her own bitter encounters with Mrs. Hawkins in which she was called a ‘‘Negro whore,’’ and her decision in
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1945 to leave her husband because of his continued infidelity (McGee, 1950, July). McGee also spoke of her dilemma as a black women in the south cognizant of the sexual racism that made her husband’s painful indiscretions with a white women, a life threatening act with seemingly few options of escape. In her sworn testimony McGee states, ‘‘down south, you tell a woman like that no, and she’ll cry rape anyway. So what else could Willie do? That’s why I never got angry at Willie,’’ yet she also attests to her own anger as the relationship continued stating, ‘‘I got so mad I told Willie I was going to leave him’’(1950, July). Such seemingly contradictory statements highlight Rosalee McGee’s complicated position as a wife fighting against the injustice of her husband’s legal lynching, while also dealing with her own feelings of betrayal and anger at his now public infidelity. Despite this complicated positioning, Rosalee McGee became the leading defender of her husband. In June 1950, Mrs. McGee joined Paul Robeson and New York Representative Vito Marcantonia on stage at a Madison Square Garden peace rally to tell of her husband’s plight (‘‘Truman Assailed on Move in Korea,’’ 1950). McGee’s development as a public speaker and a symbol of the violence black southerners faced, provided an important boost to the CRC’s campaign as black communities proved eager to here her story. Numerous black newspapers carried articles that boasted an account of the case in Rosalee McGee’s own words and in early 1951 she embarked on a nationwide speaking tour. The CRC’s encouragement of Rosalee McGee’s role as public speaker and open discussion of sexual politics allowed McGee an important platform to narrate her own story and reconfigure herself from a victim to a voice for black women’s struggles. This shift came through in many of Mrs. McGee’s speeches and CRC literature. A CRC publication of one of McGee’s speeches included a full cover picture of her, the title ‘‘Mrs. McGee’s Own Story’’ and her provocative statement, ‘‘if there was any raping done it was Mrs. Hawkins who raped my husband’’ (McGee, 1951, April)! In the speech Rosalee McGee outlined her struggle to ‘‘work and support my four children’’ under such harsh circumstances and warned (presumably) the black women in the audience, ‘‘tonight you are sitting here in New York. But, tomorrow you may be framed. Tomorrow your husband may be framed. Tomorrow your son may be framed.’’ As she concluded her speak, McGee proclaimed, ‘‘I am not only fighting for my husband. I am fighting for freedom and justice for all people’’ (1951). This shift to a fighter for justice proved a valuable and lasting transition for Rosalee McGee as she continued her work with the CRC and its community of black women civil rights activists well after her husband’s fight had been lost.
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During the intensification of the McGee Case, the CRC faced another set of impending legal lynchings in the case of the Martinsville Seven in Virginia. This case involved seven black men; Francis Grayson, Frank Hairston, John Taylor, Joe Hampton, Booker Millner and brothers James and Howard Hairston, who were accused of raping a white woman while she traveled through Martinsville’s black neighborhood. The seven men, four of whom were under 20, had been arrested after a massive police sweep of the black community. The victim had positively identified several of the men (although not all) and all seven had allegedly confessed to the crime within hours of their arrests. During the trial, the Judge sought to limit the appearance of racial bias against the defendants and any violations of due process. Thus, African Americans were included in each of the jury pools, although none made it onto any of the juries. In April 1949, in a succession of 61-day trials, all seven men were convicted and sentenced to death by allmale all-white juries (Horne, 1988; Rise, 1992). As the verdict came down, both the CRC and the NAACP were galvanized into action. Civil Rights Congress activists had followed the trial closely and built a relationship with Grayson’s wife, Josephine Grayson, providing both financial and political support. Soon after the conviction, William Patterson announced that the CRC would represent Francis DeSales Grayson, a World War II veteran and father of five, in his appeal. The NAACP’s Virginia chapter also voted to take up the appeals and choose Virginia attorney Martin A. Martin to lead the defense. The NAACP Legal Defense Fund had bypassed the original case as it increasingly shied away from taking on criminal defense cases at the trial level unless the defendant was unquestionably innocent. Yet, they believed that in appeals they could establish precedents for ensuring black defendants’ right to due process and fair trials. Seeking support for its taxing civil rights campaigns, the CRC welcomed a combined effort with the NAACP. Fearing the taint of communism, however, Martin refused to work with any organization that the government had marked as subversive and the national office demanded that the NAACP represent all the defendants or none of them. Unable to win over the six remaining defendants, William Patterson backed down on the CRC’s efforts to represent Grayson and conceded legal defense to the NAACP (Horne, 1988; Rise, 1992). Although the NAACP had succeeded in removing the communistaffiliated legal representatives, it still met with little success in the courts. The Association’s first appeal focused on procedural objections including arguing for a failure to provide a change of venue, protesting the successive time frame of the trials and challenging the validity of the confessions, all of
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which were denied in the courts. Faced with limited options Martin sought to appeal to the Governor of Virginia for a commuted sentence based on the argument that the imposition of death for rape was racially motivated. Martin carried this appeal to local, state and then the U.S. Supreme Court arguing that the defendants were the victims of disparate treatment, since there was no record in the state of Virginia of a white man ever being executed for rape. This radical turn in legal arguments reflected the increasing pressure that the NAACP felt from the CRC, as well as a growing interest among civil rights organizations in the statistical disparity between black and white defendants in the use of the death penalty (Martin, 1987, p. 42). As the initial NAACP appeals were denied, the CRC refocused its efforts on building mass support for the defendants. In August 1950, the CRC participated in the formation of the Virginia Committee to Save the Martinsville Seven, and included the Seven as one of the central cases in its national campaign to defend the constitutional rights of minority political groups and black citizens. In much of their mass organizing CRC activists worked to connect the Martinsville and Willie McGee cases. They drew on many of the same strategies including organizing delegations to Virginia, calling for petition drives and letter writing campaigns (Martin, 1987; Horne, 1988). Once again, the CRC turned to one of the defendants’ wives, Josephine Grayson, to speak about the case and her own experiences with racism. Grayson emerged as a powerful speaker and a political force in building mass support for the case. In each of these campaigning efforts, the CRC also sought to highlight the sexual politics that buttressed legal lynching and continued to assert that, ‘‘the death sentence in rape cases is reserved exclusively for Negroes’’ (‘‘Petition to save the Martinsville Seven,’’ n.d.). Beulah Richardson’s lengthy poem ‘‘A Black Woman Speaksy’’ (Richardson, 1951a, b) reflected black women radicals’ analysis of these sexual politics, as she spoke to the enduring construction of black men as rapists (of white women) and black women as lascivious beings excluded from the protection of womanhood. This potent poem illustrated the ways the dominant construction of a raced and classed white womanhood, often served as a justification for white supremacy in the U.S.: Thus the white supremacist used your skins to perpetuate slavery. And woe to me. Woe to Willie McGee. Woe to the seven men of Martinsville. And woe to youy
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This is your fate if you do not wake to fight. They will use your naked bodies to sell their wares though it be hate, Coca Cola, or rape (p. 10).
In the starkest of terms, Richardson’s poem urged white women to recognize the ways that the protection of white womanhood was invoked to deny African Americans their civil rights.8 By the early months of 1951, execution dates loomed for both the Martinsville Seven and Willie McGee. With the Martinsville Seven dates set for early February, CRC activists and the women of Freedom launched a ‘‘telephone to Truman’’ and letter writing campaign to persuade President Truman to issue a pardon for the seven defendants. Hoping to pressure the federal government to rein in legal lynching by state courts, these activists also began a series of delegations to Washington, DC. On February 2, Mary Church Terrell, the recently appointed chair of the CRC-affiliated WCEJ, led a final delegation including William Patterson, Josephine Grayson and her five children to meet with the President. Though rebuffed by the President, CRC activists still hoped for a last minute reprieve and held vigils and protests throughout the nation including Richmond, Harlem and DC. In the end, their concerted efforts proved futile as the execution of the Martinsville Seven was carried out as set, with four of the defendants executed on February 2, 1951 and the remaining three on February 5, 1951. Less then 4 months later, the CRC faced another defeat as the state of Mississippi executed Willie McGee on May 8, 1951 in the same courtroom in which he was initially convicted (Martin, 1987).
RADICALIZING DEFEATS These two defeats marked a stunning blow for black civil rights radicals who had contributed so much of their time and energy to the campaigns. Yet, the organizing effort did provide several important lessons and lasting shifts in the ways left-affiliated activists and civil rights groups in general, approached future legal lynching cases. These cases pushed to the fore the issue of disparate treatment for black defendants. This could be seen among mainstream organizations like the NAACP as they were pushed to move beyond demands for procedural reforms in addressing the systematic and institutional forces of racial bias in the criminal justice system. The cases also raised the call for federal intervention or reform around the death penalty (Martin, 1987).
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For those affiliated with the CRC and Freedom, the loss of Willie McGee and the seven men from Martinsville, led to an intensified critique of the role of the U.S. government and what they viewed as a state sanctioned assault on black communities. This shift was perhaps best expressed in a poem written by Yvonne Gregory (1951, February) and published in Freedom days after the executions in Martinsville. Entitled ‘‘Long Distance to Life,’’ the poem served as an indictment of President Truman’s refusal to intervene in the executions, despite numerous appeals. Woman on my committee scream/My God, what shall we do? This is what they do, this ain’t no dream/They rotten, through and throughy Our government lynched the seven/That GOVERNMENT want to LYNCH us all/and send US ALL to ‘heaven’/I want my heaven here on earth/My people want to live/In this earned land that gave us birth/We’ll TAKE what you won’t give (p. 2).
Speaking with a radical voice that demanded nothing less than full rights and justice, Gregory conveyed the feelings of many leftists who viewed legal lynching not simply as an outgrowth of southern racism or flaws within the legal system, but reflective of the U.S. government’s fundamental acceptance of white supremacy. Such an analysis fed a civil rights politics that sought to highlight the violence of white supremacy while making clear African Americans’ determination to fight at every turn. The decision by this community of activists to take a more radical stand against legal lynching and the U.S. government, fueled the publication in November 1951 of We Charge Genocide: The Historic Petition to the United Nations for Relief from a Crime of The United States Government Against the Negro People. The petition, complied and written by William Patterson and a group of CRC activists, detailed a long history of racial discriminations and violence against African Americans in the U.S. including lynching, economic exploitation, rape and state executions. A prominent portion of the petition outlined numerous cases of legal lynching that occurred in the U.S. It drew specifically on the research and knowledge of CRC activists such as Yvonne Gregory and highlighted some of their key cases including the Martinsville Seven, Willie McGee and the Trenton Six. The CRC published the petition widely. William Patterson announced the petition in Paris and traveled throughout Europe publicizing to the world the limits of U.S. democracy and its support of Jim Crow policies. Buelah Richardson helped with publicity in the states as the CRC
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recruited her to write a play dramatizing the publication’s charges. Performed at the book’s U.S. launch, ‘‘Genocide,’’ the play brought home the petitions claim as Richardson writes, ‘‘by government policy I am slain. Maimed, slaughtered, lynched, framed. It kills me. This Democracyyit kills me’’(Richardson, n.d.)! The petition produced national and international debates and proved particularly successful at exposing the U.S. government’s Achilles heel within international Cold War debates over human rights and democracy (Horne, 1988; Patterson, 1951). Perhaps one of the least noted but more significant shifts to emerge from the CRC’s campaigns to end legal lynching, was the continued maturation of black women’s leadership in mass-based civil rights activism. The campaigns around the Martinsville Seven, Willie McGee and Trenton Six cases proved a vital training ground and source of community for black women civil right activists. As illustrated by the experiences of Rosalee McGee and Josephine Grayson, often the wives, mothers and sisters of the victims of legal lynching became politicized and active within the CRC after their own first-hand experiences with the injurious force of the criminal justice system. Drawn into the CRC community and supported by the presence of other black women radicals working within its milieu, several of these women’s civil rights activism extended beyond their personal fight for justice. Both Rosalee McGee and Josephine Grayson would participate in CRC events and black women-led organizing efforts even after their husbands’ deaths. Bessie Mitchell provides perhaps the strongest example of this transformative experience. Mitchell’s brother Collis English was brought to trial and convicted as one of six men in Trenton, New Jersey, sentenced to execution for their alleged participation in the robbery and murder of a white storeowner. Following her brother’s arrest in 1940, Mitchell, a garment worker and a member of the International Ladies Garment Workers Union (ILGWU), became the strongest advocate for his release. Writing letters to government officials, Eleanor Roosevelt, and the NAACP, she eventually drew the support of the CRC and joined with them in building a committee to free the Trenton Six. As the CRC fought and won new trials for all the defendants, Bessie Mitchell played a key role in making her brother’s plight a national issue. William L. Patterson listed Mitchell’s impressive work and political development as one of the many successes of a campaign that eventually won vindication for four of the Trenton Six. Although Mitchell’s brother was one of the two convicted and sentenced to life imprisonment and died before the completion of his retrial, she continued to remain active in the struggle (Dean, 1949; Gregory, 1953). By late 1951, Mitchell was being introduced as a civil rights activist and worked as a
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regular participant in Freedom and CRC-sponsored activities (Gregory, 1951, October).
NEW BEGINNINGS: THE ROSA LEE INGRAM CASE AND THE SOJOURNERS FOR TRUTH AND JUSTICE As left-leaning activists sought to regroup following their recent losses, the CRC refocused its work on the Rosa Lee Ingram case. The reformulated Ingram campaign, along with the new formation of the Sojourners for Truth and Justice (SFTJ) (1952), would help to solidify black women radicals’ leadership within left civil rights activism and mark an important shift in these women’s political vision. For black women, no civil rights case sparked more interest and activism during the early postwar years than the campaign to free the Ingram family. The Ingram case involved Mrs. Rosa Lee Ingram, a 40-year-old, recently widowed sharecropper and mother of 14 children, who lived on rented land in Schley County, Georgia. In November 1947, Mrs. Ingram and her two sons, Wallace Ingram (age 16) and Sammie Lee Ingram (age 14), were arrested for murder following a deadly skirmish with their white neighbor and fellow sharecropper John Stratford. Three months later, during a 1-day trial in Ellaville, Georgia, about 140 miles south of Atlanta, an all-white-male jury returned a guilty verdict.9 Despite significant evidence to support the fact that Rosa Lee Ingram had been harassed and brutally beaten by Stratford, and Mrs. Ingram’s continued assertion that she had struck back with the aid of her son in self-defense, the jury refused to recommend mercy and all three were sentenced to death (Katz, 1979; Martin, 1985; Shadron, 1991). This initial conviction and sentencing caught the interests of a variety of civil rights organizations and black communities in the North and South, and by 1948, both the NAACP and the CRC had taken up work on the case. The Ingram case emerged as a powerful touchstone for black women (and the nation) because it stood as one of the few civil rights cases with a black mother as the defendant. In addition, the case provided an important platform to connect traditionally male-centered civil rights politics to black women’s struggles with sexualized racism and economic exploitation, as well as engage ongoing debates over the meanings of motherhood and gender equality. While the exact details of events remained contested, most women viewed the case as a clear example of a black woman being punished for protecting herself from the assault of a white man. Freedom staff member
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Lorraine Hansberry wrote of Ingram as wrongly imprisoned for, ‘‘defending herself from a would-be rapist-murderer’’ (1951, October). In August of 1951, the CRC received a personal appeal from Mrs. Ingram’s daughter Geneva Rushin ‘‘to help Mrs. Ingram to be free,’’ and authorization from Mrs. Ingram to take charge of her legal case.10 Spurred on by the Ingrams’ appeals, the CRC and its community of women activists formed the Women’s Committee for Equal Justice (WCEJ). Although national in reach and multiracial in practice, New York-based black women provided most of the leadership within the committee, with Mary Church Terrell serving as chairman alongside Yvonne Gregory as executive secretary. The WCEJ also sought to separate its work from other CRC activities by defining the organizations ‘‘sole purpose’’ as ‘‘fighting for the complete, unconditional freedom of Mrs. Rosa Lee Ingram and her two sons’’ (WCEJ, n.d.c). Working to publicize their analysis and strengthen the continued fight to win the Ingrams’ early release, the WCEJ built on some of the direct action organizing tools used earlier by the CRC. Along with these mobilizations, the Women’s Committee brought a new perspective to some of the common themes that shaped organizing around the Ingram case. It continued to proclaim the Ingram case as a ‘‘woman’s issue,’’ for as committee literature argued, ‘‘the dignity and honor of American women, black and white, rests on the winning of justice in such cases as the persecution of Mrs. Ingram’’ (WCEJ, n.d.b). In fact, racial unity and the active support of white women emerged as a prominent theme in much of the Committee’s literature. Yet, it often pushed beyond a simple call for unity and demanded that white women actively participate in dismantling white supremacy. Acknowledging the ways ‘‘Negro women’’ viewed their freedom as ‘‘bound to the freedom of Rosa Lee Ingram,’’ the Committee boldly asserted that ‘‘it is high time white women recognize that this holds just as true for them.’’ They urged white women to recognize that they ‘‘can truly protect their rights only when they join with their Negro sisters to protect the rights of all women’’ (WCEJ, n.d.a). In highlighting the ‘‘woman’s issue,’’ the WECJ also framed Stratford’s sexual advances as a central issue in the Ingram case. Their literature contended that the Ingram case reflected the ‘‘brutal use of hapless Negro womanhood by white men’’ that stood as ‘‘a vicious hangover from slave days, which still terrorizes every Negro woman.’’ The Women’s Committee also reminded supporters that Ingram was ‘‘in jail because she defended herself against attack by a white man’’ and that the number of other Negro women who ‘‘have been so attacked in our nation’s history is a matter that
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defies statistics’’ (WCEJ, n.d.b). Such strategies resonated strongly with black women for it proved highly effective in giving voice to a long history of the violent sexual exploitation of black women by white men. A history that had been erased in the racial/sexual triangle of lynching that framed black men as rapists, white women as victims and white men as protectors, and ignored in civil rights activists’ efforts to explode this lynching myth. Such discussion of the sexual politics of lynching and legal lynching provide an important intervention in the language and politics defining civil rights activism during the 1950s. As the WCEJ took off, black women radicals also turned their attention to the formation of the SFTJ. The SFTJ grew out of a September 1951 event called the Sojourn for Truth and Justice, which brought black women from across the country to Washington, DC to meet with the Justice Department and demand a ‘‘redress of grievances.’’ The impetus for this event emerged from a powerful group of black women radicals, many of them affiliated with the CRC, all of them active in earlier legal lynching campaigns. This initiating committee included California Eagle newspaper editor Charlotta Bass; poet Beulah Richardson; Alice Childress, a writer and staff of Freedom newspaper; longtime Communist party member Louis Thompson Patterson; Rosalie McGee (Willie McGee’s widow), Josephine Grayson (Francis Grayson’s widow) and Shirley Graham DuBois (SFTJ, 1951). The committee made a bold statement in its call for a protest created for and led by black women. Embracing the idea that ‘‘those who would be free must first strike the blow,’’ the committee urged black women to unite in ‘‘dedicating ourselves to fight unceasingly for the freedom of our people and the full dignity of Negro Womanhood’’ (SFTJ, n.d.a). The Sojourn, which lasted 3 days, attracted over 130 ‘‘representative’’ black women from across the nation. The protest specifically emphasized ‘‘the wives, mothers and victims of race hatred’’ and drew inspiration from Mrs. Ingram who ‘‘had become the symbol of the Sojourn itself’’ (Hansberry, 1951, October). The organizers made the focal point of the event that women whose families had experienced first-hand brutality of Jim Crow justice such as Josephine Grayson, whose husband had recently been executed as one of the Martinsville Seven, Amy Mallard from Georgia whose husband had been shot for trying to vote and Bessie Mitchell whose brother was convicted in the Trenton Six case in New Jersey. The protest also centered the wives of black leaders facing government-led anticommunist investigations such as Eslande Robeson, the wife of Paul Robeson and Dorothy Hunton, the wife of Alphaeus Hunton. Other participants included members of the initiating committing such as Beulah Richardson, and
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Yvonne Gregory and Lorraine Hansberry (who also reported on the event for the paper). Carrying forth the slogan ‘‘Negro Women dry your tears and speak your mind, we have a job to do,’’ some 60 Sojourners staged a protest at the Justice Department where they shared their stories of struggle and demanded ‘‘the locking up of some of these lynchers’’ (1951). Sparked by the Sojourn, the formation of The SFTJ in November 1951 marked a major departure from other left-leaning civil rights organizing. The group explicitly defined itself as an all-black women’s civil rights organization. Moreover, its dedication to working for ‘‘the complete freedom of the Negro people of the United States and the full dignity of Negro womanhood,’’ marked an important, if subtle, political shift (SFTJ, n.d.b). Unlike other black women-led formations such as the WCEJ, the Sojourners did not strive to frame themselves as primarily speaking to ‘‘women’s issues,’’ nor did they prioritize interracial unity. Instead, the organization claimed to speak and work as black women for the ‘‘fifteen million Negro citizens,’’ a domain that in both mainstream and radical organizations had long been controlled by black men (SFTJ, n.d.a). Although the Sojourners rarely addressed intraracial gendered conflicts, their political positioning clearly challenged a male-dominated leadership. In part, this shift was tied to the political moment in which many established black male leaders on the left were restricted by the legal consequences of the U.S. government anticommunist assaults.11 It also reflected openings created by an increasing emphasis on questions of American womanhood and racial democracy within the public arena (Feldstein, 2002). But black women radicals made a concerted effort to step into these openings and articulate an alternative vision of civil rights politics drawn from their own political beliefs and understandings of the lived experiences of black women in the U.S. The SFTJ established local chapters in the broader New York area, California, Richmond (Virginia), Cleveland and Chicago, as well as a youth division.12 The SFTJ set the ‘‘freedom of Mrs. Ingram’’ as its inaugurating goal. During this campaign, the Sojourners embarked on plans for an Eastern Seaboard Conference. Scheduled for March 1952, the event drew over 100 black women including representatives from South Carolina and North Carolina (SFTJ, 1952, March 23). Beyond its work on the Ingram case, the SFTJ also sought to address broader issues and build alliances with other African American organizations and women activists. The first program of the Brooklyn chapter honored ‘‘heroic Negro women of Brooklyn,’’ by inviting ‘‘three Brooklyn mothers’’ – Mrs. Albertha Fields, Mrs. Esther Jackson (who was a powerful leader with the Southern Negro Youth Congress and CP member) and Mrs. Almeida Holmes – to speak about
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‘‘their struggle against bigotry.’’ While these activities provided black women radicals a welcoming platform and some distance from exclusively CP events, they also reflected a commitment to legitimize and support the political knowledge and leadership of black women radicals (SFTJ, 1952, June). The work of the Women’s Committee and the SFTJ ebbed and flowed throughout the 1950s. By 1953, the Ingrams had been imprisoned for 5 years and would not be officially eligible for parole for 2 more years. Motivated by these circumstances black women radicals began a new wave of organizing to secure the Ingrams, an early release. In February 1954, a delegation (including women from both the WCEJ and the SFTJ) presented a petition to the United Nations Commission on the Status of Women and the Commission on Human Rights, arguing that Mrs. Ingram’s imprisonment represented a violation of her human rights.13 Despite continued pressure from black women activists and years of negotiations by the NAACP, the Georgia Board of Pardons and Parole continued to deny the Ingrams their freedom, even after 1955 when they had served their 7-year minimum.14 The states refusal to free Rosa Lee Ingram and her two sons would outlast most of the national organizing campaigns to gain their freedom. Not until 1959, after serving over 10 years in prison, were Rosa Lee Ingram and her two sons Wallace and Sammie Lee awarded parole (‘‘Mother and 2 Sons End Term in Killing,’’ 1959; Martin, 1985).
AN ENDING AND OTHER BEGINNINGS By the mid-1950s, the pressure of government surveillance and costly legal battles had finally taken its tool on CP institutions and black leftorganizational spaces. Freedom newspaper stopped publication around 1955, and a year later the CRC voted to close its doors. The community of black women radicals, who had found common cause with Willie McGee, the Martinsville Seven and Rosa Lee Ingram and worked diligently to end legal lynching through these left-leaning organizations, were forced to find other spaces and resources to support their radical politics. Cultural workers such as Beulah Richardson, Alice Childress and Lorraine Hansberry, turned to their creative work. Richardson under the name Beah Richards returned to Los Angeles and built a successful career as a stage and screen actor, starring in such film as The Miracle Worker (1959) and Guess Whose Coming to Dinner (1967). Lorraine Hansberry garnered critical acclaim for her 1959 Broadway play A Raisin in the Sun, while Alice Childress earned an
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Obie award for the 1957 production of her play Trouble in Mind and published several successful young adult novels (Welch, 2002). Other women continued their activism in new organizations. Louise Patterson and Maude White Katz would remain connected to the party while serving as leadership for numerous black women’s organizing efforts and becoming vocal activists around African decolonization efforts (Negro Women’s Action Committee, 1960). Many of these women would also help in the founding and sustaining of Freedomways. Established in 1961, Esther Cooper Jackson served as managing editor for much of the journal’s run and the editorial board included, among others, Shirley Graham DuBois. The journal carried articles on past organizing efforts such as the Rosa Lee Ingram Case and black women’s activism, but also built connections with a younger generation of black women activists as it included writings by Alice Walker and Angela Davis (Cooper Jackson & Pohl, 2001). Yet, even as these women adjusted to a new political moment, their strategies and organizing to challenge legal lynching continued to provide an important framework for their own lives and civil rights legal activism, more generally. Although civil rights strategies changed after 1955, the legacy of black women radicals’ early postwar civil rights politics and activism can be read as a guidepost for the ‘‘new’’ movement. Their work contributed to an emerging shift in the tone of civil rights activism, one which drew increasingly on black women’s leadership and presented women’s voices as an integral part of the struggle for black civil rights and freedom. This could be seen in the NAACP’s work with Mamie Bradley, the mother of lynch victim Emmett Till. Bradley’s role as a representative figure of black motherhood and black women’s resistance to white supremacy positioned her as a key figure in the campaign for justice and, in 1955 the NAACP sponsored a speaking tour for her. The effort clearly suggested lessons drawn from the CRC’s work with family members.15 These contributions would find greater resonance in later criminal defense cases, particularly the Free Angela Davis campaign and the Joanne Little Case, which both centered the struggles of black women entangled in the U.S. criminal system. Perhaps not surprisingly a number of the women involved almost 20 years earlier with the CRC campaigns would also emerge as activists in these cases. Louise Thompson Patterson and Esther Cooper Jackson actively worked with the National United Committee to free Angela Davis, which successfully organized in 1970 to secure an acquittal for Davis who, because of her CP affiliation and work with the Black Panther Party, was falsely charged with conspiracy and murder. Velma Hopkins, an union organizer and former member of the CRC, served as
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president of the Concerned Women for Fairness to Joan Little that led the way in a national campaign to free Joan Little, arrested in 1974 for the murder of a prison guard in North Carolina. The case reflected shades of the Rosa Lee Ingram case as Little, maintained that she stabbed the guard to defend herself from his sexual assault. The campaign’s emphasis on black women’s experiences of sexual racism and their right to defend against such attacks shared common cause with the early postwar activism of these black women radicals. In the context of the post-1955 civil rights movement and burgeoning feminist politics, these claims held more sway in the legal system and mainstream organizing efforts. Little, with the aid of NAACP lawyers, was eventually acquitted of all charges (McNeil, 2001). In these ways, black women radicals’ strategies and organizing, during the early postwar years had a lasting impact on legal activism. Their activism, with its emphasis on mass protest and black women’s leadership helped to sustain a radical politics that highlighted the intersections of race, gender, sexual violence and economic status and challenged the state’s reliance on white supremacy. The resonance of this political vision and activism with future black political struggles suggest that the left pole held by CP-supported civil rights organizations, helped to push mainstream organizations like the NAACP to take up more mass-based strategies, while also providing an important alternative to reform oriented civil rights politics.
NOTES 1. I define these women as radicals to acknowledge their close ties with the organized left in the U.S. and their articulation of a political analysis that challenged race, gender and economic oppression, embraced transnational political solidarity and advocated radical change in the structures of U.S. capitalism and liberal democracy. 2. I employ the term sexual racism from Kevin Mumford’s (1997) usage in Interzones: Black/White sex Districts in Chicago and New York City (New York: Columbia University Press.) 3. The evidence supporting their convictions proved less than convincing, and later in the case one of the women would recant her claims of rape. 4. This became a common refrain of the NAACP and gained much support in mainstream media particularly during the height of postwar anticommunism, but the degree to which CP strategies actually hindered the legal outcomes or simply operated as an acceptable excuse for denying leniency still remains unclear. As discussed later in this paper, during the Rosa Lee Ingram case the NAACP maintained that CRC protests deterred options for legal negotiations.Yet, even during several years where the CRC agreed to tone down it protest, the state continued to deny the families parole.
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5. CRC emerged from the consolidation of several organizations including the International Labor Defense and the National Federation for Constitutional Liberties. 6. Esther Cooper Jackson and her family faced extreme government harassment as her husband, James Jackson, fought federal charges for his political work that eventually led him to go underground. Jackson became a strong advocate against these anticommunist attacks, particularly within the black community see, This is My Husband: Fighter for His People, Political Refugee (Brooklyn, NY: National Committee to Defend Negro Leadership, 1953) microfilm reel 4205, Radical Pamphlet Collection, Tamiment Library and Archives, New York University. 7. The Committee, although still deeply tied to the CRC would explicitly assert itself as an independent formation working exclusively on the Rosa Lee Ingram case. This reflected both a response to the anticommunist assaults faced by the CRC as well as real push by the women for independence from both Patterson and the CRC’s mission more generally. For more information see Yvonne Gregory to Dear Friend, undated, microfilm, reel 8, frame 212, CRC Papers. 8. Richardson presented the poem at the 1951 Chicago Peace Conference. Beulah Richardson, ‘‘A Black Woman SpeaksyOf White Womanhood, Of White Supremacy, Of Peace,’’ American Women for Peace, pamphlet (1951) Schomburg Center for Research in Black Culture, New York Public Library, New York. 9. Atlanta Daily World, February 3, 1948, 1. In Georgia a conviction for murder carried a mandatory penalty of death unless the jury recommended mercy, which would result in life imprisonment. See Judge Harper, ‘‘Ingram Case, Commuted to Life Imprisonment,’’ April 5, 1948, Case file 16263, Georgia Archives, Morrow Georgia. 10. The CRC would only briefly serve as the Ingrams legal team, with A.T. Walden again taking up the work in 1954. See Geneva Rushin to Mr. Powe, August 7, 1951, reel 8, frame 134, CRC papers. Rosa Lee Ingram to Mr. Powe, August 8, 1951, reel 8, frame 137, CRC papers. 11. Yet, there increased visibility with such organization as the SFTJ soon changed this, see Julia Brown, I Testify: My Years as an Undercover Agent for the FBI (Boston: Western Islands, 1966) the narrative of a black woman based in Cleveland, who participated in the SFTJ. 12. Announcements and fliers for various activities can be found in box 12, folder 18, LTP Collection, see also Julia Brown to Louise Thompson Patterson, May 21, 1952, LTP Collection. 13. This was the second petition to the U.N. regarding the Ingram case, although the first to the newly formed Commission on the Status of Women. Sadly, the petition event did not include Mary Church Terrell who was in poor health at the time and past away in July 1954. 14. Great tension existed between NAACP and left-leaning activists. NAACP Head Roy Wilkins argued that Northern protests ‘‘do nothing toward getting freedom for Mrs. Ingram.’’ Yet, leftists protested the NAACP conservative tactics. A local sponsor of Ingram’s parole argued that Mrs. Ingram’s freedom would ‘‘remove from the Communists’ hands a weapon by which they collect money for themselves and not for victims.’’ Quoted in Martin, ‘‘Race, Gender, and Southern Justice,’’ 267. See also, ‘‘Rosa Lee Ingram, Sons, Denied Parole in Ga.,’’ Jet, November 6, 1958, 10 and ‘‘Freedom Is Denied To Ingrams,’’ Pittsburgh Courier, November 1, 1958, 1.
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15. The tense relationship that developed between the NAACP and Ms. Bradley highlights the difficult work of negotiating these relationships. See Ruth Feldstein, ‘‘‘I Want the Whole World to See,’ Race, Gender and Constructions of Motherhood in the Death of Emmett Till,’’ in Not June Cleaver: Women and Gender in Postwar American and Feldstein, Motherhood in Black and White: Race and Sex in American Liberalism, 1930–1965 (Ithaca: Cornell University Press, 2000).
ACKNOWLEDGMENTS I developed the idea for this article while a participant in the National Endowment of Humanities’ 2004 Summer Seminar on Punishment, Politics and Culture at Amherst College. The writing of this article was made possible thanks to a yearlong fellowship at the Schomburg Center for the study of Black Culture funded by the NEH and the generosity of University of Massachusetts at Amherst. I am grateful to Arianne Miller, Keesonga Gore and Rebeccah Welch for reading drafts of the article and providing insightful comments. I would also like to thank my colleagues in the Women’s Studies Program at the University of Massachusetts for their continued support.
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Greenberg, J. (1994). Crusaders in the courts: How a dedicated band of lawyers fought for the civil rights revolution. New York: Basic Books. Gregory, Y. (1951). Long distance to life. Freedom, February, p. 2. Gregory, Y. (1951). Poet demands equality for Negro Womanhood. Freedom, October, p. 7. Gregory, Y. (1953). A voice full of fury. Masses and Mainstream, 6, 2–7. Grossman, A. (n.d.). Update. Reel 11, CRC papers. Hall, J. D. (1983). The mind that burns in each body: Women, rape, and racial violence. In: A. Snitow, C. Stansell & S. Thompson (Eds), Powers of desire: The politics of sexuality. New York: Monthly Review Press. Hall, J. D. (1993). Revolt against chivalry: Jessie Daniel Ames and the women’s campaign against lynching (Revised Edition). New York: Columbia University Press. Hall, S. (1993). Gramsci’s relevance for the study of race and ethnicity. In: K. Chen & D. Morley (Eds), Stuart hall: Critical dialogues in cultural studies. London: Routledge. Hansberry, L. (1951). Lynchsong. Masses and Mainstream, 4, 31. Hansberry, L. (1951). Women voice demands in capital Sojourn. Freedom, October, p. 6. Horne, G. (1986). Black and red: W.E.B. DuBois and the Afro American Response to the Cold War, 1944–1963. Albany: State University of New York Press. Horne, G. (1988). Communist front? The Civil Rights Congress, 1946–1956. London: Fairleigh Dickinson University Press. Jones, C. (1948). ‘‘For new approaches to our work among women: Pre-convention discussion.’’ Political Affairs, 28(August), 26–38. Jones, C. (1949). An end to the neglect of the problems of the Negro woman. Political Affairs, 27(June), 738–742. Katz, M. W. (1979). Learning from history – The Ingram case of the 1940s. Freedomways, 19, 82–86. Kaufman-Osborn, T. V. (2002). From noose to needle: Capital punishment and the late liberal state. Ann Arbor: University of Michigan Press. Kelley, R. D. G. (1990). Hammer and Hoe: Alabama communists during the great depression. Chapel Hill: University of North Carolina Press. Kelley, R. D. G. (1993). ‘‘We Are Not What We Seem’’: Rethinking Black working-class opposition in the Jim Crow South. The Journal of American History, 80(June), 75–112. Lawson, S. F., Colburn, D. R., & Paulson, D. (1986). Groveland: Florida’s Little Scottsboro The Florida Historical Quarterly, 65(July), 1–26. McGee, R. (1950). Affidavit. Reel 10, frame 116, CRC Papers (July 25). McGee, R. (1951). Mrs. McGeee’s own story. Reel 10, frame 120, CRC Papers (April 1). McNeil, G. R. (1983). Groundwork: Charles Hamilton Houston and the struggle for civil rights. Philadelphia: University of Pennsylvania Press. McNeil, G. R. (2001). ‘‘Joanne is you and Joanne is me’’: A consideration of African American women and the ‘‘Free Joan Little’’ movement, 1974–1975. In: V. P. Franklin & B. Collier-Thomas (Eds), Sisters in the struggle: African American women in the civil rights – Black Power Movement. New York: New York University Press (Chapter 14). Martin, C. H. (1985). Race, gender and southern justice: The Rosa Lee Ingram case. The American Journal of Legal History, 29, 249–268. Martin, C. H. (1987). The Civil Rights Congress and southern black defendants. The Georgia Historical Quarterly, 7(Spring), 25–52. May, E. T. (1988). Homeward bound: American families in the Cold War era. New York: Basic Books.
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Meier, A., & Bracey, J. H., Jr. (1993). The NAACP as a reform movement, 1990–1965: ‘To reach the conscience of America.’ Journal of Southern History, 59, (February). Meyerowitz, J. (Ed.) (1994). Not June Cleaver: Women and gender in postwar America, 1945–1960. Philadelphia: Temple University Press. Mitford, J. (1977). A fine old conflict. New York: Knopf. ‘‘Mother and 2 Sons End Term in Killing’’ (1959). New York Times, August 27, p. 8. Mumford, K. (1997). Interzones: Black/White sex districts in Chicago and New York city. New York: Columbia University Press. Naison, M. (1983). Communist in Harlem during the depression. New York: Grove Press. Naison, M. (1985). Communists in Harlem during the depression. New York: Grove Press. Negro Women’s Action Committee (1960). Statement of purpose. Box 14, folder 13, LTP Collection (May 5). Patterson, W. (1951). West Coast Chapters. [letter] Part 2, reel 5, CRC Papers (March 26). Petition to Save the Martinville Seven. (n.d.). Reel 11, frame 549, CRC Papers. Pintzuk, E. C. (1997). Reds, racial justice, and civil liberties: Michigan communists during the Cold War. Minneapolis: MEP Publications. Popham, J. N. (1951). Mississippi arrest 41 at capital as Willie McGee plea is studied. New York Times. May 6, p. 1. Ransby, B. (2003). Ella Baker and the Black freedom movement: A radical democratic vision. Chapel Hill: University of North Carolina Press. Raper, A. (1933). The tragedy of lynching. Chapel Hill: University of North Carolina Press. Record, W. (1964). Race and radicalism: The NAACP and the communist party in conflict. Ithaca: Cornell University Press. Richardson, B. (1951a). A black woman speaksyof white womanhood, of white supremacy, of peace, American Women for Peace. Richardson, B. (1951b). Victims’ Kin Rebuke Tobias, want justice. Freedom, December, p. 1. Richardson, B. (n.d.) Genocide. Reel 26, frame 58–70, CRC Papers. Rise, E. (1992). Race, rape, and radicalism: The case of the Martinsville Seven, 1949–1951. The Journal of Southern History, 58(August), 461–490. Rise, E. (1995). The Martinsville Seven: Race, rape, and capital punishment. Charlottesville, VA: University of Virginia Press. Royster, J. J. (Ed.) (1997). Southern horrors and other writings: The anti-lynching campaign of Ida B. Wells, 1892–1900. New York: Bedford/St. Martins. Shadron, V. (1991). Popular protest and legal authority in post-World War II Georgia: Race, class, and gender politics in the Rosa Lee Ingram case. Doctoral dissertation, Emory University. Sojourners for Truth and Justice (SFTJ). (1951). A call to Negro women. Box 13, folder 3, Louise Thompson Patterson Collection. Woodruff Library Special Collections, Emory University, GA (hereafter referenced as LTP Collection). Sojourners for Truth and Justice (SFTJ). (1952). Minutes National Committee Meeting: 2. Box 12, folder 17, LTP Collection (March 6). Sojourners for Truth and Justice (SFTJ). (1952). Summary Proceedings Eastern Seaboard Conference. Box 13, folder 1, LTP Collection (March 23). Sojourners for Truth and Justice (SFTJ). (1952). Brooklyn Chapter of the Sojourners for Truth and Justice. Box 12, folder 18, LTP Collection (June). Sojourners for Truth and Justice (SFTJ). (n.d.a). Proclamation of the Sojourners for Truth and Justice. Box 12, folder 17, LTP Collection.
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Sojourners for Truth and Justice (SFTJ). (n.d.b). Draft constitution and by-laws of the Sojourners for Truth and Justice. Box 12, folder 17, LTP Collection. Singh, N. (1998). Culture/wars: Recoding empire in an age of democracy. American Quarterly, 50(3), 471–522. Singh, N. (2004). Black is a country: Race and the unfinished struggle for democracy. Cambridge, MA: Harvard University Press. The Case of Willie McGee: A Fact Sheet. (n.d.). Reel 11, frame 48, CRC Papers. Schomburg Center For Research in Black Culture, New York Public Library, New York (here forward Civil Rights Congress Papers referenced as CRC Papers). ‘‘Truman Assailed on Move in Korea.’’ (1950). New York Times, June 29, p. 18. Tushnet, M. V. (1987). The NAACP’s legal strategy against segregated education, 1925–1950. Chapel Hill: University of North Carolina Press. Von Eschen, P. M. (1996). Race against empire: Black Americans and anticolonialism, 1937–1957. Ithaca: Cornell University Press. Weigand, K. (2001). Red feminism: American communism and the making of women’s liberation. Baltimore: John Hopkins University Press. Women’s Committee for Equal Justice (WCEJ). (n.d.a). A call to the women of the United States. Reel 8, frame 180, CRC Papers. Women’s Committee for Equal Justice (WCEJ). (n.d.b). The case of Mrs. Ingram. Reel 8, frame 152, CRC Papers. Women’s Committee for Equal Justice (WCEJ). (n.d.c). Cornerstone: Civil rights freedom for the Ingram family. Reel 8, frame 216, CRC Papers. Wright, C. C. (1990). Racial violence in Kentucky 1865–1940: Lychings, mob rule, and ‘‘legal lynchings’’. Baton Rouge: Louisiana State University.
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THE PARADOX OF PUNISHMENT Wendy C. Hamblet ABSTRACT Notions of justice and punishment seem inextricably entwined in the oldest conceptual traditions of the West. Changing notions of just state responses to citizen crime can tell us much about the culture and the politics of a given society. Yet, often those notions are radically contradictory, mutually exclusive, and/or counterproductive of the goals they seek, together, to achieve in the society.This paper traces a genealogy of punishment rituals practiced in the United States and maps the relationship of reigning ideas of just recompense onto transforming political and cultural realities. This paper highlights the multiple paradoxes that have arisen in the U.S. in the attempt to visualize and realize appropriate and just punishment practices in the state.
Bring me back in shackles, Hang me long out in the sun, Exonerate me, forget about me I recommend measures for ending it. (The Tragically Hip) While society in the United States gives the example of the most extended liberty, the prisons of the same country offer the spectacle of the most complete despotism. (G. Beaumont, de Tocqueville, 1833, p. 47)
Crime and Punishment: Perspectives from the Humanities Studies in Law, Politics, and Society, Volume 37, 87–108 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)37004-9
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In Discipline and Punish, Michel Foucault traces a genealogy of state punishments from medieval public spectacles of torture, mutilations, humiliations, and bodily dismemberment through to recent methods of castigation of social offenders thought to be ‘‘more civilized’’ – like penalization, lethal injection, and electrocution (Foucault, 1995, pp. 3–35). That history reflects evolving public and political attitudes toward criminality and ‘‘just punishment’’ and maps out the constantly renegotiated boundaries that exist between citizen freedom of action and the power of ‘‘legitimate’’ authority over citizen freedom. Changing attitudes about what constitutes ‘‘just punishment’’ issues in shifting state laws and judicial interpretations and enactments of the laws, as well as shifts in the established scale of judicial consequences for transgressions of those negotiated boundaries. Foucault’s genealogy of discipline and punishment charts evolving public notions of legitimacy and criminality and the decree to which these notions intersect in the public mind.
THE JUST VIOLENCE OF STATE PUNISHMENTS The notion of ‘‘just punishment’’ has presented a discomfiting paradox to philosophers from earliest times since the assertion of punishment as just presents a compelling challenge in ethical reasoning. Popular belief holds that the ‘‘legitimate’’ punishments of the state serve many benefits. People remain, in general, firm believers in the efficaciousness of punishment of its criminal element at the hands of state authorities. To employ a Platonic distinction (Republic 2.357b), punishment remains seen as a good-in-itself (en autos) as well as a good-for-the-sake-of (per allos), whatever evidence arises to refute the prejudice that punishment is a good thing. The notion of ‘‘just punishment’’ presents a challenge to practical ethical reasoning beginning from its grounding logic: the state posits its power through a system of legalized violences that are ostensibly designed to militate against violence in the social body at large. That is, the distinction between acts of justice revered in the state as just and criminal acts in the population condemned as unjust amounts to differences in the social actors, not differences in the nature of the act; both acts are deeds of violence. The violences of illegitimate agents, agents not legally sanctioned to violate, are punished by the violences of the system, an agency sanctioned to violate. Philosophers have long struggled with the multifarious paradoxes of ‘‘just punishment.’’ Is punishment always legitimate when administered by the ‘‘legitimate authorities’’ of the state? Or is punishment simply the right of
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the powerful to abuse their social lesser? Is punishment an act of mercy that purifies the soul of the offender, balancing the scales of justice so that the criminal, freed from the stain of misdeed, may make peace with the gods and cross the threshold of death without fear? Is punishment a necessary duty, crucial to the creation of a just human world? If that duty is neglected, does it call into play the harsher punishments levied by the gods – the ‘‘pollution’’ of plagues, fires, monsters, or other such horrid consequences that befall families, clans, and whole cities in the wake of an unpunished crime? Does punishment serve the offender, the offended, the law, the lawmakers? Does it serve the higher purposes of the gods or the political purposes of kings and tyrants? Does punishment serve abstract notions of justice, the people’s sense of ‘‘civilized’’ community, or their thirst for revenge and for spectacle? Do tortures, mutilations, humiliations, public floggings, hangings, lethal injections, electrocutions, and lengthy incarcerations serve the community and its power nodes as visible proof of the quelling of crime? Without adequately harsh state punishment rituals, would all people revert to anarchy and criminality? Would they rise up against their leaders? Would they carry out their own cruel measures of ‘‘justice’’ in vigilante posses? Without the ‘‘legitimate’’ punishments of the state, would people feel less safe in their homes and on the crime-ridden cities of modern states? The notion of punishment as just – as a good-in-itself as well as a goodfor-the-sake-of – is deeply embedded in the Western lifeworld. We find references to the goodness and necessity of punishment throughout the ancient Greek world; philosophers, statesmen, and poets have struggled to resolve its paradoxes. The claim that ‘‘punishment is just’’ employs a Platonic distinction that admits a thing as a good-in-itself that need not be shown useful in the world to prove its worth. To say that ‘‘punishment is just’’ is to express its excellence of nature, its association with the meta-excellence of justice extolled by the ancient philosophers. Punishment practices do not need to rely upon ‘‘reasons’’ or to point toward their good effects, so long as those practices serve the purpose of punishment seen as a good-in-itself. The trial and execution of Socrates provides the classic example of the multifarious paradoxes of punishment and the problematic relation of punishment to notions of justice in the city. Socrates voluntarily and without complaint, swallows his lethal sentence of hemlock, though he knows he dies an innocent victim of the system by an unjust verdict of the Athenian court (Phaedo 117a). Socrates tells his friend Crito that a citizen is a child of the city and a servant of its laws. Therefore, it would be unjust of him, as a citizen of Athens, to disobey the state declaration that he is to be executed
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(Crito 50e). So Socrates, an innocent citizen, follows the dictate of justice and swallows the poison that is the result of an unjust sentence imposed for a crime that he did not commit. Despite Socrates’ insistence that he is bound by his sense of justice and duty, we find him, in the final scene of his life, in Plato’s Phaedo, naming his friends his ‘‘true judges’’ because they will judge truly his innocence or guilt (Phaedo 63b). Paradoxes of punishment abound in this, one of the earliest ancient tales of state punishments. Since acts of punishment are acts that violate the integrity and freedom of persons’ bodies and rights, the claim that punishment is just connotes that violence is sometimes just as well. Violence, however, is generically defined by the general populace as an irrational or monstrous act of arbitrary harmfulness, without reasons or ethical grounding. Because of this popular prejudice, it is crucial that the state demonstrate the legitimacy of its violences by marshaling acceptable reasons for the violences that will be enacted in its name. If state violences are exposed as irrational, monstrous or unreasonable, then the leaders of the state will be revealed likewise – as crazed monsters and tyrants, violating citizens and their rights arbitrarily. There exists such a pervasive popular prejudice in favor of punishments per se, a trust that punishment is a good-in-itself, that the legitimacy of stateordered punishments is rarely raised as a question. In fact, state punishments are seen as doubly legitimated by the fact that, though no reasons are necessary, many are readily supplied. The reasons that the state offers to explain its practices of punishment of social offenders are meant to render reason-able the violences of the state, even as they render legitimate the rulers, and reconfirm the rightness of the system that levies those punishments. From an anthropological perspective, the institution of legitimate state punishments composes one of the oldest, most crucial rituals of inclusion and exclusion practiced by the state, as old as the state itself and the concomitant ritual institution of war. In fact, the two violences peculiar to the state from its inception (punishments and war) are equally ancient and ideologically equipoised but, we might say, faced in opposite directions, like the Janus-faced god of the Roman portal, but scowling in both directions. Whereas ‘‘just war’’ composes the externally focused punishments directed at neighboring powers who have offended (the state’s notion of) justice, ‘‘just punishments’’ compose the legitimate violence directed at internal deviants from (the state’s notion of) justice. Since notions of justice are themselves socially and politically constructed, there exist no guarantees that either the internal criminals of the state or the external enemies of the state will see themselves as deviants from justice. Often it is the case that the
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felons consider themselves scapegoats of the society, innocent victims of a cold and violent machine rather than perpetrators.
THE ‘‘REASONS’’ OF STATE PUNISHMENT RITUALS I have said that punishment is assumed a good-in-itself that requires no further justification. As a result of this presumption, the reasons offered in support of state practices of punishment of offenders of the social order are gratuitous and redundant; they are rarely questioned by the populace at large. However, reasons supply additional confirmation that state punishments are exacted for explicit ‘‘purposes’’ – reason-able purposes. The state gives the following reasons for punishing its offenders: retribution for a wrong, deterrence against future wrongs (by the criminal or other potential criminals), reform of the offending part of the social body, and protection of the public from the criminal element. Each of these promises, assumed served by state punishment rituals is believed significant to the creation of a just state, necessary to the maintenance of public order, and to the reduction of crime in the society. Only adequately harsh punishments, it is believed, will render people safe in their homes at night or walking the dangerous streets of their communities. However, when we consider each of the promised benefits of state punishment, we find that few of the promised benefits are realized. The goal of state punishments generally is given first priority because, reputedly, it is most important to justice in the society as retribution for the crime. Retribution means the criminal deed is being ‘‘paid for,’’ and thus that the scales of justice have returned to a balance that all may be considered right within the state. Since this reason for punishment is first in the public mind, I shall leave its consideration to the last. The second reason rallied to justify state punishment is deterrence of potential crime. If the punishments are adequately severe, it is argued, the offender will think twice before tempting the wrath of the system a second time, and new criminals will be dissuaded from following in criminal footsteps. However, a great many studies have shown that this argument is simply faulty. Deterrence is rarely achieved as hoped, neither for the repeat offender nor for the newcomer to the game of crime (Martinson, 1974, pp. 22–30). One explanation for this failure may be the fact that most criminals hail from the lowest socio-economic stratum of the society. Their prospects ‘‘on the outside’’ for success in achieving ‘‘the good life’’ are so
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painfully thin that the opportunities afforded them in prison may actually appear preferable to their lives on the streets. In the post-torture era described by Foucault, where ‘‘civilized responses’’ to crime often include decent (if spartan) food and living quarters, security from bodily harm, medical treatments, work opportunities, educational prospects, and psychiatric care for the offender’s abjection, it is often argued that prison offers a preferable alternative to the hard life of the city street. Since most crime is committed by men of low-economic and social status, many of the frustrations that drive this alienated segment of society into crime can be alleviated by incarceration within the modern prison. The third argument raised in favor of state punishment of social offenders is the claim that it does the offender good. Punishment can reform offenders and allow them to make peace with themselves, their crime, the state, and their god. Ancient sources posit the necessity of punishment for the good of the offender. Euthyphro scandalizes Socrates with his announcement that rendering punishment to his father for a crime of negligence (that inadvertently resulted in the death of a murderer-slave) is both pleasing to the gods and necessary for the father’s soul (Euthyphro 3eff, 4aff, 9a). Euthyphro tells that the gods demand that his father be brought to justice because only thus can the father put right his wrong and make his peace with the gods. Like Euthyphro, many people accept the claim that punishment is enacted in order to provide a good to the recipient of the violence as much as to the whole social group touched by the criminal offense (family, society, and nation). Few parents would punish their children if they did not believe wholeheartedly in the institution of punishment as a good for the punished. Punishment is generally perceived in modern states as the rightful method by which a recalcitrant member of a society pays one’s dues to the offended system and reinstates oneself as a reformed member of the society. Over the past three decades, politicians in the United States began to allow the dictates of popular opinion, rather than the research and testimony of experts in psychology and social science, to shape their responses to crime. These changes permit insight into what occurs when the reform motivation is dropped from the goals explanatory of state-inflicted punishments. In the United States during this period, punishments have grown harsher, prison terms have grown longer, and many of the benefits of prison life have been stripped away in favor of a more vengeful, less reformative attitude toward criminals. Though the crime rate was steadily falling during the last decade of the new era, the number of criminals in American jails burgeoned.
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Perhaps the worst casualty of the new, more backward-facing strategies of crime control adopted during this period is the cessation of federal support of one of the very few benefits of prison life that have demonstrated any visible, positive effect upon recidivism. U.S. Federal Educational support (PELL grants), which fund post-secondary education of low-income students that supported inmate education were eliminated from prison opportunities with the 1994 Violent Crime Control and Law Enforcement Act (P.L. 103–317). Experts tell that recidivism increases where no change has been effected in the criminal mind. Conscience can be triggered only where education, therapy, or a dramatic religious experience have effected a stark break from previous ways of life. These three are the predominant factors that have consistently been shown to offer what little hope there may be for reform of the criminal mind. Without these therapeutic benefits, prisons become training schools for criminal activities, breeding grounds for resentment against the society, hotbeds of discontent and abjection, and holding tanks for diseased and dangerous minds. People become more and more violent when living under regimes whose means of order are violent and authoritarian. Violent practices witnessed in the powers that hold sway come to be copied by the rank and file and multiplied in the society at large (Gilberg, 1990, p. 36). The final goal cited to explain state punishment practices is that of protection of the citizenry. However, given that the deterrence power of punishments is negligible and that reform, under the current backward practices, is rarely achieved, it is difficult to accept that the society will be safer because of state punishment practices. On the contrary, since prisons often effectively serve as very effective criminal training schools for the young criminal, we may say that societies with an abundance of prisons grow less safe with every year of state punishments. Unless all offenders are given ‘‘the final solution’’ of the death penalty or simply locked away indefinitely, it seems that the citizenry will never be granted the sense of protection that state punishments seek to provide.
PUNISHMENT AS RETRIBUTIVE JUSTICE Retribution at its worst is mere revenge. The urge to revenge implies adherence to a harsh archaic law practiced in the Hebrew Bible/Old Testament, the law of ‘‘an eye for an eye.’’ Early Christians opposed this law in favor of the (to them) more enlightened dictate of forgiveness of offenders.
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‘‘Turn the other cheek’’ is deemed in the Christian mind the more beneficent, albeit risky, response to wrongdoing. The Christian ethos of forgiveness notwithstanding, we find that, in the United States, state killings by lethal injection or electrocution remain highly popular precisely in rightwing fundamentalist Christian states. Texas, for example, enacts a whopping 40 percent of the total executions performed in the United States. Similarly, foreign countries that are run by fundamentalist religious groups favor harsh punishments as final solutions to crime. It seems that, where fundamentalism reigns across the varied spectrum of religious systems, there exists a striking similarity of violence-legitimating beliefs as well as violent methods practiced. The death penalty composes one of the most volatile political questions in the United States. On the one hand, many progressive citizens are ashamed of having their country numbered among those governments of the world who still practice the death penalty. In most countries of the industrialized ‘‘free’’ world, executions are only a shameful memory of less enlightened times. Only Iran, Saudi Arabia, and China execute more of its citizens yearly than does the United States. Keeping company with those states most backward in their approaches to crime control means liaising with those sectors of the international community with the worst records of state terror and contraventions of human rights. On the other, the death penalty remains very popular with some segments of the population. Death rituals are considered by many to be a necessary and just recompense for violent crimes like rape and murder. The death penalty offers the most final solution to the problem of the criminal offender of the society. It also composes the most exacting revenge. Many victims or victim families demand the right to see the perpetrator suffer or die. They claim that the experience is necessary to permit a sense of closure for their loss. It is crucial to our study of the justice of state punishments to understand whether or not the revenge acts exacted upon social offenders are indeed shown as healing to the victims and their families. Anecdotal evidence varies greatly in regard of the effectiveness of revenge acts in quelling the feelings of frustration and woundedness that follow victimization. In murder or rape cases and other serious crimes, many victims and victim families express the need to witness firsthand the execution of the offender, claiming only thus can they bring closure to their loss and mark a terminus to their pain. And yet many of those same families find that they do not receive the gratification they seek, even in the public spectacle of execution that delivers vengeance to the perpetrator. In Dead Man Walking, Helen Prejean’s autobiographical account of her work with death row convicts in the Louisiana
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Prison System’s Death Row, Prejean reports a great variety of responses in victim families after witnessing the long-awaited executions (Prejean, 1996, p. 67). Certainly, some families experience a degree of release from their pain when the perpetrator is brought to justice in a public ceremony of execution. This is not, however, always the case. One man told Prejean that witnessing the execution simply intensified the frustration of his loss. The act of state revenge upon the perpetrator simply exacerbated his thirst for more and more revenge. He said that once was not enough; he wanted to see the offender executed again and again and again. Prejean found that a good many families of victims agreed that the debt owed them by the criminal was not experienced as paid out by witnessing the punishment, not even with the culprit’s execution. It seems that the arithmos of reciprocal justice that revenge killings essentially serve is unsuitable for closing accounts of this nature; the death of the deviant stranger can never compensate for the death of a loved one. This opens a new question within the timeless paradox of the suffering of Job and the question of whether the ultimate ‘‘getting back’’ of a new wife and the arrival of new children provided any satisfactory recompense for his loss of that beloved wife and those beloved children that God had viciously snatched from Job. On a less personal but equally important note, systems too claim restitution rights. Impunity for criminal offenses, the rulers say, need to be retaliated for, since they threaten the social order, the reputation and longevity of the system, and the political careers of those in power. Punishment may have disappeared from the public stage as the tortuous spectacle of sovereign might, but, in the direct relation connecting the harshness of the ruling power nodes of the society to the harshness of the means of punishment enacted in its courts and its prisons, current modes of punishment communicate that the social deviant shall be outcast from the social body to the degree that the deviance from social norms of behavior (and often the norms of identity associated with its powerful) has offended that body and caused the social unrest that makes and breaks the peace, even as it makes and breaks the political lives of leaders in a democratic society. Restitution, whether mere revenge, repayment of losses or damages, or reinstatement of stolen rights or privileges, is agreed to be a crucial factor in state justice. Paying one’s dues is a fundamental dictate of all systems of justice, across cultural and temporal divide. The dictate, I believe, is grounded in an ancient belief in an underlying cosmic order that, when violated, may cause all manner of plague, catastrophe, and ruin for individuals and for the social group. The universe is deeply, inherently, internally orderly and just.
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Should chaos arise in individuals or subgroups, the scales of justice fall out of whack. The crime requires a payment from the offender in order for the cosmos to be rebalanced. The goal of restitution generally serves people’s consciences well because it permits the ‘‘legitimate’’ violence of state punishments to be perceived as a counter-violence, a pay-back or retribution to those who have broken the law, challenged the authority of the system, defied the very institution of law and the social order per se, and thus contested the time-honored processes of civilization itself. Violence, in the hands of the ‘‘legitimate’’ authorities, is understood to be necessarily just, defining the law, upholding the social order, and reconfirming the civilizational processes. This juxtapositioning resonates with Rene´ Girard’s distinction between ‘‘good violence’’ of social ritual (born of murder-sacrifice rituals in the beginning of human time) from the ‘‘bad violence’’ of unregulated chaos we find in Girard’s ‘‘sacrificial crisis’’ of social anarchy (Girard, 1977, p. 135). Girard distinguishes the ‘‘good violence’’ of institutionalized spectacles of murder (or metaphorical murder) from the ‘‘bad violence’’ of social chaos by the ‘‘ritual’’ nature of the former. Good violence is characterized by its obsessive regulation over the appropriate time, place, nature, and rightful agency according to which communal aggressions may be safely purged and violence may be legitimately enacted. In a logic reminiscent of Thomas Hobbes’ ‘‘man in the state of nature’’ caught up in the ‘‘war of all against all,’’ Girard’s ‘‘bad violence’’ represents the explosion of aggressive tensions among competing egos whose overlapping desires have come into such a degree of unresolved conflict that even the singular identities of the social actors have fallen away, as their acts of agency have become unbound by social regulation. The legitimate state violence of ‘‘just punishments’’ composes a timehonored social ritual that, from out of the social chaos of crime, fear and the confusion of a multifarious world, reestablishes essential distinctions between the good and the deviant. Ritual violence carves out identity in clear and distinct ways for subjects, by locating what anthropologist Maurice Bloch names an ‘‘inassimilable other’’ who does not fit the prescriptions for belonging in the group. This locating of the non-belonging makes it an easy matter to establish why I have a claim to belonging. I belong because I am not the inassimilable one. The state’s system of ‘‘just punishments,’’ like all sociopolitical rituals, serves at base as a highly functional means of reestablishing the markers of identity shared by the social group. However, rituals of state violence also serve another crucial task: they reaffirm the status quo of power relations ruling over the social group.
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Belonging is affirmed to all members within the group when the inassimilable one is duly exorcised, and a sense of social cohesion is restored that militates against any social chaos that may have threatened. But there is little doubt that the most important and powerful function served by rituals of state violence is that they affirm the rightness of the status quo of power relations. State punishment rituals serve the archaic purpose of ancient murder-sacrifice rituals – murder or the metaphorical murder of expulsion of the ‘‘inassimilable ones’’ in order to purify the community and return it to a (mythical) solidarity and cohesiveness. Punishment rituals communicate, albeit through the (to most people) foggy and vaporous world of technical legalistic language, mythical truth assumptions (‘‘reasons’’), and bodily perceptions (handcuffs, hard wooden benches, the stuffy smell of old courthouses, prison cells as waiting rooms for justice), that the hierarchy of power relations reflects the ‘‘proper order of things,’’ sanctioned by society and the power of their laws (logos), and consonant with the grounding moral norms of cosmic order(logos), if not (in a secularized modern world) consonant with the will of the gods and the ancestors. Punishment rituals communicate what Maurice Bloch names a ‘‘logic of domination.’’ Bloch tells that the rituals we witness in simple societies expose something ‘‘quasi-universal’’ about human existence (Bloch, 1986, p. 10). They reveal that societies make life meaningful, make sense of themselves and justify the traditions and patterns of behavior that express who they are by establishing social customs, political institutions, and economic systems that are doggedly conservative and yet always fundamentally violence-legitimating. The ritual lives of human communities compose and in turn convey ideologies, generally at a preconscious level but often overtly and explicitly. Those ideological messages confirm the rightness of the status quo of power relations in the society. Ironically, social rituals are even able to enlist the support of those most oppressed within the society by creating the illusion that subordinate positions within the system serve a valuable function in making the system as strong and powerful as it is. The pay-off even for those most marginalized within the system is that they perceive themselves to be a crucial link in a chain of power that may well extend appreciably beyond its borders and into the world at large. Thus the shame that the subordinate members of the group may suffer on account of their low status within the system is occluded by the pride they feel in being part of a strong and powerful system. In essence, the phenomenon that expresses this irony is the support that the oppressed extend to their nation’s war efforts. The oppressed of the society often enjoy a sense of empowerment
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and value when they play a role – even a lethal role – in state exhibits of its might in violent rituals that overflow onto other states in the world. But is it true that punishment procedures render the institutions they serve more stable, stronger, more worthy of, and fit for, continuance? According to Maurice Bloch, the form and intensity of state violences (‘‘legitimate punishment’’ levied upon social offenders or wars against neighboring peoples) tends to waver in direct consonance with the perceived state of the nation, dependent upon whether its self-image finds itself volatile and chaotic or stable and secure (Bloch, 1977, p. 195). The form and intensity of punishments varies with the (harsh or genteel) nature of the power nodes of the state, the punishments that will be considered just oscillating between the extreme poles of annihilation/execution on the one hand and clemency/ forgiveness on the other. That is to say, the number and identifying features of social offenders rounded up and the types of punishment they receive often tells us more about the nation’s self-perception than about the state of criminality in the nation. Friedrich Nietzsche offers a contrary, while equally compelling meditation upon the connection between might, right, and punishment. Where Bloch feels that states overflow internally on its offenders and externally in war when the state feels self-assured and confident that it can get away with the violence or win the war, Nietzsche’s genealogy of morals suggests that a self-perception of strength is expressed in clemency and rituals of forgiveness, as an aspect of an ethos of generosity. Where forgiveness is the ideal, we may expect to find a state enjoying a strong self-image. ‘‘What are my parasites to me?’’ the stronger state would ask (Nietzsche, 1967, p. 72). For Nietzsche, forgiveness requires heroic strength and tremendous selfassurance. The strong are not reactive (to the spitefulness of others) but are active selves, actively self-crafted, self-styled to the peculiar taste of the agent, honed to a stout robustness and a rigid durability, and polished to a glossy elegance. The strong can afford the generosity of a god, forgiving and forgetting; they employ a reckoning system that is too noble, too gracious for pettiness, malice, and vengeance. The strong natures live lives according to ‘‘a formula of extreme affirmation born of abundance and plenitude, an affirmation without reserve, of suffering itself, of guilt itself, of everything questionable and strange in existence’’ (Nietzsche, 1967, pp. 217–218). The strong are to be distinguished from reactive, weak people or states. Harsh punishments and moralizations compose the mark of the weak. Nietzsche insists that, where the punishments are harsh, we may expect to find people who are riddled with fear and suffer weak self-esteem. These are fragile in their relations with the world, vulnerable to attack. Theirs is a
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‘‘degenerate instinct which turns against life with subterranean revengefulness’’ (Nietzsche, 1967, p. 218). Those riddled with ressentiment operate on the reckoning system of reciprocal relations, keeping rigorous accounts of every victory they achieve, every assault they suffer, plotting with great care every petty revenge to balance those accounts. Generous natures have style; weak natures do not. At its worst, punishment is mere revenge. Nietzsche insists that the thirst for revenge stems from dissatisfaction with oneself, more than dissatisfaction with offending parties. For one thing is needful; that a human being should attain satisfaction with himself, whether it be by means of this or that poetry and art; only then is a human being at all tolerable to behold. Whoever is dissatisfied with himself is continually ready for revenge, and we others will be his victims, if only by having to endure his ugly sight. For the sight of what is ugly makes one bad and gloomy. (Nietzsche, 1974, pp. 232–233).
Nietzsche’s description of the differing responses, to injury practiced by the strong and the weak offers a compelling point of entry to the problematic of state-legitimated punishment as revenge acts. If Nietzsche is correct, then we are compelled to admit that, contrary to many people’s deepest intuitions, the ‘‘evil’’ that we may be seeking to punish in others may constitute a construction in the eye of the beholder. Those who see great evil in the actions and the substance of others tend to be reactive people, laboring under a penury of self-esteem and suffering from ressentiment. It is these, not the generous and forgiving natures, who compose the most dangerous folks infecting our societies with violence.
CONCLUSION Despite the poor success rates that each of punishment’s reasons achieves, it seems that people must be convinced that these promised benefits are forthcoming – that punishments work – because all nations in the ‘‘free world’’ continue make extensive use of punishments of their deviants, to greater and to lesser degrees of intensity and duration. From the most open societies to the most rigidly hierarchical tyrannies, punishments are praised as desirable and necessary to public order. The only thing that differs from state to state is the form that the punishment will take. In the Western world, as Foucault points out, grotesque mutilations, public burnings and floggings, and spectacles of dismemberment no longer serve the self-image of the state as ‘‘civilized.’’ Thus have prisons become the punishment of choice.
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With a hearty welcome that choice has been received in modern states. In the United States, the number of state prisoners rose 500 percent over the last three decades, growing exponentially throughout the 1990s despite the fact that the crime rates were dropping steadily during that decade. According to the U.S. Bureau of Justice Statistics, the total number of people incarcerated in state and federal prisons, local jails, and juvenile detention centers was 2,071,686 at the end of 2000 (Fox Butterfield, San Jose Mercury News, California, August 13, 2001). The astronomical operating costs of state and federal prisons in the United States (about $30 billion a year, according to Allen J. Beck, main author of the Bureau report) suggest that American citizens must be convinced that a great service is rendered by keeping their prisons in operation, so great a service in fact that every year more and more prisons are being built (528,000 new beds last year at a cost of $50,000 a bed). In democratic ‘‘open’’ societies, we expect all people to be caught up in promoting and practicing the cherished liberal ideals that underpin those societies. We are certain that abuses of power and attacks on the dignity of social members will be easy to spot within the benevolent whole of our ‘‘just society.’’ However, hand in hand with the growing complexity of power relations in modern states, the rituals of inclusion and exclusion that serve the divisions of rank, that marginalize some and elevate others, and that spur the resentments that often make for criminal behaviors in the ranks of the forgotten, have become more subtle and more complex. The modern world is no simple society where the rule of a shaman, priest, chief, or divine monarch is absolute. Modernity’s complex network of simultaneous and competing power relations requires a different, more complex, more subtle notion of domination to capture the insidious effects a system can exact upon its member parts. Because we believe that Western democracies have overcome the classism and relevant prejudices of feudalism, we also believe that the modern state has a secure grip on crime control. We believe crime to be a phenomenon of a base criminal element that rots at the socio-economic base of the society, seeping out the decaying bottom of the system to be collected neatly into jail cells. The demographics of inmate populations confirm this popular myth. They also confirm the hierarchical structure of the society and the socio-economic inequities themselves that exist within the system. The demographics of jail populations and the constant and ongoing collection of petty thieves confirm the popular myth upon which the system rests: the myth that those who excel in our societies do so because of their greater merit, greater effort, or greater commitment to socially acceptable behaviors and that those who constitute
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the most hopeless and miserable element within the society are abject be reason of their lesser merit, lesser energies, and their engrained ignoble, irresponsible behaviors. As Michel Foucault has shown in his extensive study of power and its rituals in the state, from the earliest, harshest days of state punishment (when torture, mutilation, and horrific spectacles of execution were the norm) to the present practice of (more or less severe conditions of) imprisonment for crime, systems of punishment have largely served to reconfirm the status quo of power relations, by providing a public display of the power of the dominant authority and the powerlessness of those who oppose the system (Foucault, 1977, p. 25). It does not seem to occur to the voter on the street of our ‘‘free’’ and ‘‘open’’ societies in our democratic world that our democratic states may suffer from a new type of classism that preserves the bathwater of elitism but jettisons the babies of merit, responsibility, and social patronage that were once expected of the noble class. To draw attention to the new irresponsible elitism that exists in modern democratic states, Robert W. Fuller has developed a new social theory that he labels ‘‘rankism.’’ This theory calls for moral as well as behavioral accountability from those people in our society who believe that they are superior to others. In other words, Fuller is urging us, in his book Somebodies and Nobodies, to take notice of those who would exclude themselves from the debased mediocrity of democratic society and to insist that the new self-styled elites include themselves in observance of the ritual prescriptions that (in theory) govern their societies (Fuller, 2004, p. 13). Fuller cites the obvious culprits – mean bosses, derisive doctors, condescending politicians, stage mothers, belittling coaches, and arrogant professors – who abuse the persons they ought to be serving and drives them to the frustrations that issue in crime. He calls for a popular movement that will be satisfied by nothing less than moral and behavioral accountability from the people we place in charge of our governments, companies, patients, employees, and students. However veiled they may now be, rituals of inclusion and exclusion assuredly maintain in the modern democratic state, and serve the continuing purpose of keeping the traditional power relations intact. It is true that rituals of punishment in Western states have largely ceased to find their just modes in painful public tortures, but the punishment rituals remain intact, having instead crept into a realm of more elaborate, more subtle, less visible tortures exacted behind the very thick walls of penal institutions where, as Foucault has indicated, they now invade the criminal soul rather than inscribe themselves upon the criminal body (Foucault, 1995, p. 29).
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Criminal minds devise the criminal plots that plague modern societies. The more powerful minds may be counted upon to offer greater plague than the smaller minds of petty thieves. As Plato has shown (Republic 495bc), the powerful, when they are good men, are capable of the greatest good, but they effect the greatest harm to the society when they go morally astray. It is the powerful, white, male mastermind that presents the greatest challenge to justice in the modern state. According to the acclaimed new study, Corporate Predators, the joint effort of Russell Mokhiber, editor of the ‘‘Corporate Crime Reporter’’ and Robert Weissman, editor of the ‘‘Multinational Monitor,’’ there exists a wave of corporate criminality that swamps prosecutors’ offices around the country. And yet corporate crime, until late, has been given little sustained attention and analysis by politicians or media people. The 100 worst corporate criminals catalogued on the Corporate Predators website fell into 14 categories of crime: environmental (38), antitrust (20), fraud (13), campaign finance (7), food and drug (6), financial crimes (4), false statements (3), illegal exports (3), illegal boycott (1), worker death (1), bribery (1), obstruction of justice (1) public corruption (1), and tax evasion (1). The authors note in regard of this list of the worst hundred criminal corporations is that the companies that are criminally prosecuted represent only the very tip of a gargantuan iceberg of corporate wrongdoing. Crimes range from health care fraud, polluting the nation’s environment, bribing public officials, selling illegal products including pesticides, drugs, and medical devices, reckless negligence and homicide of workers. Secondly, report the authors, it is crucial to understand that corporations define the laws under which they live, working corporate will on politicians and Congress to block legislation that would impose criminal sanctions on knowing and willful violations of the federal laws. Big corporations have immense political power as well as the resources to defend themselves in courts of law and in the court of public opinion. Moreover, a corporation’s well connected and high-priced lawyers can inflict such legal and public relations damages, which few prosecutors are willing to subject themselves to the contest with big business. The emerging consensus among corporate criminologists is this: corporate crime and violence inflicts far more damage on society than all street crime combined. Despite the popular prejudice that the dark-skinned bicycle thief is the scourge of the society, it is the banks, pharmaceutical companies, chemical companies, oil companies, and other major players who sup with presidents and dance at inaugural balls that effect the greatest harm to our modern societies.
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It may be the criminal mind that invents the greatest crimes of the modern world. Nevertheless, the body still has a significant role to play in the legitimate violence rituals; thief makes a far better target for domestic violence rituals than the white-collar corporate criminal. For one thing, he is simply easier to recognize. Kenneth Lay may have caused a great deal more people a great deal more hardship than the common thief, but it is not the whiteskinned man in the business suit that we fear as we walk the unsafe streets of our cities at night. The frightening, highly sexualized fantasy of the demonic other is far better served by the figure of the unwashed dark-skinned diffident vagrant rummaging in the dumpster at the end of the alley. Highly visible bodily differences render clear and distinct designations of good and evil. That clarity grants to the members belonging to the society the reductions of complexity now more than ever necessary to render meaningful and sensible a confusing world. However, rituals that locate, isolate, and punish the social deviant do not simply suppress and expel social disorder; they produce it as well. When good and evil become too clear, they invariably become radically polarized, and oversimplistic. Evil becomes too easily and conveniently located in this or that enemy state, or in this or that alien population within the state. Then frantic moralizations become the norm. Red and orange alerts! Anthrax scares! Demonic leaders on the far side of the globe! Demonic neighbors down the street! Ironically, frantic moralizations produce the ‘‘evil’’ results they attempt to eliminate because, when the moral failings of others is located and illuminated clearly, those clarifications concomitantly affirm the moral elevation of the moralizing agent. When a population feels morally elevated, it feels justified in taking up the sword against the social enemies that threaten their sacred spaces (from within and without). Violence re-empowers the fearful and confused, heals the cognitive dissonance caused by social chaos, and helps people to feel once again secure. State sanctioned violence, precisely because it is violence, can promote violence in the general populace as fast as it can weed it out in its deviants through spectacles of just punishment. Hyper-moralizing gestures begin with the just punishments dished out by the state’s legitimate authorities, but it can well fulfill itself in the social anarchy and chaos against which Girard warns. This is because, when punishments grow harsh at the hands of the ‘‘legitimate’’ authorities, we can expect that harshness to seep down to the depths of the system over time, till gratuitous violence seeps forth from every pore of the system. When this happens, it is virtually impossible to weed out even with the changing of the (power) guard of the society.
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Even the best-intended revolutionary movements, where they have employed violence as their weapon of liberation, suffer this performative paradox. Violence is a double-edged sword, scarring the victim as much as the perpetrator. Even where taken up for the best of causes, violence becomes self-sustaining and will rebound into forms unanticipated and touch actors generations removed from the original brutality. Death is often the measure of one’s devotion to a moral cause, and killing too measures one’s commitment to the good end being sought. People learn to accept as just and necessary the violence they witness at the hands of ‘‘legitimate authorities,’’ so acts of violence interpreted as ‘‘good violence’’ can prove even more seductive than ‘‘bad violence’’ in luring others to follow its path. People accept it, live with it, and become it. Violence becomes normalized. The fact is that violence begets violence. Violent practices taken up by powerful ‘‘legitimate’’ authorities tend over time to legitimate violence per se in the society at large and to spur the acceptance of violent methods of problem-solving across the social arena. When gratuitous violence infects the highest ‘‘ranks’’ of the society, it is not difficult to understand how soldiers come to committing war crimes, or guards torturing their prisoners. It is not that the petty criminals on the bottom of the social heap are ‘‘innocent’’ of their crimes. It is important to appreciate the way that the court martial of an Abu Graib soldier, the television spectacle of an O.J. Simpson, or the countryclub incarceration of a Martha Stewart serve to publicly purify their nation’s leaders of much greater crimes than theirs. Legitimate state punishments of society’s criminals serve to reestablish the sanctity of the system by demonstrating that it outcasts even its most cherished own when they go morally astray. But can we claim that these offenders are truly ‘‘guilty’’ if notions of guilt and innocence, like notions of justice, are socially and politically constructed? If to be guilty means to take up behaviors that are forbidden by the system, can it truly be said that, in a system where corporate greed and corruption are daily realities and violent intrusions into the private affairs of other nations have become routine procedures, can we truly call the bicycle thief or even the bloody murderer a deviant from the system? Or did they simply learn too well to mimic the practices of their highest authorities? Members within systems tend to adapt quickly and readily to the logic of their systems, adopting the governing ideology and taking up into the everyday lifeworld the ritual practices that convey that ideology. Researchers tell us that it is extremely difficult to root out these practices once they have become embedded in people’s everyday customs. Even where the historicopolitical circumstances are overturned and the violent powers have been
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deposed, everyday social rituals, tend to keep the violence deeply entrenched in social custom where it can persist for generations to come. Often, when the violent practices seem to have been long rooted out because no signs of their lingering presence have been detected, it turns out that they have only been sublimated, to crop up suddenly anew when some new form of social chaos threatens. Despite the apparent popular confidence in the efficaciousness of the judicial and criminal traditions of the West, the stark fact of expert testimony is that the purposes claimed as being served by these traditions have a very poor record. James McGuire’s What Works: Reducing Reoffending considers the various methods, approaches, and therapies used in dealing with offenders, to discuss what best serves the promised ends (McGuire, 1999). What works to convince people that crime does not pay and to keep them and others from repeating their crimes? McGuire’s findings are generally disappointing: nothing seems to work. None of the methods employed in prisons seem to make a great difference in the success rate in regard of the promised goals – not shock therapy, or boot camp, or vocational training. Solitary confinement leads to madness. Criminal company fosters criminal networks and increases the inmates’ expertise in criminal methods. Nor can it be argued that the death penalty is a final solution to the social offender. No monies are saved, no deterrence factor in potential offenders can be noted; the crime rate does not drop with each execution. But, where death is the penalty dished out to the social offender, punishment achieves successfully at least one of the purposes it promises to serve: annihilating the criminal guarantees that the particular offender will not disturb the social order again. With execution, the offender is most effectively castrated, lopped off from the whole, removed to a safe distance from that body, and held in permanent isolation therefrom, so that the infection of its deviant desires does not contaminate the remaining members. Death rituals serve another crucial function in the solidification of a sense of belonging that gives substance to stable identity fantasies within the society. We are disposed to think that ‘‘evil’’ people infect our pure and just systems, and that, if the system does not act forcefully to remove the contaminants, they will certainly pollute the rest of us. This kind of thinking causes us to become judgmental of people rather than of inappropriate – violent – behaviors. When the legitimate authorities of our system condone and themselves practice these ill behaviors (often on the argument that they are rooting out ‘‘evil’’ in the populace or in the world), it is only a matter of time until the violent practices themselves become so deeply embedded that
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they become ‘‘institutionalized’’ and are taken up into the common practices of the general populace as well. Punishment practices within the state attempt to help people make sense of their social world by locating the offending part of the society that threatens its stable continuance, isolating it and murdering it before it has the opportunity to infect the whole system. The frustrations and aggressions of every level of the system can be focused upon the petty criminal, permitting a convenient forgetting of the alienation that generally tears them into their respective strata and cleansing each of the guilt of a thousand everyday petty criminalities in which every citizen participates (stealing pens from work, cheating on the spouse, failing to return library books). The efficacy and convenience of the scapegoating procedure explains why even the most oppressed within the society tend to share the frantic compulsion to punish social deviates, even knowing that the greater portion of the criminal class comes from their downtrodden fellows. The criminal being tried in the public shame spectacle allows an eclipse of their own marginalized status. The worst wife-beating, child-abusing tyrant of the society can feel proud and respectable in comparison with the bicycle thief on the whipping post. One of the most charming fictional representations of this phenomenon is given by Kenneth Grahame in The Wind in the Willows, when he describes the Toad, as prisoner, being hauled into jail after stealing a motorcar (emphasis mine). Then the brutal minions of the law fell upon the hapless Toad; loaded him with chains, and dragged him from the Court House, shrieking, praying, protesting; across the marketplace, where the playful populace, always as severe upon detected crime as they are sympathetic and helpful when one is merely ‘wanted,’ assailed him with jeers, carrots, and popular catch-words; past hooting school children, their innocent faces lit up with the pleasure they ever derive from the sight of a gentleman in difficulties; across the hollowsounding drawbridge, below the spiky portcullis, under the frowning archway of the grim old castle, whose ancient towers soared high overhead; past guardrooms full of grinning soldiery off duty, past sentries who coughed in a horrid, sarcastic way, because that is as much as a sentry on his post dare do to show his contempt and abhorrence of crime; up time-worn winding stairs, past men-at-arms in casquet and corselet of steel, darting threatening looks through their vizards; across courtyards, where mastiffs strained at their leash and pawed the air to get at him; past ancient warders, their halberds leant against the wall, dozing over a pasty and a flagon of brown ale; on and on, past the rack-chamber and the thumbscrew-room, past the turning that led to the private scaffold, till they reached the door of the grimmest dungeon that lay in the heart of the innermost keep. (Grahame, 1917, pp. 141–142).
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Marking off the good from the evil can grant a comforting sense of sameness to the community in the midst of a chaotic and confusing world. This fact makes it difficult for people to see that samenesses are not always good and that differences are not always demonic. Simple empirical evidence testifies that good and evil are dialectical partners; neither is found in any pure form in this world. Evil is inherent in the human condition, in ageing and in sickness and in death. Evil is an inherent component in the paradox of mortality itself, the dark underside of the goodness of existence, interrupting our happiest moments with the nagging implacably of its tragic finale. In the earliest religions, the god is the monstrous. The divine craftsman who grants the gift of free will is the same one that exacts a cruel justice for our waywardness from the divine plan. When we moralize, criminalize, isolate, and murder deviance, we reenact an ancient and barbarous custom deeply embedded in the processes of ‘‘civilization’’ itself. Prohibitions do not cure the monstrousness of social chaos, nor do cruel and spectacular punishments banish the demon from our midst. Moralizations and suppressions simply produce hysterias for cleanliness that cause demonic behavior – violence – to break out at every level of the system. The hysteria begins in demands for forms in triplicate; licenses for ownership, operation, and occupation; passports and visas for travel; and social numbering systems. It grows more frantic in tighter border controls, harsher immigration directives, electronic surveillances, and airport friskings It proliferates in rituals of rejection like identity cards and citizen profiling, and, in good time, it fulfills itself in overt public displays of racism, chauvinism, sexism, religious persecution, tribalism, and ultimately ethnic cleansing projects. Punishment rituals compose one form of the manifold ‘‘ordering mechanisms’’ that are the legacy of violent rituals that have been bequeathed from the distant past of human time. The more seriously we take our systems and the ordering mechanisms that secure them, the more seriously we take ourselves and the sacredness of our identity structures and our loyalties to them. Concomitantly, the more we give rise to the ‘‘evil’’ that we are attempting to purge from our midst. The more we demonize the alien other, the more we legitimate our own violences and fall into the behaviors that we condemn in others. The best advice that can be offered to those who would make harsher the ordering rituals that keep our system pure and intact, again, comes from Friedrich Nietzsche: Never trust a god who doesn’t dance (Nietzsche, 1978, IV).
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REFERENCES Beaumont, G., & de Tocqueville, A. (1833). On the penitentiary system in the United States and its applications in France. Philadelphia: Carey, Lee and Blanchard. Bloch, M. (1977). Prey into hunter. New York: Cambridge University Press. Bloch, M. (1986). From blessing to violence: History and ideology in the circumcision ritual of the Merina of Madagascar. Cambridge, UK: Cambridge University Press. Foucault, M. (1977). Discipline and punish: The birth of the prison. New York: Vintage. Foucault, M. (1995). Discipline and punish. New York: Vintage Books. Fuller, R. W. (2004). Somebodies and nobodies. Gabriola Island, BC, Canada: New Society Publishers. Gilberg, T. (1990). Nationalism and communism in Romania. Boulder, CO: Westview Press. Girard, R. (1979). Violence and the sacred. Hopkins: Johns Hopkins University Press. Grahame, K. (1917). The wind in the willows. New York: Charles Scribner’s sons. Martinson, R. (1974). What works. Justice Perspettiz, 21(3), 22–30. Nietzsche, F. (1967). On the geneology of morals. New York: Vintage. Nietzsche, F. (1974). The gay science. New York: Random House. Nietzsche, F. (1978). Thus spoke Zarathustra. New York: Penguin. Prejean, H. (1996). Dead man walking. Grand Rapids, Michigan: Zondervan.
‘‘‘TORN’ BETWEEN JUSTICE AND FORGIVENESS: DERRIDA ON THE DEATH PENALTY AND ‘LAWFUL LAWLESSNESS’’’ David A. Brenner ABSTRACT In 1996, philosopher Jacques Derrida appealed to then President Bill Clinton to encourage a re-trial for American death-row prisoner, Mumia Abu-Jamal. Derrida’s co-authored open letter, one of his most famous political interventions, rehearses the trajectory of his later writings on ethics, specifically the interrelated concepts of justice and forgiveness. In articulating the limits of legality, Derrida contends that an unconditional forgiveness exists outside the conventional dichotomy of the possible and the impossible. The performative paradox of ‘‘forgiving the unforgivable’’ may well require, in his own formulation, a ‘‘messianicity beyond messianism.’’
I can only say I prefer life, starting with my own lifeyI am against the death penalty, but the issue of its abolition is not a closed discoursey (Derrida, 2000)
Crime and Punishment: Perspectives from the Humanities Studies in Law, Politics, and Society, Volume 37, 109–122 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)37005-0
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In 1996, the poststructuralist philosopher Jacques Derrida co-authored an ‘‘Open Letter to the President of the United States and Hillary Rodham Clinton’’ with Marie-Claire Mende`s-France, an activist and the widow of the former French prime minister. This three-page letter, never responded to by the Clintons, was published 3 weeks later in the journal Les Temps Modernes, the newspaper Libe´ration and elsewhere in France. In the letter, Derrida and Mende`s-France appeal to the (then) President and First Lady of the United States to speak out publicly in order to encourage a re-trial for journalist and death-row prisoner, Mumia Abu-Jamal. At first glance, the letter appears to exemplify a western European discourse that would critique the interrelated American phenomena of the death penalty, anti-black racism, and a penal system with increasingly retributive effects. Yet my thesis is that this open letter on the death penalty, from a philosopher who often avoided the public sphere, rehearses the trajectory of Derrida’s recent writings on ethics, specifically on the interrelated concepts of justice and forgiveness.1 The objective of the present essay is to formulate more clearly Derrida’s work on the limits of legality as an ethical institution. Despite its radical gestures, Derrida’s approach is moderated by an awareness of the impossibility of ethics in the framework of positive law. The pathos of the law’s partiality, its ‘‘lawful lawlessness,’’ (Sarat & Hussein, 2004) is rendered as an ethico-political experience, and the singular case of Abu-Jamal serves as a pretext to render apparent the urgency of a philosophical meditation on the law’s blindness to the aporias of undecidability.
1. ‘‘TORN’’ BETWEEN THE POSSIBLE AND THE IMPOSSIBLE The ‘‘Open Letter’’ is a self-described appeal to ‘‘the language of the heart.’’ For neither unconditional forgiveness nor absolute justice are pre-given rules which might be applied to the case of Abu-Jamal. As one of Derrida’s most public interventions in politics, the letter to the Clintons is a congenially transparent text. Even though it is written in a register recalling Derrida’s 2003 interventions in cooperation with German philosopher Ju¨rgen Habermas, the letter is characteristic of reflections on questions of justice and forgiveness in the work of what Herman Rapaport (2003) and Richard Kearney (quoted in Kavanaugh, 2004) have referred to as the ‘‘later Derrida.’’
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The death penalty was also a major point of departure for a series of seminars Derrida held at universities in Paris, New York and Irvine in the 1990s, entitled ‘‘Questions of Responsibility: Forgiveness and Perjury.’’ In one set of these seminars, summarized in On Cosmopolitanism and Forgiveness (2001c), Derrida goes to great lengths to deconstruct both the binary of justice and forgiveness and a correlated binarism of ethics and hospitality. The ultimately undecidable conclusion of his 1997 seminar ‘‘Hosti-pitality’’ (an allusion to the French term hoˆte with its dual meaning of host and guest) is that unconditional forgiveness and a hyperbolic ethics are not ‘‘impossible,’’ despite the catastrophic limit-events of the twentieth century.2 In a lecture ‘‘To Forgive: The Unforgivable and The Imprescriptible’’ (composed in 1999), Derrida returns to the problematic binary of possible/ impossible. Here he continues to hyphenate the term impossible as impossible in order to distinguish it from other common understandings of the word. In ‘‘To Forgive,’’ Derrida maintains that forgiveness begins with the im-possible such that this im- is not simply a negation but also an intensification. The im- propels forgiveness to its most hyperbolic possibility, the paradoxical ‘‘possibility of the impossible.’’ Not to be conflated with a utopian ‘‘unconditional,’’ however, what Derrida terms ‘‘impossible forgiveness’’ involves taking the risk of deciding, as well as acting. As such, it resembles a leap of faith which gestures beyond the possibility of calculating consequences. On the one hand, the unconditionality of such an ‘‘infinite responsibility’’ ought to guide political and legal action, so that such action does not become purely political or legal, subject to the realistic ‘‘conditionality’’ of the moment. Yet, on the other, an ‘‘infinite responsibility,’’ parallel to Emmanuel Levinas’s irreducible first principle of ethics, must not dictate automatically the precise actions to be taken in response to traumatizing or lethal events such as the death penalty. The penalty is itself, in fact, an event intended as punishment for a perceived injustice. Here Derrida again abstains from the extremes of radical justice and radical forgiveness, concluding that he remains ‘‘torn’’ in his response to individual or collective processes of ‘‘reconciliation,’’ including attempts at restorative justice (e.g., in South Africa). Derrida’s ‘‘torn’’ designates an undecidable combination of transcendence and immanence, according to which ‘‘[t]here isyin the motion of unconditional forgiveness, an inner exigency of becomingeffective, manifest, determined, and, in determining itself, bending to conditionality’’ (2001e, p. 45, emphasis added). There is a more recent attempt by Derrida to address this paradox in an interview conducted in the aftermath of the September 11 attacks. Whereas
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for him unconditional responsibility is homologous with radical forgiveness and hyperbolic hospitality, ‘‘[w]hat remains unconditional or absolute (unbedingt, if you will) risks being nothing at all if conditions (Bedingungen) do not make of it some thing (Ding)’’ (2003, p. 130). The thought, then, of such an unconditional or absolute responsibility is ‘‘a thought that is also, in its own way, an experience’’ (2003, p. 130, emphasis added). And unconditional (or ‘‘hyperbolic’’) hospitality, though neither juridical nor political, is nonetheless the condition of the political and the juridical. For these very reasons, I am not even sure whether it is ethical, insofar as it does not even depend on a decision (2003, p. 128).
By even entertaining the notion that we ‘‘forgive the unforgivable,’’ Derrida insists on ‘‘bending’’ to the conditionality of the decision, thus opting for a politics which may ultimately exceed ethics. For Derrida’s questioning of ethics, like his questioning of abolitionism in the epigraph to the present essay, is more a condition of – rather than a departure from – ‘‘ethicality.’’ The questioning of ethics becomes as important as ethics itself, particularly in the face of a justice and a forgiveness which are (simultaneously) heterogeneous and inseparable: If we wantyforgiveness [French: pardon] to be effective, concrete, historical, if we want it to happen, that it have a place in changing things, it is necessary that its purity is engaged in a series of all sorts of conditions (psychological, political, etc.). It is between these poles, irreconcilable but indissociable, that decisions are to be made and responsibilities taken (1999b)
If ethics is an oversimplified term for our relationship to others, then ‘‘it has to be negotiated at every instant, and the decision for hospitalityyhas to be re-invented at every second’’ (Derrida, 1997). For instance, a radical (or pure) forgiveness is figured as always risking an inhospitable response, ranging from verbal or physical attack to a lingering ressentiment directed at the host. Such an inhospitable response might hypothetically ensue, if amnesty an accused murderer such as Abu-Jamal were granted amnesty (or a re-trial). Hence, ‘‘to forgive’’ (pardonner) in its problematic etymology of ‘‘to give’’ (donner) includes the possibility that host will be ‘‘inhospitable’’ and the guest a ‘‘perjurer.’’ Yet, for Derrida, to forgive the ‘‘merely forgivable,’’ that which one can always pardon, is not to have purely or unconditionally forgiven someone.
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2. JUSTICE, FORGIVENESS, AND PUBLIC ‘‘ENLIGHTENMENT’’ In the impure, all-too-human course of Derrida’s ‘‘Open Letter’’ to Clinton, Derrida’s paradox of ‘‘forgiving the unforgivable’’ determines the text’s discursive structure at least as much as its surface intentionality. Among the letter’s more curious aporias, one might note the initial congratulations to Bill Clinton on his recent re-election as president, even though Derrida harbors no illusions about the President’s attitudes toward clemency. Rather, he recognizes that Clinton, even prior to his presidency, ‘‘had never been inclined to grant pardon to anyone,’’ having been ‘‘a rather active partisan of the death penalty’’ (1999b). At the same time, Derrida refuses any positive-law or normative rationale for capital punishment, tending to view the death penalty as a displaced survival of a problematic political ontotheology. The ‘‘Open Letter’’ is, further, an unusually public intercession for the philosopher. Like his 2003 intervention with Habermas, it is one which Derrida preferred to co-sign. Equally conspicuous is the way in which this appeal to Clinton traffics in ethical hyperbole, citing as endorsement for a re-trial ‘‘the entire rest of the world,’’ only then to reduce its warrant to ‘‘thousands and thousands of citizens from numerous democratic countries’’ (Derrida & Mende`s-France, 1996/2001, p. 494). At this juncture, the letter seems to settle for a middle ground by locating Abu-Jamal’s case ‘‘in the worst tradition of the greatest judicial errors in history’’ (1996/2001, p. 494). Yet, this ostensibly measured statement also elicits the specter of possible public demonstrations or even riots.3 For, while concluding with a demand for ‘‘indisputable evidence’’ as the basis for any judgment in Abu-Jamal’s retrial, Derrida and Mende`s-France reason that this otherwise self-sufficient ‘‘act of justice’’ would ‘‘no doubt prevent new outbursts of anger, foreseeable indignant reactions that could have unforeseeable consequences’’ (1996/2001, p. 495). Indeed, the legacies of the Abu-Jamal affair and its potential for public outrage beg a further set of questions. Here, as in his other overtly ‘‘political’’ interventions, Derrida prefers to style himself as a reasonable advocate of the Enlightenment. In recent writings, he engages regularly with Kant on cosmopolitanism, the categorical imperative, and ‘‘perpetual peace,’’ as if to distance himself publicly from the canard of being a ‘‘nihilistic,’’ ‘‘destructive’’ philosopher – or, as Habermas himself once alleged, a ‘‘Jewish mystic.’’4 One need only recall Derrida’s (hitherto
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virtually unthinkable) co-intervention with Habermas, a joint statement of May 31, 2003 questioning U.S. unilateralism in the most recent war against Iraq. At the same time, the letter on Abu-Jamal is of a piece with Derrida’s thinking of the last decade on collective action and international politics. Even if social relations are almost always constituted in the materiality of language for Derrida, ‘‘in recent years he has also considered social performativity’’ (Rapaport, 2001, p. 139; emphasis added). At least since his The Other Heading (Derrida, 1992b) and Specters of Marx (1993), Derrida focuses on tracing the contours of a future European or global polity, a ‘‘democracy to-come’’– a-venir in his neologism. Like his ‘‘justice to come’’ and the related philosopheme of a ‘‘messianicity without messianism,’’ Derrida’s notion of a ‘‘democracy to come’’ derives in part from his reappropriation of a certain ‘‘dialectic of the Enlightenment.’’ This future democracy not only draws upon but also reinvents principles of a universalizable, yet all too singular justice. For a ‘‘democracy beyond democracy’’ (resembling a ‘‘justice beyond justice’’) must intervene in a trajectory which would otherwise foreclose how ‘‘democracy’’ (like ‘‘justice’’) would appear in its full and irreducible complexity. In raising such questions, Derrida’s reinscription of Enlightenment traditions, including Caesare Beccaria’s eighteenth-century reflections on punishment, means to render visible some of the internal fissures which the Enlightenment has otherwise sought to reify. One such fissure remains the ‘‘unforgiving’’ and ‘‘unjust’’ punishment of death for capital offenses.
3. FORGIVING THE UNFORGIVABLE, DESPITE CONDITIONALITY AND SOVEREIGNTY In the ‘‘Open Letter’’ and elsewhere in his later oeuvre, Derrida reflects on whether an unconditional forgiveness is still possible, even if the other in question, figured by Levinas as a ‘‘wholly other’’ (tout autre), has perpetrated an act considered ‘‘unforgivable.’’5 This notion of ‘‘forgiving the unforgivable’’ is not intended just to provoke. Rather, Derrida takes pains to discuss the matter and its relationship to a ‘‘justice beyond the law’’ in gestures which are sensitive to the (Western) juridical-theological heritage of forgiveness. For Derrida, granting someone ‘‘unconditional forgiveness’’ implies that forgiveness, if there is such a thing, exists outside the conventional dichotomy of the possible and the impossible. No mere matter of
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reflection, unconditional forgiveness must be specially excluded from the sphere of action and exercise of power. It is necessary that it take on a character beyond all sovereignty and thus outside all existing power relations. Whereas a conditional forgiveness is conventionally linked with its opposite, the power or authority to punish, unconditional forgiveness belongs neither to the juridical nor the political order. Assuming that pure forgiveness is even possible, it cannot be absolute (or hyperbolic) ‘‘unless it forgives the unforgivable and thus raises itself above law [droit], beyond any calculable sanction’’ (Derrida & Roudinesco, 2001, p. 264). In contrast to Hannah Arendt, among others, Derrida maintains that [e]ach time forgiveness is effectively exercised, it seems to suppose some sovereign power. It could be the sovereign power of a strong and noble soul, but also a power of State exercising an uncontested legitimacy, the power necessary to organize a trial, an enforceable judgment or, possibly, acquittal, amnesty, or pardon (Derrida, 2001d, p. 59).
While legitimitized authority cannot be wished away entirely, the imbrication of conditional forgiveness with the power to punish or pardon implies that Derrida’s approach is principled and consistent. As stated in one of his last interviews: I would like to think of something unconditional in forgiving, in grace, in forgiveness, in the gift, in hospitality – an unconditionality that wouldn’t be a sign of power, a sign of sovereignty. So I have tried to dissociate sovereignty and unconditionality (Derrida, 2005, p. 42).
This may explain in part why the ‘‘Open Letter’’ demands only a re-trial for Abu-Jamal, not a complete abolition of the death penalty. While Derrida correctly points out that no major philosopher in the West has ever opposed the death penalty, he also insists that there is no purely philosophical argument against it (see Derrida & Roudinesco, 2001, p. 236). In eschewing justifications for abolitionism derived from conventional philosophies (e.g., utilitarianism), Derrida reasons that the more ‘‘possible’’ forgiveness seems and the more equitably one conceives of it, the more it threatens to slip once more into calculation. In such circumstances, forgiveness is rendered a zero-sum equation, with the all too ‘‘reasonable’’ objective of achieving symmetry, measuredness, and reciprocity. In ‘‘To Forgive’’ (2001e), forgiveness must resist becoming a system of exchange, similar to justice in Derrida’s famous essay ‘‘Force of Law’’ (see Derrida, 1992a, p. 25). To grant any type of pardon to the other, then, one must at least conceive of doing so ‘‘unconditionally,’’ apart from any economic or measurable consideration. One would have to conceive of doing so in a
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‘‘just’’ manner: i.e., even for someone ‘‘who does not ask for it, [or] who does not repent’’ (2001e, p. 28). Conventionally speaking, displays of remorse are all too often required or desired of those whom we deem criminal or criminally suspect. But is it not ironic that we still expect performances of contrition from those we deem unforgivable? And what if we do not pardon those presumed guilty even if they confess, expiate or mortify themselves – in line with Judaic and Christian traditions which ‘‘never remove forgiveness from a horizon of reconciliation [or] hope for redemption’’ (2001e, p. 29)? Forgiving unconditionally is to give something apart from any economic or measurable consideration, even to someone who does not request it, much less ‘‘confess, improve or redeem himself’’ (2001e, p. 28). It is this ‘‘traditional axiom, which has great force’’ that Derrida is concerned to contest here, for the forgiving party is rarely bereft of all power. And yet even when we attempt to define forgiveness as a respect for the ‘‘other’’ in her human, non-instrumental aspect, such forgiveness is again conditional. For Derrida, it obliges one to enact a species of violence upon this singular other. For my act of forgiving may not be accepted as authentic by the one I have forgiven. I always run the risk of assuming falsely that the forgiven party has acknowledged my act of forgiving. Indeed, I may feel compelled to ask forgiveness for my false assumption, one which might have negative, possibly even violent, consequences. According to such an ethics, one is required not only to apprehend the suffering of others but also to take stock of the suffering one has inflicted. Required as well is that one wrestle ethically with one’s own unforgiving impulses, particularly in cases when one persists in regarding as ‘‘forgiving’’ what is an inadequate or rather conditional forgiveness. In order to stress this irreconcilable but indissociable relation, Derrida has written: I must ask forgiveness – pour eˆtre juste [for being just/to be just]. Listen carefully to the equivocation of this ‘‘pour.’’ I must ask forgiveness in order to be just, to be just, with a view to being just; but I must also ask forgiveness for being just, for the fact of being just, because I am just, because in order to be just, I am unjust and I betray. I must ask forgiveness for (the fact of) being just. Because it is unjust to be just. I always betray someone to be just; I always betray one for the other, I perjure myself like I breathe. And this is endless, for not only am I always asking forgiveness for a perjury but I always risk perjuring myself by forgiving, of betraying someone else by forgiving, for one is always doomed to forgive (thus abusively) in the name of another (Derrida, 2001e, p. 49).6
Such paradoxes are to be expected from Derrida, as careful readers of him will affirm. Paradox suits well the character of his unconditional forgiveness
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as unrealizable, unrepeatable, and unquantifiable. Is unconditional forgiveness, then, like unconditional justice, something which in the final analysis is ‘‘unintelligible?’’ Derrida offers his own clues to addressing this quandary. In the seminars of 1996–1999 collected in On Cosmopolitanism and Forgiveness (Derrida, 2001c), he openly eschews the extremes of radical justice and radical forgiveness, preferring to the state of being ‘‘torn’’ between a ‘‘hyperbolic’’ ethical vision of forgiveness, pure forgiveness, and the reality of a society at work in pragmatic processes of reconciliationyIn order to inflect politics, ory‘‘pragmatic processes,’’ in order to change the lawyit is necessary to refer to a ‘‘hyperbolic’’ ethical vision of forgiveness (Derrida, 2001c, p. 51; emphasis added).
This ‘‘tear’’ in one’s response to individual or collective forgiveness, both within and beyond the law, derives ultimately from Derrida’s principle of a ‘‘heterogeneous but indissociable relation’’ (Derrida, 2001c, pp. 44–45) between the unconditional and the conditional. Put differently, ‘‘the distinction between unconditionality and conditionality is shifty [retorse] enough not to let itself be determined as a simple opposition’’ (Derrida, 2001e, p. 45).
4. FROM ‘‘TEARS TO PRAYERS’’: OF UNREMITTING RESPONSIBILITY AND HYPERBOLIC HOSPITALITY To forgive the already socially dead, the death-row inmate, the (nearly) wholly Other, is to be involved in some high stakes indeed. For the ‘‘later Derrida,’’ let us recall, forgiveness gets evacuated of its effect, force, and meaning whenever it pardons the venial transgression, the ‘‘merely forgivable.’’ Derrida adds to this insight another one: that being human implies being always already ‘‘unforgiven.’’ Based on a ‘‘responsibility that will never come to an end for me as long as I live,’’ this insight (occasioned on the death of his friend Levinas) indicates a mourning which is melancholic or incomplete (see Derrida, 1999a, p. 4). Like the dictum ‘‘I perjure myself as I breathe,’’ it evokes a nearly paranoid fantasy of a world in which each of us might be responsible for each and every person. A responsibility without limits or conditions may in fact be something which only divine-like assurances can underwrite. As much is gestured at in Derrida’s Gift of Death (Derrida, 1996) and its case study of the biblical episode of the binding of Isaac (the akedah story in Judaic tradition). Indeed, Gift of Death is a text which since the mid-1990s has elicited much
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speculation from (poststructuralist) theologians and theologically inclined philosophers. To fully articulate the performative paradox of ‘‘forgiving the unforgivable’’ may well require a reading of Derrida’s oeuvre as a negative theology or, in his own formulation, as a ‘‘messianicity beyond messianism.’’ As Derrida pointedly asks in ‘‘To Forgive’’: Is forgiveness a thing of man, something that belongs to man, a power of man—or else is it reserved for God, and thus already the opening of experience or existence onto a supernaturality just as to a superhumanity: divine, transcendent, or immanent, sacred, whether saintly or not? All the debates around forgiveness are also regularly debates around this ‘‘limit’’ and the passage of this limit (2001e, pp. 44–45).
The philosopher/theologian John Caputo, Dooley, and Scanlon (2001, p. 8) concurs strongly with the affirmation of a forgiven which is without limits or conditions: The impossible is like a Messiah whose very structure is never to appear in the present and who, by thus deferring his appearance, keeps the future open, a Messiah whose condition of possibility is the very impossibility of his ever showing up, who does not have to be because he must not be.
According to such a logic, forgiveness has the potential to disrupt history. In the moderated discussion with philosophers and theologians which followed ‘‘To Forgive,’’ Derrida maintains that the ‘‘bending’’ of the unconditional to conditionality implies a ‘‘leap,’’ or deciding upon ‘‘the best response in an impossible situation’’ (Derrida, 2001d, p. 58). Hence, forgiving the unforgivable should remain ‘‘exceptional and extraordinary’’ in the face of the impossible, as if it interrupted ‘‘the ordinary course of historical temporality’’ (Derrida, 1999b). Caputo’s characterization of impossible forgiveness as an opening to the future buttresses the claim that Derrida’s ‘‘messianicity without messianism’’ resembles political commitment, what philosopher Judith Butler in eulogizing Derrida portrays as a ‘‘political ethics’’ (Butler, 2004). Richard Kearney, another theologian/philosopher, suggests a tantalizing connection to Derrida’s reflections on Abu-Jamal and the death penalty. Kearney paraphrases Derrida’s unpublished reply to a presentation (by Mark C. Taylor) at the first Villanova conference on religion and postmodernism as follows: You cannot just say that everything is a text, and America is a casino and a prison is a casino, etc. Not fifty miles away from here there is a prisoner named Mumia Abu Jamal [sic] on death row. And that is not a metaphorical or a textual prison. It is a real prison. There is a real person there, and he will really die if we do not do something about it (quoted in Kavanaugh, 2004).
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Though not included in the published proceedings of that conference (see Caputo & Scanlon, 1999), Derrida’s response amplifies the conclusion arrived at in his seminars: that unconditional forgiveness and hyperbolic ethics are possible, even when the other has perpetrated something unforgivable. That unforgivable deed may be a murder, a genocide, or state-sponsored violence (e.g., the death penalty). At the same time: in as much as a just and unconditional hospitality remains impractical and unrealizable, ‘‘one cannot inscribe it in rules or in legislation’’ (2001d, p. 58). For if one were to translate it immediately into a politics, it may risk ‘‘having perverse effects’’ (2001d, p. 58). The trajectory of Derrida’s thought here as well as on ‘‘cities of refuge’’ evinces a post-Enlightenment normativity. On hyperbolic hospitality, Derrida stated, in a 1997 interview, that ‘‘everyone must judge, in their soul and conscience, sometimes in a ‘private’ manner, what (when, where, how, to what extent) has to be done without the laws or against the laws’’ (Derrida & Assheuer, 1997). This formulation gestures not only to Kant’s famous essay ‘‘What is Enlightenment?’’ (Kant, 1784), but also toward a new ‘‘figure of Europe.’’ Derrida conceives of this polity less as an ‘‘invitation’’ to the regulative-ideal of the possible (such as the ‘‘European Union’’) and more as a ‘‘visitation’’ of the uninvited, a welcoming of strangers beyond duty and law (2003, pp. 129–133). Such formulations, I would argue, go some way toward explaining the private force and discourse of the ‘‘Open Letter’’ to the Clintons, particularly that utterly ordinary sentence in the opening paragraph: ‘‘For, in speaking the language of the heart as much as that of the law and right, we appeal to you above all out of duty and in the name of justice in order to beseech you, Mr. President, Madame First Lady, to make your voice heard’’ (Derrida & Mende`s-France, 1996/2001, p. 493, emphasis added). In the ‘‘Open Letter,’’ a contingent knowledge of the heart is at stake, according to which the ‘‘lawful lawlessness’’ of presidential prerogative might paradoxically rescue ‘‘the law’’ from meaninglessness. The Clintons are asked ‘‘only to declare, loudly, with the strength of your legitimate authority and a renewed confidence, words of justice that would recall to democracy the spirit of law and human dignity’’ (1996/2001, p. 495). Derrida first demanded a ‘‘justice beyond the law’’ in his essay ‘‘Force of Law’’ (1992a). There he contends that we distinguish rigorously between an unconditional ‘‘justice’’ and an all-too-conditional ‘‘law.’’ For the legitimacy of the law depends on the perlocutionary promise that one day ‘‘to come’’ (a-venir in Derrida’s neologism) unconditional justice might actually be extended to those persons and acts previously excluded from its realization.
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Unconditional justice arguably became for Derrida the undeconstructible condition that rendered deconstruction itself possible. Having maintained, perhaps too apodictically, in ‘‘Force of Law’’ that ‘‘[d]econstruction is justice’’ (1992a, p. 21), Derrida could in the 1990s elaborate a prolegomenon to what became a philosophy addressing forgiveness [i]f anything is undeconstructable, it is justice. The law is deconstructable, fortunately: it is infinitely perfectible. I am tempted to regard justice as the best word, today, for what refuses to yield to deconstruction, that is to say for what sets deconstruction in motion, what justifies it. It is an affirmative experience of the coming of the other as other (Derrida, 2001b, p. 543).
NOTES 1. Derrida’s reluctance to be interviewed and/or photographed for the press, especially since the 1980s, is a central motif in Derrida: The Movie (Kofman, 2002). The ‘‘Open Letter’’ is included in a recent canonization of Derrida’s writings, Deconstruction: A Reader (McQuillan, 2001) 2. Herman Rapaport elaborates well on the points of contact between hostility and hospitality in Derrida’s work: ‘‘Even when the enemy is being cruel to us, is this cruelty any more understandable or believable? Does it utterly displace kindness, even some bit of charity or friendliness? Alternatively, isn’t a characteristic of the true friend that he or she may challenge us in a way that is not friendly and that might well characterize the actions of an enemy? Consider the remonstrations of the teacher, the probation officer, or the drill sergeant? Aren’t they both friendly and hostile?’’ (2001, p.140). 3. In a French context, this allusion to demonstrations and riots may be a subtle reference to the Dreyfus affair in France of almost 100 years earlier. 4. On denunciations of Derrida, see Derrida (2001a). 5. To be sure, the relationship of Derrida’s philosophy to Levinas’s is highly complex. Hence, it cannot be addressed in the scope of this essay. More recent work seems intent on rigorously disaggregating the two; see, for instance, Adamek (2005). 6. While it appears on a surface level to border on the obsessive, this meditation may also refer to highly displaced Judaic traditions in Derrida’s work. One such tradition implicit here is the hegemonic approach to forgiveness in early rabbinic law. According to the Mishnah (1918), http://www2.bibliaonline.net/talmud/t05/kam11.asp (specifically Baba Kama 8, pp. 1,7), if a person refuses to accept an apology, the offending party must attempt to apologize again. After three attempts, however, the offending party is no longer the offender; instead, he becomes the offended (and hence forgiving) party. According to Moses Maimonides, the predominant Jewish theologian of the early middle ages, the injured party must forgive the offending party after only two attempts at apology.
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ACKNOWLEDGEMENTS The author wishes to express his gratitude to colleagues at the 2002 AAR/ SBL meeting in Toronto, the 2003 MLA meeting in San Diego, and the 2004 NEH Summer Seminar at Amherst College for their valuable comments and criticisms on earlier versions of this essay. Particular acknowledgement is due to Benjamin Robinson and Philip Adamek. Unless stated otherwise, translations from the French and German are my own.
REFERENCES Adamek, P. (2005). Theaters of forgiveness. Unpublished doctoral dissertation. State University of New York: Buffalo. Butler, J. (2004). Jacques Derrida. London review of books, 26.21 (Internet ed.). Caputo, J. D., Dooley, M., & Scanlon, M. J. (2001). Introduction: God forgive. In: J. D. Caputo, M. Dooley & M. J. Scanlon (Eds), Questioning God (pp. 1–15). Bloomington: Indiana University Press. Caputo, J. D., & Scanlon, M. J. (Eds) (1999). God, the gift, and postmodernism. Bloomington: Indiana University Press. Derrida, J. (1992a). Force of law: The ‘‘Mystical Foundation of Authority’’(M.Quaintance, Trans.). In: D. Cornell, M. Rosenfeld & D. G. Carlson (Eds), Deconstruction and the possibility of justice (pp. 3–67). New York: Routledge. Derrida, J. (1992b) The other heading: Reflections on today’s Europe (P. Brault, & M. B. Naas, Trans.). Bloomington: Indiana University Press. Derrida, J. (1996). In: D. Wills (Trans.), The gift of death. Chicago: University of Chicago Press. Derrida, J. (1997). Politics and friendship: A discussion with Jacques Derrida [& G. Bennington]. Brighton: Centre for Modern French Thought, University of Sussex. Retrieved July 1, 2004, from http://www.hydra.umn.edu/derrida/media.html Derrida, J. (1999a). In: P. Brault, M. Naas (Trans.), Adieu to Emmanuel Levinas. Stanford: Stanford UP. Derrida, J. (1999b). The century and the pardon: Interview with Michel Wieviorka (G. Macon, Trans. 2001). Le Monde des De´bats, Retrieved July 1, 2004, from http://fixion.sytes.net/ pardonEng.htm Derrida, J. (2000): I’m against the death penalty (Crosara, S., Abstracter). Trieste Contemporanea (La Rivista). Retrieved July 1, 2004, from http://www.tscont.ts.it/pag20-e.htm Derrida, J. (2001a). Above all no journalists! In: H. de Vries, S. Weber, (Eds.), Religion and media (pp. 56–93). Stanford: Stanford University Press. Derrida, J. (2001b) The deconstruction of actuality: An interview with Jacques Derrida. In: M. McQuillan, (Ed.), Deconstruction: A reader (pp. 527–554). New York, Routledge. Original work published in 1993. Derrida, J. (2001c). In: M. C. Hughes (Trans.), On cosmopolitanism and forgiveness, London/ New York: Routledge.
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Derrida, J. (2001d). On forgiveness: A roundtable discussion moderated by Richard Kearney. In: J. D. Caputo, M. Dooley & M. J. Scanlon (Eds), Questioning God (pp. 53–72). Bloomington: Indiana University Press. Derrida, J. (2001e). To forgive: The unforgivable and the imprescriptible. In: J. D. Caputo, M. Dooley & M. J. Scanlon (Eds), Questioning God (pp. 21–51). Bloomington: Indiana University Press. Derrida, J. (2003). A dialogue with Jacques Derrida. In: G. Borradori (Ed.), Philosophy in a time of terror: Dialogues with Ju¨rgen Habermas and Jacques Derrida (pp. 85–136). Chicago: University of Chicago Press. Derrida, J. (2005). Epoche´ and faith: An interview with Jacques Derrida [by J. D. Caputo, K. Hart & Y. Sherwood] (B. Cameron & K. Hart, Trans.). In: Y. Sherwood & K. Hart (Eds), Derrida and religion: Other testaments (pp. 27–52). New York: Routledge. Derrida, J., & Assheuer, T. (1997). Ein Gespra¨ch mit dem Philosophen Jacques Derrida u¨ber die Intellektuellen, den Kapitalismus und die Gesetze der Gastfreundschaft. Die Zeit. Retrieved July 1, 2004, from http://culturemachine.tees.ac.uk/Cmach/Backissues/j002/ Articles/art_derr.htm Derrida, J., & Mende`s-France, M. (2001). Open letter to Bill Clinton (D. Kammer, Trans.). In: M. McQuillan (Ed.), Deconstruction: A reader (pp. 493–495). New York: Routledge Originally published in 1996 (in December Libe´ration and Les temps modernes). Derrida, J., & Roudinesco, E. (2001). De quoi demain.: Dialogue. Paris: Fayard/Galile´e. Kant, I. (1784). ‘‘Eine Antwort auf die Frage: Was ist Aufkla¨rung?’’ Originally published in 1784. Retrieved on July 1, 2004, from http://www.english.upenn.edu/mgamer/Etexts/ kant.html Kavanaugh, L. (2004). An interview with Richard Kearney: ‘‘Facing God.’’ Journal of Philosophy and Scripture, 1(2). Retrieved July 1, 2004, from http://www.philosophyandscripture.org/Issue1-2/Richard_Kearney/richard_kearney.html Kofman, A. Z. (Producer), & Kofman, A. Z. & Dick, K. (Directors). (2002). Derrida: The movie [Motion picture]. United States: Jane Doe Films. Available for distribution from http:// www.derridathemovie.com McQuillan, M. (Ed.) (2001). Deconstruction: A reader. New York: Routledge. Mishnah. (1918). The Babylonian Talmud. In: M. L. Rodkinson (Trans.) (Vol. 6). New York: New Talmud Publishing Company. Retrieved July 1, 2004 from http://www2.bibliaonline. net/talmud/t05/kam11.asp Rapaport, H. (2001). The theory mess. New York: Columbia University Press. Rapaport, H. (2003). Later Derrida: Reading the recent work. New York: Routledge. Sarat, A., & Hussain, N. (2004). On lawful lawlessness: George Ryan, executive clemency, and the rhetoric of sparing life. Stanford Law Review, 56(5), 1307–1344.
CRUELTY, COMPETENCY, AND CONTEMPORARY ABOLITIONISM Michael Cholbi ABSTRACT After establishing that the requirement that those criminals who stand for execution be mentally competent can be given a recognizably retributivist rationale, I suggest that not only it is difficult to show that executing the incompetent is more cruel than executing the competent, but that opposing the execution of the incompetent fits ill with the recent abolitionist efforts on procedural concerns. I then propose two avenues by which abolitionists could incorporate such opposition into their efforts.
The 2003 execution of Charles Singleton, a diagnosed paranoid schizophrenic and convicted murderer, revived interest in a neglected aspect of death penalty jurisprudence, namely, the requirement that those who are slated to die for their crimes must be competent for execution. Subsequent to his 1979 conviction for capital felony murder, Singleton filed numerous appeals in the federal courts, arguing that his mental condition rendered him unfit to die. Prison psychologists reported that Singleton believed his cell was possessed by demons; that he was the victim of curses; that he had in fact already been freed by the courts; and that his pending death was in fact a pseudo-execution, because he would simply stop breathing and then ‘‘start
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up again somewhere else.’’ Singleton sometimes referred to himself as the ‘‘Holy Ghost’’ or ‘‘God and the Supreme Court.’’ In 1997, a medical review panel determined that Singleton was a threat to himself and others and ordered that he be given antipsychotic medication, which caused his delusions to dissipate. Singleton’s execution was then rescheduled. Singleton’s attorneys proceeded to file a habeas corpus petition, claiming that his involuntary medication was not in their client’s medical interest (since his ‘‘artificial competency’’ would in fact lead to his death) and that the state could not coerce Singleton into receiving drugs for the sole purpose of restoring his competency for execution. The appeals court rejected these arguments, citing both the state’s interest in expeditiously punishing offenders and the fact that Singleton had, at various points during his incarceration, willingly sought antipsychotic medication for his symptoms, (Singleton v. Arkansas 124 S. Ct. 74 (2003); see Stewart, 2004 for a full judicial timeline). The state of Arkansas executed Singleton by lethal injection on January 6, 2004. Singleton’s reported last words: ‘‘The blind think I’m playing a game. They deny me, refusing my existence. But everybody takes the place of another. As it is written, I will come forth as you go’’ (quoted in Kimberley, 2004). Singleton’s case attracted extensive media attention, largely due to the array of moral issues it raises concerning the use of antipsychotics within the prison population. These include whether pharmaceutically induced competence counts as genuine competency from a legal perspective and whether prison physicians and psychiatrists have an obligation, in light of their duty to do no harm to their patients, to refuse to provide antipsychotic medications to those whose competency for execution would be restored thereby. That Singleton’s case should garner such attention evokes our perennial fascination with questions about criminal mentality and responsibility, questions which are nearly impossible to avoid in the contemporary media environment. Television in particular encourages us to fear and condemn criminal behavior, while simultaneously permitting us the vicarious thrill involved when we seek to understand or even occupy the criminal mind. Twenty-four hour crime news coverage, with a special fixation on offenders’ personal history and motives; the proliferation of crime psychodramas, some of which present the commission of crime from the first-personal perspective of the criminal; and crime documentary series that painstakingly recreate the details of criminal acts; all of these reflect and reinforce a willingness to entertain the possibility of our own criminality, a possibility the indulgence of which must of course be circumscribed by the condemnatory sentiments and judgments we direct at the criminal. Doubtless an interest in
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the psychology of criminality is continuous with the near universal human preoccupation with comprehending evil, but this preoccupation is stoked by the contemporary media and manifests a larger cultural anxiety about questions about responsibility and agency in an advanced technological age. As Carl Elliott (2003) and others have pointed out, the increasing use and acceptance of various ‘‘enhancement technologies,’’ including psychopharmaceuticals, cosmetic surgery, and other medical self-improvements, suggests a more porous understanding of the boundaries between the alleged sovereign self, a self thought somehow natural or authentic, and that self’s social circumstances. Such anxieties are only the latest version of a question concerning criminals we seem unable to duck: Mad or bad? The very phrase ‘‘artificial competency’’ betokens these larger anxieties. While issues of agency and responsibility will arise in the course of my discussion, I shall not explore the specific moral concerns raised by the use of such pharmacological interventions to establish competency, nor shall I be particularly concerned with the details of Singleton’s case. Instead, I will pursue a logically prior question – why mental competence should be a requirement for execution at all – and, in particular, to juxtapose that inquiry with the aims and suppositions of the ‘‘neo-abolitionist’’ movement in the United States. Unsurprisingly, Singleton’s execution garnered the opposition of death penalty opposition groups who claimed that executing Singleton under these circumstances would amount to a cruel punishment. Amnesty International organized a letter writing campaign on Singleton’s behalf, and the European Union wrote to Arkansas Governor Mike Huckabee, asking that Singleton’s life be spared (Vento et al., 2003). The National Association of Criminal Defense Lawyers, the National Coalition to Abolish the Death Penalty, the American Civil Liberties Union, and many other criminals’ rights and anti-death penalty groups weighed in against Singleton’s execution under ‘‘artificial competence.’’ After exploring the normative underpinnings of the competency requirement, with a special focus on the Constitutional prohibition on cruel punishments, I conclude that although the competency requirement has an identifiable retributivist pedigree, executing incompetent offenders cannot plausibly be condemned as uniformly cruel. That is, so long as cruelty is understood largely in terms of the intentional infliction of gratuitous or undeserved suffering on an offender, it cannot cogently be maintained that executing the incompetent is more cruel than executing the competent. By insisting that executing the incompetent involves a greater degree of cruelty, capital punishment’s opponents are thus put in the awkward position of defending, albeit indirectly, greater rather than lesser cruelty. I then
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diagnose the tension between the abolitionist efforts to halt the execution of the incompetent and the inability to justify the greater cruelty of executing the incompetent as symptomatic of the limitations of the neo-abolitionist project, one which has emphasized ‘‘conservative’’ legal values such as due process and equal protection (Sarat, 1999, pp. 7, 8). Finally, I argue that if condemning the execution of the incompetent is to be a central abolitionist tactic, abolitionists must, in light of political realities, go against the grain of contemporary opinion regarding criminality and criminal justice in two ways. First, abolitionists must reorient discussions of cruelty away from the suffering of the criminal and toward the attitudes implied by a society’s insisting, even to the point of medicating Singleton, on the competency of the condemned. Second, abolitionists must raise hard questions about the assumptions concerning human agency and the intelligibility of our own behavior from a first-personal perspective that are incorporated into the competency requirement. In so doing, abolitionists would be directly confronting the sincerity, certainty, and moral authenticity of the retributivist outlook that underlies the competency requirement.
1. THE COMPETENCY STANDARD: ITS NATURE AND JUDICIAL HISTORY The rule that those who are to be executed must be competent has deep roots in English common law. American law affirmed this rule in Ford v. Wainwright (477 U.S. 399, 1986), a case that bears striking resemblance to that of Charles Singleton. Alvin Ford was convicted of armed robbery resulting in the killing of a police officer. Ford was competent at the time of his crime and throughout his trial, but while on death row in Florida, Ford began to exhibit symptoms of what state psychiatrists deemed psychotic or paranoid schizophrenia. Ford claimed that prison guards were killing inmates and then hiding the corpses within the prison walls. He expressed great anguish at his belief that prison officials were torturing his female relatives, but had no fear of his own execution. ‘‘I know there is some sort of death penalty,’’ Ford reportedly said, ‘‘but I’m free to go whenever I want because it would be illegal and the executioner would be executed.’’ He also asserted that he was Pope John Paul III, that he owned the state prisons, and that he was controlling Florida’s governor through mind waves (Miller & Radelet, 1993).
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In delivering the Supreme Court’s majority opinion, Justice Thurgood Marshall cited common law’s condemnation of executing the incompetent as ‘‘savage and inhuman’’ to conclude that the Eighth Amendment’s prohibition on cruel and unusual punishments bars the state from executing those who are insane at the appointed time of death. According to Marshall, the procedures the state of Florida used to determine competency did not meet the stringent evidentiary standards that capital punishment jurisprudence demands, and were in fact unfair to defendants because determinations of competency, being made entirely by officials within the state executive, carried obvious potential for bias. The state governor not only appointed all the experts and prosecutors responsible for initial determinations of defendant competency, but the governor was also personally responsible for making the final determination of competency. The Court remanded Ford’s case back to a District Court for a new hearing on his competency. (Ford would die of natural causes before his case could be fully adjudicated.) The more noteworthy feature of Ford, however, is the attempt by Justice Powell to articulate a more precise standard for competence for execution. In his concurring opinion, Powell wrote that the Eighth Amendment ‘‘forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.’’ This standard, that the condemned must at the time of his execution be aware of his forthcoming punishment and the reasons for it, is the de facto criterion for competency for execution within U.S. law. Here I wish to put forth both the most plausible interpretation of the standard and a normative framework within which this standard could be understood as identifying a feature that could render an instance of capital punishment a cruel act of punishment. What exactly is required of a condemned person if we require that she be ‘‘aware’’ both of the punishment she is about to suffer and ‘‘why’’ it is being imposed? At a minimum, the standard demands that the condemned person appreciate that she is dying and the experiential ramifications of that fact, i.e., that in being executed her (embodied) existence is coming to an end and that the way of life she associates with her ordinary existence will cease. Such awareness therefore extends beyond simply knowing that one will die; the condemned must also be cognizant of the emotional or existential implications of dying (Slobogin, 2000, p. 32). As one court explained, an incompetency finding is warranted if the offender when ‘‘taken to the electric chair would not quail or take account of its significance.’’(Musselwhite v. State, 60 So. 2d 807; Miss, 1952) Moreover, the competency standard asserts that the condemned must understand that her death is an act of
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punishment (rather than, e.g., a merely pre-ordained death having no causal relationship to her criminal history), and she must thereby recognize the salient punitive features of her execution, i.e., those features that are commonly understood to constitute the punitive aspects of her death. A competent individual must therefore know that her death is intended as a punishment for crimes previously committed and that insofar as her execution is intended as punishment, it represents an intended loss or deprivation to her. This seems adequate to capture the demand that the condemned know ‘‘why’’ she is being punished. The competent need not know the justification for her punishment, be it retributive, deterrent, etc. Instead, a person is competent for execution, according to this standard, if she possesses a kind of causal or narrative knowledge , namely, the knowledge that she is (a) to die, (b) as punishment, and (c) for crimes for which she was found guilty.
2. CRUELTY AND THE RATIONALE FOR THE COMPETENCY REQUIREMENT In what respect, then, might capital punishment imposed on the incompetent constitute a cruel form of capital punishment? Unfortunately, the American judicial system has rarely attempted to offer a substantive and non-procedural standard for what constitutes a cruel punishment, beyond appealing to high-minded moral ideals such as human dignity or to prevailing moral sensibilities (In re Lynch (1972) 8 Cal.3d 410, p. 424; Furman v. Georgia 408 U.S. 238 (1972); People v. Almodovar (1987) 190 Cal.App.3d 732, pp. 739,740; In re DeBeque (1989) 212 Cal.App.3d 241, p. 248). Nonetheless, as Justice Marshall noted in Ford, the thesis that executing the incompetent is cruel has ‘‘impressive historical credentials,’’ but as with many common law rules, ‘‘the reasons for the rule are less sure and less uniform than the rule itself’’ and the requirement of competency lacks ‘‘unanimity of rationale.’’ Ford mentions no less than six rationales for requiring competency (Slobogin, 2000, p. 30): 1. The incompetent are not able to participate fully in their defense, by, for example, providing last minute information that might serve to exonerate them. 2. Insanity is sufficient punishment in itself, making execution redundant. 3. An incompetent person is unable to make peace with her God and is thus more likely to suffer damnation in the hereafter.
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4. Executing the incompetent is a ‘‘miserable spectacle,’’ one for which civilized societies feel a ‘‘natural abhorrence.’’ 5. Executing the incompetent has no general deterrent effect. 6. The retribution the community seeks by punishing the offender cannot be achieved because the incompetent defender cannot grasp the disapprobation or condemnation directed at her. As several commentators have noted, most of these rationales are quite weak, and Marshall was simply incorrect to claim that the ‘‘various reasons put forth in support of the common law restriction have no less logical, moral, and practical force than they did when first voiced.’’ (Hazard & Louisell, 1962; Ward, 1986, pp. 48–57; Slobogin, 2000, p. 32): (1) no longer seems as pressing in the post-Furman context where death sentences are automatically appealed; (2) rests on the arguable assumption that madness is in fact a form of punishment. Indeed, given the conditions under which death-row prisoners live (Rhodes, 2004), insanity could be understood as a natural and not unhealthy response to various indignities or deprivations. Furthermore, even if madness were punishment enough, psychotropic drugs make it possible for this punishment to be of limited duration; (3) rests on questionable assumptions about both offenders (i.e., that they are adherents of religion in the first place) and theology (that if there is a just God, this God allocates salvation based on one’s mental state in the last days of life rather than on the moral quality of one’s life as a whole, etc); (4) is simply circular: Only if executing the incompetent were in fact cruel, would the shocked reactions of civilized society be sufficient to justify the competency requirement in the first place; (5) rests on the still-controversial assumption that capital punishment has a measurable deterrent effect. Yet even if capital punishment has such an effect, this rationale faces further challenges. It might be thought that executing the incompetent cannot ‘‘send a message’’ to incompetent would-be murderers that they will be punished for their crimes, both because the incompetent would be incapable of understanding that message and, being incompetent, they may not possess the self-control to refrain from killing. In this regard, executing the incompetent would fail to deter other incompetent persons. But this justification of the competency requirement is insufficient on two scores: First, the ‘‘audience’’ for the deterrent message of execution is not limited to the incompetent. Recall that the requirement is one of competency for execution, not sanity at the time of the crime’s commission, competency to stand trial, etc. Indeed, the competency requirement only comes into play for offenders who were sane and competent at the time of their crimes and their convictions, but whose competence
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degenerates between sentencing and the date of execution. Hence, it is at least possible that executing the incompetent would have some deterrent effect on those who are competent at the time they would commit their crimes. Second, a state’s willingness to execute the incompetent might have a greater marginal deterrent effect than executing the competent. That is, by denying those convicted of criminal crimes an avenue by which to ultimately avoid execution, the state’s execution of the incompetent might send a particularly emphatic message concerning its dedication to executing murderers. Given the shortcomings of these other rationales, most commentators have suggested that only (6), that executing the incompetent fails to achieve capital punishment’s retributive aims, holds promise as a justification for requiring competency for execution (Hazard & Louisell, 1962, p. 387; Radelet & Barnard, 1986, p. 39; Slobogin, 2000, p. 32). This conclusion strikes me as correct. As I suggested above, to require competence in the condemned is to require that they meet the cognitive conditions needed to understand not only that they will die, but also that their death is sanctioned as punishment for a crime previously committed. In this regard, competency is a presupposition for the punishment to have communicative force. As a number of recent retributive theories of punishment have emphasized, retribution is essentially a communicative act, aiming at the expression of a community’s moral attitudes and values, including its condemnation of the criminal act, its symbolic distancing of the community from that act, or its concern to re-assert the rule of law and the equal standing of offender and victim (Feinberg, 1990, Vol. 4; Hampton, 1992; Duff, 2000, pp. 19–30). If retribution is to a large degree communicative, then the execution of the incompetent is cruel because competence is required in order for a punishment to adequately express respect for the offender as an autonomous agent capable of conforming her behavior to the law. The insistence that only the competent may be executed thus reflects a Kantian understanding of the moral status of the criminal and her actions. Respect for the offender suggests that in order for a punishment to be justified, it must be justifiable to the punished as punishment. The offender’s punishment must therefore be understood by her as the state’s morally legitimate response to her rational determination to transgress the law, a system of state-enforced norms established for the collective and individual benefit of the community (Morris, 1968). To execute the incompetent is therefore cruel because it would in some sense amount to a gratuitous imposition of suffering: To be subject to the deprivation of a punishment without being able to appreciate it qua punishment is not to be punished but to be subject to that which, from the offender’s perspective, is little better than state caprice.
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3. THE GREATER CRUELTY? For many opponents of capital punishment, executing anyone, competent or no, is cruel. But in arguing the specific injustice of executing Charles Singleton and other incompetent offenders, opponents of the death penalty are implicitly endorsing a comparative normative claim, to the effect that to be executed while incompetent is at least as cruel to the offender as it would be to execute him while competent. Yet abolitionists face an uphill battle unequivocally vindicating this claim, for in order to demonstrate this, abolitionists would need to show that executions of the incompetent share some feature that executions of the competent necessarily do not, and that this feature makes said executions morally worse in some regard. Regrettably, it is difficult to identify such a feature. As I argued earlier, the cruelty of executing the incompetent arises from its imposing on the offender a sanction whose rationale he fails to appreciate fully, and in so doing, imposing a sanction that fails to be a proper reaction to the criminal as a rational agent being held accountable for his criminal conduct. At the same time though, at least from an internal psychological standpoint, to be executed while incompetent is less cruel than being executed while competent. Consistent with my earlier interpretation of the competency requirement, to be executed while competent is to be executed in such fashion as to recognize one’s death as a punitive sanction imposed for one’s criminal behavior. Yet it is precisely the communication of death’s punitive message that suggests that to be executed while incompetent is, at least from offender’s standpoint, worse than to be executed. Being executed while competent involves greater suffering of at least two kinds. First, the competent and condemned are able to hear the society’s implicit message of ostracism, condemnation, and distancing. As their delusional behavior suggests, Alvin Ford and Charles Singleton, in contrast, were not able to receive the harsh message of denunciation that capital punishment inherently conveys. To be executed for one’s crimes is, as many have noted, the most resounding affirmation possible of the criminal’s badness and irredeemability (Camus, 1957). In being executed, one is not only exiled from one’s own human community, but one is exiled from all possible human communities. In this respect, the incompetent are spared one of the principal forms of suffering that capital punishment inflicts: They avoid the permanent stigmatization of execution, the transformation from citizen to notorious killer. Second, being executed while competent subjects the offender to the exquisite pain of knowing the occasion and circumstances of one’s death. The fear of death appears to be a near universal human instinct, and nearly every
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one of those sentenced exhaust their options of appeal, pardon, or commutation in order to avoid this fate. The overwhelming majority of human beings spend the overwhelming majority of their lives in a position in which they are able to ignore the specifics of their own death largely because of the temporal indeterminacy of death. Only the most morbid are fixated on the circumstances of their death, and most of us can rest content that our death will take place in a vague future whose duration shrinks constantly. Admittedly, the fact of death is what serves to give individual human lives, and the projects and commitments those lives contain, their practical urgency. Yet those very projects and commitments lose their allure when we move from an inchoate awareness of the fact of death to a concrete awareness of the facts that shall constitute our actual deaths. Presumably, the competent death row inmate must ‘‘come to terms’’ with the facts of his own death. Perhaps such coming to terms has salutary effects, as some who have argued for the rehabilitative potential of capital punishment might suggest. And we might hope that the immanence of death would spur death row inmates to embrace the finitude of life and enact positive change. All the same, death remains the separation from all that life is, and to know how that separation will take place cannot but make the remainder of life an anxious and addled affair. To know that one will die at 8:00 a.m. on the morning of July 10, say; that death will happen after a steak dinner; that certain individuals (one’s attorney, spiritual counselors, a physician, witnesses, etc.) will be present at the time of death; that one will die in a certain room; that one will die wearing a blue workshirt and blue jeans; the only thing that knowledge of the ‘‘protocol’’ of one’s death can contribute to the last days of life is a horrified fixation on these specifics. To remain ignorant of these specifics, as the incompetent are, is a blessing of no small significance. With respect to the internal psychological cruelties of execution, the incompetent may well be immune to the most insidious of this suffering. The cognizance of one’s future execution and its justification is, from the experiential standpoint of the condemned, more cruel than ignorance thereof. Hence, it is far from evident that the claim that executing the incompetent is more cruel than executing the competent withstands scrutiny. Admittedly, some particularly stalwart defendants may bask in the glow of the greater dignity afforded them if they are executed while competent, perhaps because they themselves believe the punishment is in fact deserved and to be competent while executed more deeply respects their status as responsible Kantian agents. For such defendants, being executed while incompetent might well be crueler than being executed while competent. Still, given that only a handful of death row inmates ‘‘face up’’ to their executions by,
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e.g., failing to exhaust all available appeals, the number for whom execution while incompetent would be more cruel than execution while competent, because the former is a greater affront to one’s dignity, appears small. And the main point I wish to argue remains: It is not plausible to say that as a class, incompetent offenders who are executed suffer greater cruelty than those who are competent. As a result, abolitionists opposed to the execution of the incompetent on grounds of cruelty cannot, so long as the focus falls on the experience of the criminal, argue that it is a cruel form of punishment. Ironically, abolitionists must defend capital punishment’s ability to stigmatize and denounce, and must defend the greater psychological anguish that knowing the occasion of one’s death entails.
4. COMPETENCY AND CONTEMPORARY ABOLITIONISM In emphasizing that executing the incompetent is a cruel form of capital punishment, abolitionist groups are continuing the ‘‘neo-abolitionist’’ strategy they have followed in the last decade or so. Perhaps inspired by Justice Harry Blackmun’s exasperation with judicial efforts to identify a fair procedure for allocating and assigning death to criminals (Callins v. Collins 510 U.S. 1141 (1994)), abolitionists have adopted a strategy that involves not directly engaging with the morality of capital punishment as such, but instead highlighting systemic flaws and injustices in capital sentencing and administration in order to stimulate death penalty reform that will curtail or eliminate executions. The underlying logic of the neo-abolitionist strategy is to grant that capital punishment is in principle morally justified for certain crimes, but to point to a variety of shortcomings within the American criminal justice system, or perhaps within any conceivable system of criminal justice, that taken together suggest that capital punishment is not (or cannot be) justly administered. These shortcomings include, among others, racial discrimination, prosecutorial suppression of exonerating evidence, the use of plea bargaining to induce informants to testify in capital cases, inadequate defense counsel, and lack of access to potentially exonerating evidence such as DNA testing. The neo-abolitionist critique is therefore essentially systemic: In ‘‘the clash between the operational needs of an execution system,’’ in particular the need for efficient and swift killing, and ‘‘the principles and procedures of American legal culture’’ (Zimring, 1998,
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p. 137), neo-abolitionists claim that the former must yield to the latter. In this respect, neo-abolitionism embraces the ‘‘conservative’’ values of due process and equal protection and turns the death penalty against these values (Sarat, 1998, pp. 7, 8), in effect suggesting that capital punishment undermines mainstream commitments of democratic justice. The neo-abolitionist strategy clearly involves a compromise for those committed to inherent injustice of the death penalty, but it has not been without its successes. A number of states have considered or implemented moratoria on death sentences after concerns about racial disparity or the execution of the innocent have been spotlighted. Furthermore, the pragmatism of neo-abolitionism meets its opponents on the very procedural turf that has, perhaps disingenuously, been invoked by those opponents in recent capital punishment jurisprudence (Zimring, 1998, pp. 142, 143). The neoabolitionist strategy can also be justified as a sensible response to American social and political realities. The first of these realities is that American capital punishment jurisprudence has come to accept that capital punishment can be cruel only adverbially – that capital punishment is not itself cruel, but it can be cruelly implemented. Indeed, no U.S. court has ever endorsed the position that death is in and of itself a cruel punishment. The issues raised by Furman, McCleskey, and the other landmark death penalty cases are exclusively procedural or comparative, addressing whether capital defendants have been fairly tried or sentenced. The thesis that capital punishment is intrinsically immoral has rarely been taken seriously by U.S. courts, and it appears unlikely that this will change in the foreseeable future. The second reality is the principled moral support for capital punishment in American popular opinion. Although support for capital punishment in public opinion polls has dropped somewhat from 1990s, Americans continue to believe that death is a suitable penalty, at least in principle, for certain particularly vicious crimes. Many of these same polls indicate that this support is wide but shallower than one might expect, as public support weakens when concerns about racial discrimination, police or prosecutor misconduct, and the execution of the innocent are raised. Still, the great majority of Americans hold that the death penalty is within the range of morally acceptable punishments, and this is a political reality that is unlikely to alter. The neo-abolitionist strategy, by not quibbling with the legal or moral legitimacy of capital punishment as such, can be seen as a pragmatic effort to limit or de facto end executions without aspiring to a de jure abolition of capital punishment. However, I would suggest that the competency of the executed is an area where the philosophical and practical limitations of this neo-abolitionist
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strategy become apparent. Abolitionist groups have latched onto the issue of incompetent offenders for good reason. The image of a mentally incompetent individual being put to death tugs at the consciences of many, and might thereby spark broader reflection on the morality of capital punishment. Moreover, from the abolitionist point of view, stopping executions is itself a moral imperative, making the invocation of incompetency a useful legal and rhetorical tool to forestall injustice. Nevertheless, these considerations make abolitionists concern with the execution of the incompetent anomalous in the present context, for there is no obvious way in which those who are incompetent have any procedural grievance. It is worth reminding ourselves that the question under consideration is not that of insanity, a sort of incompetence at the time of a crime’s commission, nor is the question the competence of the accused to stand trial. American law has mechanisms to identify individuals incompetent in these respects, and in theory, offenders incompetent in these ways will not be convicted or sentenced to death in the first place. The central question raised about the execution of the incompetent is not legalistic or procedural but straightforwardly moral: Is it cruel to execute an incompetent person for her crimes? As I argued earlier, if a case can be made for the (greater) cruelty of executing the incompetent, it will have to be done by referring to features of the violence involved in such execution, and it is not obvious that so long as it is the experience of death that it can be taken as paramount, such violence is worse than the violence ultimately directed at competent offenders. Opposition to executing the incompetent is therefore an outlier within contemporary abolitionist activism, as executing the incompetent is a decidedly paleo- rather than neo-abolitionist cause.
5. RETRIBUTIVISM, SELFHOOD, AND SATISFACTION These difficulties indicate that for the abolitionist movement to enjoy anything more than piecemeal success, it will have to extend beyond procedural critique and focus on what capital punishment says about the moral sensibilities – and moral blind spots – of the societies that implement it. I conclude, then, with a discussion of how opposition to execution of the incompetent could be successfully incorporated into contemporary abolitionist efforts. Doing so demands a more direct confrontation with the popular and appealing retributivist ideals that underlay the
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competency requirement but that often become distorted in contemporary thinking about criminal behavior and in the cultural politics of criminality. Recall my earlier suggestion (Section 2) that the competency requirement is best understood as grounded in a retributive requirement that a punishment must have communicative force. If punishments are to express respect for an offender’s autonomy, they must be addressed to the offender as punishment. To my mind, this picture of punishment holds great appeal, in that it treats the offender as a member of a larger community and addresses him as a full-fledged member of that community. Nevertheless, one wonders how fully this ideal is in fact translated into current American understandings of punishment, and to what extent it can be invoked to explain the Singleton decision. To medicate Singleton so as to render him competent for execution is, in keeping with my argument in Section 3, to subject him to the specific social and existential cruelties of execution while competent. We may then ask: What do we learn about a culture from its demand that the incompetent be made competent to die? What would have been lost, for instance, had Singleton been executed while incompetent? Retributivists have long emphasized the detachment inherent in their moral ideal. The retributive impulse to dispense deserved suffering, they argue, is not the impulse toward revenge – toward the conscious delight in another’s suffering – and must be carefully distinguished from it (Henberg, 1990). Criminals are to be punished, on the retributivist view, solely on account of, and in proportion to, the seriousness of their wrongdoing. Punishment is therefore a requirement of justice or desert, unrelated to the satisfaction we might take in its imposition. But I would propose that medicating a man in order to reestablish his competency brings retributive ideals uncomfortably close to the boundary between justice and vengeance. That is to say, it is at least a plausible explanation that the insistence on offender competency reflects not some demand that justice be directed at a subject capable of internalizing its punitive message, but that it reflects an unsavory yearning to take satisfaction in the offender’s suffering. As in Hegel’s master–slave dialectic, the offender whose incompetence makes him, strictly speaking, incapable of being punished unwittingly fails to acknowledge, and thereby thwarts, our punitive aims. Medicating Charles Singleton may therefore reflect a not-so-retributive desire that murderers ratify our anger toward them, no matter if this requires pharmacological intervention. I am not claiming that there is no conceptual or psychological difference between the retributive ideal of impartial justice and more morally suspect motives, nor that the sort of objectivity that retributive judgment asks
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cannot be achieved. I am only proposing that mental competency might serve the abolitionist movement as a kind of litmus test for the authenticity or sincerity of American society’s commitment to retributivism as a punitive ideal. The abolitionist movement would be well-served, then, to introduce into public discussion the uncomfortable question of how genuinely retributive our allegiance to the competency requirement in fact is. A second avenue by which concerns about competency could play a role in abolitionist efforts starts from the cultural anxieties I earlier identified about the growing threats to the ideal of the sovereign self. Again, the competency requirement enables the essentially condemnatory message of punishment to be received by the offender. But to what purpose? Insofar as the communicative act invites a response on the part of the offender, the desired response is that the offender identify the wrongdoing for which he is punished as his: Having responsibly violated the law, the offender is now invited, by way of the act of punishment, to take responsibility for his wrongdoing, embracing the act as a reflection at least of his will at the time of its performance. (This may or may not be understood as a prelude to repentance or reparation.) Yet in the case of the incompetent offender, efforts to weave his earlier criminal activity into his current self-understanding are likely to be futile. (Recall that Singleton lost his appeal on the grounds that he had earlier in his incarceration consented to medication, a consideration that amounts to an effort to impose a kind of narrative coherence on his agency so as to justify the imposed artificial competence that enabled his ultimate execution.) The trademark of the incompetent offender is that he fails to understand that his looming punishment bears a causal relationship to his earlier wrongdoing. Consequently, the incompetent murderer cannot achieve the narrative reintegration or cross-temporal self-understanding that constitutes the point of the competency requirement in the first place. To execute the incompetent offender, or to medicate in order to make him death-eligible, is to impose a kind of superfluous suffering on him, since the good that is realizable by way of punishment cannot in these cases be actually realized. Such executions amount to the reassertion of an ideal, an ideal of the stable, sovereign, self-governing individual, an ideal which, as I discussed at the outset, is not only increasingly difficult to locate in societies smitten with various modes of self-improvement and self-enhancement, but obviously not in evidence in incompetent offenders. It is only through what William Connolly has called ‘‘forgetting’’ (Connolly, 1999) that we could fail to recognize incompetent offenders as evidence of the often Augustinian character of the human will, a will that is often unstable, discontinuous, and opaque even to itself, in contrast to the unified, incorrigible
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will associated with Enlightenment thought. As Connolly points out, retribution is intelligible as a punitive goal only if certain contingent forms of rational self-understanding are realized (Connolly, 1999, pp. 190, 191), forms which are not realized in incompetent offenders, making them an inappropriate subject of retributive punishment. To execute persons who lack such self-understanding is therefore an excellent example of the ‘‘absence of fit between the clarity justice demands and the opacity of the actual cases before us.’’ (Connolly, 1999, p. 192) To simply insist that such clarity is present when it is not amounts to a validation of the model of agency on which such clarity depends, and is thus symptomatic of the role that punishment may play in overcoming collective uncertainties about ideals of morality and agency. Executing the incompetent ‘‘sacrifices the lives of killers to reassure a culture that would otherwise be perplexed and troubled by the constitutive uncertainty haunting some of its most cherished categories of self-understanding.’’ (Connolly, 1999, p. 197) This does not entail rejecting the ideal of the integrated, stable self, nor does it suggest that the ideal cannot be reconciled with the contingency of its actualization (Herman, 1993, p. 233). But it does ask us to take conscious efforts to remember this contingency, and it is these efforts that abolitionists must lead if they are to make a compelling public case for the wrongfulness of executing the incompetent. Such efforts might begin by suggesting that incompetent offenders are not the only agents in whom the ideal of the sovereign, continuous self is incomplete. For who among us cannot point to past actions of ours that, the best efforts of self-investigation notwithstanding, remain anomalous or alien to our ordinary or better selves? The moral self is forever a work in progress, so we must therefore be careful that we do not apply models of moral selfhood and moral attributability too bluntly or in the face of countervailing evidence. Abolitionists must have the audacity to point that this is precisely what we do when we execute the incompetent.
6. CONCLUSION Admittedly, the two lines of argument I outlined are riskier for the abolitionist cause than continuing to emphasize the conservative legal values that have nevertheless served that cause well in recent years. The risk arises because these strategies break out of the familiar circle of talking about criminals and crime victims, a circle which tends to dominate current discussion. For competency to be a cause worth taking up, abolitionists must turn a more direct light on the retributive moral sentiments and the ways in
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which our professed commitment to them does not align with our practices of punishment. Having used procedural issues as a wedge into popular and political consciousness, contemporary abolitionism must begin to confront more facially the unrecognized normative tensions that reside behind support for capital punishment.
REFERENCES Camus, A. (1957). Reflections on the guillotine. In: J. O’Brien (trans.), Resistance, rebellion, and death: Essays (pp. 173–234). New York: Vintage Press, 1995. Connolly, W. E. (1999). The will, capital punishment, and cultural war. In: A. Sarat (Ed.), The killing state: Capital punishment in law, politics, and culture. New York: Oxford University Press. Duff, R. A. (2000). Punishment, communication, and community. New York: Oxford University Press. Elliott, C. (2003). Better than well: American medicine meets the American dream. New York: W.W.Norton. Feinberg, J. (1990). Harmless wrongdoing: The moral limits of the criminal law (Vol. 4). New York: Oxford University Press. Hampton, J. (1992). Correcting harms vs. righting wrongs: The goal of retribution. UCLA Law Review, 39(6), 1659–1701. Hazard, G. C., & Louisell, D. W. (1962). Death, the state, and the insane: Stay of execution. UCLA Law Review, 9, 381. Henberg, M. (1990). Retribution: Evil for evil in ethics, law, and literature. Philadelphia: Temple University Press. Herman, B. (1993). Leaving deontology behind. In: The practice of moral judgment. Cambridge: Harvard University Press. Kimberley, M. (2004). The disturbing death of Charles Singleton. AlterNet. http://www. alternet.org/story/17590, 2/1/05. Miller, K. S., & Radelet, M. L. (1993). Executing the mentally ill: The criminal justice system and the case of Alvin Ford. Newbury Park, CA: Sage Publications. Morris, H. (1968). Persons and punishment. The Monist, 52(4), 475–501. Radelet, M., & Barnard, G. (1986). Ethics and the psychiatric determination of competency to be executed. Bulletin of the American Academy of Psychiatry and Law, 14, 37. Rhodes, L. A. (2004). Total confinement: Madness and reason in the maximum security prison. Berkeley: University of California Press. Sarat, A. (1999). Capital punishment as a fact. In: A. Sarat (Ed.), The killing state: Capital punishment in law, politics, and culture. New York: Oxford University Press. Slobogin, C. (2000). Mental illness and the death penalty. California Criminal Law Review, 1, 3. http://www.boalt.org/CCLR/v1/v1sloboginfr.htm, 2/1/05. Stewart, S. D. (2004). Clark County (Ark.) Prosecutor. Singleton case history. http:// www.clarkprosecutor.org/html/death/US/singleton887.htm, 2/1/05. Vento, S., et al. (2003). Letter from European Union leaders to Arkansas Governor Mike Huackabee, December 10, 2003. http://www.eurunion.org/legislat/DeathPenalty/ SingletonArkGovLett.htm, 2/1/05.
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Ward, B. A. (1986). Competency for execution: Problems in law and psychiatry. Florida State University Law Review, 14, 35. Zimring, F. E. (1998). The executioner’s dissonant song: On capital punishment and American legal values. In: A. Sarat (Ed.), The killing state: Capital punishment in law, politics, and culture. New York: Oxford University Press.
Cases Cited Callins v. Collins 510 U.S. 1141 (1994). Ford v. Wainwright (477 U.S. 399, 1986). Furman v. Georgia 408 U.S. 238 (1972). In re DeBeque (1989) 212 Cal.App.3d 241. In re Lynch (1972) 8 Cal.3d 410. Musselwhite v. State, 60 So. 2d 807 (Miss. 1952). People v. Almodovar (1987) 190 Cal.App.3d 732. Singleton v. Arkansas 124 S. Ct. 74 (2003).
BEYOND CONTROL AND RESPONSIBILITY: THE BEAUTY OF MERCY Joo Heung Lee ABSTRACT Punishment is essentially about the expression and establishment of power. As such, punishment always carries with it the possibility of debasement. I want to insist that the only morally legitimate purpose of punishment is to instill a respect for authority that does not demean the subordinated party (for example, as a parent might punish his or her child). In sum, my argument is that although harsh institutional punishment may be justifiable on utilitarian grounds, it is objectionable for aesthetic reasons that are ultimately far more important. As Nietzsche caustically recognized in the case of Christianity, the metaphysics of punishment is driven by the ugly feeling of ressentiment. Nevertheless, Christianity does emphasize one aspect of the question of punishment that Nietzsche would enthusiastically embrace: the attitude of forgiveness (or the act of mercy). For Nietzsche, mercy is a reflection of a beautiful strength. A new punitive paradigm, one that asserted superiority without debasing the criminal, might pave the way for a more general affirmation of life.
Crime and Punishment: Perspectives from the Humanities Studies in Law, Politics, and Society, Volume 37, 141–157 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)37007-4
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Systemically applied punishment that is justified on either utilitarian or retributivist grounds will fall short of an ethical ideal that respects the dignity of human beings. A utilitarian paradigm reduces criminals to mere means to the end of the greatest aggregate happiness. Retributivism, in contrast, might seem to better sustain the moral autonomy of agents as a basic tenet. But there are those who, following Nietzsche, might regard retribution as a veiled form of revenge, an expression of the herd’s will to power. Following Foucault, I maintain that punishment is essentially about the expression and establishment of power. As such, punishment always carries with it the possibility of debasement. This is exacerbated by the fact that institutional punishment allows individuals to exert power as representatives of the State: the protection of an anonymous authority allows even the weak to participate in what Nietzsche calls ‘‘the right of the masters.’’1 Revealingly, the problem of debasement in an institutional setting seems to be significantly more acute in the United States than in Western Europe. The Continental tradition gives us a hint as to an alternative practice that can express moral condemnation without debasing individuals: the tradition of mercy. One reason why Americans prefer a harsh system of justice could be that our egalitarian foundations refuse to admit an aristocratic difference of rank, a difference that is the condition for the possibility of mercy.2 Ironically, the most respectful (and merciful) attitude toward a criminal stems from acknowledging his or her lower place in the social hierarchy (as a noble might treat his servant). The tradition of mercy can be seen as an aristocratic backlash against the dual Enlightenment paradigms of egalitarianism and scientific determinism. Prior to the Enlightenment, when theological structures predominated in the West, retribution was the operative purpose of punishment. The great advantage of retribution over scientific determinism is that it allows us to maintain the responsibility of the agent.3 But with modernity, human agency has been reduced more and more to a network of determinable causes. Interestingly, Nietzsche, who presents one of the most definitive critiques of modernity, arrives at a similar conclusion. In affirming the innocence of becoming, Nietzsche insists that responsibility (along with its corollary – the soul) is a myth. Nietzsche argues that the idea of retribution most likely masked a mixture of revenge and a desire to tame. So it seems that whether we are operating under the Medieval paradigm of retribution or the Modern paradigm of utility, the result is the same: the individual is debased insofar as he or she is subject to punishment by a higher authority. While retributive punishment would seem to least grant agency to the convict (as opposed to
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being treated as a determinable network of programmable responses), it still creates a structure in which debasement is ultimately operative. Punishment is the practice whereby a higher authority becomes recognized as such in the course of subordinating a weaker power. Punishment is power (or cruelty) exercised for a purpose, a purpose that both legitimates and is determined by the higher power. As the legacy of the Enlightenment, many in the West today still hold to the belief that the highest power is a universal reason.4 Universal reason (despite the protestations of Kant) seems to be inseparable from utility. This is because it is difficult to imagine any universalizable maxim that would not somehow contribute to the general happiness. Consequently, many today believe that the purpose of punishment – with respect to its role in universal justice – is ultimately utilitarian (e.g. incapacitation, deterrence, rehabilitation, or some combination thereof). The problem with this paradigm is that if punishment does serve a utilitarian purpose, this would seem to imply a deterministic view of human action. In other words, if the purpose of punishment is to incapacitate, deter, or rehabilitate human beings, the idea of free will would be destabilized. The corresponding ideas of rational agency and moral responsibility would also be thrown into question, and society would inexorably be drawn toward a totalitarianism along Orwellian lines. The dehumanization entailed by this dystopic vision of a perfectly determinable universe may partly explain the recent resurgence of retributivist theories of punishment, as they are better able to sustain the notion of responsibility. I want to insist that the only morally legitimate purpose of punishment is to instill a respect for authority that does not demean the subordinated party (for example, as a parent might punish his or her child). But punishment without debasement is a difficult balance to maintain. Because power depends on a fundamental difference of levels, the abuse of power is all but inevitable. This is especially true once differences of rank become legitimated by an institutional authority. Institutions offer a safe haven for the petty power plays of the weak. In contrast, a truly strong individual – or a strong society, for that matter – does not need to justify the exercise of power (as parents do not need to justify themselves before children). Another way to understand this difference is that the strong reside outside law of equivalences5. The strong act, they do not re-act. Because strong individuals do not feel compelled to respond in kind, it is only they who are truly able to forgive. Forgiveness is beyond the law, it invokes the irrational. So in some sense, the attitude of forgiveness (or the act of mercy) can only come from a god. In contrast, the condition for the possibility of punishment is the recognition of a higher authority. A refusal to submit amounts
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to a declaration of god-like sovereignty, and this is something a political system based on laws cannot tolerate: hence the need to lay down the law through punishment. If it is true that the mechanism of punishment reveals the true character of a society, then the scientific slant of modern punishment may indicate a significant change in the way we view human nature. More specifically, the notion of responsibility has become increasingly divorced from punishment. In the 19th century, Nietzsche argued that punishment derived from the desire to attribute responsibility to what he believed to be the fiction of ‘‘the soul.’’6 Nietzsche insists that free will is a fiction, while paradoxically maintaining freedom as his highest virtue. More will be said about this later. But for now, what I want to underline is an apparent moral fatalism in Nietzsche that – despite its application to the soul – is functionally equivalent to the determinism modern science applies to the body. Taking into account the modern shift in the locus of responsibility from the soul to the body, Foucault essentially reverses Nietzsche’s assessment of punishment. Foucault argues that the modern institutional exercise of punishment passes judgment more on a criminal’s drives and desires than on anything more metaphysical.7 Consequently, there must be a corresponding shift in the purpose ascribed to punishment: the element of revenge that underlies the older forms of corporeal punishment (justified by the idea of retribution as somehow balancing the cosmic scales) is downplayed in favor of the model of directly or indirectly rewiring the physical anomalies that were the root cause of the illegal act. In other words, our contemporary application of punishment indicates that our conception of human nature has become highly deterministic. This may appear to be an unremarkable point. But our increasingly deterministic view of human will has profound consequences. This is especially significant with regard to institutional punishment because it is in the somewhat unique position of both reflecting and shaping our societal understanding of free will. Obviously, there is an indissoluble relationship between the ideas of free will and punishment: without a conception of free will in place, the notion of punishment becomes problematic at the least, if not altogether absurd. This is because of the implicit third term in this relationship: responsibility. Responsibility only makes sense within the context of free will, and the idea of punishment, in turn, seems to imply responsibility. Once one relinquishes the idea of responsibility (Nietzsche’s ‘‘innocence of becoming’’), the possible justifications for punishment become much more problematic. The value of punishment as a deterrent would lose any meaning at the level of the individual – whose actions would
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be determined in any case – while at the same time becoming more pronounced at the level of society – insofar as society has a role in determining individual behavior. Similarly, the rehabilitative function of punishment would have to shift from the soul to the body: we are no longer curing the ills of the soul but are instead medically treating physical anomalies. On a more general level, this shift in the function of punishment raises questions as to the very foundation of morality, as utilitarian standards would seem to take precedence over more metaphysical concerns. And therein lies the real significance of our more scientific approach to punishment: the deterministic approach to the body has as its surreptitious shadow the anatomy of – and consequent power over – the soul. Although the body has always been the field on which the drama of punishment is played, the soul has been throughout the real target of rehabilitation. But in a deterministic universe, the rehabilitation of the soul must be rethought in less metaphysical and more structuralist terms. Free will loses any real meaning, as the soul is at the mercy of the faceless institutional powers that give it breath. The scientific approach to punishment, then, reflects and reinforces a shift in the way power is exercised: punishment as the exercise of power on the body has been replaced by punishment as the exercise of power on the soul. Foucault, argues that as the effect and instrument of a political economy, the soul becomes the prison of the body. Our (post-) modern political economy has essentially divested the soul of any autonomy. The result is that the soul has been freed from the constraint of responsibility while simultaneously being subjected to a more insidious master: God has been dethroned by man. Today, we can no longer see any traces of the symbolic function of punishment as an anticipation of the torments of hell. Rather, without this metaphysical basis, utility is left as the only possible justification for punishment (vindicating the Utilitarianism of Jeremy Bentham and John Stuart Mill). But what Foucault notes is that utility is a mask behind which lies the subterranean jouissance of power. This is where Foucault returns to Nietzsche. In the 2nd Essay of The Genealogy of Morals, Nietzsche summarizes quite nicely what is at stake in the game of punishment: In ‘punishing’ the debtor, the creditor participates in a right of the masters: at last he, too, may experience for once and the exalted sensation of being allowed to despise and mistreat someone as ‘beneath him.’ (1887, p. 65)
The institutional organization of punishment legitimizes the exercise of power by the weak, who Nietzsche considers to be ugly. The way we punish, then, reflects an aesthetics of power.
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For Nietzsche, politics – which can be broadly defined as the arena within which power measures itself – is more about aesthetics than traditional ethics. Nietzsche insists that social values should be structured around beauty rather than happiness. Insofar as he can be thought to have a political philosophy at all, it is governed by a paradigm far removed from that of social utility. For Nietzsche, politics is art insofar as it is the expression of power without purpose.8 But power can take many forms, both beautiful and ugly. Power is beautiful when it is a matter of free creation. Here, it is important to keep in mind that creation does not exclude (and in fact it may even entail) destruction. What Nietzsche finds ugly is not destruction but the necessity of duty. When power is expressed in the form of an imperative, it loses the beauty of its free play. Unfortunately, this has been invariably the result of all political systems to date. It seems that it takes a rare strength to be able to direct power in such a way that it does not succumb to the burden of necessity. Still, Nietzsche has never been one to shy away from difficult endeavors. His philosophy is a call to make our political lives works of art. For Nietzsche, politics is nothing if not an aesthetic activity.9 At the same time, Nietzsche was at least implicitly aware of the danger in the aestheticization of politics. This is how Walter Benjamin characterizes fascism, and it is not surprising that Nietzsche’s ideas have often been interpreted in this vein. But this would be to forget that Nietzsche himself insisted on an important distinction between beautiful and ugly expressions of power. Fascism is an attempt to impose as a duty what beauty demands to be left as a matter of free play. Moreover, the aestheticization of politics in a fascist context results in an ‘‘out of sight, out of mind’’ attitude that has had horrific human costs throughout history. In contrast, the quality most essential to the free play of beauty is honesty. For Nietzsche, expressions of power are beautiful only insofar as they are honest. Honesty, conversely, is made possible by the love of beauty. In his essay ‘‘On the Uses and Disadvantages of History for Life,’’ Nietzsche writes: it is only in love, only when shaded by the illusion produced by love, that is to say in the unconditional faith in right and perfection, that man is creative. Anything that constrains a man to love less than unconditionally has severed the roots of his strength: he will wither away, that is to say become dishonest. (1874, p. 95)10
There are a couple of points worth emphasizing here. First, there is almost something Platonic in the way Nietzsche describes the relation between love and a perfect ideal. To take it a step further, one might even put Nietzsche’s
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position this way: honesty and creation (the former directed toward the past, the latter toward the future) are beautiful insofar as they participate in an ideal form. But this is where the similarity to Plato ends. Whereas, Plato insists that this ideal form is a pre-given objective reality, Nietzsche maintains that it is a subjective illusion that needs to be created. This brings us to a second point of emphasis in the quote above. Nietzsche acknowledges that love is an illusion. At the same time, he says that this illusion is necessary for the possibility of honesty. If honesty, in turn, requires an idea of truth, then it seems that Nietzsche is saying that illusion is necessary for truth. This apparent paradox is in fact exactly Nietzsche’s position – hence his emphasis on the creation of values. Beauty is the result of an expression of power that affirms life in its purposeless creation. To affirm life in the midst of the void takes tremendous strength. Like the Classical Greeks, Nietzsche measures this strength in terms of courage. Of course, courage is only required of those with the intelligence to apprehend the situation and the honesty to assess it in the harsh light of truth. This is how Nietzsche puts it in Thus Spoke Zarathustra: Cold souls, mules, the blind, and the drunken I do not call brave. Brave is he who knows fear but conquers fear, who sees the abyss, but with pride. (1885, p. 400)
The ‘‘cold souls’’ that Nietzsche refers to here can no longer be set aflame by the idea of Beauty. In despair over their impotence (which amounts to a recognition of mortality), most human beings turn away from creation; hence they become dishonest. What remains are the petty gratifications of jouissance that are sanctioned and sheltered by anonymous institutional authorities. Ugly, dishonest expressions of power flourish in these dark, hidden corners engendered by the establishment of the law. These dark corners are found both in society and within the individuals that comprise it. In both cases, dishonesty provides a burrow in which ressentiment festers. In contrast, all beautiful expressions of power are honest. In sum, my argument is that although harsh institutional punishment may be justifiable on utilitarian grounds, it is objectionable for aesthetic reasons that are ultimately far more important. Nietzsche puts it this way: That which can in general be attained through punishment, in men and in animals, is an increase of fear, a heightening of prudence, mastery of the desires: thus punishment tames men, but it does not make them ‘better’ – one might with more justice assert the opposite. (1887, p. 83)
This process of taming has extended beyond human action to human personality. Nietzsche recognized the application of punishment to what he calls ‘‘the internalization of man,’’ but even he could not foresee how far it
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would go. This is where we return to Foucault. The paradigm of the structural determination of human behavior (as opposed to a metaphysics based on God and free will) reconfigures the matrices of punishment. In Discipline and Punish, Foucault (1975) writes: From being an art of unbearable sensations punishment has become an economy of suspended rights. As a result of this new restraint, a whole army of technicians took over from the executioner, the immediate anatomist of pain: warders, doctors, chaplains, psychiatrists, psychologists, educationalists. (1977, p. 11)
Again, the institutional application of punishment both reflects and reinforces our collective view of human nature. And determined as it is by forces beyond our control, tame and docile, human nature has become something ugly indeed. The great irony here is that while Nietzsche bemoans the ugly new image of human nature fashioned by the institutional exercise of power, it is directly related to the scientific corollary of Nietzsche’s assessment that there is no free will. Without a notion of free will in place, punishment loses its symbolic function as the spectacle of a higher metaphysics. There can be no other purpose for punishment than the rehabilitation of the soul as body (i.e. the soul as a complex of determinable motives). Still, we have not completely shaken free from the more traditional metaphysics of the hangman. The contemporary debate surrounding capital punishment is an indication of this. Obviously, the death penalty removes any pretense of punishment as rehabilitation. Capital punishment is ultimately a relic of the past, as it is incongruous with our clinical age.11 This explains the peculiar correlation between proponents of capital punishment and the religious right. Logically, it would make more sense for those with religious convictions to oppose capital punishment, as judgment really should be the province of God. But more often than not, this is not the case. As Nietzsche caustically recognized in the case of Christianity, the metaphysics of punishment is driven by the ugly feeling of ressentiment. Nevertheless, Christianity does emphasize one aspect of the question of punishment that Nietzsche would enthusiastically embrace: the attitude of forgiveness (or the act of mercy).12 For Nietzsche, mercy is a reflection of a beautiful strength. He writes: It is not unthinkable that a society might attain such a consciousness of power that it could allow itself the noblest luxury possible to it – letting those who harm it go unpunished. ‘What are my parasites to me?’ it might say. ‘May they live and prosper: I am strong enough for that!’ (1887, p. 72)
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This is where we return to Nietzsche’s conception of freedom as the absolution of responsibility (as opposed to the more Kantian idea of freedom as the absence of determination, or ‘‘free will’’). In asserting the unparalleled beauty of the ability to forgive, Nietzsche is asking us to soar free like gods. Although Nietzsche himself believed this ideal to be all but impossible, I fear he may have underestimated its difficulty. It is easy to appreciate the beauty of forgiveness as an abstract ideal. It is another thing entirely when forgiveness is asked of a concrete reality. How can a mother forgive the landowner who has her child torn to pieces in front of her eyes? What’s more, does she even have the right to forgive? This is the point the character of Ivan makes in Dostoevsky’s Brothers Karamazov. Ivan recognizes that forgiveness essentially divests the crime of any real significance. It is as if it never happened. Hence the adage: ‘‘forgive and forget.’’ In contrast, punishment has the effect of extending memory. Just as we punish children in the hope that they will remember not to repeat certain acts, an imprisoned drug dealer is supposedly more likely to remember to avoid certain street corners. Without the spur of pain, memory would be much shorter, if not absent altogether. Forgiveness, then, effectively eliminates the need for memory. But memory is what gives weight to Being. To forgive the murderer, then, is in some sense to render the life of the victim to the oblivion of forgetfulness. Punishment confers gravity to existence, without which we would be living in the perpetual present of forgetfulness (or what Milan Kundera calls ‘‘the unbearable lightness of being’’). This is how Nietzsche envisions the life of animals. He cannot help envying animals in their happy embrace of the present moment. But we want to believe that our lives have greater significance than that of mere brutes. The millions of animals we consume on a daily basis are quickly forgotten, but we must punish the murderer lest we risk obliterating the memory of his or her victim. Punishment reassures us that the cosmic scales of justice are still in effect. It reinforces the idea of logos, a principle of order without which we would be aimlessly hurtling through space. In other words, punishment is inseparable from the idea of law. According to Kant, the essence of law is universality, which in turn is equivalent to reason. Hence the law would not apply to animals because they are thought to be irrational. At the other extreme, the law would not apply to gods because they are thought to be superrational. So the applicability of punishment and the law would seem to be narrowly confined to rational (i.e. human) beings. Through reason, human beings are capable of recognizing universal laws that transcend our selfish impulses. Thus, Kant identifies the subordination
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of oneself under the law with free will (which can be negatively defined as not being a slave to desire). Only a being with free will can be held responsible for his or her actions, and responsibility is the only context in which punishment makes sense. Applying punishment to animals does not make sense because they lack the rational agency necessary to recognize the idea of law. We train animals, we do not punish them. Animals are innocent. But then if human beings are not fundamentally different from animals – if we too are governed by irrational impulses and not by universal law – it would be just as absurd to apply punishment to us. This essentially is the position of Nietzsche. In his wake, it has become fashionable today to reject any pretense of universal moral laws. But along with this universality one would have to reject any meaningful application of punishment. ‘‘Punishment’’ would just be a euphemism for ‘‘training.’’ There is, however, a fundamental difference between the animals Nietzsche envies and the gods Nietzsche asks us to be. Gods are like animals in that they cannot be meaningfully punished. But this is not because they are unaware of the universal idea of law but rather because they are able to rise above it. Whereas animals merely forget, gods are able to forgive. Forgiveness is active (or conscious) forgetting. Forgiveness absolves the individual from responsibility as it underscores the insignificance of the one forgiven. The idea of a guilty free will – of a debt that must be repaid – is replaced by the idea of an innocent freedom – of a debt wiped clean. The idea of a debt wiped clean is arguably the central motif of Christianity. But the forgiveness Nietzsche extols is something quite different. In Christianity, forgiveness is granted for the sake of debtor. Nietzsche’s forgiveness, in contrast, takes place without regard for the debtor. This has to do with what Nietzsche calls his ‘‘pathos of distance.’’ After all as said and done, Nietzsche is an aristocrat. For Nietzsche, the truly great spirits are those who soar so far above the herd that they have become oblivious to the petty transgressions of the impotent. Despite her otherwise aristocratic leanings, Hanna Arendt (1958) sounds quite Christian in her appraisal of forgiveness in The Human Condition. She writes: Forgiving and the relationship it establishes is always an eminently personal (though not necessarily individual or private) affair in which what was done is forgiven for the sake of who did it. (p. 241)
She goes on to assert that only love has the power to forgive because it is ‘‘the most powerful of all antipolitical human forces.’’ (1958, p. 242) For Arendt, forgiveness releases human beings from the political world of labor
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and opens up the possibility for the artistic world of creation. At this juncture, Nietzsche would have no disagreement. But Arendt goes on to make a very Judeo-Christian gesture by placing forgiveness within an economy of reciprocity that would extinguish the gift-giving character appropriate to gods. She makes this clear when she writes: men are unable to forgive what they cannot punish andythey are unable to punish what has turned out to be unforgivable. (1958, p. 241)
By putting Kant’s notion of ‘‘radical evil’’ beyond the scope of forgiveness, Arendt is essentially saying that the creditor can actually be injured by the debtor. Furthermore, unforgivable evil implies that the creditor can not only be hurt, but be hurt to such an extent that no amount of punishment (the exercise of power to assert superiority) would restore the proper order. Nietzsche’s gods, in contrast, cannot be hurt. They forgive not out of compassion for the transgressor but out of indifference. The establishment of superior rank through mercy, however, has an ugly side. This ugly side is the focus of Magnus Fiskesjo¨’s The Thanksgiving Turkey Pardon, The Death of Teddy’s Bear, and The Sovereign Exception of Guanta´namo. In his cynical interpretation of the recent flurry of ritualized apologies for government-sponsored genocides, Fiskesjo¨ (2003) writes: the locus from which the pardon is issued is intimately associated with sovereignty, the source of the raw executive power that can undo and override the law. (p. 32)
For Fiskesjo¨, the exercise of mercy is often an insidious method whereby fascist power can assert itself. This is undoubtedly true. We have seen too many examples of this in history to dispute it. But what Fiskesjo¨ fails to note is that the exercise of mercy is not always an attempt to gain the upper hand. Although examples are rare – and are often the stuff of myth – there are cases of mercy granted without the usual string attached (i.e. the demand for recognition). Sometimes, mercy is extended from the height of gods. There are two examples I want to cite in support of this. The first is literary. In the beginning of Victor Hugo’s Les Mise´rables, when Bishop Myriel extends mercy to Jean Valjean, it is not to assert his higher authority as a representative of God. Rather, the beauty of this gesture is that there are no strings attached. Only in this way could it have been transformative for Valjean. The will of Jean Valjean is so strong, nothing could break it. It took the beautiful expression of power by a humble priest to make him dedicate himself to the affirmation of life. The second example is in certain respects less contentious. Whereas one might argue that human beings are constitutionally incapable of being
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completely indifferent to the recognition of others, it would be absurd to demand recognition on the same level from a nonhuman animal. This is related to the fact that animals exhibit no memory beyond a handful of conditioned responses. Punishment can only extend the memory of an animal so far, as an animal’s memory falls well short of what is required for speech. And speech, according to Nietzsche, is what is required for the sovereign fruit of the right to make promises. Animals lack this ability. Hence, whereas other rational agents continually contest my assertion of superiority, there is no question as to the inferior status of animals. It would be as absurd to demand of an animal the recognition of higher rank as it would be to demand this of a stone. To put this another way, animals are completely at our mercy. Animals, conversely, are incapable of forgiveness because it is a matter of active forgetting, something that presupposes a substantial memory. Just as animals cannot make promises because they lack the speech to project themselves into the future, they cannot forgive because they lack the memory to be injured by the past. So the symbolic significance of extending mercy toward an animal would be lost on it. Still, the idea of being merciful toward animals is not nonsensical. The only way to account for this is that the mercy human beings extend toward animals is an example of establishing a relation of superiority without demanding recognition by the inferior. Granted, as Fiskesjo¨ notes in the peculiar American ritual of the Thanksgiving Turkey Pardon, symbolic expressions of mercy toward animals can have more sinister undertones. This is especially true when used in conjunction with military objectives. But the very fact that it is possible to extend mercy toward animals shows that forgiveness does not necessarily entail the submission (or even recognition) of the one forgiven. Still, it is not an accident that some of the most powerful symbolic expressions of mercy today are produced by the military. Mercy is, after all, a measure of power. But whereas ancient armies may have nobly extended mercy because they felt themselves to be superior, the mercy extended by the modern military stems almost invariably from the need to prove superiority. Mercy applied toward political ends is almost always a veiled humiliation of the vanquished. It is interesting to note in this regard that whereas Americans are willing to extend mercy toward foreign enemies (even if this is for more base motives), we are reluctant to extend a similar mercy toward ourselves. The American system of justice is a particularly unforgiving one, as evinced by practices like capital punishment and mandatory sentencing. It is almost as if our fervent egalitarianism prevents the assumption of a higher station, which is the only place from which mercy can
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come. The current assault on the Constitutional right of executive pardon is just one of many indicators that the possibility of mercy is being subsumed by the conservative fantasy of the law of equivalences. For both practical and symbolic reasons, however, unlimited mercy could not be employed as a regular policy. Society is defined by limits, and its prime directive from a utilitarian point of view is to maintain itself against threats of violence. The systematic application of mercy could unleash certain real threats in our midst. Moreover, as something outside the law, the very idea of mercy is a threat to rational order. Now history teaches us that a stable political situation requires the rule of law, and law in turn establishes itself through punishment. It follows that so as long as we remain within the confines of law, there will be a group of people who are subordinated through punishment. And being ‘‘human-all-too-human,’’ it is difficult for us to imagine ourselves beyond the reach of the law. The freedom of gods, however, is more fundamentally beyond the reach of human beings because of one undeniable fact: our mortality. We can never be completely free because our sphere of influence, unlike that of the gods, is limited by death. Death is the ultimate master, our consciousness of which inspires a fear that manifests itself in ugly ways. In order to feel powerful despite the shadow of death, we try to subjugate reality through sheer force of will. And there is no greater feeling of triumph than the domination of another’s will. In the absence of gods, Hegel’s master–servant dialect becomes the blueprint for all interpersonal relations. We can see this in its most concentrated form through institutionalized punishment. In such a system, the abuse of power becomes inevitable because the role traditionally reserved for God (or the gods) has been taken over by mortal human beings. Those in institutionally sanctioned positions of power attain a taste of immortality by representing the rational State, especially through the punishment of those deemed irrational enemies of the State. In the past, the discrepancy in power between the sovereign and the subjects was emphasized through the spectacle of public execution.13 But, as Foucault points out, this created a volatile situation: the spectators sometimes found themselves sympathizing with the criminal to such an extent that the tables were turned on the executioner. Under the old theological structure of government (which is still visible in some theocracies today), where officials ultimately derived their authority from God, the people felt themselves more and more alienated from the powers that ruled them. But they too wanted to partake in power. The sovereign reminded the people of their powerlessness by periodically executing one of them and displaying the lifeless corpse for all to see. It is as if the sovereign were saying that the
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privilege of having a soul was reserved for the State, whereas the people were relegated to the status of mere bodies. But as the legitimacy of sovereign authority came more into question, the people were no longer satisfied with their powerless status. This demanded a fundamental shift in the way punishment was administered. Today, we tend to overlook the fact that imprisonment as the principal form of punishment is a relatively recent phenomenon. From a political point of view, the advantage imprisonment has over corporeal punishment is that it is better able to sustain the idea of personal responsibility. Imprisonment somehow seems less like the imposition of an external force and more like something one has brought on oneself. The reason for this is related to the Kantian idea of autonomy. If we have free will only when we are abiding by a universal moral law, then the transgression of this law amounts to an abdication of free will. So the prison system is the physical manifestation of what has supposedly already happened in the commission of the crime. The loss of liberty imposed on the inmate is justified not by some higher metaphysical structure, as was the case with the administration of physical pain, but by the individual choice to renounce universal law. The transition from corporeal punishment to incarceration was a stroke of diabolical genius. It has to do with the recognition that internalized controls are ultimately much more effective at regulating human behavior than those imposed from outside.14 Of course, enforced incarceration seems anything but an internalized control. But this would be to forget that the function of the prison system has more to do with those outside than those within its walls. From the perspective of the flesh and blood prisoner, this may be an objectionable position. Still, it is hard to deny that the general public is relatively indifferent toward the violence within prisons, but will become hysterical at the first hint of an escape. Similarly, most people do not want to know the agonizing details of an execution, but are satisfied with the reassurance that the criminal is no longer a ‘‘threat to society.’’ For most of us, prison functions more as a symbol than as a reality. The symbolic value of prison has to do with mastery of our irrational desires. Just as we imprison dangerous criminals behind concrete walls, we imprison our desires behind the walls of reasons. In the absence of gods to fight, we struggle with ourselves. The tragedy is that we mask this struggle behind the punishment of those we like to think of as beneath us. We justify the punishment of criminals because they have violated the law, and the law must always maintain control over our irrational desires. Criminals have always represented those dark, subversive forces that the rational State must somehow control. In large part because of the history of
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slavery in the United States, this group has been disproportionately supplied by African-Americans. As the both real and symbolic bearers of punishment, African-American convicts are often portrayed as irrational, almost beastly in their desires. This is not by accident. If we follow Plato in looking at the City as the soul writ large, the symbolic function of criminals (especially those who are Black) would be to represent our irrational desires. The symbolic value of punishment, then, would be the taming of our desires by a higher law. This is in fact the conclusion of both Nietzsche and Freud.15 Both men find it remarkable that human beings are constantly at odds with themselves: we invariably feel shame or guilt for feelings that we cannot eradicate. There is something tragic in the human condition from both a philosophical and a psychoanalytic perspective. It seems that some form of self-inflicted pain is inescapable. It is impossible for human beings to return to a primordial state of animal simplicity; innocence lost cannot be reclaimed. But if self-inflicted pain is a constitutive element of human experience, it at the same time fertilizes the ground for a second and more beautiful innocence. This second innocence takes the form of forgiveness when applied to the past and making promises when applied to the future. The fires of cruelty were necessary to forge the steel memory from which the beauty of past and future can emerge. If one is honest, it is impossible to disagree with Hegel’s conclusion that ‘‘history is a slaughterbench.’’ But from this carnage emerges the possibility of god-like heights. Nietzsche writes: The justice which began with, ‘everything is dischargeable, everything must be discharged,’ ends by winking and letting those incapable of discharging their debt go free: it ends, as does every good thing on earth, by overcoming itself. This self-overcoming of justice: one knows the beautiful name it has given itself – mercy; it goes without saying that mercy remains the privilege of the most powerful man, or better, his – beyond the law. (1887, p. 73)
If our current practices are any indication, American society is still far from the strength necessary to afford the privilege of mercy. But practices are shaped by the wills of strong individuals, those who are capable of mastering the past through forgiveness and the future through their promises. The beauty of mercy stems from this connection with the strength to refashion time. A new punitive paradigm, one that asserted superiority without debasing the criminal, might pave the way for a more general affirmation of life. In the end, the hope is that if we practiced greater mercy toward criminals, we might be better able to forgive ourselves.
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NOTES 1. See Nietzsche’s 2nd Essay in On the Genealogy of Morals. 2. For a fascinating theory on a correlation between egalitarianism and unmerciful punishment, see James Whitman’s Harsh Justice (Oxford, 2003). 3. For a more modern take on the link between retributivism and moral agency, see Herbert Morris’ ‘‘Persons and Punishment’’ in Melden’s Human Rights (Wadsworth, 1970). 4. Some might like to believe that we have moved definitively away from the more Medieval belief in God as the highest power. But our contemporary political climate seems to indicate otherwise. Perhaps this is a symptom of post-modernity: in the collapse of our faith in a universal reason, we find it all too easy to return to familiar masters. 5. It is in this sense that forgiveness can be thought of as a kind of gift-giving. 6. Although there might be some sense in which the soul is a necessary fiction, Nietzsche makes it clear that at the very least, we can dispense with the notion of responsibility (whether construed in Christian or Kantian terms). Granted, the ‘‘innocence of becoming’’ is a call to the creation of new values, and one might be tempted to describe this creation as a ‘‘duty.’’ But duty is a heavy burden, and Nietzsche insists that the gods dance with light feet. 7. See Foucault’s Discipline and Punish. 8. Apart from its emphasis on strength, Nietzsche’s understanding of beauty comes surprisingly close to the Kantian concept of ‘‘the sublime.’’ 9. In ‘‘The Politics of Aesthetics,’’ Jacques Rancie`re conveys a very similar position (http://theater.kein.org/node/view/99). 10. See Nietzsche’s Untimely Meditations. 11. Most current opponents to capital punishment focus less on its logical inconsistency and more on possibility of procedural errors in its execution. For an insightful analysis of how George Ryan passed over a perfect opportunity to restore the sovereignty of executive clemency, see Austin Sarat and Nasser Hussain ‘‘Lawful Lawlessness: George Ryan Executive Clemency and the Rhetoric of Sparing Life.’’ 12. For an important essay on mercy as an aristocratic virtue (but from a more compassionate angle than that of Nietzsche) see Martha Nussbaum’s ‘‘Equity and Mercy.’’ 13. It is worth noting that the need for public spectacle to demonstrate the preeminence of the law has been replaced in today’s media age by a plethora of dramas and reality programs that in fact accomplish this much more effectively. 14. For an interesting (if somewhat abstract) discussion of the jouissance involved in crime and punishment, see Claus Mladek’s ‘‘The Psychic Life of Punishment (Kant, Nietzsche, Freud).’’ 15. Nietzsche calls his internal law ‘‘guilt’’ or ‘‘bad conscience,’’ Freud calls his the ‘‘superego.’’
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ACKNOWLEDGMENTS A very early version of this article was presented at Amherst College as part of the National Endowment for the Humanities 2004 Summer Seminar on ‘‘Punishment, Politics & Culture.’’ I am grateful for the comments of the participants, and especially to Austin Sarat, the spearhead of our discussions. In addition, I would like to thank the anonymous reviewer who made several valuable suggestions.
REFERENCES Arendt, H. (1958). The human condition. Chicago: The University of Chicago Press. Fiskesjo¨, M. (2003). The thanksgiving Turkey pardon, the death of teddy’s bear, and the sovereign exception of Guanta´namo. Chicago: Prickly Paradigm Press. Foucault, M. (1975). Discipline & punish: The birth of the prison. New York: Vintage Books.
FURTHER READING Mladek, K. (2004). The psychic life of punishment (Kant, Nietzsche, Freud). Studies in Law, Politics, and Society, 30, 211–245. Morris, H. (1970). Persons and punishment. In: A. I. Melden (Ed.), Human rights (pp. 111–134). Belmont, CA: Wadsworth. Nietzsche, F. (1874). On the uses and disadvantages of history for life. In: R. J. Hollingdale (Ed.), Untimely Meditations. New York: Cambridge University Press. Nietzsche, F. (1885). Thus spoke Zarathustra. In: W. Kaufmann (Ed.), The portable Nietzsche. New York: Penguin Books. Nietzsche, F. (1887). In: W. Kaufmann (Ed.), On the genealogy of morals. New York: Vintage Books. Nussbaum, M. C. (1993). Equity and mercy. Philosophy and Public Affairs, 22, 83–125. Sarat, A., & Hussain, N. (2004). Lawful lawlessness: George Ryan executive clemency and the rhetoric of sparing life. Stanford Law Review, 56, 1309–1346. Whitman, J. Q. (2003). Harsh justice. New York: Oxford University Press.
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ASSIMILATION, EXCLUSION, AND THE END OF PUNISHMENT Henry Kamerling ABSTRACT This essay engages the work of sociologist George Herbert Mead and political theorist William E. Connolly, applying a reading of their understanding of the criminal other to the development of Illinois’ and South Carolina’s penal systems at the turn of the nineteenth century. Despite an influx of European immigrants, Illinois politicians and prison officials fashioned an approach to corrections that relied on rehabilitation through assimilation as the core component of disciplining its convict population. In contrast to this approach, South Carolina fashioned a penology based upon the principle of exclusion, one that enshrined retribution over rehabilitation in the paradigm of punishment. The essay concludes by comparing the importance of racial and ethno-cultural politics in shaping regional and national debates over correctional policy and by examining the primary function race plays in explaining the current backlash against the rehabilitative ideal informing so much of contemporary penology.
In his 1895 opus The Division of Labour, French sociologist E´mile Durkheim (1997) discussed the centrality of crime and its punishment to the formation Crime and Punishment: Perspectives from the Humanities Studies in Law, Politics, and Society, Volume 37, 161–198 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)37008-6
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of social solidarity. Far from understanding crime as undesirable, Durkheim argued that criminal behavior constituted an opportunity for the emotive expression of shared moral outrage, an indignation rooted in what Durkheim termed society’s ‘‘collective conscience.’’ For Durkheim, the functional outcomes of punishment were not directly related to controlling or even deterring crime, but to the important ritualistic way punishing crime reaffirmed the moral order and strengthened social solidarity. Thus, Durkheim understood society as gaining stability primarily through its ability to define and punish the deviant outsider, the criminal other. Durkheim’s exploration of the role of crime in the creation of social stability has provided subsequent scholars a powerful lens through which to analyze social relations built around penal practices. Writing at the close of World War I, sociologist George Herbert Mead (1918) argued, like Durkheim, that the criminal played a necessary role in the formation of social cohesion. Mead observed that, ‘‘the cry of ‘stop thief’ unites us all as property owners against the robber.’’ In this sense then, it is society’s revulsion at the criminal and the criminal act that reveal for Mead the ‘‘y common, universal values which underlie like a bedrock the divergent structures of individual ends that are mutually closed and hostile to each other.’’ It is the criminal who unites society’s disparate elements, providing social stability. Mead understood the important role that the criminal plays in social reproduction by generating group cohesion. ‘‘Without the criminal,’’ Mead concludes, ‘‘the cohesiveness of society would disappear and the universal goods of the community would crumble into mutually repellent individual particles’’ (p. 591). Influenced both by the battlefield carnage and nationalistic suprapatriotism of World War I, Mead was more attuned than Durkheim to the darker side or the social cohesion formed among the bonds of punitive justice. Unlike Durkheim, Mead was primarily concerned about how hostility and punitive passion, released in the act of punishment, would reconfigure social relations. Any concern with the criminal other, or the larger social conditions productive of criminal activity, Mead saw as obliterated by the punitive zeal unleashed when the impulse of hostility was aroused. Mead observed that the various attempts to ‘‘remove the causes of crime, to assess the kind and amount of punishment which the criminal should suffer in the interest of society, or to reinstate the criminal as a lawabiding citizen has failed utterly’’ (p. 588). He concluded that ‘‘hostility toward the lawbreaker inevitably brings with it the attitudes of retribution, repression, and exclusion’’ (p. 590). Interested in an agenda that would lessen the tug of such forces on society’s approach to dealing with the
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criminal other, Mead sought a path toward what he termed the ‘‘great civilizing agents’’ that would allow society to ‘‘absorb the hostilities of different groups’’ (pp. 593–594). To this end, Mead called for the adoption of a broad range of progressive era reforms including better housing, superior education, greater vocational guidance, more attention to sanitation and hygiene, and the development of community social centers and parks, along with laws establishing juvenile courts and legislation aimed at controlling child labor. Such action, Mead understood would not remove hostility altogether, but he hoped it would soften the elements of ‘‘regulative and repressive justice,’’ while inaugurating a ‘‘shift from retribution to prevention’’ (pp. 583, 587) as the hallmark feature guiding society’s approach to both understanding the criminal other and the practices of punishment. Writing toward the end of the twentieth century, the political theorist William E. Connolly (1995) takes up much the same issues as Mead did earlier. Like Mead, Connolly understands the role of the deviant other in generating social cohesion and like Mead, Connolly too worries about the degenerative impact the impulse of hostility has upon the operation of the criminal-justice system. At the heart of the call to punishment Connolly insists one can hear ‘‘the call to revenge’’ (p. 42). Connolly understands the revenge as playing an important role in concealing the relationship between the categories of responsibility and monstrosity in the architecture of crime and punishment. He explains that the larger society depicts the criminal other as both a responsible and rational agent in the commission of crime, while at the same time constructing the outlaw as a monstrous devil operating in an irrational world beyond the pale of the broadly conceived human community. This combination of agency and monstrosity creates the criminal as deserving of the most severe penalties. ‘‘The call to revenge inhabits the murky spaces within and between these categories,’’ Connolly insists, and ‘‘infiltrates legal justice, closing up uncertainties within it’’ (pp. 42, 45). By obscuring the connection between responsibility and monstrosity the call to revenge prevents the interrogation of the natural superiority assumed by the larger social group insists upon the most ruthless delivery of punishment for the law breaker. ‘‘If ‘we’ made the line between responsibility and monstrosity too clear and clean,’’ Connolly argues, ‘‘we might never be allowed to punish criminals inhabiting minority subject positions with the severity we demand.’’ Any critical responsiveness would force society to examine its foundational assumptions residing at the heart of the call to punishment, forcing it to acknowledge the role the other plays in the construction of the self. For Connolly, the result of this impulse for
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revenge leads to the construction of a simple equation: ‘‘save the categories; waste those who disturb their stability’’ (pp. 45–46). For all Mead’s concern with the impact of hostility on the criminal, he identifies no particular targeted outgroup, focusing his attention instead only upon his sociologically conceived generic thief. In contrast to this, Connolly is more attuned to the particularities of late twentieth-century politics, acknowledging that a chasm has opened up ‘‘between the fervent desire to punish in a country where crime and punishment have become highly racialized’’ (p. 41). Connolly claims that one can hear the call to revenge most loudly when it is directed ‘‘against racially marked urban constituencies whose conditions of existence disturb the practices of fairness, neutrality, impartiality, and responsibility said to govern everyone else’’ (p. 42). The call to revenge can also be heard in the clamoring for certain penal practices such as ‘‘in the contemporary demands for the death penalty, the termination of furlough policies, longer prison terms, and fixed sentences without parole’’ (p. 42). Of course, in the public discourse, Connolly understands that while ‘‘the term black is never utteredyit lurks within the words that are’’ (p. 44). Both Mead and Connolly, while writing at different times, conclude that the penal architecture is not constructed to meet its expressly sanctioned goals. ‘‘The contemporary practice of punishment does not fail to serve a function,’’ Connolly contends, ‘‘it merely fails to serve its official ends – such as reducing crime significantly or securing justice or restoring offenders to citizenship – effectively.’’ Instead, like Mead, Connolly argues that contemporary punishment has ‘‘visceral success in exacting revenge’’ (p. 48). In the end, Connolly arrives at a disturbing conclusion that ‘‘we remain resolutely silent about legal violence, about the sacrifice of entire constituencies to stabilize uncertain cultural practices through which we receive protection, dignity, and transcendence’’ (p. 64). Connolly concludes that the connection between responsibility and monstrosity must be concealed, or revenge will be clearly exposed as the main force animating the call to punishment. In the contemporary penal system the state does not attempt to rehabilitate law-breakers, instead it visits revenge upon them. However, the call for revenge is not an allconsuming inferno obliterating those constituencies whose presence threatens to expose the relationship between the operational categories of responsibility, agency, and monstrosity. Revenge itself has certain cultural limits and various forms of expressions that are tied to specific historical contexts. Connolly observes that revenge buttresses the current toughon-crime approach, defining much of the general trends in contemporary corrections. However, while it seems clear that the spirit of revenge or the
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impulse of hostility animating the call for punishment is always directed against those out groups occupying space in society as the deviant other, who constitutes these out groups and what is seen as the permissible boundaries to revenge varies over time and within space. The value of a historical analysis – especially one that takes a comparative approach in interrogating crime and punishment – is that it clearly reveals how the social construction of the other has informed the organization of society’s desire to punish in quite specific ways. Through an examination of the ideological orientation framing of Illinois’ and South Carolina’s late nineteenth-century penal practices, one exposes how the historical pathways of desire are interwoven in the formation of the current hegemonic discourses on crime and punishment. Each state’s captive, inmate populations – already processed through the front end of the criminal justice funnel – exist as examples of the incarcerated other, constituencies Illinois and South Carolina have already been marked as occupying space beyond the boundaries of ‘‘normal’’ behavior. As our sociological theorists indicate, their presence in the penitentiary then participates not only in the construction of the other but also in the larger society’s conception of itself. In this context, analyzing the shifting demographic makeup of such a population and the ideological orientation taken by each state in dealing with its inmates reveals much about how late nineteenth-century America constructed its ideas of self and other. What differences, then, emerged between Illinois’ and South Carolina’s handling of their inmate population? Did each state possess the same definition of deviance? To do so, of course, would indicate that each state possessed a broadly similar understanding of itself. Did similar constituencies in each state or region fall under the same disciplinary gaze of the state? Did the penal machinery of the state and its architecture of punishment operate in a similar fashion and serve similar ends? Did each state hear the same call to punish? Did the desire for revenge in each state work itself out in similar ways? While one can make this comparison between each state and region, one can also ask the same broadly comparative questions about late nineteenth-century America and today. Indeed, such a comparison is essential in understanding why contemporary American society is so willing not only to sacrifice entire constituencies but also why it is willing to sacrifice some constituencies and not others to the hostile impulse embedded in the call to revenge. This comparative analysis offers an approach examining two fundamentally different prison populations in two regions of the country animated by differing sets of political and economic realities, realities informed by widely
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divergent historical conditions. Because the North and South took such a broadly different approach to corrections in the century after the end of the Civil War, in reality a comparison of any two states, one in the North and one in the South, would offer an interesting comparison. But Illinois, with its large ethnic immigrant population and South Carolina with its black majority population, offer slightly more compelling comparisons that provide rich insights into the regional and national differences with corrections.1 In the half century following the close of the Civil War, Illinois and South Carolina embraced fundamentally divergent ideological orientations concerning the construction of the criminal. In Illinois, despite the entry into the state of an ever increasing number of new immigrants primarily from central and southern Europe, the Prairie State developed an assimilationist penal regimen designed to integrate fully the reformed and rehabilitated exconvict back into society upon release. Such an approach represented a type of forced assimilation, one that precipitated a kind of violence on the ethnic heritage of the state’s newest arrivals. In the end, regardless of circumstances and conditions, Illinois embraced a fully assimilationist-integrative penology. In stark contrast to this approach, South Carolina lurched from a rehabilitative-assimilationist approach during Radical Reconstruction (when the state’s black majority had control over the penal machinery of the state) to an ideological orientation that stressed harsh, retributive punishments and the complete exclusion of the inmate/ex-convict from the larger society. This fundamentally exclusionary penology coincided with the end of Radical Reconstruction in 1876–1877 as conservative white Democrats wrested political control of the state away from Radical Republicans through fraud, intimidation, and violence. The comparative approach outlined here exposes racial ideology and the manner in which conservative whites mobilized the politics of white supremacy as the central factor explaining the development of what has come to be commonly understood as the southern approach to corrections (e.g., Ayers, 1984; Mancini, 1996; Myers, 1998). Race, more so than any other single factor, called for an exclusionist penology, one predicated on the hostility and revenge explored by scholars like Mead and Connolly. The differences manifest in Illinois’ and South Carolina’s handling of its inmate population raise important questions about contemporary legislative action concerning criminal behavior and internal administrative regimes organizing prison life. The spirit of revenge visited upon racially marked urban constituencies draws upon the legacy of such a southern approach to crime and punishment. However, it does more than this. The contemporary racialization of crime permits revenge to insinuate itself into and between
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the categories of crime and punishment. This history exposes race as the key factor in explaining the ease with which entire constituencies are sacrificed, as Connolly explains, in order to save the categories of responsibility and monstrosity. In late nineteenth-century Illinois, identifying the criminal other becomes difficult. The demographic makeup of the convict population shifted dramatically over the mid-nineteenth-century following the close of the Civil War. Largely native born, white, rural, and poor in the 1860s and 1870s, the state prison population became increasingly urban and ethnically, religiously, and racially diverse as the turn of the century approached (Kamerling, 1998a). The diversity inherent in the inmate population reflected the increasing diversity of Illinois generally. As a flood of new immigrants from central and southern Europe joined older Irish and German immigrants (and a small but increasing number of African Americans), Illinois developed into one of the most urban and diverse states by century’s end. Between 1870 and 1900, 450,000 immigrants entered Illinois. By 1900 the total foreign-born population reached 966,747, a figure representing 9% of all foreign-born immigrants in the United States. All told immigrants in Illinois constituted roughly 20% of the state’s total population throughout the late nineteenth century (Keiser, 1977). While no single ethnic-immigrant group emerged to define Illinois’ prison population, taken together Joliet and Chester inmates were largely recent immigrants to America and members of the working class. Durkheim and Mead do not spend much time thinking about the constituent possibilities of the other beyond the criminal. However, it is important for the historian to locate specific identities and characteristics associated with the criminal deviant, and situate debates over the ‘‘us’’ and the ‘‘them’’ in time. While the cry of ‘‘stop thief,’’ as Mead suggests, may unite all property holders against the thief, one will want to know, which groups are more likely to find themselves in the role of property holder or thief, and why. In what ways will the criminal justice system work to construct and then control certain populations, ignoring or treating more leniently other potentially deviant groups? Furthermore, historians will want to explore how deviant groups, once labeled as such, responded to and resisted such a designation. Who specifically then represents the criminal other in Illinois? Is it the immigrant anarchists of the Haymarket Riot or the labor radicals associated with the Pullman Strikes? Is it simply all foreignborn immigrants entering Illinois? If so, does this include the Irish and Germans, who had achieved a large measure of assimilation (or at least a measure of integration) by the century’s end? Or perhaps it is simply the
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poor and working class, regardless of ethnic status who represent the deviant other against which the larger society finds its sense of solidarity through punishment. Attitudes toward crime, punishment, and deviance often emerged as contested and negotiated terrain in a state riven by ethnic and class-based political and cultural conflicts. In such an environment, it is hard to locate the center of Durkeim’s moral order or the unity of all against the thief. Certainly, middle-class whites in Illinois felt besieged and bewildered by the changing character of American life brought about by an emerging immigrant and working class world that appeared to share few if any of their core, foundationally ‘‘American’’ values. Following Mead and Connolly, one would anticipate that such deep feeling and intense sense of the alien other on the part of mainstream, middle-class Protestant culture would result in a determinedly punitive approach to justice. As indicated above, ethnic immigrants were by any measure well over-represented in the state’s two penitentiaries at Chester and Joliet. According to Mead, criminal activity in this context should result in an expression of hostility and outrage that would unify the larger (white, middle-class Protestant) society against an alien, ethnic (in Illinois often Catholic and Jewish), and working class criminal population, leading to calls for punitive justice. Similarly, Connolly (1995) anticipates that, ‘‘ythe desire to punish intensifies as violent crime escalates, as traditional practices of cultural identity in America become more precarious, and as the place of the United States in the world becomes less secure’’ (p. 48). Such a description, tailored as it is to the late twentieth century, just as readily defines late nineteenth-century America. Connolly expects then that the emphasis on responsibility and monstrosity will convey a ‘‘general cultural disposition to sacrifice socially defined others to protect the appearance of integrity and cleanliness in the messy cultural categories of agency and responsibility. Save the categories; waste those whose conduct or subject positions disturb them’’ (p. 64). The presence of the deviant immigrant- or radical working class other should lead to calls for retribution and harsh justice. Moreover, Connolly would anticipate that ‘‘the prison as a site of correction’’ will become ‘‘overlaid by the prison as a site of revenge’’ (p. 60). Accordingly, the function (or presence) of the criminal other ought to produce an ideological framework that enshrines the prison as the site of punition, retribution, and exclusion. That the ideology of rehabilitation and assimilation came to dominate Illinois’ late nineteenth-century approach to its convict population frustrates what one would expect from this reading of Mead, Connolly, and other sociological and political theorists. Ignoring for a moment the profoundly
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coercive and clearly defined social control impulse at the heart of such an agenda, Illinois politicians and prison officials embraced a fully articulated reform program that anticipated the complete reintroduction of the offender back into mainstream society. At the heart of this program was the principle of individuation; the idea that in order to gain convicts’ rehabilitation each inmate needed to be treated to an individually tailored program of reform. The belief in this principle led to an overhaul of the criminal code, abolishing all corporal penalties, limiting the number of capital crimes, introducing juvenile courts, and adopting first good time laws, then parole, and finally indeterminate sentencing (Kamerling, 1998a). New penal institutions were also first conceived of and then developed. In addition to the Joliet and Chester penitentiaries, Illinois opened a juvenile reformatory at Pontiac in 1867, a hospital for the criminally insane in 1889, and in 1896 opened up the Joliet Women’s Prison, one of only four penitentiaries in the country exclusively for female convicts (Dodge, 2002; Keiser, 1977). While politicians and prison reformers debated the various and specific causes of crime, consensus existed that the deviant criminal was a product of a corrupting environment. Reformers argued that one must control these bad influences, both inside and outside the penitentiary, in order to effectively implement the principle of individuation. Such thinking not only led to the construction of new penal institutions designed to group inmates in need of like treatment together but also (supposedly) changed each institution’s internal regimes. Prison officials, newly trained in gathering social scientific data, began collecting inmate case histories as convicts entered the prison. The mark and rank classification system was introduced, and Joliet’s Warden McClaughrey, newly elected as president of the National Warden’s Association, researched and implemented Alphonse Bertillion’s method of identifying and classifying convicts. Joliet Penitentiary became the first repository of Bertillion records in the country, an early forerunner of fingerprinting databases now widely in use. Such programmatic developments defined incarceration as therapeutic treatment based on emerging, and by the century’s end, widely accepted scientific and social scientific principles. Each new institution, each programmatic innovation, each change in prison regime was designed to deliver more effective treatment and represented at the same time a commitment of substantial state resources. Illinois came to these reform programs riding the crest of building national prison reform movement. While initially participating in the immediate post-war years simply as followers, by the century’s end Illinois’ penal reformers and prison officials had entered into an array of leadership positions in national organizations, placing the state and its
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rehabilitative penology in the vanguard of national and international prison reform (Kamerling, 1998a; Pisciotta, 1994). On one level, this history is perhaps best explained by Marxist-influenced social control scholars or those writing in the tradition of French philosopher Michel Foucault (Foucault, 1979; Ignatieff, 1978). Certainly, the principle of individuation represents a Foucault-like attempt at disciplining the soul. But it is interesting in and of itself that the soul, such as it was conceived of, was a target at all. For this suggests reformers’ conception of a redeemable subject as well as their faith in redemption. Moreover, the soul of the convict was not just one target among many but was the target. As the drive to abolish all use of corporal penalties illustrates, reformers derided the very idea of the body as a site of discipline. Despite the manifest ethno-cultural differences and class-based political turmoil gripping turnof-the-century Illinois, the state’s political and social elite could envision, if only and solely on their own terms, the assimilation of the deviant, criminal other. Lorna A. Rhodes (2004) argues, ‘‘the point of these reforms was that through a process of exclusion prisoners would ultimately be included – or reincluded – in civil life’’ (p. 198). Rhodes’ observation concerning redemption through exclusion indicates the ways that the social elite envisioned both the other as well as their definition of mainstream society. On some level white, middle-class Protestants saw the recent immigrants and working class poor as an integral part of the ‘‘us’’ or at least as potentially part of ‘‘us.’’ One does not find hostility toward the offender turned to regressive ends as anticipated by Mead. Nor is it easy to hear the call for revenge or urge for degradation described by Connolly. And the prison, far from being the site of revenge, evolved into the place where the criminal inmate was transformed into us. What is striking about this integrative-assimilationist approach to otherness is that it exists at a time when trenchant ethno-cultural and class-based political divisions were threatening social cohesion and control by the established social order. Certainly, both a fear and a kind of violence exist at the heart of this rehabilitative ideology. Individuation was intended in part to instruct immigrants on how to become ‘‘proper’’ American citizens. It also functioned as an assault on ethnic-group identity and the formation of working class solidarity. Forced assimilation in this context represents a type of violence directed toward immigrant and working class culture by attempting to purge these groups of their ethnic and class-based affiliations (Highman, 1992). But the solution to such a perceived threat, reintegration into mainstream society through forced assimilation, represents an unexpected choice. While under very specific terms and under extraordinarily
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circumscribed conditions the rehabilitative ideal still envisioned the criminal other as ultimately folded back into the body politic. Illinois’ diversity – ethnic, racial, religious, regional, and class based – made it difficult to identify a single, monstrous, and deviant other. The criminal offender, however defined in late nineteenth-century Illinois, was not sacrificed in this formulation to save the categories of responsibility and agency, as Connolly would expect, but is instead rescued. Faced with a similar problem at the end of the twentieth century, the nation will make, as Mead anticipates and as Connolly observes, a profoundly different choice. The function of the criminal other in late nineteenth-century South Carolina played out in profoundly different ways. The end of the Civil War found South Carolina, like the rest of the region, in a state of social disintegration and facing the difficult challenge of wholesale political reconstruction. The defeated Confederate states, physically decimated and psychologically fractured, groped to find a way to deal with the shifting political terrain of black independence, northern military occupation, and searing economic depravation. African Americans in the wake of emancipation had their own ideas about the definition of freedom and asserted the full measure of their political independence and cultural autonomy (e.g., Burton, 1985; Holt, 1977; Schwalm, 1997). This changing political and social landscape makes it almost impossible to locate a durkhemian other that southern society could punish and through such action achieve social cohesion. In such a fluid environment, the foundational definitions of self and other were literally up for grabs. In this context, debates over the proper aims and methods of punishment played an increasingly important role in the reconstruction of southern society. As blacks and whites struggled to gain the upper hand in constructing definitions of crime and deviance, the formal mechanisms of law enforcement: the police, grand juries, courts, local jails, and state prisons quickly emerged as arenas where normative identities of self and other were being renegotiated and defined. The ensuing meˆle´e in South Carolina over the definition of the criminal deviant and proper aims of punishment must be read then as a series of cultural and political battles where blacks and whites deployed the criminal justice system as a central tool in the construction of otherness. South Carolina was one of only three states that had failed to construct a penitentiary in the antebellum era. Prior to the Civil War, slaves in South Carolina had been disciplined largely on an informal basis within the plantation system (Hindus, 1980). However, with the end of the Civil War, it fell to the state to punish and control the newly emancipated slave. The decision to build a state penitentiary at Columbia in the immediate aftermath of the
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Civil War exposed the prison as a major site of contest between black and white South Carolinians in their struggles over the definition of the criminal other (Kamerling, 1998a). Conservative whites understood the newly constructed Columbia penitentiary as a substitute for the informal control of the slave population that had taken place within the context of the plantation system. Provisional Governor James L. Orr explained that constructing a state penitentiary would provide more certain and more harsh punishment for the state’s rapidly increasing black prison population than the lenient treatment inmates received in poorly financed district jails. ‘‘There are many convicts who find themselves comfortably housed and well fed,’’ in these district jails, Orr complained, ‘‘who, exempt from all labor, do not regard imprisonment as punishment.’’ Orr defended the decision to finance a new state penitentiary on the grounds that such an institution would deliver a harsher, more punitive form of justice for what he termed the ‘‘vicious, depraved non-producers’’ (as cited in Kamerling, 1998a, p. 29). Foreshadowing the law-and-order rhetoric that would reemerge at the end of the twentieth century, Governor Orr associated blackness with criminality, invoking such a pairing in his call for harsh punishment. With the construction of the state penitentiary initiated, the prison population quickly blackened. Throughout the era of Reconstruction, African Americans comprised 85% of all convicts. Thus, while post-war Illinois groped to find ways to control the criminal offender through the principle of assimilation, exclusionary principles resided at the heart of South Carolina’s fledgling state penitentiary. What sets South Carolina apart from other southern states grappling with similar issues in the immediate aftermath of the Civil War is the state’s black majority population. Black South Carolinians made up over 60% of the state’s residents. With the establishment of Radical Republican political rule in 1868, African Americans in South Carolina succeeded in building an impressive political organization. Holding a majority of the seats in the state House of Representatives throughout Reconstruction, a plurality in the state Senate from 1872 to 1873, and a majority from 1874 to 1876, South Carolina’s African Americans forged the most powerful and successful black political coalition in the South (Holt, 1977; Kamerling, 1998a). Largely as a result of this black majority population, Reconstruction in South Carolina lasted longer (almost a decade) and arguably proved more radical than in any other southern state.2 Occupying this unique position of political strength allowed black South Carolinians to engage in a robust debate with politicians like Orr over the construction of the criminal other and the purposes of punishment. In
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contrast to Governor Orr’s understanding of the function of the new state penitentiary as a site of punition and even revenge, black South Carolinians saw the Columbia penitentiary as a site of rehabilitation and reform. With the start of Radical Republican rule, black South Carolinians gained control over the penitentiary’s Board of Directors in an effort to transform the prison into a northern-style reformatory. The new Board engineered the firing of Superintendent Lee, who had been appointed by Governor Orr, and replaced him with an officer more sympathetic to their reform vision. The Board then insisted on a series of penal reforms including the abolishment of all harsh corporal disciplinary measures, the institution of solitary confinement, the establishment of a prison school, and the creation of a juvenile reformatory wing separate from the adult, congregate cellblocks. Throughout reconstruction, Board members also sent a handful of penitentiary officials to participate in the semi-annual meetings of the recently revived National Prison Association. Such conferences served as venues where penologists trumpeted the rehabilitative ideal and provided a platform for the discussion and dissemination of the new penology. Even as the Radical Reconstruction impulse waned in the state, black South Carolinians banded together to defeat a coalition of moderate Republicans and conservative Democrats who attempted to initiate a system of convict leasing. Their successful efforts at preventing this measure from becoming law meant that South Carolina was the only state in the South where the responsibility for the establishment of convict leasing lay solely and squarely with conservative white Democrats who initiated the program immediately after the end of Reconstruction in 18773 (Ayers, 1984; Kamerling, 1998a). Out-muscled by black South Carolinians during Reconstruction, conservative whites could only complain about the ascension of the rehabilitative ideal. In 1874, the Horry Weekly News argued that, ‘‘sentencing a convict to the Penitentiary has become a farce.’’ The paper concluded that the lenient treatment inmates received only encouraged the ex-convict ‘‘to commit more and greater crime,’’ so that ‘‘he may go on another pleasure trip to Columbia.’’ In 1875, the Daily Phoenix echoed such thoughts, charging penitentiary officers with ‘‘pampering criminals’’ and providing inmates with ‘‘luxurious support in idleness.’’ The Phoenix concluded that, ‘‘it is common to call the penitentiary Dennis’ Hotel4 and the phrase is near the truth, and Dennis a comfortable and well pleased Boniface’’ (as cited in Kamerling, 1998a, pp. 51–52, 237). Black South Carolinians’ efforts to establish and maintain the Columbia penitentiary as a site of reform essentially duplicated Illinois’ assimilationist
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approach to dealing with its deviant criminal population. In their political struggles with both white Republicans and Democrats, African Americans in Reconstruction era South Carolina insisted on an approach to penal discipline that envisioned the reintegration of the inmate back into mainstream society. That this discussion centered on an equation of convicts with blacks was well understood, as African Americans averaged roughly 85% of the inmate population throughout Reconstruction. What is striking about these developments, and often missed by scholars writing on this topic (Ayers, 1984; Lichtenstein, 1996; Mancini, 1996; Meyers, 1998), is the centrality of race above any considerations of political economy specific to the region. Clearly, black South Carolinians were willing to expend a considerable degree of political clout on constructing the criminal class as a redeemable other. In doing so, African Americans in the state successfully resisted the demands of whites who saw the penal system as a tool designed to discipline the inherently deviant but newly emancipated slave. Only when conservative white political forces succeeded in defining the convict population as irredeemable could the penal system be placed in service of the region’s New South economy. African Americans in other southern states often lacked the kind of political clout that black South Carolinians possessed. As a result black officials in states like Tennessee (Shapiro, 1998), Mississippi (Waldrep, 1998), and Georgia (Ayers, 1984; Meyers, 1998) were forced to compromise with their white Republican allies and some Democrats as these states moved against the introduction of northern-style prison reform and toward a system of convict leasing. Unable to win a legitimate victory at the ballot box against the state’s black majority population, white South Carolinians overturned Reconstruction in the only way they could: through the use of fraud, intimidation, and outright political violence (Cooper, 1968; Burton, 1991). After wresting away control from African Americans in the political turmoil of 1876–1877, conservative white Democrats, under the leadership of Governor Wade Hampton, sought to transform the criminal other from the Reconstruction-era redeemable subject to an inherently deviant and irredeemable (black) convict. Following the close of Reconstruction, the prison population both boomed and blackened (Kamerling, 1998a). African Americans averaged roughly 93% of the state’s prison population in the years between the end of Reconstruction and the turn of the century. In the very first post-Reconstruction meeting of the state legislature, Governor Hampton introduced a measure inaugurating convict leasing in the state. Other Reconstruction-era reforms, such as the prison school and separate wing for juvenile offenders, simply evaporated with the rise of Democratic rule. As the prison reform movement gained
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momentum throughout the North and internationally, South Carolina stopped sending any representatives to the meetings of the National Prison Association. Having abandoned rehabilitation as the guiding principle of incarceration, participating in prison reform congresses simply made no sense. Leasing itself represented a kind of assault on the very idea of a centrally run state penitentiary dedicated to reform. With the end of Reconstruction conservative, newspapers began to call for the complete abolishment of the Columbia penitentiary. An 1878 editorial in the Columbia Register insisted that the ‘‘penitentiary is a failure,’’ explaining that ‘‘physical ferocity unsubjectedykeeps alive the vicious passions of the criminal.’’ The Register called for burglary ‘‘to be made a capital crime,’’ while suggesting that the ‘‘vicious passions’’ of lesser criminals be punished by the stern application of corporal penalties. The Register concluded that ‘‘a little more severity, including the best of reformers the ‘whipping post,’ would greatly diminish crime and promote public security.’’ In 1879, the 96 Guardian expressed similar sentiments, only more concisely, urging simply that South Carolina ‘‘whip the lesser criminals, hang the bigger ones and send fewer to the penitentiary’’ (as cited in Kamerling, 1998a, p. 238). While South Carolina did not formally adopt the legal letter of such recommendations, the embrace of convict-leasing signaled a commitment to the spirit of such calls for more punitive forms of justice. By placing control over the predominately black convict population in the hands of private white contractors who worked and disciplined prisoners as they chose, leasing signaled a kind of return to a harsh form of plantation authority. The public aspect of leasing also extended what Foucault (1979) termed the ‘‘disciplinary gaze’’ (p. 174) to all white citizens of the state, while at the same time holding all black South Carolinians in its stare. The decentralized nature of leasing further meant that the state itself became a prison for all convicts, and by extension of the implicit racial issues at the heart of the matter, for all blacks as well. In this manner, the adoption of the convict lease system played a key role in whites’ efforts at transforming the other from redeemable subject to inherently deviant black criminal. Discussing the contemporary discourse on crime and punishment, Connolly (1995) observes that, ‘‘if you listen closely, it is not difficult to hear a call for revenge animating the desire to punish’’ (p. 42). Similarly, Mead (1918) insists that the ‘‘hostility toward the lawbreaker inevitably brings with it the attitudes of retribution, repression, and exclusion’’ (p. 590). Certainly, in the appeal for ‘‘more severity,’’ the ‘‘return to the whipping post’’ and in the establishment of leasing one can easily hear both
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hostility and revenge animating conservative white South Carolinians’ desire to punish. Excited either by Mead’s understanding of hostility or Connolly’s conception of revenge, post-Reconstruction politicians sought to define the criminal other in South Carolina not simply outside the boundaries of mainstream society, but outside the boundaries of the more broadly conceived human community. This was penology based upon the principle of exclusion. In contrast to penal reformers and politicians in late nineteenthcentury Illinois, white South Carolinians expressly rejected the idea of the redemptive convict integrating back into mainstream society. However, it is important to highlight the racial dimensions animating the desire to infuse punishment with revenge. What makes the principle of exclusion possible in this context is the construction of the other as an inherently deviant, irredeemable black criminal. The complete abandonment of the rehabilitative ideal was predicated upon the principle of white supremacy. There simply was no context in which the majority of white South Carolinians could imagine African Americans, whether as inmates, ex-convicts, or citizens, taking their place in society in any fully integrative way. The triumph of retribution over rehabilitation in the paradigm of punishment constituted a uniquely southern approach to corrections. Southern punishment meant by definition harsh, punitive punishment, a penology predicated on the conception of an irredeemable (black) convict. The principle of exclusion struck at the very idea of rehabilitation and assaulted the need to build prison schools, to separate novice from hardened criminals, to provide indeterminate sentences, or in short to find any meaningful ways to prepare the (black) convict for entrance into mainstream (white) society. The principle of individuation, which was based not only on a conception of the convict as a redeemable other but also on the idea of the inmate as an individual, made no sense in this southern approach to punishment. While northern penal systems, such as the one in late nineteenth-century Illinois, functioned in part as a coercive tool designed to inculcate in ethnic and working class inmates bourgeois notions of ‘‘proper’’ Anglo-American values, southern penal systems taught only submission to (white) authority. In this context, the southern approach to corrections aimed not at individual rehabilitation, but instead sought group domination. The penology of exclusion rejected any assimilationist formulations and shifted the site of discipline from the soul or mind to the body. Only the whipping post could be trusted. Jim Crow segregation and disfranchisement, imposed largely in the late nineteenth and early twentieth century, simply extended this principle of penological exclusion – of the irredeemable black other – to the broader social and political milieu of southern society.
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‘‘You might seek revenge against entire groups who pose a threat to your security,’’ Connolly (1995) observes, ‘‘or against constituencies whose way of being threatens the security of your identity’’ (p. 42). The southern approach to corrections, based on the principle of racial exclusion, functioned in just such a manner. Republican political rule during Reconstruction and the rise of agrarian political protest in the last quarter of the century threatened the establishment of a bi-racial and class-based political order. The potential formation of such integrative political coalitions threatened the rule of traditional, conservative white elites. Throughout the late nineteenth-century South such elites deployed the trope of white supremacy to erode potential ties between whites and blacks by constructing African Americans as the inherently deviant, criminal other. While extralegal forms of punishment such as lynching have received more scholarly attention (e.g., Brundage, 1993; Waldrep, 2002; Williamson, 1984) the formal mechanisms of law and order played an equal if not greater role in such a construction of otherness. In South Carolina the ascension of the exclusionary penological ideal and the establishment of convict leasing represented the sacrifice of African Americans in an attempt to stabilize conservative white Democratic political rule. In the late twentieth-century, African Americans will again find themselves sacrificed on the alter of revenge – though this time the obvious connections between peonological exclusion and the ideology of white supremacy, so obvious at the turn of the nineteenth century, will be muted. As the twentieth century opened the respective decisions made by Illinois and South Carolina in dealing with their state convict populations established broad patterns that came to define the larger national approach to corrections for the next 60 to 75 years. For state correctional facilities outside the South, this meant the ascendance of assimilation based on principles of individuation, resocialization, and therapy as the guiding philosophy of incarceration (Dodge, 2002; Rotman, 1998). As the century progressed various bursts of innovation predicated on a zeal for the rehabilitation of the convict were invariably followed by a more entrenched, custodial approach. The reforming impulse added an array of new features to corrections up through the mid-twentieth century; including notably the rise of a federal prison system separate from state penitentiaries, more robust post-release supervision, experimentation with new prison arrangements based on the social learning perspective, and the evolution of maximum and minimum carceral institutions along with separate prisons for female offenders. If there was a twentieth-century trend, it was in the direction of transforming the prison into a site of psychotherapeutic rehabilitation. As criminal
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behavior became increasingly understood as a pathology and the offender conceptualized more as poorly socialized, the prison opened up as a place where psychiatrists, sociologists, caseworkers, and psychologists were called on to ply their trade. The impulse for such reforms rarely lasted long and, in the harsh reality of life inside the prison, they barely made any meaningful impact on prisoners’ lives. However, regardless of the waxing and waning fortunes of various reforms, the core ideological principle of rehabilitation itself never came under assault. Such reforms established a deep consensus outside the South that the state had a fundamental responsibility to address convict needs while also seeking their reform. As the history of South Carolina’s late nineteenth-century penal system makes clear, the trajectory of penological developments proved different in the South. Over the same time period, the South continued to opt out of the various reformatory programs that defined prison life everywhere else. Instead, the region as a whole pursued an approach to its penal system along lines that expressly abandoned rehabilitation as an organizing principle, openly embraced a range of harsh corporal disciplinary measures, and adopted the plan of working municipal, county, and state convicts on public road crews and on the ubiquitous state prison farm. The ideological frame which rejected the notion of assimilating the ex-convict back into mainstream society upon release, while adopting the harsh punishments and degrading practices of chain gangs, striped uniforms, and agricultural labor came to define the uniquely southern approach to corrections. The unwillingness of state legislatures to allocate the financial resources necessary to deliver to inmates even the barest minimum level of health and hygiene further typified southern prisons. From sheer institutional neglect to violent guards, this period is ripe with anecdotal stories of the shockingly abysmal treatment convicts received in southern prisons. In contrast to the North, where one can easily find similar stories of abuse, such legislative and institutional indifference coincided with the ideological orientation guiding southern punishment. This approach remained particularly detached from the psychotherapeutic model emerging outside the region. Offenders in the South were not considered pathologically ill and in need of effective treatment as they where elsewhere. Treating the offender as in need of psychological care made no sense in the context of a criminal justice system operating as an explicit tool of racial control. There were no state sociologists or psychologists assigned to treat to the convicts working on the roadside gangs or laboring on prison farms at places like Parchman in Mississippi (Oshinsky, 1996). No guard, no warden, no prison board of commissions or southern state legislature saw
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itself as preparing inmates in their prisons for reentry back into southern society. Instead, the harsh disciplinary tactics and humiliating regimes were designed to inculcate racial subordination and were predicated on the principle of exclusion from white society upon release. This harsh punishment, tough-on-crime, and tough-on-convicts approach proved acceptable to the (white) southern electorate because it was understood as one important plank supporting the larger architecture of white supremacy. The 1960s and 1970s experienced two revolutions in the history of prison management and national policy on crime control. The first of these was the ascendance of what has come to be known as the prisoner rights movement (Rotman, 1998; Shook & Sigler, 2000). Initiated largely by convicts themselves, this movement sought in part to carve out certain legal and constitutional rights for inmates. While the progressive era penology established a foundational consensus regarding the state’s responsibility to its inmates, prior to 1960s prisoners lacked any formal legal standing to challenge either the legality or conditions of their imprisonment. Generally, federal courts had adopted a ‘‘hands-off’’ principle concerning matters relating both to the treatment and care of convicts and the rules and responsibilities guiding state prison administration, leaving instead concerns about these matters to the various state legislatures and prison officials.5 However, in 1963 the Supreme Court ruled that state prisoners possessed the right to file a writ of habeas corpus challenging both the reasons for their imprisonment and the environment experienced upon incarceration. In 1964 the court held that, under the Civil Rights Act of 1871, inmates possessed the right to have their grievances addressed. Such rulings marked the beginning of a rights revolution for inmates. Throughout the 1960s and into the 1970s the Supreme Court continued to deliver decisions in favor of prisoners that generated specific – though often extraordinarily circumscribed – constitutional rights, including the right to freedom of religion, a certain expectation of privacy, visitation, access to lawyers and courts, the delivery of reasonable health and hygiene standards, and the right to challenge prison administrative procedures and classifications, among others. The prisoner rights movement also generated much scrutiny, and much national concern, over the specific conditions of imprisonment (Shook & Sigler, 2000). In courts, inmates invoked the 8th Amendment’s prohibition against cruel and unusual punishment to challenge the often shockingly horrible conditions of their confinement. That such indictments of state prison conditions emerged initially from inmates confined in southern prisons should not be surprising. Nor should the fact that it was in cases located in the South, where the Supreme Court responded most favorably to
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inmates’ claims of abuse. In Talley v. Stevens (1965) the court invalidated what it determined was Arkansas’ arbitrary application of corporal punishment. After Arkansas officials refused to make any meaningful changes, the court in Holt v. Sarver (1969) declared Arkansas’ entire penal system unconstitutional. Other southern states, notably Alabama, Mississippi, and Texas came under assault from the courts in short order for their abysmal treatment of state inmates, with each having their prisons declared unconstitutional as well. Eventually, states outside the South came under scrutiny and by 1985 42 states became the target of some form of court-ordered injunctive relief for the poor treatment of their prisoners. However, in its initial phase, by opening up federal courts to inmate law suits, the prisoner rights movement originally provided a legal venue for the North to insinuate itself into southern domestic matters. Drawing on the legacy of the landmark 1954 Brown v. Board case and on the energy generated by the emerging civil rights movement, federal judges, supported by a sympathetic Supreme Court, located the plight of (black) inmates captured in the brutal environment of a racist southern prison system as in need of remedy. Reading events in this light situates the prisoner rights movement more broadly as an assault on harsh punishment and fundamentally racist nature of the southern approach to corrections. At the heart of this 8th Amendment assertion of prisoner rights exists a penetrating criticism by the courts of the call to revenge organizing southern corrections. In essence this component of the movement attempted to redraw the boundaries of criminality by insisting on, even if in a limited way, the inclusion of the deviant (black) other into the larger (white southern) society. While the prison rights movement called into question both the ideological organization and actual practice of southern corrections, it also represented an assault on the old progressive era consensus concerning the principle of individualization and the implementation of the therapeutic model (Friedman, 1993). Action on this front exposed the harsh reality of life behind the prison walls outside the South, revealing that while reform programs did little to actually rehabilitate the convict, they opened the door to great abuses by prison staff. Wardens, pardon and parole boards, prison psychiatrists, and psychologists often wielded their power in a capricious and vindictive manner. In her study of women in Illinois prisons. L. Mara Dodge (2002) reconstructs the abusive nature inherent in the way that the psychotherapeutic model operated. ‘‘[T]he supposedly modern and scientific criteria that psychiatrists used in diagnosing female criminality,’’ Dodge argues, were in reality ‘‘highly gendered and heavily laden with moralistic evaluation.’’ Dodge concludes that, ‘‘mental health officers and parole
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board members weighed women’s sexual transgressions as heavily as their legal offenses in their decision making’’ (p. 161). In the end result, the progressive era emphasis on individuation and resocialization opened the door to great abuse for both male and female offenders. By vesting control so thoroughly in the hands of prison staff and state bureaucrats such policies were prone to a type of cruelty inimical to the formal legal rights of prisoners. By placing concern for the inmate at the center of the debate, the prisoner rights movement opened up a conversation about the state’s responsibility toward some of its most unfortunate members. Such a movement appealed to the rising anti-institutional sentiment on the political left that expressed mounting concern over the coercive and dehumanizing nature of total institutions. Both the language of protest and of rights connected inmates’ critique of the carceral system and their demands for more equitable treatment to the other liberation struggles of the late 1960s and early 1970s. The anti-Vietnam War protestors, New Left advocates, countercultural adherents, among others, not only leveled a broad critique of American institutions, they also engaged in an effort (often awkward and unwieldy) to redraw the boundaries of American identity. This reconfiguration of the self attempted to fold into the mainstream certain out-groups: African Americans, Hispanics, Native Americans, women, gays, and lesbians that had previously operated on the margins of mainstream American life. For many, the goal was to make the state more responsive to the needs of minority groups, including at this particular moment in history, prisoners. Dehumanizing institutions should be made humanizing or, if abandoned altogether as some advocated, they should be replaced with broader social welfare programs aimed at addressing the needs of those most likely to find themselves caught up in the mechanics of the criminal justice system. While some prisons outside the South (Attica, Alcatraz) emerged as potent symbols of a coercive and intrusive state nowhere was such a depiction more apt than in the operation of prisons throughout the South. Southern corrections routinely combined all the elements liberation movements on the left found most despicable: overt racism, legislative indifference, living conditions akin to torture, the widespread application of brutal treatment and degrading punishments, and the official embrace of retribution at the expense of rehabilitation, exclusion at the expense of assimilation. Even though inmates themselves and social critics on the left leveled an attack on individuation of treatment and the therapeutic model, they did not wish to abandon prisoners to the call to revenge or the impulse of hostility that so often animated punishment. By questioning the legal presumption,
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established in the late nineteenth century, that convicts were ‘‘slaves of the state’’6 and devoid of any legal remedies concerning abusive treatment and unreasonably harsh conditions of confinement, the prisoner rights movement initiated a questioning of the idea of the exclusion residing at the heart of the southern approach to corrections. In this reading of events, one can situate the prison rights movement as existing at the end of a century long evolution of the rehabilitative impulse, a stimulus that took root initially in places like Illinois at the close of the Civil War. By the late 1960s, the broad and ongoing movement for reconceptualizing the rights of inmates generated a considerable backlash on the political right. This conservative reaction constitutes the second revolution in the history of crime and punishment of this era and, from a contemporary perspective, is by far the more important development. In the hands of conservative counter revolutionaries exposing the ills of permissive laws, courts, and prison programs along with calls for a return to severe penal practices proved critical to their assault on the ascendance of the New Deal, liberal Democratic state. As the history of Illinois’ and South Carolina’s late nineteenth-century penal systems makes clear, such calls for harsh punishment are necessarily intertwined with the politics of race. The counter revolutionaries of the late 1960s and after deployed strikingly similar rhetoric to that of conservative white South Carolinians who opposed the northern style penal reforms of Radical Republicans. In abandoning the assimilationist principle in favor of both increasingly severe legal penalties and in the adoption of more control-oriented penal regimes, contemporary conservatives have in essence embraced the same approach to corrections that emerged in South Carolina with the end of Reconstruction and the establishment of Democratic rule, a political authority that was based on the principle of white supremacy. The ready popularity of the law-and-order approach to dealing with the problems of crime and punishment in modern society has resulted in shifting the paradigm of punishment from assimilation to exclusion, from rehabilitation to retribution, and from conceptualizing the deviant offender as somehow still part of ‘‘us’’ to viewing the criminal agent as part of the inherently monstrous ‘‘them.’’ The apotheosis of this southern approach to corrections found its genesis generally in the political turmoil of the 1960s and particularly in the machinations of Richard Nixon. Nixon’s essential insight, one formed perhaps as a law student at Duke University in the 1930s, was that if given the chance whites and blacks would not long vote for the same political party. It was during the 1930s that President Franklin Delano Roosevelt had forged his New Deal Democratic coalition that included, among other groups,
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southern whites and urban blacks in the North and West. While these voting blocs often possessed divergent interests, their geographical distance allowed the Democratic Party the space to make appeals to both these constituencies. For Republicans in general and Nixon in particular, the trick was to locate wedge issues that would drive whites out of their reflexive commitment to the Democratic Party. However, the larger political reality was that no substantial or long-lasting Republican gains could be made until the ‘‘southern problem’’ was solved, and solved in such a way as to write African Americans into the formal body politic as full equals. Without the political coverage of formal civil and political rights for blacks any national Republican appeal to the white Democratic South ran the risk of turning off more moderate northern white voters and making the Republican Party appear to side with the forces of white supremacy and intolerance. In the 1950s and 1960s the mainstream civil rights movement accomplished just enough progressive racial change to allow Republicans to seriously consider strategies for wining the once solidly (white) Democratic South. In urging his party to pass legislation that would bring an end to some forms of racial discrimination, President Lyndon B. Johnson understood the shifting political terrain in much the same manner as did Nixon; namely that pressing for racial equality in the South would shatter FDR’s New Deal coalition and open up the region to substantial Republican electoral gains. Johnson is reported to have publicly acknowledged this when, upon signing the 1964 Civil Rights Act, he famously and apocryphally quipped, that he had just ‘‘delivered the South to the Republican Party for a long time to come’’ (as cited in Isserman & Kazin, 2004, p. 143). While Johnson understood that the civil rights movement would deliver important wedge issues to the Republicans, it still remained for Republicans to take advantage of these issues to the full. It fell to Richard Nixon and his much vaunted ‘‘southern strategy’’ in the 1968 presidential contest to find a way to exploit the opening provided by the legislative gains made by black civil rights protestors earlier in the decade (Carter, 1996). One prong consisted of galvanizing white southern resentment over civil rights advances through deploying coded rhetoric indicating his sympathy with aggrieved Southern whites. Nixon achieved this by delivering a range of assurances to key southern political leaders, such as Strom Thurmond of South Carolina that as president Nixon would not vigorously pursue the integrationist agenda driving the Democrats. Nixon also pursued this approach at rallies throughout the South where he complained about ‘‘an increasing public acceptance of civil disobedience’’ while pledging that as president he would ‘‘appoint Supreme Court Justices who will respect the Constitution rather
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than rewrite it’’ (as cited in Kutler, 1990, p. 64). In interviews with southern news outlets he also indicated his opposition to busing as a method to obtain school integration, expressing instead his preference for ‘‘freedom of choice’’ plans or ‘‘local control’’ over public schools – coded rhetoric that clearly conveyed his intent to limit or even halt the Supreme Court’s march toward full educational integration. As Dan T. Carter (1996) has indicated, the candidacy of George Wallace, an ardent segregationist and self appointed defender of set upon working-class whites everywhere, in the election allowed Nixon to appear as a racial moderate, inoculating him from Democratic criticisms that his proposals and policies would undermine the gains made by the mainstream civil rights movement. The other prong of Nixon’s southern strategy resided in his constant appeals to reestablish the country upon the bedrock principles of law and order. In campaign stop after campaign stop, the Republican candidate indicated that the real malaise facing the nation was a bourgeoning lawlessness. Nixon (1967) explained that: The symptoms are everywhere manifest: in the public attitude toward police, in the mounting traffic in illicit drugs, in the volume of teen-age arrests, in campus disorders and the growth of white-collar crime. The fact that whites looted happily along with Negroes in Detroit is ample proof that the affliction is not condemned to one race (p. 50).
And this comment was delivered in late 1967 before the Tet Offensive, before the Mai Lai massacre, before the tumult of the 1968 Democratic National Convention in Chicago, before the assassinations of King and Bobby Kennedy, before Woodstock, before the Summer of Love, and before Kent State. In other words Nixon hit upon his law-and-order appeal before the widespread social disruption and cultural contests of the late 1960s and early 1970s. The urban race riots in the North and civil rights protests in the South provide the most salient context for Nixon’s harangues against the mounting lawlessness in American society. Despite Nixon’s own assertion that his concern over the ‘‘shocking crime and disorder in American life,’’ (p. 50) was not about race, it clearly was. By denying such a relationship Nixon, in essence, made the connection for the audience himself. As Dan T. Carter (1996) argues, ‘‘in the minds of many of Nixon’s listeners – and in Nixon’s mind, however often he denied it – race and disorder were always linked’’ (p. 29). Early on then Nixon carved out territory that would merge white anxiety over racial assertiveness with the growing spirit of youthful rebellion. Nixon laid blame for all these problems upon whites who through ‘‘their
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indulgence of crime because of sympathy for the past grievances of those who have become criminals’’ had permitted all hell to break loose (p. 50). What ‘‘indulgence of crime’’ did Nixon have in mind? What ‘‘past grievances’’ did Nixon refer to? For many the answer was obvious enough: the social disorder generated by the ongoing African-American freedom struggle. Through such language Nixon was saying, look what happens when you give black people the rights they have long demanded, when you pass laws and hand down court decisions that favor minorities and criminals (is there a difference?), look what happens when you write the definition of the other into the construction of us. Nixon found easy explanations for the causes of such widespread unrest. ‘‘There is the permissiveness toward violation of the law and public order,’’ Nixon complained, and then there were ‘‘our opinion-makers,’’ who ‘‘have gone too far in promoting the doctrine that when a law is broken, society, not the criminal is to blame’’ (p. 50). In such speeches Nixon offered an implicit critique of individuation and the psychotherapeutic model that had long defined the mainstream approach to understanding the causes of crime and its treatment. And while such criticisms merged in places with those on the left, Nixon was not interested in protecting prisoners from an abusive program of resocialization. Instead Nixon deployed this critique as a way to offer a broader criticism of the liberal Democratic state and its failed attempts at trying to reshape society. By deploying this law-and-order, toughon-crime, and tough-on-criminals rhetoric, Nixon at once connected anxiety over the rapid pace of racial change in the South with a growing sense of wider social disorder. These mounting concerns were conveniently joined to an apprehension about the old New Deal Democratic agenda that paid too much attention to ‘‘them.’’ As the history of South Carolina demonstrates, there was nothing particularly new about deploying such rhetoric in a critique of both a penal system that pampered convicts and the ills generated by encroaching state power. When the South Carolina paper, the Daily Phoenix, issued its harangue against what it perceived as the overly lenient operation of the Radical Reconstruction state penitentiary in Columbia, it essentially made the same argument. What was different about Nixon was that he was nationalizing this regional dialogue about crime and punishment, attempting to write the narrative construction of (white) South Carolina identity into the nation at large. Situating events in this light reveals that, ultimately, Nixon’s ‘‘silent majority’’ rhetoric was about redrawing the boundaries between us and them along traditionally southern lines and it was his law-and-order discourse that operated as the lynchpin holding all the disparate elements of this narrative together.
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Timing in this political drama is everything. Two structural changes had to occur before Nixon would be able to find a ready national audience for his appeals. First, it was not a coincidence that Nixon’s successful lawand-order campaign proved popular both in the South and throughout the nation only after Jim Crow segregation, and the various disenfranchising techniques had been formally overturned by the 1964 Civil Rights Act and 1965 Voting Rights Act. In 1964 Barry Goldwater, the Republican candidate, attempted to make a similar law-and-order pitch. And while Goldwater garnered some success in the South (he carried Mississippi, Georgia, Alabama, Louisiana, and South Carolina) he failed to gain a broader popularity. The mid-1960s legislative victories of the black freedom struggle proved essential because they allowed Nixon to exploit the racial fears and animosities of whites without talking openly or explicitly about race. The other necessary precondition explaining the popularity of the call for law-and-order was the massive, decades-long migration of African Americans from the rural South to the urban North (Conley & Debro, 2002; Friedman, 1993; Reasons et al., 2002; Rotman, 1998). The Great Migration, begun as a response to the racist southern caste system (which included chain gangs and convict leasing among other elements of southern life) and the pull of northern industrial jobs during World War I, led to a rapidly expanding African-American population in the urban North. Between 1940s and 1950s alone almost half the black population migrated from the rural South to the urban North and far western states. Over this same time, African Americans found themselves increasingly and disproportionately represented in state prison populations throughout the North. Increasingly whites came to identify the crime problem in the North as a problem of race and not a problem of a poor environment, economic dislocation, or social pathology as had traditionally been the case. One measure of the nationalization of this once ‘‘southern problem’’ is the success of George Wallace winning broad support outside the South in the 1968 presidential contest. Polling data clearly demonstrates that Wallace received the greatest number of votes from urban whites in the North who lived in close proximity to the growing black population (Carter, 1996). Far from being a random pattern, Wallace’s vote count was consistently highest in areas where white-voting districts sat directly adjacent to black ones. Absent the formal manifestations of petit apartheid conservative whites (and especially young white men between the ages of 18 and 35) in the North proved every bit as susceptible to race-baiting as those in the South. ‘‘Richard Nixon preyed on the sixties protesters,’’ David Farber (1994) has argued, ‘‘who talked about a revolution that offered most Americans
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nothing but heartache’’ (p. 309). The counter revolutionaries’ call for a lawand-order approach to the nation’s problems worked to link all the issues dominating the late 1960s and early 1970s together: anxieties about civil disobedience and the pace of racial change, fear over racial conflagration in urban centers, resentment toward young, largely white and middle class anti-war protestors, and concerns about permissive social programs that generated a growing lawlessness and encouraged a pervasive spirit of youthful, cultural rebellion. All of these problems and more, both Wallace and Nixon argued could be solved by simply getting tough-on-crime. As Mead and Connolly have observed, this shrill rhetoric was about unleashing the call to revenge and activating the impulse of hostility in its organization of punishment. Getting tough on crime meant in practical terms abandoning the principles of assimilation that had taken root in places like post Civil War Illinois and adopting instead an approach to both the social construction of the criminal other and the erection of disciplinary machinery that drew directly upon the white supremacist legacy of post-Reconstruction South Carolina. Having unleashed the call to revenge the counter revolutionaries generated a corresponding orgy of discipline. The last quarter of a century has witnessed an ongoing and widespread backlash that continues to shape both America’s penal machinery and its legal approaches to organizing crime. One component of this backlash has found expression in the drive to make the experience of prison life more difficult for the convict (Blakely & Bumphus, 2002; Friedman, 1993). On the one hand, this has meant ending an array of educational and psychological assistance programs designed to help the offender adjust to society upon leaving prison. The assault on the principle of assimilation and the ascendance of an ideology predicated on exclusion inherent in such cutbacks is clear. On the other, there has been an ongoing effort to make life in prison harsher by removing the few amenities of prison environment like weight rooms and television sets, along with access to other facilities. These developments correspond to the emergence in the past 30 years of special control units within maximum-security prisons and the rise of supermax prisons, new carceral institutions designed to deal with the most recalcitrant inmates (Rhodes, 2004; Riveland, 1999). The first such supermax prison opened at Marion in Illinois in 1978, and by 1999 over 30 states ran one or more such facilities. Superamax prisons operate on the principle of complete lockdown and total control, with inmates in solitary cells for 23 hours a day, all year long. Convicts eat alone in their cells, are unable to see or talk with another person, and are unable to see out windows. ‘‘[T]he contemporary prison has developed a new technology,’’
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Lorna A. Rhodes (2004) maintains, ‘‘in the form of the control prison – for the creation of a potentially absolute social exclusion’’ (p. 7). Supermax prisons represent the apotheosis of both harsh punishment and the principle of exclusion – exclusion from other convicts and total withdraw from the outside world. Rhodes understands that such exclusionary practices and principles depend on a particular conception of the other as inhabiting space outside the boundaries of the broadly constructed human community. ‘‘Historically, and in many prisons systems in the United States,’’ Rhodes concludes, ‘‘this exclusion is correlated with and profoundly linked to race’’ (p. 7). Finally, and more recently, a range of states have debated either inaugurating or re-instituting the practice of chain gang work, striped uniforms, and all. Amid much controversy, Alabama returned the chain gang practice in 1995 (Gorman, 1997). Florida followed suit. However, far from serving as a peculiar expression of a uniquely southern approach to corrections, Arizona, Iowa, and Wisconsin also implemented the chain gang. The Illinois legislature too seriously considered adopting the chain gang in 1996 and only rejected the measure as opposition from the state National Association for the Advancement of Colored People (NAACP) grew too intense. When Illinois state representative Ronald Wait of Rockford argued in favor of chain gangs by observing that, ‘‘this is not a country club atmosphere,’’ he recalls to mind those white South Carolinians who complained during Radical Reconstruction about convicts being sent on another pleasure trip to the Columbia Penitentiary (as cited in Kamerling, 1998b, pp. 38–40, 43). ‘‘Chain gangs are loaded symbols,’’ asserts Tessa M. Gorman (1997), ‘‘they evoke the horror of countless racial indignities, from slave ships to forced labor’’ (p. 458). As Gorman observes, the popularity of these traditionally southern patterns of justice intentionally and gladly evoke the South’s brutal and racist history, and clearly indicate the ascendance of the southern approach to corrections. Taken altogether, this tough-on-criminals approach represents the complete abrogation of prisoner rights. Today in America there is only revenge and criminals must be made to pay. The second component of this backlash has emerged in the legislative arena as states and the federal government have passed a series of ever increasing tough-on-crime, tough-on-criminal laws (Friedman, 1993; Nunn, 2002; Tonry, 2002). Along with the Supreme Court’s reinstatement of the death penalty in 1976, legislative action initially found expression in the truth-in-sentencing movement that aimed to curtail perceived leniency in probation, parole, and other post-release supervision programs. Additional similar legislative action followed, including enacting mandatory-minimum
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and life-without-parole statutes, along with state and federal sentencing guidelines that sought to provide uniformity within states and throughout the nation in the sentences judges handed down to offenders7. These measures have been joined by state and federal three-strike laws that mandate a prison sentence of substantially greater length for an offender’s third-felony offense, regardless of the circumstances or severity of the crime. A final development appeared in the 1980s when President Reagan declared a ‘‘war on drugs.’’ Along with increased efforts in interdiction, surveillance, and policing, state and federal legislation toughened drug trafficking penalties. Perhaps most famously, federal legislation adopted in 1986 and 1988 provided for substantially longer prison terms for offenders caught selling the same amount of crack as opposed to powdered cocaine. The cumulative impact of these laws is two-fold. First, such legislation aimed at limiting the discretionary power of judges (recall Nixon’s harangue (1967) against the sympathy shown for criminals emanating from the bench: ‘‘our judges have gone too far in weakening the peace forcesy’’ (p. 50)). Second, the total impact of these laws has been to vastly increase the prison population in the nation’s jails, state prisons, and federal penitentiaries. The statistics indicating the ever-increasing prison population are well known but still shocking (Harrison & Beck, 2004; Sentencing Project, 1995a; 2003a). At year-end 2003 the United States had nearly 2.1 million inmates incarcerated in the nation’s prisons and jails. The new total represented a 31-year rise, the longest such continuous increase in the nation’s history. At 600 inmates for every 100,000 persons in the general population, in 1995 the United States had the second highest incarceration rate in the world. Russia had the highest such rate at 690 per 100,000. However, by 2003 the United States had well eclipsed Russia, reaching a rate of 714 per 100,000, making its incarceration rate the highest in the world (the figure in Russia dropped to 548 per 100,000 and third place). In locking up so many of its citizens, the United States shares company in this regard with small island nations like Bermuda and the Cayman Islands, with authoritarian states like Turkmenistan and Cuba, and with the new countries carved out of the old Soviet Union like Belarus. Such practices situate America far out of the mainstream trends in other westernized, industrialized, and even developing nations. In 2003 England’s, Germany’s, and France’s rate of incarceration was 141, 96, and 95 per 100,000 respectively. In China, which has been much criticized by America and by European nations for the treatment and care of its inmate population as well as for the lack of legal protections offered to its criminal defendants and prisoners, the rate of incarceration is only 119 per 100,000. The astronomical increases in America’s prison population, begun
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in the early 1970s, have continued despite wide fluctuations in nation’s crime rate. Since 1991 America’s rate of incarceration increased by 49% while the rate of crime in the nation over that same time period declined, and dramatically so, between 1995 and 2000. By any measure America over the past two score years has engaged in a seemingly unending explosion of incarceration. The broad appeal of this ‘‘lock’em-up-and-throw-away-the-key’’ approach to organizing the legal system and correctional policy corresponds to the larger electoral shift over this same time period from the Democratic to Republican Party. Nixon’s political victories in 1968 and 1972 demonstrated to other Republican candidates the gains to be made through manipulating such law-and-order rhetoric. By calling for harsh justice, conservatives draw upon the failed history of northern rehabilitative and assimilationist penal programs. This line of argument offers conservatives a way into generating a critique of the basic tenants of the New Deal Democratic state while not risking being seen by the (white) public at large as unconcerned about the problems of everyday (white) folk. Reading events this way one understands America’s recent lurch toward harsh disciplinary practices not as a return to some fundamental appeal of formal equality residing in the Anglo-American character, as some have argued (Whitman, 2003), but emerging instead out of a rhetorical strategy drawing directly and explicitly on the worst elements of the peculiar approach to the corrections that emerged powerfully throughout the post Civil War South. African Americans have borne most heavily this astronomical increase in the size of America’s prison population (Palacios et al., 2002; Reasons et al., 2002; Sentencing Project, 2003a, b). By 2003 on any given day 1 of every 8 black men ages 25–29 is incarcerated somewhere in America. By 1990 there were more black men in prison than there were in college. While African Americans represent roughly 13% of the nation’s total population they constitute 44% of all prison inmates. Black men have a 32% chance of serving in prison at some point in their lives. For Hispanics it is 17% and for white men the chance of doing time is about 6%. If the percentages of minorities in prison continues to increase at the same rate as it did from 1980 to 1993, then by 2020 almost 2 out of every 3 young black men (and 1 in 4 Hispanic men) ages 18–34 will be in prison. Changes in the drug laws discussed above account for much of these increases (Coyle, 2002; Effective National Drug Control Strategy, 1999; Palacios et al., 2002; Sentencing Project, 1995b, c; Tonry, 2002). In the decade stretching from 1983 to 1993, the percentage of drug offenders as a proportion of the total national inmate population grew 510%. These
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changes, however, have impacted black men the most. In 1986, before mandatory-minimums instituted the crack/powder cocaine sentencing disparity, blacks on average received a sentence 6% longer than that of whites. By 1990 the sentence disparity was 93% higher for blacks than for whites. Between 1986 and 1991 there was a 465% increase in the number of African Americans imprisoned for drug offenses in state prisons. In 2002 the average sentence a street-level drug dealer received was 103.5 months (almost 9 years), while the average maximum sentence in state prison for all violent offenses was 100 months. In other words, it is generally worse to be caught dealing crack than it is to rape someone. National surveys routinely reveal that blacks account for between 11 and 15% of the nation’s drug users. Yet, African Americans comprise 37% of those arrested for drug violations, they represent 55% of those convicted, and account for 74% of those doing time in prison for drug related crimes. America does not just have a war on crime or drugs. It has a war on blacks. Marilyn Mackel, a Los Angeles lawyer and activist, characterizes America’s prisons as modern day ‘‘slave ships.’’ (as cited in Reasons et al., 2002, p. 269). In the light of this shocking statistical reality, even asking the questions, as many do, of whether or not the criminal justice system operates in a patently racist manner seems absurd beyond any point of meaningful discussion. The counter revolutionaries (today they are called neoconservatives) have so thoroughly won the day that race has largely dropped out of contemporary public discussions of crime and punishment. Just about everyone acknowledges that the politics of racial oppression have played a role in the making of America and in shaping (historical) patterns of crime and punishment. However, relegating the story of race to the darker moments of America’s (distant) past, while celebrating achievements in racial progress operates as a way of asserting that racism no longer plays a meaningful role in the contemporary life of the nation. This formal race-neutral narrative dominates even when, as indicated above, the most cursory glance at the statistics on race and incarceration today reveals that the criminal justice system (to put it in the most charitable light) falls most heavily upon minority communities of all kinds. But such a ‘‘charitable’’ characterization is inaccurate and misleading because this makes it sound as if the coercive impact on the black and other minority communities is just an unfortunate byproduct of unrelated and larger changes. This is far from the case. As the history of South Carolina’s post Civil War penal system reveals and as Nixon’s southern strategy indicates, constructing the crime problem as a race problem is both necessary and essential to the success of the law-and-order rhetoric. The sweeping victory of the crime and punishment backlash, and
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the ascendance of the principle of exclusion over the ideology of assimilation that has emerged in its wake, is predicated on the construction of the criminal other as the combination of deviant racialized monster, and as Connolly observes, a responsible moral agent deserving of harsh justice. In the late nineteenth century, Illinois proved reluctant to embrace a construction of the other as existing outside the boundary of mainstream (Protestant, white) society. That prison men and penal reformers throughout the North expressed such reluctance even when criminal offenders were largely understood to be recent European immigrants engaged in strange and threatening religious and cultural practices demonstrates their inclusive and broadly constructed understanding of the other. In contrast, the apoplexy of harsh justice today represents the nationalization of the once regional southern narrative of crime and punishment. While the counter revolutionaries who generate such a narrative vigorously deny this association, the history of events presented here makes such a connection unmistakable. The continuing national appeal of the southern approach to corrections represents a paradigm shift in the way the hegemonic categories of crime and punishment operate. It is at this point where Connolly’s understanding of the role of the criminal in the construction of social attitudes toward punishment is most profound. Connolly understands that in America today the criminal other is constructed as a deviant monster who must be controlled, sequestered, and destroyed. But this monster is also understood to be a morally responsible agent who deserves the revenge visited upon it. The backlash informing the national approach to organizing crime and punishment is not new. Its birth can be traced back to places like post-Civil War South Carolina. In this narrative, the politics of race and the influence of white supremacy are not factors that lurk somewhere vaguely in the dark corners of the South’s benighted past (though it is often understood this way). Instead, such factors play an essential and ongoing role in the configuration of the contemporary crime and punishment discourse. The result of such a construction of the other (a result obscured by the very insistence on the moral agency of the criminal deviant) is that the southern approach to corrections has become America’s approach to corrections, southern punishment is now American punishment, southern patterns of race relations now define American patterns of race relations, southern values are now American values, and the master narrative of southern history has been absorbed into the broader master narrative of American history. The essential relevant insight of modernist-oriented sociologists and political theorists such as Durkheim, Mead, and Connolly, resides in their observation that society’s decisions about punishment, about who and how
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to punish, about the ideology and mechanics of punishment organizes in fundamental ways the construction of the social self. As Connolly and Mead argue the contemporary law-and-order, tough-on-crime, and toughon-criminals rhetoric is about unleashing the call to revenge and the impulse of hostility in energizing punishment. Of course American society arranges its disciplinary practices in particular ways. In this story the details of history, place, region, and country matter. The historical narrative of Illinois and South Carolina presented here indicates that unlocking revenge and tapping the impulse of hostility succeeds best when the criminal other is constructed along traditionally southern lines as a racialized, deviant monster and as a responsible moral agent. Throughout the late nineteenth and well into the twentieth-century America termed this approach Jim Crow justice. Throughout most of its history engaging in such practices placed the South beyond the pale of enlightened, civil (northern) society. It is only when the criminal agent/other is no longer seen as belonging in some fundamental way as part of us, that the principle of exclusion is allowed to replace the ideology of assimilation in the paradigm of punishment. America at last seems to have come to the end of punishment. The backlash, so broad and sweeping in its success, is no longer properly characterized as a backlash. Instead it is simply the new cruelty, trumpeted by mainstream politicians on the left and right, affirmed routinely by voters at the polls, and with a few exceptions here and there, endorsed by the Supreme Court. There no longer seems to be any real punishment, at least not in the classical, philosophical understanding of the term. No retributive justice, no honest calculation of the right and equitable relationship between crime and punishment, no attempt at understanding the social and structural forces productive of crime and deviance, no effort at assimilation, forced, or otherwise. There is only exclusion, only the sacrifice of certain groups and constituencies on the altar of vengeance, only open hostility, and in the end only an unending and sadistic orgy of revenge. There is, finally, no more punishment.
NOTES 1. Several factors tie nineteenth-century Illinois and South Carolina together. Abraham Lincoln made Illinois his home and it was his election in 1860 that led South Carolina to leave the union. These twin acts, Lincoln’s election and South Carolina’s secession, inaugurated events that led to the Civil War and tied the fortunes of these states together. Furthermore, each state possesses a strikingly similar regional breakdown. Each state is anchored by a major city (Chicago and Charleston), each state has a similar and well-defined tripartite regional structure
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(downstate/lowcountry, central/midlands, and upstate/piedmont). Each of these regions possesses their own cultural, economic, and political orientation. These, along with other factors, make postwar Illinois and South Carolina particularly compelling states to compare. 2. In her work on the readjuster movement in post Civil War Virginia, Jane Dailey (2000) argues that, ‘‘[t]he Readjuster Partyywas the most successful interracial political alliance in the postemacipation South’’ (p. 1). However, Radical Reconstruction South Carolina, with its black majority state population and muscular black–white political coalition, proved both legislatively more successful and longer lasting than the Readjuster movement in Virginia. 3. In the standard discussion on the origins of convict leasing, scholars generally lay blame at politicians and interest groups of all political stripes, including recently enfranchised African Americans. The argument developed by Ayers (1984) is typical. He maintains that, ‘‘every state that exercised power in the postwar South shared responsibility for the lease’s birth and survival’’ (p. 190). My own research into South Carolina’s post war prison system calls into question such assertions. The strong position of the state’s black majority generated a Republican political coalition dominated by black South Carolinians. African Americans’ political might in South Carolina was simply without parallel in the post emancipation South. Occupying such a position allowed black South Carolinians to block attempts during Reconstruction by both white Republicans and Democrats to move the state toward a system of convict leasing. Doubtless, had blacks in other southern states possessed similar political might, they too would have resisted the efforts at establishing convict leasing. 4. John B. Dennis was the Superintendent of the South Carolina State Penitentiary at Columbia. 5. In Pervear v. Massachusetts (1866) an inmate appealed the conditions of imprisonment based on the 8th Amendment claim that the conditions of confinement constituted ‘‘cruel and unusual punishment.’’ The court determined that the federal government lacked standing to interfere in the management of a state institution. In Ruffin v. Commonwealth of Virginia (1871) the court denied an inmate’s request for judicial review to reconsider the facts of incarceration, determining that convicts were ‘‘slaves of the state’’ who in essence surrendered their rights upon being sentenced to imprisonment. 6. In Ruffin v. Commonwealth of Virginia (1871), the Supreme Court of Virginia determined that convicts under sentence and held in prison are, ‘‘for the time being the slave of the State,’’ and ‘‘in a condition of penal servitude to the State, and subject to such laws and regulations as the State may choose to prescribe.’’ 7. In a series of recent rulings the Supreme Court has both placed limitations on and narrowed the scope of certain features defining the tough-on-crime backlash that has characterized the past thirty plus years. In Apprendi v. New Jersey, (2000), Blakely v. Washington (2004), U.S. v. Fanfan (2005), and U.S. v. Booker (2005), the Supreme Court has assaulted the constitutionality of state and federal sentencing guidelines. The Court’s majority held in Booker that the mandatory feature of federal sentencing guidelines violated the Sixth Amendment’s guarantee to a trial by jury. These decisions are too new to fully gauge their impact. Some have characterized this Sixth Amendment jurisprudence as walking back from the brink of overly harsh
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punishments, possibly marking an endpoint in the rightward lurch of American correctional policy. However, it is possible (and in light of the ready success of the law-and-order appeal quite probable) that legislatures may respond by simply generating longer minimum sentences for an array of crimes. On a related front, in Roper v. Simmons (2005), the Supreme Court abolished capital punishment for juvenile offenders (defined as younger than 18 when the crime was committed). This ruling vacated twenty state laws that had permitted such executions. Arguing for the majority Justice Kennedy invoked international law, the United Nations Convention on the Rights of the Child, and worldwide opinion in asserting the illegality of executing juveniles. In this context, Kennedy appears to be arguing for the adoption of a counter-narrative, one that situates America’s position within the broader context of the enlightened (western) world. In presenting this paper at various conferences and lectures, some have suggested that embracing such a narrative might serve as a check against the encroaching, reactionary southern narrative that defines the current hegemonic approach to crime and punishment in America. Similarly, others have argued that Roper v. Simmons indicates the victory of the South in the on-going backlash is not as complete or as thorough as I suggest in this paper. Perhaps. But I remain unconvinced. Regardless of the way these events play out, to focus on Supreme Court rulings obscures the larger correctional landscape. These recent decisions will have at best a scant impact on the broader thrust of sentencing practices and the harsh reality of life inside America’s prisons. It is hard to see how any substantial reduction of incarceration rates will emerge out of these developments at the Supreme Court. It is also difficult to see how such decisions will lessen the hostile racial impulse that informs much of America’s criminal justice policy. At best, such decisions consist of nothing more than nibbling around the edges of the larger and more troubling issues outlined here in this essay. Moreover, the political successes of President Bush’s ‘‘war on terror’’ reveal a different, more worrisome trend. The abuses at Abugrab prison, the use of secret military tribunals, the unending detention of ‘‘enemy combatants,’’ the use of torture (or sending ‘‘illegal enemy combatants’’ to allied countries that engage in torture), the ready sacrifice of civil liberties in the name of national security, the expansion of police powers, such developments demonstrate far more accurately than the Supreme Court’s recent moral qualms about juvenile executions the prevailing trend in corrections. In such actions one can easily hear the hostile impulse animating the call to revenge that informs the current approach to addressing the problem of terrorism. Far from international opinion serving as a counterweight to reactionary American policies, as is suggested by Kennedy’s decision in the Simmons case, President Bush has muscularly asserted the purchase American (read southern) values should possess abroad. In fact, one can read in these developments an attempt by the current administration to internationalize the once southern, now American narrative.
ACKNOWLEDGMENTS With thanks to the National Endowment for the Humanities and to Austin Sarat who directed the NEH Seminar ‘‘Punishment, Politics, and Culture’’
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(Amherst College, July 2004), and to all the seminar participants for their thoughtful and invigorating discussions on our topic. With thanks also to Daniel Karparowitz, Bill Lewis, Mysoon Rizk, and Lynn Mollenauer who participated in a panel presentation including parts of this paper at the annual conference of the Association for the Study of Law, Culture, and the Humanities (Austin, TX, March 2005). Thanks also to Lynn Mollenauer and the History Department at the University of North Carolina-Wilmington (February 2005) and Michael Guasco and the History Department at Davidson College (February 2005) for inviting me to participate in their colleges’ lecture series where I presented versions of this essay and for the lively and helpful discussions that followed. Finally, thanks to the anonymous reviewers and Andrea McCrary for their thoughtful suggestions and careful reading of this essay.
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WORST OF THE WORST$ Donna L. Van Raaphorst ABSTRACT Donna L. Van Raaphorst provides a detailed statistical analysis of a large sample of Alcatraz Prison inmates using the Social Science Statistical Package. The data, drawn directly from the inmate files, is compared whenever possible with similar data provided by the Bureau of Prisons in order to determine if Alcatraz, often regarded as America’s Devil’s Island, really incarcerated the so-called ‘‘Worst of the Worst’’ in its time. The results would seem to indicate that Alcatraz inmates were, in fact, not remarkably different from those in any other Federal prison in the system.
The noted American diplomatic historian, Thomas A. Bailey once observed that, ‘‘false historical beliefs are so essential to our culture that if they did not exist, like Voltaire’s God, they would have to be inventedy’’ (1973, p. 2). Bailey was referring specifically to the existence of historical myth, which he defined ‘‘as an account of belief that is demonstrably untrue, in whole or substantial part’’ (p. 14). The task of this essay is to examine one of the United States more mythical institutions – Alcatraz. This supermax of
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The author is not remiss in acknowledging sources because all those direct quotes from former prisoners must remain anonymous by written agreement with the National Archives, San Bruno California, Branch.
Crime and Punishment: Perspectives from the Humanities Studies in Law, Politics, and Society, Volume 37, 199–239 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)37009-8
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its time was operational for only 29 years and housed less than two thousand prisoners. Yet as recently as 2003, when the National Park Service began selling chunks of concrete rubble from the prison for nine dollars a piece, the news of the sale made headlines not only in the United States, but was placed on the front page of Japan Today. Reportedly the website that sells the rocks (www.savetherock.org) began receiving 100,000 daily hits (Dougherty, 2003). Despite its long history and ongoing existence, how can one account for the fascination with this frightfully forbidding institution called Alcatraz? True, it is rather unique – an island fortress in one of nature’s most magnificent harbors within sight of San Francisco, which many consider to be the most beautiful and cosmopolitan city in the United States, but similar things can be said of other like institutions. For example, in his insightful monograph on McNeil Island, Paul Keve (1984, p. 2) has written, ‘‘yno other prison was ever so blessed with such natural beauty of surroundings.’’ Yet, how many Americans are familiar with this institution – an island site in the Puget Sound – which operated for l06 years and was officially recognized as a regular penitentiary in the federal system on July 1, l902? Other nations in the world have also had island prisons, but unless one is a French citizen or a Steve McQueen fan, how many Americans are really knowledgeable about the institution with which Alcatraz was most often compared, the desolate place of exile in French Guiana, known as Devil’s Island? It would seem after only limited investigation that, in fact this Devil’s Island as opposed to Alcatraz was truly the most infamous prison in history. More than 56,000 prisoners were transported here from France. Perhaps one-fourth of them ever returned home. Those who evaded death in this jungle camp did so only by escaping – an incredibly difficult feat. In fact it is impossible to know how many of these convicts were victims of the piranhas of the Maroni River, the jungle army ants or perhaps even cannibalized by their fellow prisoners (Maloney, 1998–2003). As for the notorious inmates, Frances’ Devil’s Island had one of the most famous in her long and distinguished history. It was here that Alfred Dreyfus was incarcerated in l895 for espionage and where he remained until l899 when the Cour de Cassation annulled the charges against him (Birnhaum, 1970). As for McNeil Island, it also can claim to have housed some of Alcatraz’s most notorious including Robert Stroud, the Birdman of Alcatraz, Alvin ‘‘Creepy’’ Karpis, a sometime member of the infamous Barker gang, and in the l930s, the most famous bank robber in the nation, Roy Gardner. Furthermore, McNeil had its own cast of noteworthy characters – Mickey Cohen, the boss of the Los Angeles underworld in the l950s, and a few years
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prior to the La Bianca and Sharon Tate murders, Charles Manson (Keve, 1991). Equally notorious inmates can be found at other federal prisons and in fact virtually all of them were transferred from these institutions before their incarnation at Alcatraz. Among these are Alphonse Capone, Atlanta, George ‘‘Machine-gun’’ Kelly, Leavenworth, Robert Stroud, McNeil and Leavenworth, Arthur ‘‘Doc’’ Barker, Leavenworth, Leland Harvey, ‘‘The Escape Specialist,’’ Atlanta, and Marvin Hubbard, a well-known gunman, and one of six inmates involved in the Battle of Alcatraz, in l946, Atlanta (Johnston, 1949, chapters 10 and 11). The appeal of Alcatraz is perhaps better explained if one understands the functions of myth. The scholar Joseph Campbell has enumerated four functions of myth. It is the third that helps to best explain Alcatraz. Campbell classifies it as the ‘‘sociological [function] one-supporting and validating a certain social order’’ (as cited in Satore, 1994, p. 3). Jasper Griffin (2003), Professor of Classical Literature and Public Orator at Oxford and Fellow of Balliol College expressed this even more concisely: ‘‘It is the fundamental function of a mythology to attempt to make sense of the world in which its people find themselves’’ (p. 64). The inmates of Alcatraz do constitute an important part of the prisons mythology. This is not because they were particularly unique, as this chapter hopes to establish, but because they contributed to the nationwide ‘‘hype’’ that surrounded this island fortress from its very inception as part of the federal prison system. In cottage industry publications – books, magazine, and newspaper articles – former prisoners recounted their experiences in this quintessential maximum-security institution during the 29 years of its operation. Nathan Glen Williams (1991, p. 194), transferred to the island in the mid-l950s described his arrival: As we approached the dock, I could hear the waves lapping against the pilings. The boat was right there. Even though the fog had become more dense. I could barely see the outline of the craft that seemed to be about sixty feet long. As we came alongside the vessel, I could read its name; ‘Warden Johnston’y. This man’s reputation for barbaric treatment was known to every convict it all joints in the U.S. He was well known among the inmates as ‘‘Salt Water’’ Johnston, a name the cons hooked on him for his practice of turning powerful hoses of saltwater on the particular inmates(s) who had incurred his wrathy. Under this battering, the inmate would be rendered to a state of complete disorientation, at which time the guards would move in and toss the fellow into the dungeon.
A cottage industry publication of l982 stated that the 12-acre island of rock, located in the world’s largest harbor captures the visitor who walks its hollow corridors, in particular on the foggy days so familiar to the island.
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Here ‘‘the echo of desperate footsteps resonates from the past. A penetrating chill seeps through the old brick walls, a souvenir of more solemn days’’ (Fuller & Gay, 1982, p. 3). The media, Hollywood and television, have also been instrumental in maintaining this mythical image of the prison. Eleven movies with Alcatraz as a backdrop were made between l937 and l969. However, only one was really filmed on the island – Point Blank. After l972, 12 movies were made about the prison. These do not even account for the many ‘‘guest’’ appearances the Rock has made or the dramas, romance movies, comedies, documentaries, made-for-TV movies, music videos, and various television series like The Streets of San Francisco, Mannix, and most recently Nash Bridges. The veracity of these depictions, supposedly based on true stories, often left much to be desired. An excellent example was the l962 movie, Birdman of Alcatraz, starring the late Burt Lancaster. Not only did the Birdman, Robert Stroud, never have birds on the island, he was hardly the kindly convict who studied and devoted his life to birds. Stroud was a murderer whose life was spared by President Woodrow Wilson after the valiant appeals of his mother. Stroud was then sentenced to life in prison and was to spend fortyfour of those 54 years in solitary confinement (Cantwell, 2003). The government has been and continues to be equally important in establishing and maintaining the myth of Alcatraz Island. The first warden, James A. Johnston (1949, p. 9), who would serve in this capacity for 15 years, described some of the reasons for the creation for this end-of-the-line maximum-security prison in his account as its chief custodian: Law enforcement was at a low ebb in the United States in the prohibition era. It was at its very worst in the nineteen thirties. Public apathy had permitted mob rule to defy authority, to override law and order, to challenge civilization. Organized gangsters commanded the headlines. They had the country by the throat. Good citizens were terrorized and peace officers were panickedy.
Sanford Bates and James V. Bennett expressed similar sentiments about the state of the nation and its criminal population. Bates was the United States Director of Prisons at the time that Alcatraz was made part of the federal prison system and for 29 years (1934–1963), Bennett was his successor. He asserted that the existing federal prisons had become overcrowded due to the crime wave of the l920s and l930s. Ironically, the assertion of a ‘‘crime wave’’ cannot be supported by fragmentary crime statistics of the period. In fact crime actually declined from 1918 until after World War II (Powers, 1987, pp. 173–174). However, Bates asserted that crowding was especially acute in Atlanta and Leavenworth justifying the Federal government’s need
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to pass and implement new legislation regarding both parole and probation systems. All of this was accomplished between May and June of l930. Now the powers and the duties of the Bureau of Prisons were defined. The next step would be a complete prison system where there would be classified institutions. Within such a classification system the Attorney General Homer Cummings saw a role for Alcatraz, especially after the War Department informed the Justice Department that it no longer had any use for the island. What better place to house the gangsters, the kidnappers, and the interstate racketeers that were coming into the federal system after the passage of the new crime legislation in l934? As Bates (1938, pp. 173–174) wrote: yNothing but stern discipline and a securely built institution would be appropriate for the punishment of such individuals. There were in the existing penitentiaries a small but dangerous group of prisoners, all guilty of serious crimes, who would not accommodate themselves to the ordinary discipline, and who made it difficult to apply the routine measures of education, rehabilitation, etc., to the larger proportion of inmates. Some prisoners just cannot get over the temptation to escape, and continually plot to accomplish this end. Others are known agitators, ‘‘Big shots’’ and disturbers, and still others by an incurable disposition to disobey the rules make [sic] frequent trips to the solitary.
Speaking to some of these very same issues throughout his long tenure as the director of the bureau, Bennett maintained that an institution like Alcatraz was necessary to handle the security issues of the criminals of the gangster era. Here was an institution, he and Homer Cummings agreed, that would alleviate the stress in the rest of the federal system. Once the escape artists and the real troublemakers were isolated at Alcatraz, there could be less regimentation and a much freer atmosphere in the other prisons within the system. Twelve years after it became part of the federal system, Bennett would maintain, ‘‘Alcatraz serves a very worthwhile purpose in taking out of the other federal institutions the prisoners, who, if they were permitted to remain, would make necessary a much more repressive program and complicate rehabilitative opportunities. The really bad apples must be taken out of the barrel’’ (Bennett, 1970, pp. 93, 98, 113). Inmates often wrote about the nature of their fellow prisoners. Their comments seemed to have sometimes expressed bravado and pride that they had arrived at the prison of prisons. Clifford P. Redden, who was twice sent to the Rock, commented at the time of his first arrival that it was well known that ‘‘Alcatraz was peopled with wire-tough consy. But I wasn’t intimidatedy. Anyone trying me would live to regret it’’ (1995, p. 9). Leon ‘‘Whitey’’ Thompson another island two-timer expressed mixed feelings of awe and fear when he first came to the prison (Alcatraz: The Final Sentence).
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Jim Quillen felt shame at ending up at a place like Alcatraz. A life long Bay Area resident, he was very familiar with the reputation of the island and its inmates. At the age of 23, he reaffirmed a vow made earlier that he would never communicate with his family because of the pain and the suffering he had already caused them (Quillen, 1991). A video made in l988 and sold on the island attempts to clear up some of the Alcatraz mythology, but serves only as a partial correction. Told through interviews of those who lived, worked and were incarcerated there, the backdrop is often an actual newsreel of infamous island events such as escapes. These include the ‘‘Battle of Alcatraz’’ in l946, probably the most significant escape attempt with the last famous escape in l962, one year prior to the prison’s closing. Leon ‘‘Whitey’’ Thompson even asserts that the escapees were ‘‘deep sixed’’ by a prison guard who was in on the plan, but could not allow the men to succeed for fear he would be found out after they fled the island (Alcatraz: The Final Sentence, 1988). How different, how unique, and how incorrigible were the men who found themselves in the maximum-security institution for the 29 years that it functioned as part of the federal system? Inmates were often quick to pick up on the analysis provided by a 25-year-old army private, Robert Daniel Miller, that the reality and the hype were at considerable odds with each other. Court-martialed for the theft of army tools, he was sent to the Island in l945. His original sentence was 30 years, a sentence that was subsequently reduced. Miller asserted that he was transferred to Alcatraz because he ‘‘kept stirring up such a fuss’’ in maintaining his innocence. Furthermore he maintained that 90 out of the 242 prisoners housed on the Island were former members of the armed services, imprisoned for minor crimes. As for the notorious Cell Block D, ‘‘supposedly reserved for the toughest of the tough,’’ Miller claimed it was really a protective unit where the younger men were kept out of harms way from ‘‘sexual perverts’’ (‘‘Vet Charges ‘Rock’ Beatings,’’ 1948, n.p.). Later in the prison’s history, Nathan Glen Williams claimed that few of the inmates ‘‘were as dangerous as they had been portrayed.’’ In fact Williams asserted ‘‘of the two hundred inmates incarcerated on Alcatraz while I was there, 150 could have be sagely imprisoned at any other federal prison’’ (Williams, 1991, p. 188). Does Alcatraz really live up to its reputation as the prison for most hardened and incorrigible criminals? This is an essential question because ‘‘almost every American knows about it and can tell a story or two – usually about the Birdman [Robert Stroud] or Al Capone’’ (Lamb, 1988, p. 12). It is for this reason that the criminals in Alcatraz – the so-called ‘‘worst of the worst’’ – are considered to lie at the heart of the prisons mythical stature in
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American history. In an attempt to arrive at some answers to such questions a statistical analysis was undertaken. A random sample of 600 inmates was drawn and investigated. This sample constituted 38% of the total prisoners in Alcatraz. In addition two mini case studies of selected prisoners were also examined in order to determine if there were any differences between them and the larger sample. One mini case was made up of those considered to be high profile criminals – Capone, the Birdman, Robert Stroud, ‘‘Machine gun’’ Kelly, Alvin Karpis, the Barker brothers, Roy Gardner, and the like. The other mini case study included those labeled as escape risks. The nearimpossibility of escape was one of the most important reasons the federal government gave for establishing this kind of a prison. Moreover, and one of the major reasons prisoners were transferred to the island was for attempted escape. Occasionally, there was some duplication and triplication in the selection of these case studies, however, yet it was anticipated that these three case studies would reveal important, accurate insights into a better and more realistic understanding of the Alcatraz inmates. In all, 41% of the total prison population, including prisoners in the two mini-case studies, was investigated. In addition to a case study number and determination as to whether the inmate was a military or civilian prisoner, 34 variables were tabulated on individual data sheets. This information was entered into an Excel spreadsheet for Social Science Statistical Package (SSSP) analysis. These variables included race, date of birth and death, age, educational level, I.Q., religion, marital status and the number of children, criminal offense and sentence, the year released from Alcatraz, and whether or not the inmate was considered an escape risk. Other variables were to what other institution the prisoner was transferred from upon arrival. Where they were sent after their sentence on the island, if they ever returned, if they died at Alcatraz, the general condition of their health, whether they had any handicaps, psychiatric evaluation, cause of death, visitors and their relationship, forms of outside communication, institutional privileges in which they participated, prison infractions and criminal offenses while committed on the island, solitary confinements and other disciplinary actions, work record, and the various forms of good time earned-statutory, meritorious, and/or industrial. Some of these variables proved to be far more instructive than others, so this discussion will include only those that might be interesting and informative to the general reader. Rome can boast of its seven hills, but the city of San Francisco rests on 40, nestled at the tip of a narrow peninsula, bounded on one side by the Pacific Ocean and on the other by the Bay. And any reader who has ever
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visited the city knows that on the Bay side it is virtually impossible not to see Alcatraz. In fact on a clear day on one of those Bay side hills, Lombard Street, commonly referred to as the ‘‘Crookest Street in the World,’’ the view is breathtaking. No matter. The image of the prison from this vantage point one gets is that of an immense institution. In reality, however, it is quite small. The cell house had but four blocks, each capable of accommodating l74 cells. Warden Johnston decided to use only two of them, or a total of 348 cells (Delgado, 1987). The institution that was to be a major part of the solution to the crime problem in the nation could house only 348 prisoners. What is even more ironic about this was the additional government rational that Alcatraz would alleviate crowding in the other prisons (Department of Justice, 1951). Yet in the 29 years that it operated as part of the federal prison system, a total of only 1,576 inmates were incarcerated there. Equally amazing is the fact that the prison was never full. In fact, as the table below illustrates, the closest the institution ever was to capacity was in 1938, with a total of 309 prisoners. Further examination of the Table 1 shows how insignificant the numbers in Alcatraz were when compared to the other penitentiaries during these same decades. Edward G. Robinson, Burt Lancaster, Kevin Bacon, Clint Eastwood aside, the study of Alcatraz inmates is a depressing undertaking. After reviewing over 600 inmates files, viewing the pictures of men whose lives flashed by in photos that sometimes covered the years of their sentence – 10 years, 15 years, 25 years, life – it became rather easy to determine who would probably never return successfully to civilian life. Although the date did not make it possible to determine what turned these men to a life of crime, certain factors seemed to reoccur in the sample that was studied. Those who were most likely not going to make the transition to life outside the institution were men who had no meaningful connections. One young man’s father was contacted in l940 about his son from whom he had not heard in several years. After examining the son’s criminal record the father, ‘‘frankly stated that he believed [sic] subject was where he should be and that he had no desire whatever to try and help him. This inmate had a serious heart condition and died in l942. No one ever claimed his body and on his correspondence log he had written, ‘‘I have not one to correspond with.’’ Another would write to a wife, for example, and state how he was determined to turn his life around so that they could reestablish their relationship. There was hope – hope until he received the divorce papers. His wife on the outside had met someone else or just could not bear being alone any longer with such bleak prospects for a better future. The in-mate’s attitude would change from hope, to bitterness, and often despair. He would
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Table 1.
1934 1935 1936 1937 1938 1939 1940 1941 1942 1943 1944 1945 1946 1947 1948 1949 1950 1951 1952 1953 1954 1955 1956 1957 1958 1959 1960 1961 1962 1963
Population Totals for Selected BOP Institutions, 1934–1963.
Alcatraz
Atlanta
Leavenworth
Leavenworth Annex
Lewisburg
McNeil Island
89 242 258 288 309 298 284 288 257 235 234 245 282 280 246 232 216 232 232 235 273 295 286 271 270 279 257 252 257 146
1,992 2,515 3,054 3,215 3,196 3,277 3,117 2,859 2,196 1,785 1,785 2,017 2,223 2,093 2,030 2,121 2093 2,161 2,240 2,267 2,341 2,594 2,532 2,611 2,618 2,727 2,655 2,676 2,601 2,588
2,466 2,828 3,195 3,045 2,957 3,093 2,962 2,771 1,139 1,942 1,961 2,066 2,255 2,352 2,323 2,184 2,027 2,204 2,302 2,289 2,458 2,578 2,526 2,468 2,490 2,544 2,455 2,428 2,547 2,588
1,495 1,570 1,564 1,390 1,881 1,359 872 175
1,192 1,306 1,339 1,452 1,608 1,698 1,630 1,448 1,234 1,227 1,151 1,329 1,273 1,273 1,325 1,208 1,126 1,171 1,226 1,201 1,252 1,166 1,278 1,287 1,354 1,378 1,475 1,505 1,565 1,533
843 907 982 984 1,060 925 957 964 986 1,071 875 921 973 939 1,016 1,050 1,047 1,006 943 988 1,093 1,087 1,034 1,026 1,070 1,113 1,058 1,069 1,146 1,165
Terra Haute
312 637 607 647 840 1,040 1,077 1,110 1,039 1,034 1,074 1,078 1,086 1,189 1,250 1,237 1,243 1,280 1,351 1,340 1,341 1,399 1,373
Total
8,237 9,368 10,134 10,360 11,011 10,650 9,822 8,817 6,449 6,867 6,653 7,418 8,046 7,994 8,050 7,834 7,543 7,848 8,021 8,066 8,606 8,970 8,893 8,906 9,082 9,392 9,240 9,271 8,701 8,598
then join the ranks of the others lacking family or other social connections. They were loners. Such was the concern of Warden Johnston in his initial interview with one 23-year-old arrival. Each new inmate had to fill out an admissions form. Every one had a place where the prisoner could list possessions of importance to be kept by the institution until release and a blank space to identify correspondents and possible visitors. On his form his prisoner wrote, ‘‘nothing, nobody, nobody.’’
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Criminal propensity seemed to be directly connected to a number of factors. These appear to have been the following: a low socio-economic background, often a very rural or very urban environment; low educational level; frequently a second generation immigrant; a very large family; a criminal family; a dysfunctional or broken family (death, divorce, drug, alcohol, or physical abuse). Jim Quillen is an excellent example because he tells his story so well and so powerfully. ‘‘My parents were usual parents,’’ he begins, but then recounts the time that his mother, an alcoholic, came up from behind his father, ‘‘a man who did not know how to outwardly show affections and love,’’ and forcefully brought down a large piece of firewood on his head. ‘‘It made a terrible sound that I can remember to this day. I do not understand why it didn’t kill him.’’ On another occasion, Quillen, his sister, and father were awakened in the middle of the night because the family dog would not stop barking. Apparently after the parents had a fight over the mother’s latest drunkenness, she got up in the middle of the night, locked the windows in the house, left the house after locking the front door, stuffed rags under it, returned to the back door and re-entered the house, turned on the gas stove, went out the back door and locked it, stuffed rags in the cracks, and left her family to die. The third of only three prominent memories he had of his mother, was of visiting her in San Francisco. His father took him to the city because his mother had called claiming she was dying and wanted to see her son. They found her in a run-down section of town. ‘‘She was very drunk, dirty, and loud.’’ Apparently disgusted and angry, the father ‘‘got into the car and started driving. As we pulled away, I looked out the back window and saw my mother running after us and yelling that she wanted to see me y. That was the last time I saw my mother’’ (Quillen, 1991, pp. 1, 2, 5). Despite the emotional impact of these recollection and anecdotes, what do the case studies reveal about the general population of the inmates at Alcatraz? Amazingly the population was anything but remarkable when compared to the other federal prison population. For example the percentage of African-Americans, always a minority throughout the prison’s history, averaged around 16%. The average black population in all the other federal penitentiaries was 22%. The white population on the island was 78.8%. The white population during this same time period for the other federal institutions averaged at 74%. The difference in both instances comprised of Native Americans, Asians, and Hispanics, but these groups were not broken down the same way. For example, on the entry forms for all Alcatraz inmates it was not indicated if the prisoner was Japanese, Chinese, or Hispanic and so in the analysis they were simply clustered as ‘‘other.’’ If we compare further, the white population of the United States was 89.9% in
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l930; 89.8% in l940; 89.5% in l950; 89.3%; and 88.6% in l960 (Teachervision, 2003). African-Americans made up 9.7% of the population in l930; 9.8% in l940; 10.0% in l950; and, 10.5% in l960. True, African-Americans were more overrepresented in these institutions than their overall percentage in the national population, but consider today’s statistics. As of June 2003, the inmate population is 56.3% white and 40.5% African-American (Federal Bureau of Prisons, 2003). On the other hand, the 2000 Federal Census reported that 75.1% of the American population was white, while 12.3% was African-American. These catastrophic changes are not intended to be an indictment of the black population in the country. Instead they are a reflection of profound changes in the nature of criminal behavior. Specifically, this is behavior closely related to increased drug use and subsequent incarceration of young men for various narcotic offenses, particularly in urban ghettoes and slums all across the country. For example, according to the United States Sentencing Commission, 88.3% of federal crack cocaine defendants were black. In addition a New York Times article reported that, ‘‘the Bureau of Justice Statistics has calculated that 28% of black men will to sent to jail in their lifetime’’ (United States Sentencing Commission, 1995; Butterfield, 2003; Meirherffer, 1992). The mean age at entry for Alcatraz inmates was 34 years, ranging from 18 to 66 years of age. No age comparisons were available from the Bureau of Prisons for the other institutions. One indication that the men on the island may have been younger was indicated in a letter written in l948, by the Assistant Director of the Bureau of Prisons, Frank Loveland. He claimed, ‘‘Recently we have felt that there have been too many younger inmates recommended for Alcatrazy. Admittedly some of these younger prisoners are difficult but we should try to forestall making Alcatraz an institution for the younger difficult type inmate.’’ In any case the mean age of the overall population of the United States in l930 was 26.4; in l940, 29.0; in 1950, 30.2; and in 1960, 29.5 (Brinkley, 2003). A higher percent of the inmates in Alcatraz, 43.8, were single compared to 36% in the other federal penitentiaries. Married men in Alcatraz constituted 30.5% of the population, while in the other federal institutions married men were 38% of the population. One can only speculate about reasons for this. For example, were the men in Alcatraz really younger, was there more shame associated with incarceration there, and thus, a higher divorce rate? Perhaps the fact that ‘‘perversion,’’ as it was then labeled, was the fifth most common reason for transfer to the island might account for the higher proportion of single men, but one cannot be certain of this. However, Alcatraz was the only federal institution where all inmates were housed
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alone in a cell. Thus Warden Madigan wrote, ‘‘yis one of our worst homos unless there is some special reason for his transfer we feel it should be deferred.’’ In any case, divorce rates do appear to have been higher for island inmates than for those in the other federal prisons. On an average, 15.3% of Alcatraz prisoners were divorced, whereas about 9.5% of the prisoners in the other institutions had a broken marriage. The type of crimes committed by Alcatraz inmates did seem to correlate to age. However, classification of crime was seldom recorded consistently. The initial code-book established when the sample of 600 inmates was undertaken included 34 classifications of crimes. Most of these seem to have been randomly labeled by the receiving law enforcement official. For instance, 54 variations of assaults were enumerated. They ran the gamut from something as simple as ‘‘assault,’’ to ‘‘assault & sodomy,’’ to something as convoluted as ‘‘assault, NMVTA, assault with deadly weapon, escape & conditional release.’’ Thus in order to make any sense out of this most important variable these classifications were reduced to the more workable number of 15. They included the following: the Dyer Act (the National Motor Vehicle Transportation Act NMVTA),1 escape and probation, kidnapping, military crimes, murder and manslaughter, postal laws, sexual offenses, sodomy, theft classifications, other crimes, assault classifications, conspiracy, counterfeiting, drug violation classifications, and robbery. The most common crimes were clearly robbery and the Dyer or NMVTA and both offenses were committed by men under the age of 34, the mean age at the time of admission to Alcatraz. The three criminal classifications in which younger men clearly stood out were military crimes, 25 years of age, sodomy, just under a mean age of 29 years, and sexual offenses, at a mean age of 30. Yet, respectively these constituted only 2.7%, 2.3%, and 3.3% of all first offenses. Since Alcatraz inmates were generally sent to the island after incarceration in other federal institutions, Table 2 illustrates these data. While it was not especially surprising to find the Dyer Act, robbery, military offenses, and sexual offenses more commonly committed by younger men, it was very interesting to discover that drug classifications were committed by those in one of the older cohorts – 3 average age of 38 years. This is most unlike criminal statistics of today in which 42% of young AfricanAmerican males are in federal institutions for various drug offenses. Moreover, 54% of blacks convicted of drug offenses were sentenced to prisons, but only 34% of whites are convicted for like offenses (Cox, 2000). The other criminal offense in which older men were more represented was counterfeiting, with a mean age of 40. Admitting Offenses by Mean Age at Entry can be seen in Table 3.
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Table 2.
Admitting Offenses.
Offense Robbery Dyer/NMVTA Postal laws Kidnapping Murder and manslaughter Theft classifications Drug violation classifications Assault classifications Conspiracy Sexual offences Military Sodomy Counterfeiting Escape and probation violations Other crimes No information Total
Table 3.
Counterfeiting Drug violation classifications Conspiracy Escape and probation Robbery Postal laws Assault classifications Murder and manslaughter Theft classifications Dyer/NMVTA Sexual offenses Kidnapping Sodomy Military Other crimes
Total
Percent
157 79 51 44 43 41 34 32 21 20 16 14 12 4 7
26.2 13.2 8.5 7.3 7.2 6.8 5.7 5.3 3.5 3.3 2.7 2.3 2.0 0.7 1.2
25
4.2
600
100.0
Admitting Offenses by Mean Age of Entry.
Offense
No information
Frequency
Number
Mean Age
Std. Deviation
12 33 21 4 156 51 32 42 41 79 19 43 14 16 7
40.25 38.21 34.05 33.75 32.71 32.90 32.09 31.81 31.00 30.47 30.26 29.51 28.71 25.00 33.43
9.99 8.82 7.64 7.50 7.64 6.09 8.26 7.12 6.28 8.05 6.43 8.06 4.83 4.05 10.45
30 600
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DONNA L. VAN RAAPHORST
Classifying these criminal offenses down to five categories – violent, nonviolent, drugs, theft, and other – and analyzing them at 10-year intervals revealed some interesting changes. Of the 89 men confined to Alcatraz in l934, 31.5%, or 28, had committed violent crimes whereas 36% or 32 inmates were guilty of non-violent offenses. By l944 these percentages had changed significantly. Of the 92 admissions 55.4% (51) were considered violent offenders compared to l9.6 (18) non-violent crimes. Violent criminal acts constituted 42% (50) of the ll9 admissions in l954 compared to 22.7% (27) non-violent offenders. The year the institution closed, l963, violent offenses constituted 61.9% or 39 men, of all admissions. Note however that there were only 63 admissions in this year. In this same final year, 11.1%, a total of 7 men, committed non-violent crimes. In other words, the very year the government claimed the need for an institution like Alcatraz, the smallest percentage of violent offenders in the sampled decades were incarcerated on the island. Combining the 10-year intervals of the 600 men sampled together, 168 violent criminals within the sample were admitted to Alcatraz. Additional insight on how prisoners were officially classified is gained by the fact that some 32 prisoners were left at Alcatraz by the United States Army when it turned the facility over to the Department of Justice in l934. They were frequently referred to as ‘‘hardened criminals’’ despite the fact that 19 (63%) of them had been charged and sentenced for sodomy. Ten of these young men became part of the 600 case studies. Granted that military and civilian laws are different and that social mores of l934 differ from those of 2005, but nevertheless one has to question incarcerating these men in a place like Alcatraz. Although it is virtually impossible to make a direct comparison between criminal statistics for Alcatraz and the rest of the institutions in the federal system, data were tabulated for the other penitentiaries. Thus in l935 among 11,000 inmates the two most common criminal offenses were violation of liquor laws (4,615) or 46% and violation of narcotic/drug laws (1,623) or 14.7%. In l940 the most common federal criminal offense was still violation of liquor laws (4,552) or 29% of a total of 15,732 offenses. This was followed by ‘‘other’’ (2,011) or 13%. In l945, not surprisingly at the conclusion of World War II, the most common federal offense was that pertaining to issues of national security/military laws (6,588) or 31% of a total of 21,100 crimes committed. Also not surprising at a wars’ conclusion was the second most common offense, violation of immigration laws (3,996) or 18.9%. In l950 violation of immigration laws was still the most commonly committed crime (3,463) out of a total of 18,063 federal criminal offenses or 19%. Immigration violations were followed by NMVTA violations (2,486)
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213
or 13.7%. Immigration law was still the top in l955 (4,952) out of a total of 20,031 crimes or 24.7%. NMVTA Act violators were next (2,989) or 14.9%. NMVTA was the number one crime committed in l960 (3,271) or 19.4% of a total of 16,783 crimes. Violation of federal liquor laws came in second in l960 (2,226) or 13%. Last but not least, in l963 the year that Alcatraz was closed, the top crime in the nation was larceny/theft (4,189) or 32% or a total 12,953 crimes. Larceny/theft was followed by violation of liquor laws (1,709) or 13% in this same year. Closer examination of these 5-year intervals tabulated from the Bureau of Prisons, reveals that there were a total of 2,328 more male inmates in the federal system in l963 than there had been in l935. Based on these figures one is left wondering about the great American crime wave and what had happened to it? Of great, and perhaps surprising, interest is the fact that 100% of those inmates included in the sample, acknowledged some religious affiliation on their admission form. How typical was the religious breakdown on the island as compared with the rest of the United States? Issues of privacy preclude the collection of this type of information by the Bureau of the Census. However such data have been collected in a publication entitled The Yearbook of American Churches. Using this resource data for the years 1933 and l934, 1943–1944, l955, l960, and l963 comparisons with national religious affiliation and Alcatraz could be made. Quite simply, the inmates proved to be a rather remarkable microcosm of the nation. Note that some inmates changed their affiliation while on the island, where religious services were provided for all groups incarcerated – Jews and Muslims being the last denominations so acknowledged by the institution. On occasion a prisoner would make a meaningful connection with a priest or minister and as a consequence change his affiliation. In one extreme instance, an inmate began his years on the island as a Lutheran, became a Catholic, then a believer in the ‘‘Yoga Faith,’’ and finally an Orthodox Muslim. Factoring out these changes, 31% of the men on Alcatraz said they were Roman Catholic, 54% said they were Protestant, some 3% were Jewish, 0.4% were Orthodox Christian, 0.1% were Muslim, and 0.3% were affiliated with the Nation of Islam. Neither Muslims nor the Nation of Islam membership was included in The Yearbook of American Churches, (Buddhists were, but there were no Buddhists found in the sample). Roman Catholic and Protestant percentages nationwide were always very similar to those on Alcatraz. Orthodox Christians and Jews were under represented in the prison, especially Jews. Still as the editor of the l955 Yearbook of American Churches commented, ‘‘It seems that the major religious groups have developed in about the same relation to each other
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DONNA L. VAN RAAPHORST
during the last 50 years.’’ And so it was on the Rock (Landis, 1943–1944, 1955, 1960, 1963; Weber, 1935, pp. 6–7). Mental health is another important variable to examine, but it can be discussed in detail only with respect to the Alcatraz prisoners because data received from the Bureau of Prisons did not include such information about inmates in other federal prisons. Even the discussion of the mental health status of Alcatraz inmates is limited, as the following discussion will reveal. Contrary to what common perceptions might be, the island does not seem to have been populated with hundreds of the mentally deranged although James A. Johnston devoted an entire chapter in his autobiographical account as warden to those he labeled, ‘‘Psychopaths, Psychotics, and Psychoneurotics.’’ Clearly Johnston was a well-meaning man with a long and distinguished career in both the correctional and penal fields. He had served as the warden of San Quentin and Folsom. He had been the Chairman of the California Crime Commission, a member of the California Advisory Pardon Board, and the Director of the Department of Penology and Chairman of the Board of Control of California, which had previously exercised supervision over state institutions, offices, commissions, and boards. By training, however, Johnston was a lawyer with particular interest in business and banking. For example, for a number of years he had been the Vice President of the American Trust Company, which at that time was one of the largest bank and trust companies on the Pacific Coast (Johnston, 1949). Experience in corrections Warden Johnston definitely had, but professional training in medicine or mental health he had naught. Nonetheless, in his chapter on the mentally ill inmates, he went into considerable detail describing those considered to be psychopaths, psychotics, and psychoneurotics. Eleven nameless individuals were discussed. One was classified as ‘‘senile dementia-old syphilitic,’’ two as ‘‘dangerous paranoid(s),’’ and another as ‘‘Dementia Praecox-Paranoid Type,’’ one simply as ‘‘insane,’’ one as having ‘‘manic-depressive psychosis.’’ The psychopaths were classified as ‘‘constitutional psychopath,’’ ‘‘maladjusted psychopath without psychosis,’’ and ‘‘untrustworthy psychopath.’’ Finally there was one inmate described as ‘‘psychoneurotic.’’ Thus Johnston’s extolling the skills of the island’s two visiting psychiatrist is open to question. The two men in question were Romney M. Mitchell and Dr. Edward W. Twitchell (Johnston, 1949, pp. 123–125). Arriving inmates were given a routine psychiatric evaluation and when necessary additional evaluations and consultations. Using the DSM III, Diagnostic and Statistical Manual of Mental Disorders and then simplifying these down to 14 categories, the overwhelming majority of inmates, 54.9%
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215
were diagnosed as suffering from disorder 301.70, Antisocial Personality Disorder at the time of their first diagnosis. The second largest cluster, for this same evaluation, was classified under various forms of substance abuse, a percentage of a little more than 17%. The third highest percentage, 12.5%, was for numerous adjustment disorders. The fourth largest group, some 9.8%, was classified under Paraphilias and Ego-dystonic Homo-sexuality disorders. Considering that these men were prisoners, it is hard to view a psychiatric evaluation of Antisocial Personality Disorder as very meaningful. It almost goes without saying that they were antisocial; they were criminals and supposedly the worst of the worst in the entire federal system. Nor is it much more enlightening to learn that upon their arrival many suffered from adjustment disorders! These evaluations changed very little when a second diagnosis was given. The largest groups were those, 23.9%, afflicted with Adjustment Disorders, followed by 18.3% with Anti-Social Personality Disorder. In fact, combining the frequencies for the first diagnosis to include Organic Mental Disorders, Schizophrenic Disorders, Affective Disorders, and Somatoform Disorders there were 35 individuals in the sample of 600 who could be considered mentally ill, or a total of a little fewer than 6%. Perhaps far more telling were the written comments sometimes made by the examining physician. A number of particularly striking ones stood out: ‘‘Rolly polly high grade moran [sic];’’and ‘‘Life long societal parasite; and single homo.’’ Describing one African-American inmate on the island, one of the psychiatrists wrote, ‘‘His emotional tone is perhaps average for one of his race and station but he is naturly [sic] somewhat carefree and happy in mood not given to much worry or apprehension.’’ In assessing the overall mental health of another inmate one of the island psychiatrists wrote that many of the insane endeavored to make their insanity appear worse than it really was for personal gain. ‘‘__________, while an abnormal individual, is not truly insane in my opinion and is pretending mental disturbance for some purpose.’’ Note that this evaluation was written after the inmate had attempted suicide and failed. Prior to his attempt this prisoner had written a farewell note to his family. It read: Dear Father, Brother, SisterForgive me for not having been a better Son and Brother than I have been. I am sorry at this day. I am lying in bed sick, and sending you a last few words to say good bye. and[sic] please pray for me. Good bye.
It should be noted that poor psychiatric assessment was not exclusive to Alcatraz for one American Indian who was later transferred there from
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DONNA L. VAN RAAPHORST
McNeil was described as ‘‘a North American Indian with a primitive makeup.’’ Warden Johnston made an interesting assessment of the mental health of his wards when he referred to a survey completed by Dr. Marion King. At one time Dr. King had been the Chief Medical Officer and Psychiatrist at Leavenworth, superintendent of the Medical Center at Springfield, and psychiatric advisor to the Director of the Bureau and of the institutions within the Bureau. In l946, King examined the medical and mental behavior of the island population and concluded ‘‘75 per cent of those recruited at other prisons to make up the population of Alcatraz were labeled as psychopaths before they were transferred as contrasted with a general average of about 12 percent psychopaths in other institutions.’’ However, Johnston wrote, ‘‘he made another statement that surprised but gratified me and that was his finding that only 1.6 per cent of Alcatraz prisoners manifested delusions, hallucination of other symptoms of such a nature and degree as to justify a diagnosis of psychosis’’ (Johnston, 1949, p. 126). Perhaps further insight into the way prisoners were diagnosed can be gained by the comment of Morton Sobell (1974), the physicist inmate charged for aiding Julius and Ethel Rosenberg. The psychiatrist, Sobell wrote visited the island once a month and had as his main function to ‘‘certify’’ as insane those inmates the prison officials wanted to send to Springfield, the institution in the federal system for the criminally insane and terminally ill. In his memoirs, Sobell commented that he ‘‘never heard that this psychiatrist had been unwilling to certify anyone. But then the authorities usually didn’t send anyone to Springfield unless he was really far gone’’ (Sobell, 1974, p. 426). Part of Warden Johnston’s explanation for the mental state of the inmates on the island and the ‘‘tight rein’’ as opposed to a brutal or cruel one imposed on them, was that not only were they on Alcatraz, ‘‘but they were [there] under extremely long sentences, with credits forfeited, and warrants filed against them for other crimes for which they might have to serve additional sentences’’ (Johnston, 1949, p. 127). Does the statistical data gathered in the sample bear out this assertion? The codebook created to sample the inmate files broke down the sentences into eight cohorts. These included: less than 10 years; 10 to 15 years; 16 to 20 years; 21 to 25 years; 26 to 50 years; more than 50 years; life; and indeterminate sentence.2 The largest sentence cohort was 10 to 15 years. A total of 142 men, or 23.7% of the sample, fell into this cohort. The second most frequent sentence cohort was less than 10 years – 127 inmates or, 12.5%. The two smallest cohorts were more than 50 years, ten inmates in the sample, or 1.7% and the indeterminate sentence, 20 inmates in the sample, or
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217
3.3%. Actually this later is a somewhat interestingly high percent because the indeterminate sentence is usually associated with parole and Alcatraz prisoners were not to be paroled, but instead transferred back to another federal penitentiary. How do these sentences compare with men in the other prisons of the federal system? Clearly no definitive answer can be provided about the relationship of the Alcatraz inmate’s sentences and their mental health, but Johnston was definitely correct in stating that their sentences at the time of admission were longer than those of inmates in other federal penitentiaries. This was to be expected since the island was serving as the end of the line institution for the most recalcitrant inmates in the federal system. Once again, direct comparisons are somewhat difficult to make because although the sentence cohorts used in the sample were consistent, they were not for the Bureau of Prisons (BOP). Furthermore, they did not match those established for the sample. Two BOP examples for 5- year increments will suffice. In l935, sentences were categorized as follows: minority; less that 1 year; 1 year; less than 2 years; less than 3 years; less than 4 years; less than 5 years; less than 6 years; less than 10 years; more than 10 years; and, fines only. By l963, however, sentences were listed as: minority; 1 year or less; less than 2 years; less than 212 years; less than 5 years; less than 10 years; less than 15 years; less than 20 years; less than 45 years; more than 45 years; Youth Corrections Act;3 and life. Given an understanding of these limitations, some comparisons can still be made. In the 5 years between l935 and l940, the most common sentence cohort was 1 year and one day and these 2 years were the only ones using this cohort. Combining these two increments the percentage of inmates incarcerated for this time period in the other federal penitentiaries was 16.9%. In all of the other 5-year increments provided by the BOP the most frequent sentence cohort was 1 year or less. Moreover, in combining the years l945, 1950, 1955, 1960, and l963 the percentage of inmates incarcerated for this period of time was 40%. So while the greatest percentage of Alcatraz inmates were sentences for 10–15 years (23.7) the greatest number of inmates in the other federal prisons were sentenced to 1 year and one day in l935 and l940 (16.9) and 1 year or less in the years, 1945, 1950, 1955, 1960, and l963 (40%). However, what the warden did not mention, possibly because he was unaware of it, was the actual number of years Alcatraz inmates served. Table 4 that follows reveals that 57.2% were there less than 5 years. Consequently, those men sent to the island on first admission did have longer sentences, but actually more than half of them did not serve their full sentences. If one can assume that the prisoners in the other federal
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DONNA L. VAN RAAPHORST
Table 4. Years in Alcatraz (first or only admission). Years
Frequency
Percent
Cumulative Percent
1.0 2.0 3.0 4.0 5.0 6.0 7.0 8.0 9.0 10.0 11.0 12.0 13.0 14.0 15.0 17.0 18.0 19.0 22.0
65 93 86 75 42 46 29 34 22 20 12 14 7 6 5 2 1 1 2
11.4 15.3 15.0 13.1 7.3 8.0 5.1 5.9 3.8 3.5 2.1 2.4 1.2 1.0 0.9 0.3 0.2 0.2 0.3
11.4 28.1 43.4 56.8 64.2 72.4 77.6 83.6 87.5 91.1 93.2 95.7 97.0 98.1 99.0 99.3 99.5 99.7 100.0
No information
38
Total
600
100.0
penitentiaries served their full sentence, 57.2% of Alcatraz prisoners were incarcerated on the island only 4 years longer than other federal prisoners. Were the men sent to Alcatraz, given its and their reputations, mad geniuses or mentally deficient human beings? This interesting variable cannot be answered conclusively because there is no information available that can be compared with data from the other penitentiaries. Nonetheless, there is some information on the general intelligence of the island inmates. Although various tests were administered, it seemed most logical to use the intelligence quotient or I.Q. This is probably the best-known index of general intelligence. It expresses intelligence as a ratio of the mental age to the chronological age: I.Q. ¼ 100 MENTAL AGE (M.A.)/CHRONOLOGICAL AGE (C.A.) Thus if the M.A. lags behind the C.A. the resulting I.Q. will be less than the average, which is 100. Conversely if the M.A. is above the C.A., the I.Q. will be above 100. In short this means that the intelligence scale has about the same meaning from one age to another (Hilgard, 1962). An interpretation of intelligence quotients on the Stanford–Binet I.Q. test that
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Worst of the Worst
would have been administered to most Alcatraz inmates would look like Table 5. Using the large sample at the time of their entry into Alcatraz for Offense One, of which 548 inmates had their I.Q. listed in their folders, the mean score was 99. This score placed them right in the middle of the average description seen below. Was it possible to find any correlation between the intelligence of the offender and the type of crime committed? Using the five compressed crime categories of violent, non-violent, drugs, theft, and other, some differences could be identified, although they are not statistically significant. For example, the I.Q. of the violent criminal was the highest at 102, those men guilty of theft had an I.Q. of 99, non-violent criminals were next with an I.Q. of 98, inmates guilty of drug offenses had an I.Q. of 97. Those inmates put in the Other category had an I.Q. of 95. Of considerable interest was the discovery that the lowest intelligence quotient in the original 15 classifications, an I.Q. of 81, meaning low average, was found for those engaged in counterfeiting and the highest for Other, of which there were only six. Perhaps a better example for the highest I.Q. in the original categorization would be robbery because there were l48, with a score of 103. Again one is left to conclude that the men on Alcatraz Island were very ordinary Americans possessing neither exceptionally high not exceptionally low I.Q.s. If the inmates were of average intelligence, how much education had they acquired? With respect to this variable, it was possible to compare Alcatraz with data from the other federal prisons although only for the first full year which Alcatraz was operational, l935. Data collected by the BOP were Table 5.
Interpretation of Intelligence Quotients on the Stanford–Binet.
I.Q.
140 and above 120–139 110–119 90–109 80–89 70–79 Below 70
Verbal Description
Very superior Superior High average Average Low average Borderline Mentally retarded or defective
Percent Falling in Each Group (among 2904 subjects, ages 2–18) 1 11 18 46 15 6 3 100
Source: Merrill, M.A. (1938). The Significance of I.Q.s on the revised Stanford–Binet scales. Journal of Educational Psychology, 29, 641–651.
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DONNA L. VAN RAAPHORST
recorded as completion of grade – first, second, third, fourth, fifth, sixth, seventh, and eighth, and high school. In addition there were categories for completion of, or attendance at trade/business school, college, and no education. The sample data collected on the 600 inmates on the island were clustered into education cohorts, but were later reformatted as follows; no formal education, grade school, middle school, some high school, high school graduate, some college, and college graduate. Since these categories were not exactly the same, all grade school tallies were summed together for the BOP information yielding a total of 4,217 individuals. Middle school entries were also combined for a total of 3,320. All Alcatraz ‘‘some high school’’ and ‘‘high school graduates,’’ in the sample were combined, yielding l98 inmates to achieve greater uniformity. The other categories were left as found giving the following results in Table 6. Clearly neither population was predominately illiterate, but two differences do stand out. Considerably more Alcatraz inmates, 33%, had a high school education as compared to the 19% BOP l935 population. Moreover, far fewer Alcatraz prisoners had no formal education, 1.5% compared to the 8% of the BOP l935 men. Yet over the course of these 28 years it is probably to be expected that these two categories would see the most significant change. Thus these differences are not particularly surprising. Any assessment of Alcatraz inmates should consider their conduct while incarcerated on the island and examining a number of variables made this possible. The simplest measurement used in the sample study of 600 was to rate conduct as good, fair, and bad according to the information available in each inmate file. No rating was possible for 203 or 32.4%, but for some 400
Table 6. Education: BOP Inmates l935 Compared to Alcatraz Inmates l934–1963. BOP Education level Grade school Middle school High school College Trade school No formal education Total
Alcatraz Percent
Education level
Percent
38 30 19 4 2 7
Grade school Middle school High school College
23 37 34 4
100
No formal education
2 100
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others the results were as follows: 55.12% good; 30.7% fair and mixed; and 14.2% bad. These results can be seen on Bar Chart 1. Another simple method of measuring conduct was to rate the inmates’ work records in their various employments on Alcatraz. The same initial good, fair, or mixed ratings were used again SSSP yielding the following results: 69.7% good; 25.7% fair and mixed; and 4.6% bad. There was no rating possible for 191 or 30.5% of the prisoners. It should be noted here that the missing inmates were simply those who had no conduct or work record recorded in their individual files. No explanation was given for this and all that can be said with any degree of accuracy is that very little information was ever recorded in a consistent manner in the folders. The results from the inmates’ work records can be seen in Bar Chart 2. Other indices of behavior that should be considered are variations of ‘‘good time,’’ most simply defined as credit awarded to an inmate for good conduct, which can reduce the length of the prisoner’s sentence (Black’s Law Dictionary, 1999). Statutory good time, one variation, would therefore reduce the time served that had been established, enacted or created by statute. Industrial good time, a second variation, was awarded for outstanding performance on the job. Meritorious good time, the final variation, appears to have come into existence on May 1, 1947 with Public Law #67.
60 50
Percent
40 30 20 10 0 Good
Fair or mixed
Bad
Conduct
Bar Chart 1.
Conduct Record.
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DONNA L. VAN RAAPHORST 80
Percent
60
40
20
0 Good
Fair or mixed
Bad
Work record recoded
Bar Chart 2.
Work Record.
As a result funds of the Federal Prison Industries Corporation were made available to compensate prisoners engaged directly in production and those who performed ‘‘exceptionally meritorious or outstanding services in institutional operations’’ (United States Department of Justice, 1948, p. 35). All three variations of good time were defined for the prisoners and provided to them in a publication, Institution Rules & Regulations, they were given on their arrival. Inside the cover there was a blank space for them to put their number. The statement with respect to good time reads, ‘‘STATUTORY GOOD TIME, MERITORIOUS GOOD TIME AND INDUSTRIAL GOOD TIME are types of eductions in sentences, which can be earned only by inmates who establish and keep a good conduct record and a good work record’’ (Regulations for Inmates U.S. P. Alcatraz, 1954, p. 1). The codebook used to analyze the inmates in the sample files simply recorded a yes or a no for statutory, industrial, and meritorious good time. Meritorious good time, since it was in existence for only 15 years of Alcatraz’s history, was least likely to have had a high percentage, and indeed this proved to be the case as 16.9% of the inmates incarcerated earned it. Probably the most difficult to earn, because of its very nature, was statutory good time, yet 47.9% of the island inmates did acquire it. On the other hand, industrial good time was accumulated by 53.2% of the prisoners and was most likely the easiest to earn. Looking at these various forms of good
Worst of the Worst
223
time it is hard to conclude that the behavior of the men on Alcatraz was out of the ordinary. Alcatraz was a prison that had many rules and a rigid structure; on the island the routine never varied and personnel would conduct 26 inmate counts every working day (Stitt, 1984). Not only did the prisoners receive Institutional Rules & Regulations to keep in their cells, but the security officers also had an instruction manual entitled Instructions for Armed Officers issued under the direction of Warden Paul J. Madigan in l957 (Instructions for Armed Officers, n.d.). Madigan was the third warden of the island and served in that position from 1955–1961 (Fuller & Gay, 1982). Morton Sobell, a co-defendant in the infamous Rosenberg case, commented on this in the early days of his incarceration. ‘‘Filing back from breakfast I got a little out of line to have a better look at the ranges above; a guard let me know, in courteous but authoritative terms, that such deviations from a straight line were absolutely forbidden’’ (1974, pp. 357–358). A remark such as this can be verified by the fact that in the 600 some inmate folders 26 different prison infractions were enumerated. These included attempting to bribe employees, destroying government property (the commode was a very common example), disrespect of an officer; fighting, gambling, insolence, inciting to riot, loafing, loitering, loud talking, possession of contraband (frequently cigarettes), possession of money, perversion, refusing to work, selling, giving or loaning, stealing food, striking, threatening, ridiculing or attempting to intimidate or assault an officer, an official, an employee, or visitor, trading, unapproved outside correspondence, unauthorized absence from work, unnecessary talking, violation of prison rules, wasting food, conspiracy, smoking, and refusing to obey orders. Few of these activities can be considered very serious and certainly prisoners committed all of these infractions, some of them many times. The result was generally loss of good time, sometimes solitary confinement, or transfer to D Block, which had been built in 1940 by the BOP. The Treatment Unit (TU), or ‘‘the hole,’’ had two types of cells for solitary confinement – open front and six closed cells. Placement in these cells depended on the severity of the offense. Different sources disagree about whether these six cells had lights or if the inmates were left in the dark. Those so confined were given a limited diet (Delgado, 1987; Picture and Tour: Guide of Alcatraz Island, 1974). Since criminal offenses seemed much more important to study, they were analyzed statistically. Criminal offenses included escape attempt, attack on another prisoner, attack on a guard, attack on a prison official, drugs, weapons possession, murder, inciting a riot (as opposed to participating in
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DONNA L. VAN RAAPHORST
one), attempted suicide, and self-mutilation. In its 20-year history, 485 or 78.4% of the sample of 600 inmates never committed a serious, or criminal offense. On the other hand, one inmate in the sample, committed five criminal offenses while in Alcatraz. For the so-called worst of the worst, these are rather amazing statistics. Of course, they can be interpreted in at least two ways: these men did not need to be in Alcatraz or that Alcatraz really was working. Therefore, the reader is left to draw his or her own conclusions. The frequencies for the commission of serious offenses in prison can be seen Table 7 below. Who were the men who committed the most serious offenses in this prison that some called ‘‘Hellcatraz’’ (Freedman, 1983, p. 4)? The sample study clearly reveals an inverse correlation with the age of the inmate at the time of first entry. In other words, Table 8 illustrates that the younger the inmate at the time of entry, the more likely he was to commit a serious offense while on the island.
Table 7.
Number of Serious Offense in Prison.
Number of Offences
Frequency
Percent
0 1 2 3 4 5
485 76 28 9 1 1
80.8 12.7 4.7 1.5 0.2 0.2
Total
600
Table 8.
Age at First Entry and Serious Offense in Prison.
Number of Serious Offenses in Prison 0 1 2 3 4 5
100
Mean Age at Entry
N
33 30 29 24 24 20
480 74 28 9 1 1
Missing data Total
7 32
600
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Since being an escape risk was a major reason inmates were transferred to Alcatraz from other federal penitentiaries, it is valuable to analyze the sample and see how many men were labeled this way at the time of their admission for their first offense. Located about four miles northwest of San Francisco, in the middle of the Bay, and surrounded by strong Pacific currents and extremely cold water the institution was considered escape proof. Interestingly, the fact that it was possible to swim across the Bay from Alcatraz to San Francisco had been established on a number of occasions. The youngest person to do so was a 13-year-old San Mateo boy, who belonged to the South End Rowing Club. In October of l956, one John Hunter swam to Alcatraz in 1h and 13min (‘‘Youth swims from Alcatraz,’’ 1956). Of the 600 men included in the sample 46.2% were considered escape risks. However, it is interesting to note that of the 1,576 men who inhabited the institution in its 29 years, 36 or only 2% actually tried to overcome what many thought were the insurmountable obstacles. Certainly, this did not mean that the other men did not think about escaping for as one former guard wrote, ‘‘yinmates still planned 24 hours a day devious ways to outwit the system’’ (Stitt, 1984, p. 23). However, achieving this was difficult. Most accounts concur that on Alcatraz there were 10 guards to every two or three prisoners. In the other federal prisons one source maintained there were ten guards to every inmate. Yet, one other account stated that in Leavenworth there was one guard to every 25 prisoners (Clauss, 1981). Another dimension to the issue of escaping from Alcatraz is that in the years that it operated as the quintessential maximum-security prison, there were a total of 14 escape attempts. Of the 36 men involved, 26 were captured. Seven of them were shot and one drowned. Six men remain unaccounted for (Clauss, 1981, p. 47). Which inmates were most likely to tempt the odds and try and escape from Alcatraz? Analysis in this study reveals that those who committed certain types of crimes in the compressed categories of violent, non-violent, drugs, theft, and other showed different propensities regarding escape. Those most prone to try were in the theft category with 56.1% considered as escape risks. The remaining 43.9% in this same category were not classified as escape risks. Interestingly, 50.3% of those in non-violent category were second most prone to try to escape. The remaining 49.7% of the non-violent offenders were not escape risks. Only 39.9% of that group classified as other were considered escape risks, 60.7% of them were not considered an escape risk. The least escape prone prisoners were in the drug offenders, of whom 87% posed no risk and only 12.5% did pose such a threat. A final variable regarding escape risk that merits discussion was that of sentence length.
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In short, the longer the sentence, the more likely the inmate was to attempt to escape. This is illustrated in Table 9. Initially, no prisoner was sent directly to Alcatraz after his conviction and likewise no inmate was to have been released directly from the island. Although there were exceptions to both of these rules, essentially once he ‘‘earned’’ his way to Alcatraz, the prisoner had to earn his way out. An exception to the rule was acknowledged by Warden E.B. Swope when he wrote to a concerned mother in l952. Swope said, ‘‘Kindly be advised that inmates are often transferred to other institutions, for administrative or other reason and that such a move is not indication that a prisoner was involved in serious difficulty.’’ A BOP publication lauded the issue of transfer as an indication of how well this new kind of prison worked. Factors used to determine if a prisoner merited transfer back to another federal prison included a sincere interest in rehabilitation, an established record of good conduct, and an attitude that displayed an understanding of one’s personal problems and predicament. As the official publication said, ‘‘Not a single member of the group originally transferred to Alcatraz still remains there, notwithstanding that several of them had life sentences. In these instances, adjustment to institutional life improved to such an extent that the men could be returned to other institutions’’ (Department of Justice, Bureau of Prisons, 1951, p. 6). A Bureau tabulation of inmates received and discharged can be found in Table 10. Note that this table is a copy of the original found in a publication of the Department of Justice, Bureau of Prisons. Table 9.
Length of Sentence by Escapes Risk.
Sentence
Escape Risk No
Less than 10 years 10–15 years 16–20 years 21–25 years 26–50 years More than 50 years Life sentence Indeterminate
71 79 25 45 31 5 22 13
Total Yes 53 62 30 46 37 5 19 5
Missing data Total
124 141 55 91 68 10 41 18 52
291
257
600
Table 10. Year
Population Beginning of Year
Total Received
Transferred from Other Institutions
Other Prisoners Receiveda
Total Discharged
Transferred to Other Institutions
Sentence Expired
Conditionally Released
Diedb
By Court Order
Population End of year
1960 1959 1958 1957 1956 1955 1954 1953 1952 1951 1950 1949 1948 1947 1946 1945 1944 1943 1942 1941 1940 1939 1938 1937 1936 1935
264 288 271 277 297 293 255 227 230 232 222 240 248 276 274 229 248 261 282 290 288 298 302 261 242
49 62 77 42 74 53 95 82 33 49 59 25 30 44 40 65 29 26 40 5 71 36 51 81 65 247
46 54 66 31 60 43 75 81 33 48 58 24 30 44 39 64 29 25 40 5 71 36 50 81 65 245
3 8 11 11 14 10 20 1 – 1 1 1 – – 1 1 – 1 – – – – 1 – – 2
59 86 60 48 94 49 57 54 36 51 49 43 38 72 38 20 48 39 61 13 69 46 55 40 46 5
43 66 44 30 70 39 39 39 23 39 40 20 17 52 23 14 27 19 47 13 58 32 36 20 33 –
5 2 1 2 5 3 4 1 1 – 1 1 3 1 1 1 4 5 3 3 1 7 6 8 5 4
8 15 12 9 18 7 10 13 11 8 7 18 17 15 6 5 13 9 8 5 8 4 6 8 – –
1 2 2 2c 1 – – – 1 3 1 2 1 – 6 – 2 2 2 1 – 1 5 – 3 –
2 1 1 5 – – 4 1 – 1 – 2 – 4 2 – 2 4 1 1 2 2 2 4 5 1
254 264 288 271 277 297 293 255 227 230 232 222 240 248 276 274 229 248 261 282 290 288 298 302 261 242
d
227
Source: From the Department of Justice, Bureau of Prisons, Alcatraz (Washington, DC, l951), p. 21. a 66 prisoners received from court, 1 violator of parole and 16 of conditional release, 1 prisoner who had escaped from another institution, 2 prisoners briefly at large on the island, and 1 other. b Includes 1 in 1943 and 2 in 1938 presumed to have been killed by gunfire or drowned in attempting escape. Also includes 1 drowned attempting escape,1959. c Includes 1 prisoner at large on island, captured within 24 hours. d Alcatraz opened as a Bureau of Prisoner institution in June 1934.
Worst of the Worst
U.S Penitentiary, Alcatraz Island-Sentenced Prisoners Received and Discharged Years Ended June 30, 1960.
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Perhaps more revealing is an analysis of transfer histories to and from the other federal prisons for those in the sample study of 600. Clearly, when reviewing inmate files of Alcatraz prisoners one cannot help being amazed at what seemed an endless shuttling of men. Equally clear was the desire of most inmates to leave the island. The men wrote to the warden frequently to achieve this, trying to bring their cases before the United States Board of Parole, which conducted quarterly hearings for transfer on the island. It is noteworthy that the greatest number of men came from Leavenworth, 288 or 46%, and the largest number returned there, 232 or 37.1%. The second largest number transferred to the Island came from Atlanta, 184, or 29.4%, and conversely 66 or 10.5% were transferred there. The other institutions in the federal system and the transfer histories can be seen in Table 11. Of special note in here is Springfield because it served as the government’s prison hospital for those with serious physical and mental illnesses. Do either of these tables indicate the success of Alcatraz or the incorrigibility of the men incarcerated there? Perhaps only one thing is certain – the men wanted to leave the island and in fact most of them did. It is not especially surprising that the inmates wanted to leave Alcatraz. Yet it must be remembered that with very few exceptions, 87 men or l5.1% of those in the sample, were not returning to civilian life. The great majority was being sent to another federal penitentiary or various state institutions to complete their sentences. Certainly many saw transferring from the island to another institution as a step closer to parole and possible freedom. But even lifers and those with extremely long sentences Table 11.
Transfer to Alcatraz from/Transfer from Alcatraz Island to. Transferred to Alcatraz from
Leavenworth Atlanta McNeil Other military Lewisburg Springfield Terminal island Other Direct entry Return to civilian life Deported Missing data
288 184 81 14 6 4 2 24 13
(46%) (29.4%) (12.9%) (2.2%) (1.0%) (0.6%) (0.3%) (3.8%) (2.2%)
Transferred from Alcatraz to 232 65 51 0 16 56 2 63
(37.1%) 10.8%) (8.1%) (0.0%) (2.6%) (8.9%) (0.3%) (10.1%) (14.2%) (1.1%) (7.0%) (100%)
8
(1.3%)
89 7 44
600
(100%)
600
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wanted to leave the island. Robert Stroud, the Birdman, is an excellent example. Stroud was one of those few inmates who would never leave prison; in fact he spent 54 years in various prisons and was in Alcatraz from l942 until his transfer to Springfield in l959 (Babyak, 1994). Why were the men incarcerated in Alcatraz so eager to leave if only for another prison? Clearly it was not because they were tortured or subjected to excessive abuse. In fact an inmate of many institutions said the he found the island, ‘‘anything but the weird house of torture which the newspapers had taught him to expect.’’ This same man had lived most of his life in penal institutions and eventually died in a southern California sanitarium. He had requested to be transferred back to Leavenworth to die because ‘‘he thinks of Leavenworth as home.’’ This was a prisoner in and out of trouble for 50 years of his life. Another inmate wrote a lengthy letter to Warden Johnston. Expressing his relief at being told he was leaving the island. Nonetheless, he stated: yI am equally certain that I should experience a feeling of dereliction without an effort to express not only my appreciation for the manner in which I have been treated by the personnel of this institutiony. I can say, and I do so without reservation, that the manner in which I have been treated here surpasses by far the measure of fairness I had thought possible within any institution. That I am able to say this is due, I am sure to your fair principles, and, also in no small measure to the impartial manner of management which I have constantly observed in your associatey. I have deep respect for himy.
Of course, it must be added that the meaning of brutality varies according to the individual in question. One expert on Alcatraz, given access to the island as early as l962, maintained, for example, that Warden Johnston used the old-Spanish dungeons and shackled the inmates to the grids. While so confined, they were allowed only a pail for human waste elimination and restricted to a diet of bread and water (Ward, 1991). Jim Quillen, who served 10 years on the island never asserted brutality, but he did claim that ‘‘Alcatraz was designed, operated and worked to break youyphysically, mentally, emotionally, spiritually’’ (1991, p. 51). The time he spent in the TU is an excellent example of this. Sent there early in his sentence on Alcatraz, Quillen recounted the cold and the feeling of complete isolation once submerged in the TU’s total darkness and silence. In order to retain his sanity, he invented a game. Tearing a button from his overalls, Quillen threw it in the air, turned around a few times, and got down on his hands and knees until he was too exhausted or his knees hurt too much to continue. Other times, ‘‘I would pace back and forth between the toilet and the
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door. I would continueyuntil evening, since it was too cold to sit and pacing helped pass the time’’ (p. 75). Prisoners were, in fact, very well attuned to how the island fortress was viewed in the outside world. For instance, in one prisoners’ progress report he stated, ‘‘that he would leave the country upon release,’’ because having served time in Alcatraz he would forever be handicapped and branded as a desperado in the United States. There were also those who were truly desperate and pathetic souls, for how else could this inmate who wrote Warden Madigan be described? He wrote the warden to say, ‘‘I ned some held. Is there a way I can tork to everyone on the black without come out, my life depen’s on it, please an sir new,’’ Other men, simply put, should never have been sent to Alcatraz in the beginning. Consider what a government physician said regarding the following inmate ‘‘Transfer not recommended. This is the type of case which [sic] would be considered for transfer to the new psychiatric unit being built at Springfield.’’ He was transferred to Alcatraz anyway. F. Lowell Bixby, the Assistant Director of the Bureau of Prisons, communicated the following to the Director of the Bureau, James Bennett, ‘‘He is feeble-minded and I see not point in sending him to Alcatraz.’’ He was sent any way on the grounds of ‘‘the nature of his crime (conspiracy and counterfeiting).’’ Regarding another prisoner Warden Johnston wrote, ‘‘As I consider this case I can find no reason for transfer to Alcatraz except the long term, being under sentence of fifty years, for other than that there is nothing in the record to indicate that he is likely to be difficult to handle from either standpoint of discipline or custody.’’ There was the case of a 24-year old, guilty of car theft, but mistakenly accused of being involved in a strike at Leavenworth. He spent 2 years on the island and was then conditionally released. One mother wrote to Eleanor Roosevelt, early in the history of Alcatraz as the end-of-the-line prison, to help expedite the parole of her son who was at one time incarcerated there for stealing $92.85. Finally there was the example of the young man imprisoned on the island for stealing a cow! Very possibly more important than the reputation of the prison and that many of the men did not belong in such an institution was their own awareness of this fact. As early as l935, a smuggled prisoners’ letter arrived on land and was printed in one of the San Francisco newspapers. In part it stated ‘‘y.The men here are not the type claimed by the officials. Eight or ten maybe. The rest are no different than any prisoners in other United
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States prison. All the propaganda is to give publicity to [Homer] Cummings [United States Attorney General]’’ (‘‘Note says, 3 Driven Insane at Alcatraz,’’ 1935, n.p.). It cannot be established with certainty that the Attorney General wanted publicity, but it does seem that he, along with J. Edgar Hoover did want to establish an American Devil’s Island. In 1934, when Alcatraz began receiving its first inmates, the Federal Bureau of Investigation was only 10 years old. Thus, J. Edgar Hoover was ‘‘determined to engage these criminals in unrestrained combat.’’ Hoover wanted ‘‘to make it a place of confinement that would teach a moral lesson not only to the inmates but to the country. To this most long-lived FBI Director and arch-conservative, Alcatraz was intended to sensationalize the degrading consequences of breaking the law, to rob the underworld of its glamour and appeal. It was to be the maximum penalty short of execution for the most predatory and persistent of criminals’’ (Lamb, 1988, p. 13). However, the Bureau of Prisons worked to find a compromise between those of this point of view (Hoover and Cummings) as opposed to James Bennett, James Johnston, and Sanford Bates, all of whom had no such plan (Ward, 1991). Thirteen years later Robert Daniel Miller, a 25-year-old former Army private, made similar assertions. Miller had been court-martialed for the theft of Army tools and sentenced to 30 years. Even though his term was later reduced to 10 years, he created such a ruckus, by his own admission, that he was transferred to Alcatraz. Miller claimed that of the 242 prisoners housed on the island, 90 were former members of the armed services and incarcerated for relatively minor offences (‘‘Vet charges ‘Rock’ beatings,’’ 1948). There were also those inmates who believed that they had been punished enough. One such 20-year old did not want to be transferred from Alcatraz, but instead paroled. He was convicted for violation of the Dyer Act and had been in trouble since he was 13, the age when he was orphaned. He wrote, ‘‘I think parole should be granted because I have paied [sic] for the crime I committed Witch Thay sai I commited [sic]. I have been in prison all most [sic] of my life.’’ The inmates of Alcatraz were also lonely and isolated. Why else would one of them have claimed the most hated of all the wardens of the institutions’ history as a friend. ‘‘A man never knows his friends, so I will boast that Warden Swope is mine. But this he may paste in his family bible [sic]. I am his.’’ This prisoner had no one to write or visit him and apparently no one ever did. In short, these lonely and isolated men led a prison life of extreme monotony and regimentation.
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Every hour of every day was rigidly structured, in the early years beginning at 6:30 a.m. and later changed to 7:00 a.m. on weekdays and 7:15 a.m. on weekends. Originally Warden Johnston established the rule of silence, but this too was later abolished. Nonetheless after being awakened the prisoner was given an allotted time to wash and dress and then the electric locks opened his cell. He then proceeded to the corridor and took his place in line to march to the mess hall for his breakfast. The morning meal was followed by a prisoner count once all the men had been returned to their cells. Doors were now reopened and the men were escorted to their work assignment that is if they were fortunate enough to have this privilege. Arriving at the designated work location, the men were counted again. Lunch was provided at 11:30 and was followed by another silent return to the cells and a lockup and count. The cells were then reopened after a brief period of rest. Returning to work until 4:00 p.m. when the workday officially ended, the men were now marched to their dinner, which was followed immediately by the final lockup. Cell lights were to be off at 9:30 p.m. (Needham & Needham, 1976). Depending on the location of their cells, some inmates could look out the window and see the bustling, exciting city of San Francisco. At night when all was quiet there were those men who said they could hear the sounds of the city at play. A number of them made mention of this; it seemed to have been especially difficult for them during the holiday season, particularly on New Years’ Eve. There was freedom only a short distance away, a vision not available in other isolated federal institutions. Little wonder that the desire to transfer was usually so strong. Little wonder that a young minority inmate, described by the officials as ‘‘having a long criminal record and poor attitude,’’ but claiming to have no friends would write the following: ybesides I’ve had you folks on my mindy. I start think of home and all that it means, and how long it’s been since I was there last, [sic] I wonder if I will ever get back? The more I think of it the more I doubt my chances, at least while Mother is alive. That’s what causes my hair to turn grey, and nights of tossing in in my cot. Try as I might I just can’t seem to drive the thought of it away. Twelve long years have gone by, and its taking its toll, as to the future only God knows the answer to that question. Nothing seems to come by way in life, all I’ve had was misery. I’ve even changed my way of life but still it gets me nothing. Now my biggest fear at this stage is my personal self. My nerves are on edge, and I feel that one of these days I’ll just explode and lose whatever hope there remains for me. I just can’t keep my mind busy [sic] its not so bad, but this damned idleness is tearing the heart out of me, [sic] remember suspense kills in more ways than one. It’s getting so I don’t care what happens anymore and that is a bad state of mind to be in, but what is there for me to look forward to? Nothing, nothing at ally.
233
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Whether or not the inmate population was reduced by transfer from Alcatraz, one thing that was very different about the prison was its cost. Considering its size and the small number of inmates incarcerated, the island fortress was extremely expensive to operate. A pamphlet sold on the island today reported that this cost, based on an l960 survey, revealed that it cost over $30,000 per inmate per year on Alcatraz (Freedman, 1983, p. 8). In fact, of the common reasons frequently given in the literature regarding its closing in l963, the reason most frequently given was cost. The official publication of the BOP acknowledged this in its l963 yearly report when it stated that an engineering survey conducted in l961 revealed that the buildings were in a bad state of disrepair and that it would require some estimated $5,000,000.00 for the facility to be repaired and rebuilt. The Report also admitted that the ‘‘island penitentiary was also far and away the most expensive in the entire Federal system’’ (United States Department of Justice, 1963, p. 9). Partial verification can be further established by examining average daily per capita costs in the system. Like so many things regarding Alcatraz, data were not available for all the years the institution was in operation. Whether this was simply a lack of consistency on the part of the BOP or done with specific intent cannot be established for certain. The years for which such information was recorded can be seen in Table 12. What is particularly striking about these data is not only how much more expensive Alcatraz was per capita than various comparable penitentiaries,
Table 12. Cost for Federal Institutions: Average Per Capita Costs of Operation and Maintenance for each Federal Penal Institution, available Years. Alcatraz Atlanta Leavenworth Lewisburg McNeil Island Springfield Terre Haute 1935 1940 1941 1943 1944 1945
3.281 3.127 3.122 4.035 4.561 4.561
0.896 0.958 1.015 1.383 1.807 1.732
0.820 0.933 1.005 1.530 1.742 1.654
1.257 1.316 1.459 2.042 2.236 1.958
1.301 1.517 1.602 1.811 1.864 1.762
1.711 1.522 1.482 1.630 1.795 2.025
2.552 2.567 2.147
Source: United States Department of Justice, Federal Offenders, 1940, 1941, 1943, 1944, l945: A Review of the Work of the Federal Bureau of Prisons (Leavenworth, Kansas, Federal Prison Industries, Inc.), 425; 145; 86; 80; and for l943 (El Reno, Oklahoma, Federal Prison Industries, Inc.), 86. * BOP-IPP/ArchivesBOP-IPP/Archivessupplied for1935.
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but how much more expensive it was than Springfield, the federal hospital for the seriously physically and mentally ill inmates! Were the costs and the difficulties of operating the island fortress worth it? Did Alcatraz serve any meaningful function? Never admitting total failure, the BOP official publication of l963 continued to assert that the island prison was necessary back in l934 because of a ‘‘wave of gangsterism and violence’’ and that it did house the worst of the worst criminals in the nation. In addition, the BOP maintained that Alcatraz relieved crowding in the other older institutions like Atlanta, Leavenworth, and Mc Neil. Both of these claims are highly dubious as seen throughout the foregoing pages. But to their credit the Bureau did admit that as a deterrent to crime, the value of Alcatraz had to be ‘‘seriously questioned.’’ The example given was ‘‘bank robberies[and they] are more numerous that ever, and they are particularly frequent in the State of California’’ (United States Department of Justice, 1963, pp. 9–10). What conclusions can be drawn about this infamous island fortress called Alcatraz after examination of the sample study? There were indeed real differences between this institution and the others maintained and managed by the BOP, even if those differences were not what the public believed or what the government wanted the public to believe. For instance, Alcatraz was an extremely small institution. At full capacity it could have housed 348 men and yet the most ever incarcerated there were 309. In total the institution imprisoned l,576 men so it is very difficult to maintain the assertion that it eliminated crowding in the federal system during its existence as a federal penitentiary. Alcatraz was also far more expensive to operate than all of the other institutions within the federal system. The Bureau admitted this when it made note of the prison’s closing in its annual report. The report stated, ‘‘The island penitentiary was also far and away the most expensive in the entire Federal system. All supplies – including potable water – had to be transported by boat, and most of the personnel had to travel to and from the island daily.’’ Furthermore, the report went on, ‘‘The penitentiary was in still another way badly located for its purpose; the majority of its prisoners had to be transported from Federal district courts east of the Mississippi’’ (United States Department of Justice, 1963, p. 9). Add to these expenses the fact that, depending on the other BOP institution and the year in question, it sometimes cost as much as three times more per capita to maintain a man on Alcatraz. One of the reasons for this was that, according to one estimate, there were ten guards to every inmate on the island as compared, for example, to Leavenworth, where there was one guard to every 25 inmates.
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Although direct comparisons with other BOP institutions were often difficult to make because information was inconsistently categorized, available on a very limited basis, or not available at all, some analysis was undertaken. Thus it would appear that the inmates in Alcatraz might have been younger (34 years of age on an average). Following logically more tended to be single – 43.8% on the island as compared to 36% in the other comparable Bureau institutions. Fewer inmates in Alcatraz were married 30.5% compared to 38% in the other prisons. More Alcatraz men were divorced 15.3% compared to 9.5% elsewhere in the system. On average, but having only the year l935 as a basis of comparison, Alcatraz prisoners were less likely to be illiterate, 1.5% in contrast to the 8% and more at comparable prisons, 33% of prisoners on the island, had completed a high school education as opposed to the l9% in the other BOP penitentiaries. There was an especially keen desire to leave the Rock and transfer, most likely not to civilian life, but back to another federal institution. Finally a high percentage of Alcatraz inmates were considered escape risks, some 46.2%, but not especially surprising because attempt or propensity to escape was one of the major reasons why some prisoners had been sent there in the first place. These differences are important but they do not seem to merit the mythical stature of the prison. Much more surprising is how typical the inmates, and in many ways Alcatraz, was compared to the other federal penitentiaries. True, it was an island fortress, but so was McNeil Island. True it housed some very notorious and some very hardened criminals, but it must be remembered at all times that these very men came from the other federal institutions and they always represented but a handful of the total Alcatraz population. Like in the other federal penitentiaries, African-Americans were a minority on Alcatraz, 16% compared to 22% in the other institutions. Blacks were over represented in comparison to their percentage of the population in large during the decades in which the institution operated as the quintessential federal prison, but this is in a way comparable to the proportion of black males currently incarcerated. Violent criminals did not predominate in the Alcatraz cellblocks based on the sample of 600. In fact, only in l963, the prison’s final year, was the majority classified as violent, some 61.9%. Yet, it must be remembered that this constituted only 39 men in the sample and only 63 men were committed that year. Furthermore, most Alcatraz inmates did not have bad conduct records while incarcerated – only 20.8% of the sample and a meager 3.2% had a bad work record. Because it existed only 19 years in the prison’s history, only 16.9% of the inmates in the sample earned meritorious good
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time, but 47.9% had acquired statutory good time, and an even larger 53.2% had industrial good time. A whopping 78.4% of the men in the sample never committed a serious crime while on the island. The most common crimes committed by those incarcerated in Alcatraz were robbery and the NMVTA violations. Both of these criminal acts were committed by men under the age of 34, the mean age at the time of admission to Alcatraz. Topping the list of federal offenses in the other penitentiaries were violation of national liquor laws, narcotic/drug laws and following the war years national security/military offenses. Shortly after World War II and at the time of the Korean War, immigration laws were at the top, followed by NMVTA, and in the year the institution was closed down by the Department of Justice, the most common federal crime was larceny/theft. Very few inmates, 35, of the 600 could be classified as severely mentally ill. Overall the men received very poor psychiatric care and with the little bit of comparable evidence there was available, this seemed to have been equally true in the other federal penitentiaries. Inmates on the island were a remarkable microcosm of the larger society’s religious makeup, excepting the rather astonishing fact that all inmates in the sample expressed some religious affiliation. Overall 54% in the sample were Protestant, 31% were Roman Catholic, 0.3% were Jewish, and 0.1% were Orthodox Christians. Finally, the average inmate I.Q. in the sample was 99 with the highest average being l02 for those classified as violent criminals. Since an average I.Q. is 100, these men were about as average as a population could be with respect to I.Q. Now as it surely was for the former inmates, the journey out to Alcatraz Island is a windswept adventure. Today tourists make the trip on various commercial vessels, not the Warden Johnson. On their short excursion, passengers talk among themselves about what they hope to see and learn. Invariably their excitement is based on myth rather than fact. Listening to them speak to one another an observer would think the conversation was about celebrities rather than criminals. Little that they encounter on the island dispels those myths. Certainly they are never told that men who lived here as inmates were human beings not significantly different than offenders incarcerated in other similar Federal institutions. They were men who broke the law, some of them many times, and because of this they were men who deserved to be punished for their crimes. But they also deserved a place better than the Rock. If we are to remember them and this notorious fortress, we should do so accurately, not mythically. As two-time Alcatraz inmate Clifford P. Redden (1995, p. 175) would write:
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Worst of the Worst
ALCATRAZ I tried to win the game of sin But lost and now repose on a dreary fog-bound island where embittered misery grows. Regrets I feel on this isle of steel where hope is quick to die, for life is hard and days are long on that you can rely. No con has beat this harsh retreat that needs no prison wall, for electric eyes and treacherous tides the daring doth forstall [sic]. The guards are grim, they keep in trim, Their towers pock the land. Each haunts his post, like a lively ghost with a carbine in his hand. On fogless nights, I watch the lights Of ‘Frisco o’er the bay, and through the bars I count the stars to while the time away. Now day by day my debt I pay for thinking one could climb from poverty, to security, on the hellish road of crime.
NOTES 1. The Dyer Act, also know as the National Motor Vehicle Theft Act of 1919, made it an offense to transport a motor vehicle in interstate or foreign commerce with knowledge that the same had been stolen or to receive, conceal, or barter or sell a motor vehicle in interstate or foreign commerce, knowing that same to have been stolen. 2. ‘‘The indeterminate sentence principle is adopted in so far as judges are obliged to assign a minimum and a maximum rather than a fixed term with a minimum or maximum. The idea of parole is usually associated with an indeterminate-sentence law where instead of being committed to serve a definite number of years the inmate is sentences to a minimum and maximum period, parole being possible after the minimum has been completed.’’ Taft, D. & England, Jr., R. (1968). Criminology (4th Ed.). New York: The MacMillan Company.
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3. This was a piece of legislation first passed in 1948. 80th Congress, 2nd session, ‘‘Title 18, US.C, June 25, 1948 [H.R.3. 190]; [Public Law 772].
ACKNOWLEDGMENT I am most grateful to S. Anne Diestel, Archivist in the Office of Communications and Archives at the U.S. Department of Justice, Federal Bureau of Prisons for compiling all data used in this manuscript, which came from the federal penitentiaries during the years in which Alcatraz was operational.
REFERENCES Alcatraz: The final sentence [motion picture]. United States: Post Production-Lamb Production. Babyak, J. (1994). Birdman: The many faces of Robert Stroud. Berkley, CA: Ariel Vamp Press. Bates, S. (1938). Prisons and beyond. New York: The MacMillan Company. Bennett, J. (1970). I chose prison. New York: Alfred A. Knopf. Birnhaum, P. (1970). The anti-Semitic moment: A tour of France in 1898. New York: Hill and Wang. Black’s law dictionary (7th ed.). (1999). St. Paul, MN: West Group. Brinkley, A. (2003). The unfinished nation: A concise history of the American people. Boston: McGraw-Hill. Bureau of Prisons (2003). Quick facts. Retrieved June 10, 2003, from http://www.bop.gov/ facto598.html Butterfield, F. (2003). New York Times, 7 April, p. 12, A. Cantwell, J. (2003). Park news online. Lights, camera, Alcatraz! Retrieved July 2002, from http://www.nps.gov/goga/parknews Clauss, F. (1981). Alcatraz: Island of many mistakes. Menlo Park, CA: Briarcliff Press, Inc. Cox, A. (March 2000). War on drugs becomes a war on education. Yale Daily News. Retrieved July 6, 2003, from http://yaledailynews.com/article.asp?AID=4854. Delgado, J. (1987). Alcatraz Island: The story behind the scenery. Las Vegas: K.C. Publishing. Department of Justice, Bureau of Prisons (1951). Alcatraz. Washington, DC. Dougherty, R. (2003). Park service sells rocks from Alcatraz. National Parks, 77, 10. Freedman, M. (1983). Alcatraz: No good for nobody. San Francisco: Smith Novelty Co. Fuller, J., & Gay, Y. (Eds) (1982). Alcatraz federal penitentiary 1934–1936. San Francisco: Asteron Productions. Griffin, J. (2003). It’s all Greek. The New York review of books, L (20), 64. Hilgard, E. (1962). Introduction to psychology (3rd ed.). New York: Harcourt, Brace and World Inc. Instructions for armed officers. (n.d). United States penitentiary, Alcatraz. San Francisco, CA: Nation Maritime Museum, HDC#412. Johnston, J. (1949). Alcatraz: Island prison and the men who lived there. New York: Scribner’s Sons. Keve, P. (1984). The McNeil century. Chicago: Nelson-Hall.
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Keve, P. (1991). Prison and the American conscious: A history of U.S. federal corrections. Carbondale and Edwardsville: Southern Illinois University Press. Lamb, S. (1988). Alcatraz the rock. In: A. Flagstaff (Ed.), Alcatraz the rock (pp. 1–21). Northland Press. Landis, B. (1943–1944). The yearbook of American churches. Lebanon, PA: Sowers Printing Company. Landis, B. (1955; 1960; 1963). The yearbook of American churches. New York: National Council of Churches of Christ in the USA. Maloney, J. (1998). Crime Magazine. Retrieved July 25, 2002, from http://E-mail Crime Magzine.com Needham, H., & Needham, T. (1976). Alcatraz. Milbrae, CA: Celestial Arts. Picture and tour: Guide of Alcatraz island. (1974). San Francisco: Dick Skuse and Assoc. Powers, R. (1987). Secrecy and power: The life of J. Edgar Hoover. New York: The Free Press. Quillen, J. (1991). Alcatraz from inside. San Francisco: Golden Gate National Park Association. Redden, C. (1995). I survived Alcatraz twice. Chester, PA: Clifford P. Redden. Regulations for inmates U.S.P. Alcatraz (1954). San Francisco: Golden Gate National Parks Association. Satore, R. (Ed.) (1994). Joseph Campbell on myth and mythology. Lanham, MD: University Press of America. Sobell, M. (1974). On doing time. New York: Charles Scribner’s Sons. Stitt, W. (1984). Alcatraz: Bringing in the sheep. Angels Camp, CA: El Rancho Nada. Teachervision. (2003). Retrieved September 15, 2003, from http://www.Teachervision.fen.com/ pa/AO110384.html United States Department of Justice. (1948). Federal prisons. Leavenworth, KS: United States Penitentiary. United States Department of Justice. (1963). Federal prisons, 1963: A review of the work of the federal bureau of prisons during the year ended June 30, 1963, including statistics of federal prisoners and of federal parole and probation. El Reno, OK: United Sates Penitentiary. United States Sentencing Commission. (1995). Special Report to Congress: Cocaine and Federal Sentencing Policy. Washington, DC. Vet Charges ‘‘Rock’’ Beatings. (June 1948). Ward, D. (1991). Presentation at the seminar on the history of federal corrections (March). Washington, DC. Weber, H. (Ed.) (1935). Yearbook of American churches. New York: Associated Press. Williams, N. (1991). From Alcatraz to the White House. Seattle: Willjoy Publishing. Youth swims from Alcatraz (October 1956).
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REVISITING THE DEMOCRATIC PROMISE OF PRISONERS’ LABOR UNIONS Susan Blankenship ABSTRACT Despite the volumes that have been written on America’s correctional crisis – the peerless incarceration rate, disproportionate confinement of minority group members and democratically untenable policies of disenfranchisement of people with felony convictions – criminal justice policy has changed little within the past decade or more. An important voice has been left out of these correctional policy formulations – that of prisoners. This paper proposes convict labor unions as one way to address this issue. It utilizes the United States Supreme Court majority’s arguments in Jones v. North Carolina to assess the feasibility of inmate labor unions in light of current federal, state and local institutional operations; and provides a very tentative outline of how a prisoners’ labor union could be structured and function – exploring the potential democratic ramifications of such unions for corrections and in broader social policy.
Crime and Punishment: Perspectives from the Humanities Studies in Law, Politics, and Society, Volume 37, 241–269 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)37010-4
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INTRODUCTION In 1971 Americans were given a violent, horrifying wake-up call about the conditions in prisons that they, as citizens, had tacitly approved (Brooks, 1996). Attica brought into stark relief the contradictions that existed between the use of imprisonment with its closed, often brutal and controlling hierarchical system and democratic ideals like egalitarianism, liberty and transparency that supposedly informed American government. A relatively circumspect period followed the Attica prison riot, as corrections’ officials, politicians, academics and others pondered what could be done to avoid such a gruesome event in the future. Along with a brief period where the United States Supreme Court expanded prisoners’ rights, efforts were made across the United States to improve prison conditions and incorporate democratic processes within correctional institutions (The Yale Law Journal, 1972; United States Supreme Court, 1977). While there have been prison riots since Attica, they have not sparked such a widespread examination of the U.S. prison system, much less calls for reform (Brooks, 1996). Even faced with the horrors of Abu Ghraib and attempts to call attention to its similarity with the plight of prisoners in U.S. prisons and jails, Americans, their political representatives and the courts have appeared content to accept systematic degradation and brutality as costs of imprisonment with the noted exception of the Prison Rape Elimination Act (Butterfield, 2004; Herbert, 2004; Jacobs, 2004; The New York Times, 2004; Whitman, 2004). These ‘‘costs of imprisonment,’’ however, are also costs to democracy. Despite the volumes that have been written on America’s correctional crisis – the peerless incarceration rate, disproportionate confinement of minority group members, and democratically untenable policies of disenfranchisement of people with felony convictions – criminal justice policy has changed little within the past decade or more. An important voice has been left out of these policy formulations – that of inmates. In his outline of a policy sciences of democracy, John Dryzek (1990) asserts that achieving rational public policy requires the genuine discursive participation of those affected by it. Dryzek argues that rationality must be conceived not as a technocratic, expert-driven process, but one that is discursive – encompassing and involving citizens of a democracy. Public policy, in order to be rational, requires discursive democracy. Dryzek’s formulation of rationality indicates that unless inmates are given a voice in the democracy of which they are citizens, expectations for achieving successful outcomes through correctional programs (e.g., rehabilitation and reintegration) will remain
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beyond the reach of even the most well-meaning policy. One step that is being pursued is ensuring that convicts and ex-convicts have the right to vote.1 This is critical, but it will be unlikely that convicts and ex-convicts will utilize their vote if they do not believe in its legitimacy or their own ability to ‘‘make a difference.’’ In a forthcoming study by Uggen and Manza their findings indicate, ‘‘significantly lower levels of political efficacy’’ for people who have ‘‘experienced criminal sanctions’’ compared with those who have not been arrested or incarcerated (Uggen, 2002, p. 8). This suggests a further need for ‘‘civic reintegration’’ a concept introduced by Uggen (2002, p. 8) that refers to ‘‘a process of weaving offenders back into the social fabric.’’ This could be the role played by inmate unions. There have been numerous attempts to grapple with the uneasy relationship between prisons and democracy both from philosophical and practical positions (de Beaumont & de Tocqueville, 1964; Parenti, 1999; Dyer, 2000; Mauer & Chesney-Lind, 2002). Questions revolve around whether the two can co-exist and if so, how? This paper adds to this body of literature in two ways – by suggesting that as democratic institutions inmate labor unions are both possible and desirable; and by broaching the topic of how such unions could function. This exercise is not a prescription for how inmate labor unions should function, but rather an assertion that they could and that their presence is vital to democracy. Following Attica, some prisons experimented with giving inmates a voice in the governance of prisons through inmate councils, ombudspersons’ offices, small ‘‘problem-solving’’ groups and even unions (The Yale Law Journal, 1972; Toch, 1995). Some of these measures were institutionalized and remain in effect today (e.g., the prison ombud and inmate committees), but bargaining with inmate labor unions was abandoned. The 1977 ruling by the United States Supreme Court (also referred to as the USSC or the Court) in Jones v. North Carolina Prisoners’ Labor Union (also referred to as Jones or Jones v. NCPLU) denied prisoners the right to unionize and seemed to put the idea of organizing inmates out of play. Yet, inmate labor unions deserve serious consideration by those interested in effective and humane corrections’ policies that are supportive of democracy. Through the organization and functioning of a union, people are familiarized with and participate in democratic practices (Bernard, 1999, 1996; Freeman & Medoff, 1984). Unions are known for bringing people into the political process, particularly those who are traditionally underrepresented, e.g., the poor and racial and ethnic minority group members, something especially important given the current demographics of the correctional population. In spite of the low proportion of the workforce
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that is unionized (something the unionization of inmates could help address), unions still have the capacity to affect public policy through the mass mobilization of their members and via coalitions with other groups. Finally, functioning inmate labor unions offer the potential to open prisons to ongoing public scrutiny. This paper attempts to delineate how inmate labor unions might function in a prison setting and demonstrate the broad benefits of inmate unions to democracy as well as suggest particularistic benefits that could accrue to inmates and various stakeholders. I begin by reviewing the literature on inmate labor unions in the United States taking account of their purposes, development, decline and current status. Although the review does not indicate rousing success for U.S. prisoners’ unions, neither does it eliminate their serious consideration. The subsequent section provides a tentative outline of how a prisoners’ labor union could be structured and function. This presents an opportunity to explore the potential democratic ramifications of such unions for corrections and in broader social policy. In the second section of the paper I assess the feasibility of inmate labor unions. Any proposal that inmates be allowed to unionize must confront the United States Supreme Courts decision in Jones v. North Carolina Prisoners’ Labor Union. The USSC plays a key role in policymaking. Its decision in Jones initiated the Courts’ reversal on its broader interpretation of prisoners’ first amendment rights. It was the metaphorical nail in the coffin of a growing prisoners’ union movement and underpins what is now a nationwide prison policy grounded in a substantial degree of administrative discretion. In this analysis the majority’s argument in Jones acts as a stand-in for administrative trepidation regarding inmate unionization and the claims made by administrators and accepted by the Court are examined in light of current federal, state and local prison operations. The article concludes with an overview and assessment of the feasibility of inmate labor unions as well as their democratic possibilities.
LITERATURE REVIEW Inmate labor unions are not a new concept.2 Although, the incipient but spreading inmate union movement of the 1970s is scarcely mentioned today, the history of inmate unions in the United States prior to Jones indicates they enjoyed a groundswell of support across the nation from prisoners as well as some outside prison reformers and abolitionists during the early and mid 1970s (Knopp et al., 1976; Bennett, 1983). Prisoners unions in the U.S.
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began with a prison strike at Folsom prison that subsequently led to the incorporation of the Prisoners’ Union in California (Knopp et al., 1976; Bennett, 1983). At Green Haven correctional facility in New York, 1,800 inmates joined the Prisoners’ Union (The Yale Law Journal, 1972). Near its height the Prisoners’ Union existed in several different state prison systems and its membership levels approached 23,000 including both men and women (Knopp et al., 1976). The driving force behind prisoners’ unionization related to prison conditions, but was grounded in desire for political participation and recognition as democratic citizens (Knopp et al., 1976). The abolititionists’ tract, Instead of Prisons, produced in the mid-1970s devotes a section to prisoners’ unions as a means of empowering prisoners. A statement made by ibn Kenyatta, a Green Haven prisoner, to prison teacher, Marguerite Kearns (n.d.), illustrates the politically charged atmosphere: You know and I know the Haven is the hub for most of the political action goin down by prisoners all over the state. So there’s overwhelmin negative activities and tremendously positive elements counteractin in ways that give this place a wild, political, unique flavor.
There are several ways of evaluating whether prisoners labor unions were successful, but it is important to note that, unlike other prison programs that have been researched, there are no systematic evaluations to determine whether these unions were successful much less the substance of such success. In terms of organizing, prisoners’ unions appeared to be highly successful, especially given the substantial administrative opposition to their efforts. According to Knopp et al. (1976), administrative and staff antagonism took a variety of forms: locking out organizers in California and Minnesota, declaring organizing illegal in Wisconsin and harassment of union members in Ohio, New York and Michigan. Prisoners’ Unions appeared to have an affect on how prisons were managed. Although, it is not certain that this was always for the better. Bennett (1983) refers to the prisoners union at Folsom as ‘‘a disruptive influence’’ that attracted the ‘‘more militant’’ prisoners. In a prison staff-oriented publication, Green Haven is portrayed during the 1960s and 1970s as being out of control, with lax security resulting in escapes and hardened inmates taking advantage of unseasoned staff (DOCS TODAY, 2001). This depiction appears to be supported by the statements of inmate ibn Kenyatta who was incarcerated at Green Haven during this time period. In ‘‘Kenyatta’s Crazy,’’ Marguerite Kearns, a prison teacher, describes a conversation with Kenyatta who is newly arrived at Green Haven from Attica. Their dialogue
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indicates the discomfort Kenyatta feels with the relatively relaxed atmosphere at Green Haven. This place blew me away. Attica is/was racist, so somethin was always happenin. Green Haven is somethin else entirely. Wide open. Wild. Uptown Saturday night. Riker’s Island moved upstate. I could hardly b’lieve my eyes and ears with all the bedlam and excesses I found my first few weeks here. After Attica, I wasn’t prepared for the madness of ‘The Hav’. Are you saying it’s a pleasant place to be? That’s not what I’m sayin.
According to Kearns (n.d.) ‘‘Many prisoners believed the predictability of institutions such as Attica were preferable to the loose-one-day, tightthe-next, unpredictability of Green Haven.’’ From a political standpoint, perhaps the prisoners’ union movement of the 1970s was ultimately a victim of its success. By demonstrating the ability to organize and alter institutional practices – however slight this may have been compared to the power of prison administrators – prisoners’ unions presented a challenge to the control of prison administration. The Prisoners’ Unions organizing efforts were bolstered by court rulings like the one overturning a Green Haven prison policy that denied inmates organizing-related legal correspondence (The Harvard Law Review, 1973). There was also increased opportunity for public scrutiny of prison operations. The interest expressed by Green Haven’s Prisoners’ Unions in affiliating with an ‘‘outside’’ union – the Distributive Workers of America (DWA) – had the potential to bring DWA organizers into the prison (The Yale Law Journal, 1972). Protests by prisoners at Massachusetts’ Norfolk and Walpole prisons in the wake of Attica were characterized by ‘‘the overtly political tactics used – to get their demands across and the fact that information was allowed to flow freely from the inmates to the public’’ (The Yale Law Journal, 1972, p. 755). ‘‘Striking prisoners paraded before television cameras, interrogated prison officials at conferences that the officials opened to the press, and elected committees to negotiate reforms with administrators at a public conference.’’ (The Yale Law Journal, 1972, p. 755) Inmate labor unions continue to operate within the U.S. prison system, although they are not recognized as legitimate bargaining entities. There is evidence of a prisoners’ union’s political involvement in legislative advocacy in California (Asimow, 1992). In the early 1990s prisoners working at MinnCor went on strike and were supported by the A Job Is A Right Campaign, which also passed a resolution supporting prisoners’ unions (A Job Is A Right Campaign, 1996, 2(2), March-June). The Missouri Prisoners
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Labor Union and Texas Prisoners Labor Union try as best they can to work together and have established bases of support both inside and outside their respective prison systems. However, members are subject to regular harassment by staff and administration (Missouri Prisoners Labor Union, n.d.). There is a small measure of support for the idea of inmate labor unions among scholars. Kling and Kreuger’s (2001) study of the economic impact of inmate labor led them to advocate that inmates be given the full complement of labor rights and protections – including the right to form unions.
HOW INMATE LABOR UNIONS BEFIT DEMOCRACY: STRUCTURE, FUNCTION AND BENEFITS Given the discussion up to this point, it would seem that prisoners’ labor unions remain beyond the realm of possibility. Administrators, staff and the courts seem to continue to be opposed and it is well known that prisoners are far from popular among the general public. But if prisoners’ unions are put within a different framework – one that involves tripartite, principlesbased bargaining – the scenario becomes one not of opposition, but of shared interests that can be accomplished with deference to the requirements of all parties. What is outlined in this section closely resembles Hans Toch’s (1995) experience with and rationale for inmate governance. Further, it is reflective of recommendations made by Pepinsky and Jesilow (1984, p. 154) in their seminal work, Myths That Cause Crime, where they advocated inmate self-governance and binding, collectively bargained contracts between inmates and staff. An inmates’ local as conceived in this proposal would need to operate democratically. The United Electrical, Railroad and Machine Workers’ union (UE) provides an excellent model of democratic union operations and I will draw heavily upon their example in outlining how a prison local could function (United Electrical, Railroad, & Machine Workers, n.d.). However, the most important thing about a labor union is that it be a product of its members (a guiding principle of the UE). Therefore, this exercise serves to illustrate possibilities, not prescribe solutions. The work described here in developing, operating and maintaining an inmates’ union would be long and difficult. Any union willing to undertake such a venture would need to invest significantly in ongoing union training (among other things) that addressed union history, the workings of democratic processes and the skills
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of negotiation. A union’s legitimacy likely would be challenged daily. The consequences of distrust are heightened inside the prison where exit by an individual from an undesirable situation may not be possible and instead foster physical confrontation. Members would need to be kept ever apprised of the processes taking place and why they are important. Toch’s (1995) description of attempting to change the distrustful prison culture as ‘‘slow, painful and emotionally laden’’ is apt here. In every process that is outlined I have assumed that prison administrators would set times and places for activities and monitor them as they see fit. This is not done to dismiss the work that would need to be done by administration in terms of scheduling and security. But it must be kept in mind that these are concerns for other programs, as well. Neither is this meant to minimize the difficulty this presents for efforts aimed at democracy by granting such a clear advantage to administrators. Yet, it must be acknowledged that because this analysis is not outlining a constitutional challenge, the decision to allow inmates to organize would be an administrative one. An affirmative decision would signal the willingness of the administrator to take on the risks involved. While this dependency on administrative largesse presents problems of its own (e.g., would any administrator take the ‘‘leap of faith’’ and if so, would the union simply be viewed as coopted by administration?), it does not negate the worth of this project. For if corrections professionals, policy-makers and the public claim an interest in slowing down the ‘‘revolving door,’’ inmate labor unions hold many possibilities for doing just that.
Union Organizing As with any other effort to unionize workers, the endeavor to organize convicts would begin with an organizing drive initiated by interested unions. Union organizers from national and international labor unions could be permitted inside the prison to make presentations about their unions, distribute literature and answer questions. Organizing campaigns are processes of education and persuasion. It is critical in the prison environment that union representatives present their union realistically. Gains in bargaining are hard won and lost on the outside and would present even more of a challenge in prison. This is not a drawback, but an advantage of unions. Educating potential members about the process of negotiation – both in the workplace and in the political and social arena – demonstrates both successes and failures and importantly, how unions continue the struggle.
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Portraying a union in any other light would set inmate members up for disappointment and the likely failure of the union. As with any other workplace a vote would determine whether a union was desired. If multiple unions were interested in organizing inmates, the vote would need to identify the preferred union. Because of the advantages that would be offered in terms of voice, re-entry and transparency, it is presumed here that an inmate labor union would organize as a local affiliate of a national or international labor union. Given that one of the goals of inmate unionization (as elucidated here) is to give voice to inmates both within and outside the institution of the prison, affiliating with a national or international union provides an apparatus already in place to carry concerns to union members outside the prison and engage in collective political action. In terms of re-entry, established unions would have existing linkages within the community enabling a smoother transition from inside to out. Additionally, convicts incarcerated far from home could draw upon the union’s national network to connect with their union on the outside upon release. A further advantage of inter/national affiliation involves the issue of transparency. As outside union members worked regularly with their inmate brothers and sisters, they would communicate their impressions to the community beyond the prison’s walls. This opens the workings of the prison to review beyond ‘‘official’’ channels – perhaps, helping to demystify it and present it as an institution to be critically engaged by those who have sanctioned it. But would unions be interested in organizing inmates? For the most part, the evidence suggests not (Chang & Thompkins, 2002; Geiselman, 2002; Herochik, 2001; Zeller, 2001; Featherstone, 2000; Burton-Rose, 1998; Prison Legal News, 1998). Unions tend to view prisoner laborers as competitors as opposed to fellow/sister workers. While the UE structure is being used here as an exemplar of union democracy, its representatives have indicated that they view this as a zero-sum game, as well (Burton-Rose, 1998). But the possibility is increasing that this perspective could change. Aggressive organizing by unions of service sector workers who tend to be people of low-income and minority group members may alter the interests of what has traditionally been a white, male, conservative bastion. The demographics of the service sector simply make it more likely that these workers have had some contact with the criminal justice system directly, indirectly, through relationships, as victims and as perpetrators. Thus, the changing demographics of unions could shift their perspective on prisoners – from fear to genuine concern and interest in their lives.
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Union Structure A Local Constitution Local unions develop their own constitutions. These documents typically reflect the broad goals and principles of the inter/national, but include specifics unique to each local. Inmates could elect a committee to draft their local’s constitution. This committee could include union members from outside the prison to advise and assist the new members in drafting this document. The committee could hold meetings throughout the process to get member input, with the constitution ultimately ratified by a vote of all inmates. Local Leadership The structure of the inmates’ local could mirror that of other union locals – consisting of union leadership, stewards and committees. These positions could be elected and provisions made in the constitution for their rotation on a relatively frequent basis like the UE, which rotates officers annually. The reason for this would be to give every inmate who is interested the chance to be involved in union leadership. This might also reduce the potential for creation of fiefdoms and envy or resentment of those inmates in these positions. There are of course drawbacks to this – the learning involved in assuming such positions is one. However, if unions were engaged in ongoing training, members would be better prepared to assume such positions. The Membership A union is entirely dependent on its membership. The membership would determine what goals would be pursued by the union and would act to realize the union’s goals. This could entail participating in union meetings, being involved in committees of interest, assisting with the administrative affairs of the union and simply staying informed about topics important to them. Union Functions Collective Bargaining A critical aspect of a prisoners union would be to engage in collective bargaining with prison management and staff. While this is a more conservative approach to unionism, collective bargaining engages workers in control over their lives (Yates, 1998). In this setting, prisoners could assert their particular programming and institutional needs as opposed to being passive recipients of what is available. Collective bargaining reinforces democratic
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principles in that it resembles ‘‘a system of self-government by management and labor, a sort of legislature in which both parties, representing their constituencies, debate, compromise, and eventually legislate the rules under which the workplace will be governed’’ (Chaison & Bigelow, 2002; citing Stone, 1981, 1992). As envisioned here, this would take place within an interest-based bargaining context. Interest-based bargaining emphasizes the shared goals of the parties involved (Kearney & Carnevale, 2001). Parties come to the table with proposals for reaching those goals, but the process is not adversarial. Openness and honesty are critical. For instance, if the prisoners’ union, staff and administration agreed that one of their shared goals was to improve their respective qualities of life, each would come to the bargaining table with what an improved quality of life would entail for them. Staff might want flexible schedules that allow them to attend to outside interests. Prisoners might want better quality food. Administrators might want to demonstrate effectiveness to legislators. The quest begins with all parties brainstorming how such quality of life goals could be achieved. This does not mean that everyone comes out a ‘‘winner.’’ Win-win bargaining is a misnomer. What does happen is that everyone arrives at an understanding of the various positions because all assertions are open to scrutiny. Nothing is held back. If an administrator says that flexible schedules would not be possible, the other parties would need to be able to evaluate staffing. If inmates assert that it is possible for the administration to provide better quality food, they would need to have access to the facility’s budget statement in order to substantiate this. The scope of bargaining, i.e., the issues available for negotiation, within the mutually established overarching goals, would be determined by prison administrators. Thus, it would be expected that the bargaining scope would be narrow initially because the parties must build a measure of trust in each other. A narrow scope is not, however, meaningless. There is a vast array of potential bargaining issues and whether only a few or many are on the table this would not mean that a prisoners’ local would be constrained from researching issues outside the scope of bargaining for later negotiations. Negotiations could focus on traditional areas such as wages, hours and working conditions, but could also include issues beyond the realm of work – particularly since not all inmates have work assignments. At present there are many individuals and organizations profiting from America’s prison boom (Chang & Tompkins, 2002; Dyer, 2000). Those enjoying the spoils of incarceration do not, as a whole, include inmates, their families or victims. An inmates’ labor union could provide a much-needed counterbalance in these areas. A few examples serve to illustrate this.
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Inmates could negotiate the proportion of the contributions made from work programs to victims, inmates’ families, themselves and the state. The various Prison Industries Enhancement (PIE) programs operating across the United States deduct money from inmates’ pay for contributions to the aforementioned groups (Bureau of Justice Assistance, 2004). However, the state receives a large share of the money; whereas, victims, families and convicts receive a much smaller proportion. Interestingly, one of the selling points of PIE is that it enables inmates to make at least monetary recompense to victims, but the state consumes so much, victims truly end up seeing very little money.3 Why would an inmates’ union bargain to provide more money to victims? Their union would not only exist in the prison, but outside as well – likely comprising convicts, ex-convicts and people who have been crime victims. Therefore, a necessary expression of solidarity would be to ensure to the greatest extent possible that the contract is of benefit to all union members. Another possible area of negotiation is in regard to contracting for services. Prisons enter into a number of service contracts that directly impact the lives of inmates: food and food services, laundry services, telephone services, counseling and treatment services, educational services, vocational training and medical services are a few. An inmates’ union could bargain to have input into contracting decisions. Committees could be formed that monitor current contractors and keep abreast of the performance of other contractors in these industries as well. Performance analysis could include things such as quality and cost of service as well as corporate responsibility (e.g., health and safety of the workforce, unionization, pay, environmental record, etc.). Once a contract was signed by the union, prison administration and staff, the union leadership would be responsible for monitoring the contract in operation. Elected shop stewards could work ‘‘the floor’’ – keeping track of how the contract is and is not working. As with unions on the outside, shop stewards could be the front line for filing contract-related grievances. Jacobs (2004) has recounted the many difficulties with current jail and prison grievance processes, from short filing deadlines, to staff intransigence, to lack of court oversight. This would be another area where the prison’s ‘‘insides’’ could be open to public scrutiny. Grievance reports could be regularly communicated to union members on the outside. Additionally, should a grievance reach the point where it required formal negotiation with prison administration and staff, the aggrieved inmate union member could have his/her local representative present as well as an ‘‘outside’’ representative of the union. Grievances, of course, are considered adversarial mechanisms, but they need not be. Indeed they are a chance for future contracts
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to be improved as lessons are learned about the shortcomings of the present contract. Daily Operations An inmate could be kept very busy by his/her union. The inmate’s level of participation would be his/her choice. Union membership could entail attendance at regular union training and monthly meetings of the union local. Because of the wealth of information to be gathered, analyzed, summarized and reported, inmates probably could do committee work a portion, if not all, of every day. One could foresee committees emerging on any number of issues related to family; service providers, e.g., health, telephone, food, etc.; political action; public relations and others. The local would also need administrative assistance to do things like record keeping, scheduling, communication coordination and report preparation. These efforts would require time, space and equipment and it is doubtful that the state would readily pledge funds to this effort. The union would need to have a proposal for acquiring these things. Equipment could come from donations (of new or used equipment or money) from members, businesses, foundations or charitable organizations. Finding space and time for union business could present the most challenge. Inmates’ unions would need to work with administration and staff to devise a schedule that reassured them in terms of security while enabling union members to meet often enough to reinforce solidarity and work toward the unions’ goals. While administrators would probably approach such negotiation from a cautious and conservative standpoint, an inmates’ labor union could occupy prisoners in meaningful, future-oriented pursuits that as a by-product serve ‘‘institutional management’’ objectives. Rehabilitation There are many ways an inmates’ labor union could provide a strong foundation for rehabilitative efforts. A democratic inmates’ labor union as described here could promote autonomy, responsibility, pro-social connections and work skills that bridge the gap between the world inside the prison and that outside.4 Inmates working on committees would need to develop expertise in a particular area. For example, a union committee on workforce training could examine information on occupational outlook in suggesting training and education programs that should be available in the prison. Union mentors from the ‘‘outside’’ could have regular and frequent contact with prisoners and then assist them when they leave prison. In these
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scenarios, prisoners assume responsibility for their lives and work together with others to reach livable solutions. Political Action The world does not stop while prisoners are incarcerated, although most prisons operate as if it does. Prisoners are largely impotent when it comes to shaping the world to which they will return. And it is, for the most part, an inhospitable world. An inmates’ local partnering with its inter/national could work to remedy this. There are a number of issues where inmates have an interest, e.g., licensure and voting restrictions, money appropriated to and conditions required for indigent services (e.g., health care, food and nutrition, child care, training) and criminal justice policy are only a few that directly affect convicts and ex-convicts. Unions have the capacity to publicize and educate on the concerns of inmates’ locals. They can rally and assist likeminded groups in these efforts. They have the ability to pursue legislative changes at the local, state and federal levels and can also influence the executive branch and pursue judicial remedies (Freeman & Medoff, 1984).
SUMMARY In this section, I have initiated a discussion on how prisoners’ labor unions could function. The structure I have articulated and the activities I have outlined mirror those of ‘‘outside’’ unions. However, the environment in which a prisoners’ union would function would be a highly restrictive one. Bargaining and meetings would have to comply with administrative rules and thus, be highly constrained. The union would need to engage in ongoing efforts to sustain its legitimacy and principles of solidarity. This is a formidable task, but the benefits to be realized by expanding democracy and engaging inmates as citizens make such an effort worth the struggle. Prisoners’ labor unions will not be possible, however, unless it can be shown that the concerns put forward in Jones are at least debatable.
AN ASSESSMENT OF FEASIBILITY: CRITIQUING THE ARGUMENTS OF ADMINISTRATORS AND THE COURT In order to establish the feasibility of prisoners’ unions, one must deal with the Court’s decision in Jones v. NCPLU. Legal scholars have recognized
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that Jones was a critical moment in the formation of prison policy. According to Turner (1979), Jones ‘‘emphatically ended attempts by prisoners’ unions to gain legal recognition.’’ Willens (1987), argues ‘‘[t]he decision in Jones – presented the substance of imprisonment, what the prison will be, and the Court refused to looky[E]ven while refusing to look at the substance of imprisonment, the Court legitimate[d] a particular substance by imposing and enforcing its legal structure. Because this legal structure rests on a particular conception of what prison is, the law creates a prison that increasingly reflects this conception’’ (emphasis added). Finally, Alexander (1992) states that ‘‘[t]he opinion [in Jones] is primarily notable for its extreme statement of the deference to be afforded to prison officials’ justifications for restricting constitutional rightsy’’ While the decision in Jones rests on constitutional grounds, the majority relies heavily on assertions by experts in prison administration that inmate unions would compromise the safety of institutions. These arguments can be grouped into three broad categories: (1) unions will exacerbate the friction that already exists within prisons; (2) restrictions on union activity coincide with ‘‘legitimate penological objectives;’’ and (3) prisoners’ labor unions could not be ‘‘true’’ unions. I begin my analysis by critically assessing these arguments in light of current correctional practices. This exercise demonstrates that the concerns expressed in the Court’s decision are reflected in programs currently operating in prisons. And yet, such programs operate with the encouragement of administrators. The question that emerges from this discussion is: then why should unions not be permitted within prisons as well?
Prisoner Labor Unions will Heighten the Risks in the Already High-Risk Environments of Prisons There are two aspects of this argument. One is that inmate labor unions will increase interpersonal and intergroup hostility in an already stressful environment. The second concerns logistics: in order to function, inmate labor unions would decrease security by altering the institution’s landscape thereby reducing administrative control. There are a large number of programs offered in correctional settings that require institutions to adapt their security operations (e.g., work, education, lifeskills, vocational training, substance abuse interventions, psychological counseling, etc.), but two types of current prison programs seem most appropriate for comparison with inmate unions given the USSC’s concerns: prison industries and faith-based programs. Both programs are reliant upon people who are relatively unfamiliar with the prison environment – something they would share with inmate labor unions
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that affiliated with ‘‘outside’’ unions. Further, both involve altering institutional policies and procedures to a fairly substantial degree and clearly, some degree of accommodation would be required for the functioning of inmate labor unions. Thus, it is reasonable to say that both of these programs challenge the security of the prison environment in ways that inmate labor unions might. Given the aforementioned traits, what makes these programs ideal for comparison with inmate unions is that they are so highly regarded, whereas inmate unions are viewed with suspicion and distrust. I begin by exploring how prison industries and faith-based programs fare in terms of increasing interpersonal and intergroup hostility.
Interpersonal and Intergroup Conflict The environment of prisons is filled with virtually unending tension. Race, class, gang affiliations, and criminal convictions already divide prisoners (Bailey, 2002; Sykes, 1999; Brooks, 1996). Staff also encounters problems along race and gender lines among others, e.g., correctional philosophy (Austin & Irwin, 2001). The concern expressed by the Court in Jones is that prisoner unions would only exacerbate this, adding still another rift among prisoners as well as staff. Yet, a large number of different programs that operate within prisons, such as those previously mentioned require selection of inmate participants thereby creating additional ‘‘in’’ and ‘‘out’’ groups within the already divisive prison context. Prison industries and faith-based programs offer particularly compelling examples of the noticeable differences created between inmates who participate in these programs and those who do not. Prison Industries The Prison Industries Enhancement program (PIE) created by Congress in 1979 provides certification of prison facilities that then allows those facilities to engage private industry in employment for inmates (Bureau of Justice Assistance, 2004). Survey results reported in the American Correctional Association’s (ACA) Corrections Compendium (2002) showed that although there was a large amount of prisoners working in prison industries (320,000 in 44 systems), the number of individuals incarcerated eclipses this number. In order to participate, i.e., get a job, in a PIE program, inmates must successfully pass through an application process – invariably involving an assessment of conduct (Rostad, 2002). Thus, not everyone who wants a prison job gets one and there are usually waiting lists
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(Millard, 1998). South Carolina’s director of prison industries has called PIE jobs ‘‘highly coveted.’’ The state’s PIE program at Tyger River Correctional Institution demonstrates this (Miller, 2003). The Anderson Flooring plant located there has reported receiving 10 applications for every job available. The selection process alone would appear to generate rivalry among inmates, but there are also the tangible rewards of participation available to selected inmates. Those chosen for employment receive a labor market wage, training, and a change of pace from prison routine. Additionally, inmates who are allowed to participate in PIE program industries connect with people outside the prison environment. Yet, in spite of the potential for increased tension among the institutional population, prison staff and administrators vigorously support PIE and other work programs (Sexton, 1995; Miller, 2003). In fact, what the USSC regarded in Jones as producing heightened risk within a correctional facility – generating more group fissures – is regarded as incentive to maintain good conduct in the context of prison industries and faith-based programs. Faith-Based Prison Programs Like PIE programs, faith-based prison programs are highly selective. Not only is religion a basis for selection, but other requirements have to be met as well. In their examination of the InnerChange Freedom Initiative (IFI), a faith-based program operating within the Texas prison system, Eisenberg and Trusty (2002, p. 4) report that ‘‘between February 1997 and April 2001: 1,770 inmates were interviewed’’ for the Innerchange Freedom Initiative, but only 508 were ‘‘admitted to the program’’ during this time. Requirements for IFI eliminate a considerable number of inmates. The program only considers English speakers and does not accept anyone with ‘‘significant medical problems’’ – meaning those with AIDs, which is pervasive in prisons, are likely left out (Eisenberg & Trusty, 2002, p. 4). While there are some interfaith faith-based programs, most are supported by Protestant Christians (Cooperman, 2004). Inmates not of that faith could see this one religious faith, and the prisoners who practice it, as receiving preferential treatment. Compared to the lives of other inmates in a correctional facility, those participating in faith-based programs seem to lead ‘‘the good life.’’ At a faith-based program in Newton Correctional Facility in Newton, Iowa: General population inmates live according to rigid schedules determined by prison officials and are monitored constantly, but in this [faith-based] unit, the 210 inmates have
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bathroom privacy and even keys to their cells. The [faith-based] unit inmates also enjoy big screen television, free phone calls to family members, less taxing prison jobs and access to computers and art supplies for creative projects – perks general population inmates can only dream about (Boston, 2003).
Cooperman (2004) reports on how ‘‘tales of a pizza party’’ in one dormitory ‘‘spread through the prison, helping build an appetite for faith-based programs in dorms that did not yet have church sponsors.’’ What faith-based programs share with prison industries is the selection of prisoners who receive some sort of ‘‘special treatment.’’ Selection processes have the potential to increase tension within the institution as ‘‘good’’ prisoners are chosen over ‘‘bad’’ ones. It is possible that not every inmate considers these programs to be incentives and in fact they could result in resentment. One of the things that the literature on prison culture makes clear is the existence of a prison value system that does not include ‘‘cozying up’’ to authorities. In contrast to this is the foundation of unionism – the concept of solidarity. A prisoners’ union could encompass all prisoners who wanted to participate. Individuals could select out, but they would not be denied membership. Rather than being divisive, prisoners unions have the potential to unite inmates in a common struggle. In the context presented earlier it is apparent that such a struggle need not be adversarial.
Logistical Issues Prison Industries Prison industries are operated within every prison system in the United States, but private sector prison industries are particularly relevant to this discussion because correctional administrators must go out of their way to attract them, indicating that the risks posed by these operations are acceptable and even welcome (Corrections Compendium, 2002). In his report for the National Institute of Justice on public/private industry partnerships within prisons, Sexton (1995) notes a number of changes that prison administrators make, even in maximum-security facilities, to assist private industries to operate within prison walls. These include civilian staff – both men and women – supervising hundreds of inmates as well as changes in ‘‘the prison’s classification, assignment, disciplinary, security, or call-out procedures’’ (Sexton, 1995, p. 14).5 Yae (1999) reports a number of logistical problems in operating a prison industry. Those associated with security include: materials moving through multiple security points, interrupted
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work schedules associated with inmate counts, and more meticulous inspection of materials and vehicles. The possibility that inmates could use materials and tools with which they work as weapons within the prison is another risk that correctional administrators are willing to take in allowing prison industries to operate within their walls. At the Federal Correctional Institution in Elkton, Ohio inmates recycle computers, which involves stripping computers of their components and pulverizing glass (Stein, 2003). In this instance, inmates are given access to bits of wire, metal, glass and plastic. At Anderson Flooring’s hardwood floor manufacturing facility within the medium security Tyger River correctional institution in South Carolina inmates work with wood, hot glue, an industrial press, ‘‘glue spreader,ymaulder,yripsaw, and aydouble-end tenoner’’ (Miller, 2003, p. 68). As a consequence of these operations institutions have installed metal detectors and developed other security measures to cope with these challenges – risks that are deemed to be worthwhile presumably because of the benefits accruing to inmates, prison administrators and the larger community.
Faith-Based Programs Although they are a relatively recent development, faith-based prison programs operate in a number of states, e.g., Florida, Texas, Minnesota, Kansas and Iowa. For institutions that have adopted a faith-based approach, programming is developed and delivered by outside organizations that are often highly dependent upon volunteers. An article written on Lawtey Correctional Institution in Florida reported that for one of the sponsoring churches, Beaches Chapel, ‘‘more than 100ymembers visit Lawtey each month teaching inmates about computers and job hunting as well as about Jesus and the Bible’’ (Cooperman, 2004). Like the introduction of so-called civilian personnel in the prison industry context, this can be seen as heightening a number of security concerns, e.g., inappropriate relationships developing, contraband reaching inmates, etc. Clearly such programs present additional turbulence and risk within the prison environment. An evaluation of Texas’s Carol S. Vance Unit’s faith-based program (developed and delivered by the IFI) included an assessment of operations that brought these concerns to the fore (Trusty & Eisenberg, 2003). A number of program requirements conflicted with Texas Department of Criminal Justice (TDCJ) policy. For example, whereas IFI called for the creation and fostering of close relationships between inmates and volunteers – including exchanging gifts and more freedom of movement for inmates both inside and outside
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the unit – TDCJ’s policies insisted upon the typical bureaucrat–client relationship between inmates and staff and was much more restrictive of the movement of prisoners. According to the evaluators, ‘‘IFI and TDCJ administrators meet on a regular basis to resolve these issues’’ suggesting that TDCJ policies are negotiable and additional environmental risks are sometimes tolerable (Trusty & Eisenberg, 2003, p. 13). Although brief, these examples are indicative of the kinds of logistical risks that prison administrators have willingly accepted. Presumably, in balance these programs offer enough potential benefits to offset the possible challenges they present to institutional order. What is apparent from this recounting is that there are prison programs currently operating in many different types of correctional facilities that (a) increase the divisions within correctional populations and (b) increase security concerns. The assertion that unions would be substantially different from such programs as to warrant their restriction is questionable given the evidence. But what I have depicted as ‘‘problems’’ are, of course, seen another way by most prison administrators. Competition among inmates for jobs or places in a faith-based dorm, hopefully fosters good behavior as inmates try to outdo one another for these scarce rewards. Clearly, administrators and staff benefit from increased control and the inmates who are given the opportunity to participate can benefit by learning new skills. There remain, however, a vast number of inmates who receive no benefits and even those who do are in a primarily dependent relationship with these programs with little or no input into what skills they are trained in or how the program operates. This hardly encourages the self-efficacy that is required for democratic participation much less what will be necessary to overcome the substantial obstacles to re-entry.
Legitimate Penological Objectives In addition to the risks discussed in the previous section, the Court recognized that prison administrators must base their decisions regarding what programming should be available in prisons on whether the programs to be offered advance ‘‘legitimate penological objectives,’’ e.g., rehabilitation, retribution, deterrence and/or incapacitation. The majority’s only concern is that ‘‘appellants demonstrate a rational basis for their distinctions between organizational groups.’’ Thus, prison administrators should enjoy ‘‘full discretion, unless it can be firmly stated that the – groups are so similar that discretion has been abused’’ (USSC, 1977). I take up each of these concerns in turn.
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Could Prisoners’ Unions Advance Legitimate Penological Objectives? Rehabilitation Of the ‘‘legitimate penological objectives’’ listed by the Court, the operation of a prisoners’ union would be most consistent with rehabilitative objectives. While program content may vary, in general rehabilitative efforts are geared to fostering knowledge, skills and abilities valued by society, e.g., getting and maintaining a job, caring for a family, respecting others and obeying the law, so that individuals do not return to crime upon release. How rehabilitation is best achieved is a matter of constant debate, but a growing body of research suggests that programs utilizing principles of ‘‘effective correctional intervention’’ significantly reduce recidivism (Gendreau, 1996). These studies indicate that successful correctional interventions address criminogenic needs, i.e., factors that a person can change – attitudes, values, beliefs, associates, decision-making, problem-solving and self-control. If then the purpose of correctional programming is rehabilitation, research has indicated that programs should aim at developing pro-social attitudes, values and beliefs. They should encourage association with pro-social role models and develop acceptable problem-solving and decision-making skills. Programs should also give participants an opportunity to practice these skills. Finally, effective programs should contain a relapse prevention component and focus on intensive service provision (Gendreau, 1996). An examination of some of these principles demonstrates how they could be advanced within an inmates’ labor union. Promoting ‘‘Pro-Social’’ Attitudes, Values, Beliefs and Associates. Unlike the inmate code that promotes ‘‘doing one’s own time,’’ the core value of unions is solidarity. This core value is pro-social in that it recognizes the interdependence of union members and the responsibility they have to one another and to the larger community to which they belong (Bernard, 1999, 1996). Inmate members could regularly work with their non-inmate brothers and sisters (i.e., pro-social associates) ensuring that pro-social values receive ongoing reinforcement. Developing and Practicing Decision-Making, Problem-Solving and SelfControl. Collective bargaining with prison management and staff would engage critical decision-making and problem-solving skills of inmates. The hallmark of collective bargaining is learning how to successfully negotiate both with fellow union members and with management. Particularly in consensus-based bargaining, the aim is problem-solving and mutual gains.
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The system reinforces self-control. In order to receive any gains, the parties must continue negotiations. Relapse Prevention. Relapse prevention is essentially ‘‘built-in’’ to union membership. As locals of national or international, unions inmate labor union members would have an already established network of connections on the ‘‘outside.’’ When a ‘‘convict’’ becomes an ‘‘ex-convict’’ there would be a network of genuine – as opposed to simply professional – relationships to assist him/her through difficulties. While perhaps not instrumental in this assistance, the reality is that unions depend upon their dues-paying members and helping a member to maintain stability outside prison will also aid the union.
IS THERE A RATIONAL BASIS FOR THE DISTINCTION OR ARE GROUPS (I.E., OTHER PRISON PROGRAMS) SO SIMILAR THAT DISCRETION HAS BEEN ABUSED? Clearly, in Jones the state of North Carolina was able to convince the Court that a prisoners’ labor union could not advance legitimate penological objectives nor could it be regarded in any rational way as resembling any other organization or program operating within a prison. If this was the case in 1977 when the decision was made, it is no longer the case. As described by Schriro (2000), the Missouri Department of Corrections’ Parallel Universe, a state prison program supported with state money and evaluated in part with funding from the National Institute of Justice very closely resembles in aim and structure an inmates’ labor union. The objective of the ‘‘Parallel Universe’’ initiative is to make life on the ‘‘inside’’ resemble as closely as possible life on the ‘‘outside,’’ so that all the efforts within the prison are mindful that the vast majority of prisoners will be released into the community. In her explication of Missouri’s Parallel Universe program, Missouri’s former DOC Director, Dora Schriro, described the rationale behind the concept: Prisons are ‘‘total institutions’’ – organizations in which officials decide when, where, and with whom prisoners will live, work, eat, and play. Such comprehensive control serves various management aims but disserves the goal of preparing prisoners to live in the community where they must be responsible for all the decisions, however important and mundane, that affect their lives (Schriro, 2000, p. 1)
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One of Schriro’s observations is crucial in terms of inmate labor unions – that giving some power to inmates can be positive. ‘‘The parallel universe transfers a measure of power from prison managers to prisoners in a process that achieves compliance through strategies focused internally, not externally imposed’’ (Schriro, 2000, p. 1). There are a number of different ways in which the Parallel Universe ‘‘transfers a measure of power’’ to inmates. Of particular relevance to the functioning of inmate labor unions are the governing mechanisms instituted in the Parallel Universe model. Inmates are encouraged to participate in the governance of the institution through the inmate council and other offender organizations concerned with conditions of confinement. Inmate representatives meet regularly with prison administration to critique institutional activities and develop rehabilitative proposals, doing so while taking into account the time, space, and staffing constraints as well as the same security considerations the administration faces (Schriro, 2000, p. 6). If one of the concerns of the Court is that organizations that resemble one another in terms of structure and purpose should be treated similarly by prison administration, then the Parallel Universe concept used by Missouri’s Department of Corrections demonstrates the real feasibility of a prisoners’ labor union. Given that a right to organize is not recognized for prisoners, prisoners’ labor unions would have to operate within the parameters established by institutional management, much like the ‘‘Parallel Universe.’’ Also, similar to the ‘‘Parallel Universe’s’’ offender council and various offender organizations, an inmates’ union would represent the interests of prisoners to prison management.
The District Court’s Opinion States that a Prison Labor Union could not be ‘‘A True Labor Union’’ due to the Restrictions on its Activities In his dissent in Jones, Justice Marshall voices his skepticism on this point. ‘‘The State can surely regulate the time, place, and manner of the meetings [of inmate unions], and perhaps can monitor them to assure that disruptions are not planned’’ (USSC, 1977). All unions function in restricted environments. That, however, does not keep them from being ‘‘true’’ labor unions. Collective bargaining takes place within a structure of rules and practices that constrain the parties involved. Public sector unions operate in an environment where job actions, e.g., strikes, are highly restricted and further constraints are placed on items of negotiation, e.g., wages, hours, classification, established pay grades. As Yates (1998) points out, most private sector unions agree to a ‘‘no strike’’ clause as part of their contract.
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Thus, what constitutes a labor union is hardly the environment in which it functions. From a purely practical standpoint, what is needed to have a functioning union are people who are interested in joining the union, a constitution, elections, bargaining committees and collective action (Yates, 1998), all of which could exist within a prison context. A true labor union is a collective voice for its members both inside and outside the workplace. A union recognizes that its members are human beings who work to both survive and thrive. A true labor union represents the needs of its members to management. In all these ways an inmate labor union could be a ‘‘true’’ union.
SUMMARY Using the majority opinion in Jones v. North Carolina, this section has put forward an argument that current correctional practices indicate that inmate labor unions are, in fact, feasible. Such a development would not disrupt the secure operations of the correctional institution any more than current programming. Inmate labor unions could serve the legitimate penological objective of rehabilitation and could do so in a way that would be quite similar to the Parallel Universe concept as implemented in Missouri. It is important to note, however, that an inmate labor union would have societal advantages beyond those offered by the Parallel Universe, e.g., genuine connections outside of prison (not simply with professionals) and ‘‘civic reintegration.’’ Finally, in light of Justice Marshall’s statement; the restrictions already placed on private and public sector unions; and reflection on the true nature of unions, it appears that inmate labor unions could be considered ‘‘true’’ unions despite the prison context where they would function.
CONCLUSION In their amicus brief for Jones the ABA Joint Committee asserts: ‘‘The doubts and risks raised by creating a humane and open prison must be accepted as a cost of our society; democracy is self-definitionally a risktaking form of government’’ (USSC, 1977). This paper begins an assessment of some of the democratic possibilities presented by inmates’ labor unions. While the decision in Jones v. North Carolina Prisoners’ Labor Union means that prisoners’ do not have the right to organize, this paper demonstrates
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the feasibility of such an undertaking by critically examining the objections of prison administrators to which the majority in Jones granted such deference. I have sketched out the potentialities of such a union’s structure and functioning as well as its democratic and rehabilitative benefits. A number of considerations remain unaddressed, such as issues of classification and transfer in prisons or the likelihood of convincing union members to accept inmates as brothers and sisters, and further exploration and refinement is needed in these areas. The notion of democracy envisioned here is open to all, discursive and participatory. It is also a never-ending journey. As Bellah, Madsen, Sullivan, Swidler, and Tipton, (1992, p. 9) state in their book, The Good Society: ‘‘It is central to our very notion of a good society that it is an open quest, actively involving all its members.’’ The correctional policies being pursued within the United States have not been those that befit a democracy. Instead, the people most affected by these policies have been systematically denied a voice – whether by disenfranchisement or the pervasiveness of their pariah status. Of course, there are those who would say that this is nothing less than is deserved by people who break the law. Yet, how can a democracy function, much less thrive, when it strips the basic elements of citizenship from people who remain subject to its laws? At the very least, such policies are unsustainable, if not unjust. John Dryzek’s (1990) contention that rational public policy in a democracy is attained through the sustained discourse of all its citizens in developing public policy means that at present Americans have irrational criminal justice policies. Giving prisoners the opportunity to unionize would be one step toward including and encouraging prisoners as citizens in the dialogue on criminal justice policy. Hopefully a more enlightened dialogue about sentencing, corrections and justice would emerge as unions gave people outside of prison walls the opportunity to review what goes on inside on a regular. Not simply as observers, however, but as participants in creating a democratic society.
NOTES 1. The Sentencing Project has taken the lead in efforts to address felon disenfranchisement legislation across the United States. 2. Sweden is typically cited as a good example of successful inmate unionization. While Sweden’s relatively democratic prison system is seen as a beacon of hope for those interested in such things, others see Sweden’s corrections policies while more ‘‘open’’ as also being repressive. Though it has to be acknowledged that U.S. prisons are much more violent places (Alvarez, 2005; Nilsson, 2002; Pepinsky & Jesilow, 1984).
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3. According to PIE guidelines states must deduct at least 5 percent, but not more than 20 percent of inmates’ wages for victims’ compensation. Total deductions cannot exceed 80 percent of wages. In its most recent report on the PIE program, the Bureau of Justice Assistance reports that of $264,181,598 gross wages paid to inmates (from 12/79 to 06/03) victims received $24,467,668 (9.2 percent); inmates’ families received $15,650,525 (5.9 percent); and the state received in room and board $70,644,085 (26.7 percent) and taxes $35,627,470 (13.4 percent). Combining the state’s deductions equals $106,271,555 (40.2 percent). Total deductions were 146,389,748. Inmates then received $117,791,850 (44.5 percent) (Bureau of Justice Assistance, 2004). 4. Self-efficacy and autonomy are often lost in the prison context and yet, are greatly needed outside of prison. Gresham Sykes (1966) identified one of the ‘‘pains of imprisonment’’ as the loss of autonomy. Johnson (1996) stresses the importance of autonomy to what he refers to as ‘‘habilitation.’’ Andrew Coyle (2002, p. 85) states:‘‘If a person is to benefit from his or her time in prison the experience should be linked to what is likely to come after releasey, Prisoners need to be given things to do which ensure that they are not idle and which also have a purpose. All the activitiesyshould be organized so as to contribute to an atmosphere where prisoners do not deteriorate but rather develop new aptitudes that will help them when they are released’’ ‘‘Continuity of services is especially critical for inmates returning to the community. Without continuity, treatment and training are likely to decline in efficacy or to be undermined by other factors (e.g., drug relapse will likely affect employment stability). Many of the services inmates receive – drug treatment, mental health counseling, educational or vocational training – provide a foundation upon which they are likely to be insufficient, especially given that there are additional issues inmates face during the transition into society, including difficulties finding housing or obtaining medical or health services. For this reason, a range of treatment and services provided during and after reentry into society can assist offenders to maintain or increase their progress and the likelihood of sustained employment and reduced recidivism’’ (Lawrence, Mears, Dubin, & Travis, 2002, p. 10). 5. At the Escod company which operates within a South Carolina facility, there are ‘‘10 civilian Escod staff – including two female floor managers – [that] supervise over 250 inmates at the Evans Correctional Facility’’ (Sexton, 1995, p. 6).
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Eisenberg, M., & Trusty, B. (2002). Overview of the innerchange freedom initiative: the faithbased prison program within the Texas department of criminal justice. Austin: Criminal Justice Policy Council. Featherstone, L. (2000). Prison labor. Dissent, (Spring) 71–74. Freeman, R., & Medoff, J. (1984). What do unions do? New York: Basic Books. Geiselman, B. (2002). E-Recycler’s use of prison labor makes waves. Waste News, 7(21), 1. Retrieved September 22, 2003 from EBSCOhost database. Gendreau, P. (1996). The principles of effective intervention with offenders. In: Alan T.Harland (Ed.), Choosing correctional options that work: defining and evaluating the supply (pp. 117–130). Newbury Park, CA: Sage. Harvard Law Review. (1973). Prisoners – privileged communications – inmates have a right to receive correspondence from attorney concerning unionization within prison. – Goodwin v. Oswald, 462 F.2D 1237 (2D CIR.1972)(June). Retrieved April 14, 2005 from Westlaw database. Herbert, B. (2004). America’s Abu Ghraib. The New York Times. Retrieved May 31, 2004 from http://www.nytimes.com Herochik, S. (2001). Divided unions. Business Journal-Portland, 18(29). Retrieved from InfoTrac Reference Gold database. Jacobs, A. (2004). Prison power corrupts absolutely: Exploring the phenomenon of prison guard brutality and the need to develop a system of accountability. California Western Law Review, 41(Fall). Retrieved April 8, 2005 from Westlaw database. Johnson, R. (1996). Hard time: Understanding and reforming the prison. Belmont, CA: Wadsworth. Kearney, R. C., & Carnevale, D. G. (2001). Labor relations in the public sector (3rd ed.). New York: Marcel Dekker, Inc. Kearns, M. (n.d.) Kenyatta’s kind of crazy. Retrieved April 13, 2005 from http://inthefray.com/ 200202/identify/kenyatta11/kenyatta11-page2.html Kling, J., & Kreuger, A. (2001). Costs, benefits and distributional consequences of inmate labor. Working Paper #449, Princeton University Industrial Relations Section. Retrieved September 30, 2003 from http://www.irs.princeton.edu/pubs/working_papers.html Knopp, F., Boward, B., Brach, M., Scott, C., Largen, M., Lewin, J., Lugo, J., Morris, M., & Newton, W. (1976). Empowering prisoners. Instead of prisons: A handbook for abolitionists. Brooklyn, NY: Faculty Press(Chapter 9). Retrieved April 13, 2005 from http:// prisonsucks.com/scans/instead_of_prisons/index.shtml Lawrence, S., Mears, D., Dubin, G., & Travis, J. (2002). The practice and promise of prison programming. Washington, DC: Urban Institute. Mauer, M., & Chesney-Lind, M. (Eds) (2002). Invisible punishment: The collateral consequences of mass incarceration. New York: New Press. Millard, P. (1998). Jailhouse jobs: Institute suggests state should expand prison labor. The Business Journal-Milwaukee, 15(35). Retrieved September 18, 2003 InfoTrac Reference Gold. Miller, H. (2003). Inmates build new lives from the floor up: Anderson Hardwood Floors’ partnership with a South Carolina prison gives prisoners a chance to gain woodworking skills. Wood & Wood Products, 108(7), 65–71. Retrieved September 18, 2003 from InfoTrac Reference Gold database. Missouri Prison Labor Union. (n.d.) Information and Resource Packet. Lawrence, KS: Lawrence Anarchist Black Cross.
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The New York Times. (2004). The dark side of America. Retrieved May 17, 2004 from http:// www.nytimes.com Nilsson, R. (2002). A well-built machine, a nightmare for the soul: The Swedish prison system in historical perspective. Journal of the Institute of Justice and International Studies, 11. Retrieved April 11, 2005 from Westlaw database. Parenti, C. (1999). Lockdown America: Police and prisons in the age of crisis. London: Verso. Pepinsky, H., & Jesilow, P. (1984). Myths that cause crime (2nd ed.). Cape John, MD/ Washington, DC: Seven Locks Press. Prison Legal News. (1998). Ohio union officials protest prison labor. 9(10, October). Rostad, K. (2002). Symposium. Insight on the News, 18(37, October), 46–50. Retrieved September 18, 2005 from InfoTrac Reference Gold database. Schriro, D. (2000). Correcting corrections: Missouri’s Parallel Universe. NIJ Research in Brief. Washington, DC: National Institute of Justice, NCJ 181414. The Sentencing Project. http://www.sentencingproject.org Sexton, G. (1995). Work in America’s prisons: Joint ventures with the private sector. NIJ Program Focus. Washington, DC: National Institute of Justice, NCJ 156215. Stein, N. (2003). Business behind bars: Former Reagan attorney general Ed Meese has a way to slow the exodus of jobs overseas, Fortune, 148(5, September 15), 161. Sykes, G. (1999). The society of captives: A study of a maximum security prison. Princeton, NJ: Princeton University Press. Toch, H. (1995). Inmate involvement in prison governance. Federal Probation 59(34). Retrieved April 14, 2005 from Westlaw database. Trusty, B., & Eisenberg, M. (2003). Initial process and outcome evaluation of the Innerchange freedom initiative: The faith-based prison program in TDCJ. Austin: Criminal Justice Policy Council. Turner, W. (1979). When prisoners sue: A study of prisoner section 1983 suits in the federal courts. Harvard Law Review, 92, p. 47. Retrieved April 14, 2005 from Westlaw Database. Uggen, C. (2002). Barriers to democratic participation. Washington DC: The Urban Institute. Retrieved April 3, 2005 from http://www.urban.org United Electrical, Railroad & Machine Workers. (n.d.). Retrieved September 3, 2003, from http://www.ranknfile-ue.org/uewho.html United States Supreme Court. (1977). Jones v. North Carolina Prisoners’ Union. Retrieved February 28, 2003, from http://www.findlaw.com Whitman, J. (2004). Prisoner degradation abroad – and at home. The Washington Post, p. A25. Retrieved May 10, 2004, from http://www.washingtonpost.com Willens, J. (1987). Structure, content and the exigencies of war: American prison law after twenty-five years 1962–1987. American University Law Review, 37(41), 43–153. Retrieved April 15, 2005, from Westlaw database. Yae, M. (1999). An analysis of correctional industries programs. Corrections Today, 61, p. 94. Retrieved September 18, 2003, from InfoTrac Reference Gold database. The Yale Law Journal. (1972). Bargaining in correctional institutions: restructuring the relation between the inmate and the prison authority. 81(4), 726–757. Retrieved June 23, 2004 from JSTOR database. Yates, M. (1998). Why unions matter. New York: Monthly Review Press. Zeller, S. (2001). When the joint gets the business. National Journal, 33(20). Retrieved September 22, 2003 from EBSCOhost database.
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NOBODY HERE IS INNOCENT: CULTURAL VALUES, PEDAGOGICAL ETHICS, AND THE PRISON CLASSROOM Deborah S. Wilson ABSTRACT Beginning in narrative re-evaluated daily from classrooms inside prison walls, this article further explores cultural, ethical, and social values of teaching college courses inside the wall. Interrogating public discourse over what Eric Schlosser terms the ‘‘prison–industrial complex’’ arrogates subsequent considerations. Prison-building became a growth industry, even as prevailing political response to prisoners themselves became increasingly censorious and unforgiving. Traditional American culture preaches redemption but relishes abasement, promises forgiveness but refuses forgetting. Carefully examining further questions about humanistic discourse as a possible locus for radicalization, we finally confront how the prisoners’ situation reflects rather than deflects traditional expectations.
Crime and Punishment: Perspectives from the Humanities Studies in Law, Politics and Society, Volume 37, 271–304 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)37011-6
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Let me begin with a brief narrative, as that is where my project originates, in narratives ferried, almost daily, on either side of the wall, to audiences alike in their skepticism, wariness, and anxiety of each other.
MY STRETCH IN THE JOINT I pass through the razor wire from the guardhouse, accompanied by my escort. Another guard takes my finger prints, full sets, both hands, though not palm prints, like the last time, when I applied for my California Community College Teaching Credential. ‘‘Going out or coming in?’’ a black inmate, probably in his late 50s, asks me. ‘‘Both,’’ I crack, meeting his eye. At first he looks nonplussed, but then he grins. We regard each other goodnaturedly, as if we were long-time partners in confidence games. Though I could not have known it then, in that exchange, I had found my key for working successfully with student-inmates. Next, I get my picture taken for my ID, but when I start to fill in my social security number, as the form explicitly requires, the clerk stops me: ‘‘Don’t do that,’’ he says, handing me a new form, ‘‘we had to discontinue printing the social security numbers because the inmates were ‘doing things’ with them.’’ Yet, knowing that the Illinois Department of Corrections’ administration in Springfield refuses to alter the forms. It was then that I realized I was on Planet I.D.O.C., where the rules of earth-bound logic no longer apply.1 For example, instructors are not permitted to take student work out the gate with them, because they are inmate property. Yet we have to, because no one can grade 30–40 essays on site in an hour or two. Our only choice is to violate an inflexible rule flagrantly, and any corrections officer who tries to enforce it does so only as a petty power play, making people’s lives impossible just because she/he can. After all, this is Planet I.D.O.C. I try to accept procedures and requirements with equanimity, though I must admit, when I realize my mandatory on-site urine sample requires a witness to its production, the absolute abrogation of privacy inflicts a shock of violation. Random, periodic trips to the shakedown room over the subsequent 5 years will make violation seem almost routine, as will the daily checks of my briefcase.2 In some small sense, I learn what it is like to be an inmate, stripped completely of the privacy and autonomy one comes to expect in a ‘‘free society.’’ I never really got used to these indignities, even though from a security point of view I understood them. Staff occasionally did collude with inmates, smuggling in all forms of contraband: drugs, liquor, gum, or even
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condoms. Sometimes instructors naively agreed to mail letters for them. Certainly, I never got used to heavy gates and steel doors slamming behind me, as I passed through a variety of checkpoints. I was continuously aware that, unlike my students, I was free to come and go as I wished, that I did not have to have permission just to go to the lavatory, that I could eat when I wanted, set my own work schedule, and slack pretty much as I thought I could get away with, yet not get tossed in seg for it.3 Early on in my prison teaching experience, I asked the G.E.D. teacher at one site if I could expect to get used to slamming gates, because I seemed to be aware of them on a daily basis. ‘‘No,’’ she said, ‘‘I’ve worked here seventeen years, and I still haven’t gotten used to it.’’ Even though it has been several years since I have taught in prisons on a regular basis, something will happen to remind me of the privilege of living outside the wall almost daily. Glimpsing a snow fence as I drive along a two-lane highway in the country, or noting the fortresslike architecture of some forbidding nineteenth century public building.
MEMORIES OF UNDEREMPLOYMENT From 1996 to 2001, I taught a variety of English classes at several different sites for the I.D.O.C.: composition and rhetoric, literature courses of all descriptions, Introduction to Drama and Theatre, creative writing, even a speech communications class. When I first started that phase of my teaching career, I had been an adjunct at various community colleges for several years, most consistently at the community college where I am now a tenured, full-time professor. Before that first I.D.O.C. contract, survival had become awfully hairy. Like most adjunct faculty, currently estimated at 70%, nationally, I had had to supplement my meager salary with ill-paid, low entry part-time jobs. Again, like many of our adjunct colleagues, I even made the decision to re-train, in my case, as a massage therapist, having embraced the irony that one could no longer use teaching as a fallback.4 When I accepted that initial contract, I was a bundle of insecurities, partly from the strain of my adjunct’s freeway-flyer existence, and partly because I needed so desperately to succeed in this new venue. Called Academic Preparation, this particular course was remedial, bridging the G.E.D. course and college, and intended to get the students’ basic composition skills to a point where they could have a fighting chance once they registered for the academic program. Mostly, however, I feared not being able to teach my students effectively, not be able to ‘‘reach’’ them. The first morning of my first class proved nearly disastrous. Distracted by the many and unfamiliar
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security issues, trying to manage class despite constant interruptions (more of these later), I uncharacteristically wielded my authority far too aggressively. Finally, a student interrupted me. Raising her hand, Shauna protested: ‘‘Dr. Wilson, I mean no disrespect, but we’re adults, and you’re running this classroom with an iron fist.’’ The best I can say for myself is that I conceded her point immediately. Sitting on my desk, I sighed: ‘‘You’re right,’’ then observed further, ‘‘Look; I can see this is about respect.’’ The effect of that concession was electric, and I owe Shauna a debt of gratitude. Students, previously disgruntled and demoralized, straightened up, murmuring appreciatively; as I write, I can hear their feet shuffling and see the change in their expressions. In that moment, I understood that respect could go as long and as far with my incarcerated students as it could with my students out in ‘‘the world.’’ By respect, I simply mean interacting with my students first and foremost as individual human beings, irrespective of their status as convicts. While I can honestly say that I had had no particular feelings, one way or the other, about the treatment of the incarcerated, beyond that prison conditions should be humane, I could certainly understand defensive skepticism on their part. Being recognized as people first and prisoners second must be an all-too uncommon experience for them, scrutinized as they so constantly are through the lens of moral judgment, always suspect, no matter what their institutional record, personal behavior, or the nature of their offense. Any exchange, no matter how brief, that allows them to be students talking with their instructor becomes rich and memorable, at least for those who chose to say so, typically in the evaluations my immediate supervisors passed along to me at the beginning of the following module.5 When I read ‘‘She treats us like students, not convicts,’’ over several consecutive modules, I began to appreciate just how important that refusal to assume moral superiority could be. If anything, I was more cognizant of how fortunate I was not to sit where they sat. There had been a couple of episodes, during my misspent adolescence, when I easily could have ended up inside the wall. A more immediate point of identification, however, came from the odd parallels of our marginalized status. Theirs was social and cultural, as prisoners; mine was professional and economic, as an adjunct. Our communality derived from our respective insider/outsider status, theirs socially (particularly upon release), and mine institutionally. In a discipline, such as English, adjuncts shoulder a top-heavy load of composition classes that often require intensive one-on-one sessions with students in or outside of office hours. As Gerald Graff observes, these classes remain politically the most important, yet, tellingly, the most neglected departmentally. This is particularly true of 4-year institutions,
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where the academic underclass, graduate students, and adjuncts take up the job (Graff, 1979, pp. 109–122). By their sheer numbers, composition and rhetoric classes, often required over several terms, generate a sizeable portion of departmental ECH. The academy’s proletariat receives about one-third to one-half of a full-time faculty member’s salary, no benefits, nor sometimes even office space to meet with students, prepare lectures, grade papers, or interact with other adjunct faculty. The resultant savings can be considerable, but these savings do not get passed along to the students or their parents. Indeed, tuition across the country, at both public and private, 2- and 4-year colleges and universities appears to be rising at an alarming rate.6 While the student-inmates often scoff at the notion that teachers could be underpaid (Ernie, for example, asked me one day after class, ‘‘So how much do you make doing this here, Dr. Wilson, $75,000 a year?’’ 7 Or again, Frank asked one morning, right before class, ‘‘So you drive a Lexus, Doc?’’8), they are acutely aware that prison could be a very lucrative enterprise, whether to the state or to private contractors. I admit I was skeptical, early on, when I heard them discussing the profitability of incarceration, until I started listening to staff gossip about shipments of food and other ‘‘inventory’’ that went missing, graft (which I expected), and lucrative prison–industry contracts. When Eric Schlosser (1998) published his landmark article, ‘‘The Prison–Industrial Complex,’’ I began assigning it in my advanced composition and rhetoric class. Prior to discussing Schlosser’s piece, I would recount my earlier skepticism, illustrating without belaboring that I listened to and learned from them. Still, they were not willing to concede that teachers are not generally in that class George W. Bush terms the ‘‘haves and the have mores.’’ (Moore, 2004, Fahrenheit 9/11). As impatient as I could get over their obstinacy, I understand that these students faced a stark choice in escaping poverty and dead-end employment. Their ticket out of poverty and menial jobs would be either the military or the underground economy of the drug trade. Small wonder that anyone with a college degree seems a visitor from another world. An advanced degree therefore must symbolize automatic entre´e to a world of privilege and comfort they can barely imagine.
‘‘TO BE TRULY RADICALy’’ When convicts enter the I.D.O.C., they must take the G.E.D. examination. If they score less and an 8.0 average, then entry into the G.E.D. program becomes mandatory, no matter if they can produce high school diplomas, or even document post-secondary degrees. Should an inmate take the G.E.D.
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course, but not pass, she/he does not have to re-take it. However, she/he will not be permitted to go on the waiting list for the college programs. As of this writing, these programs offer, in addition to the G.E.D., vocational certificates and degrees, as well as A.A.’s. Until very recently, one could pursue a bachelor’s, at least at some penitentiaries.9 Automotive maintenance and repair, business management, cosmetology and/or barbering, information and computer sciences, electronics, food services, and horticulture programs offer either vocational certificates or Associates’ Degrees. Proving widely popular, partly because of their practicality, such venues nurture the working class dream of owning one’s own businesses. Even that ambition is not without its socially pragmatic dimension. Most inmates are all too aware of the stigma of a felony conviction, what they refer to as ‘‘the X [for exconvict] on our backs.’’ Felony convictions, no matter how immaterial to the position sought, all too often prove an insuperable barrier to employment. Owning one’s own business offers a way around the prejudice exconvicts face when looking for work. College very much figures as a privilege, not a right, and unrelated infractions of prison rules can and do abrogate that privilege. If the inmate does not face transfer as a result of a guilty verdict for institutional infractions, she/he often has to go to the bottom of the waiting list for re-admission, depending, of course, on how the prison administration adjudicates the offense. Innocent verdicts usually allow for prompt re-admission, and the college coordinators, the administrators who oversee the college programs, have some discretionary latitude in this regard. Inmate students present all the issues of returning adults in college, coupled with the additional burdens of the personal histories that led to their incarceration in the first place. While one must be cautious of stereotype, gendered difference in student anxieties nonetheless plays out in distinct, predictable patterns. Most of the students, men or women, are in their 20s, 30s, 40s; occasionally, some are well past even their 40s. The majority has not been in a classroom for years before entering the I.D.O.C.: 5–10 years seems to be the average. Female students tend to be very direct about their self-doubts, not hesitating much in discussing them openly. Women far more readily discuss their fears over the difficulty of the material, or their ability to handle a complex writing assignment well. I require that any and all essays be submitted for a grade, and then revised accordingly, provided the initial draft receives a grade below ‘‘A-.’’ Therefore, I could immediately assure them that they did indeed have a safety net in the required revision, which should allow them to learn from their mistakes, give them some sense of mastery respective to the assignment, and keep their G.P.A.s out of the
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basement. (I average the first draft grade with the revision; the average will stand as the grade for that assignment). Conversely, men tend to be more aggressive and confrontational, motivated partly by the exaggerated machismo of prison life, and partly, perhaps, by my being both a woman and an authority figure. Most crucial would be the need to appear tough, no matter what. One cannot just go ‘‘meekly’’ to the teacher and ask for help; that might be mistaken for weakness by other inmates. Perceived weakness can and does transform the otherwise grim monotony of penitentiary life into a livelier version of hell. Challenges to a low grade on assignments given early in the module thus came not exactly as a matter or course, but not infrequently either, almost always in the presence of other students. For feminist rhetors, authority remains extremely problematic; it is an issue I have explored at length elsewhere.10 Teaching in the prison environment, particularly teaching an all-male class, necessarily further complicates a woman professor’s authority. Compounding problematic authority, feminism, and gender issues with the issues of race and social class ‘‘cubes’’ the issues. The I.D.O.C. customarily racializes its prison site; for reasons of population management, they are either predominantly African American or Euro-Caucasian. As Illinois’ Latino/Latina population swells, so unfortunately does that particular demographic among prisoners. To date, the Illinois prison authorities have not yet moved to designate any one prison site for a Latino majority. This despite the exponential growth in the number of Latinos incarcerated nationally. Indeed, Latino prisoners now dominate the jails and penitentiaries in California, and threaten to do so in other Southwestern states.11 Consequently, the all-male, minimum security prison I taught at for 4 years, from 1996 to 2000, was overwhelmingly African American. Yet my status as a white woman remained very much unremarked, except for the first time I taught a course there on AfricanAmerican literature. When my supervisor at the male prison, himself African American, asked me to teach the course in African-American literature, I balked. While I had used texts, canonical and otherwise, by black writers in literature courses, I had not taught a class devoted to the subject, much less to a class populated overwhelmingly by black students. But he was insistent, so, in order not to feel like a carpet bagger, I put the matter on the table. Immediately after taking roll, distributing books, and then the syllabus, I looked to the class for a long minute. ‘‘Well, aren’t we going to talk about it?’’ Silence, some puzzled expressions. ‘‘Am I the only one who wants to know why there’s a purple rhinoceros in the room?’’ (‘‘Why is there a purple rhinoceros in the classroom?’’ headed the first day’s discussion on the syllabus). That broke the ice.
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Individual students assured me that they saw ‘‘no problem with [my] being white,’’ though I did not take that at face value. I assigned Claire Oberon Garcia’s (1994) ‘‘Emotional Baggage in a Course on Black Writers,’’ written for The Chronicle of Higher Education, for the next session. Her article narrates her experience as an African-American woman teaching in a small, predominantly white liberal arts college in the southwest. Professor Garcia’s article proved invaluable indeed, for students continually referred to it, vis-a`-vis the burden of expectation we place on ‘‘representative’’ writers, a cultural phenomenon Garcia interrogates with grace and wit (Garcia passim). When asked to teach the course again, I felt somewhat more confident. However, I would be inauthentic to the point of duplicity if I do not acknowledge here, briefly, that racial hostilities and anxieties rippled below the surface of the classroom’s polite discourse. Only occasionally did we discuss our racial differences directly. Sometimes, when I had to deal with student confrontation about a grade on essay, I caught a whiff of racial distrust. Yet I am not implying that in such instances the student was ‘‘playing the race card,’’ consciously or otherwise. Race was always there, and we all knew it was there, too. This is America, and race informs everything. Customarily, I would insist that we, the student and I, discuss grades during class break or after class, a practice I maintain no matter what the institutional parameters of a given classroom. Within the context of the penitentiary that practice resonated in idiosyncratic yet beneficent ways. I could then tell the student that I perceived his reaction to his grade as stemming more from self-doubt than arrogance. He had been out of school for a long time; his skills were rusty; he was no doubt uncertain of how well he could perform at the college level. However, if he would meet me halfway, I was sure we could raise his skills to par. I understood his aggressiveness to be reflexive, since a prisoner lets his ‘‘cool tough guy’’ persona slip only at his peril, but he would have to be patient with himself as well as me. (‘‘There’s no use in giving me attitude, my friend, since I already have plenty of my own’’). Gradually, I understood that this strategy worked so well with student-inmates precisely because I was treating them as men, as people, as individuals. As such, their needs were legitimate and their success in the class is important, regardless of their status as convicts, irrespective of their crime(s). Women, of course, are equally receptive to this same treatment, but seem to take it if not exactly in stride, accept it with less apparent surprise. For either gender, though, being treated with respect by an authority figure would hardly be a typical prison experience.
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‘‘yIS TO MAKE HOPE POSSIBLEy’’ Our prisons burst at the seams, not only with people, but raw talent and intelligence, another phenomenon I could never quite take in stride. During my last term teaching for the I.D.O.C., I had been conducting an Introduction to Poetry class at a medium/minimum prison for women. Since the course level must address neophytes as well as more experienced students of literature, we took an historical approach within the confines of the form: e. g., ballad, sonnet, and elegy. On the first day of class, we began with some ballads, some only recorded, but others verifiably written in the sixteenth through the eighteenth centuries. Even though the material such as ‘‘Barbara Allen’’ should be accessible enough, collective panic seized the class. Intelligent, articulate women one and all, they still insisted that they ‘‘couldn’t understand it.’’ Acknowledging that they understandably found some of the archaic English daunting, I urged them not to agonize over every word, but rather simply focus on the story told. The ballad form serves as a history of memory, of lost love, historical events, war, crime, betrayal, or happiness found, seen through individual eyes. Poetry is politics made personal; the ballad exemplifies that sentiment emanating from the folk; the genre stands the test of centuries. So we read through some of the anonymous songs and ballads together again. Quoting Woolf’s terse ‘‘Anonymous was a woman,’’ was not supercilious, for I knew that many of these women wrote poetry themselves. Indeed, some had signed up for the class under the mistaken impression that it was a poetry workshop. When I questioned them about the content of ‘‘The Cruel Sister’’ or ‘‘Sir Patrick Spens,’’ it was clear that they did indeed ‘‘get it.’’ Yet they remained somewhat sullenly resistant, and I found myself hard-pressed as to why. Some students questioned the purpose in printing the poems in their original, archaic English. We discussed historical accuracy and artistic vision briefly, then moved on to the matter of voice: texts preserved to reflect the way people spoke and wrote in their time. Language does not remain static, but evolves continuously. I provided examples such as ‘‘sinister,’’ whose original meaning was ‘‘left-handed’’ (left-handedness being a mark of the devil), and ‘‘volatile,’’ which, when it first entered eighteenth-century English, meant ‘‘capable of flight.’’ Take slang, I suggested. California surfers redefined ‘‘radical’’ to mean raising the skill bar by riding a challenging wave, and ‘‘bogus,’’ among slackers, means something awesome or stupendous. Among white working class and African Americans, however, ‘‘bogus’’ retains its original meaning of bluster and falseness. This discussion made something of an impression, but did not breach their defenses.
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Hopeless situations call for extreme measures, so I put forth a proposal in the guise of a question. ‘‘Did you ever have one of those teachers, say in junior high or high school, who tried too hard to be real? You know, the ones who printed out rock or rap lyrics and had you read them as poetry?’’ Oh, yeah, they all nodded, with rolling eyes. ‘‘Pretty lame, wasn’t it?’’ More agreement. ‘‘So, if I were to challenge you to take ‘Barbara Allen,’ and give you fifteen minutes to revise it as a contemporary rap, that would just be too bogus for words, wouldn’t it?’’ Their collective attitude changed dramatically. ‘‘Oh, no, no. That would be cool.’’ Not only did the majority acquit themselves admirably, but several showed exceptional talent, resulting in a bargain. If they would approach the assigned material with an open mind, and were willing to try to master it, no matter how hard it seemed, I would set aside a little class time every week for them to bring their poetry for class discussion. Of course, I made it clear that it was acceptable to point out passages or forms that perplexed them. After all, that was what I was getting paid for – to help them develop the skills necessary to handle the material with confidence, even ease. But I would not tolerate truculence. When asked, they agreed it seemed a fair bargain. Gratifyingly, many of them quickly blossomed into astutely perceptive critical readers, analyzing complex work with subtlety and grace. I can recall one student in particular, Stacy, who wrote an extraordinary essay on T. S. Eliot’s ‘‘Journey of The Magi.’’ She had already shown herself to be very bright, and a fine writer with a definite talent as a poet herself. She was young; probably about 25, and I had been urging her to try to sign up for college when she got out. I stressed the high probability of her getting good financial offers, not to mention that having a bachelor’s degree could go far in offsetting the ‘‘X’’ on her back. Her essay, a close reading framed in self-consciously existential terms, brought forth the narrator’s anguish to a degree that I found revelatory. How does a good man, who takes his responsibilities as both monarch and spiritual leader seriously, govern authentically after his whole system of belief explodes before his eyes? What can he tell his people, upon his return to his kingdom, since he can offer no new belief system to supplant the old one? The promise of some shining new cosmology, to be revealed at an indefinite later date, does them no good in the duration. What choice does he have but to adopt bad faith to a degree that would stagger Sartre? Her work changed my relationship to the text, and I will always be glad I told her that. About 6 months later, a friend who still works in the system informed me that Stacy had committed suicide.12
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‘‘yRATHER THAN DESPAIR CONVINCING.’’ RAYMOND WILLIAMS Unique to the prison classroom would be the issue of security, and the complex, arcane, sometimes contradictory procedures and rules specific to correctional centers, state or federal. These vary more according to the level of security: minimum, medium, or some combination of those two levels.13 Security concerns regulate inmate movement throughout the institution, where and when inmates can or should be at any given moment, usually school, work assignments, meals, or leisure time. The prison must assume responsibility for inmates’ primary medical needs, for clothing, for receiving visitors, etc. Since any given correctional center may house several thousand-odd inmates, passes and schedules for services have to be parceled out, normally during what we would think of as ‘‘business hours.’’ Inmates may have to be excused from work assignments or class to make an appointment. Not only does this mean that disruption can be constant, at least for daytime classes, but the teacher must disrupt class with more than simply dismissing students in time for them to get to the clinic, clothing, or visiting room. At a medium security site, I would have to stop mid-lecture, go to the phone to call the guard, and then send the student out of the room. I would also have to follow the same procedure if someone needed the lavatory. In this last point, I was supposed to note how much time elapsed until she/he returned. Because the medium security site at which I taught was co-ed, the security issues compounded significantly. When I was hired, it was made clear to me that I was expected to police my students’ behavior, and report any sign that a man and woman might be trying to conduct a jailhouse romance, which the I.D.O.C. encodes as ‘‘sexual misconduct.’’ Clearly, the logic of incarcerating men and women together, in the name of making their stay ‘‘normative’’ is dubious at best. In co-ed prison facilities, of which the I.D.O.C. maintained two at that time, men and women were only together in class. The prison administration mandated dividing classrooms in half – literally. My classroom had two bright orange strips about 6 inches apart from each other, running vertically from one wall to the other. Men and women had to sit on their respective sides, with that 6-inch ‘‘corridor’’ becoming our ‘‘no-man’s land.’’ Sexual tension, as one might imagine, remained palpable, making sustaining class discipline and coherence of instruction that much more difficult. Very much resenting the cop role imposed upon me, I nonetheless knew I had to walk a very fine line. On the one hand, I thought the whole situation absurd, even cruel. I openly expressed my opinion to my
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students, co-workers, and superiors that co-ed classes under such conditions were tantamount to cruel and unusual punishment. When they complained to me about it, I encouraged them to consult their attorneys about the possibility of a class action suit on constitutional grounds. On the other hand, if my students were caught in a compromising position, I could be summarily compromised out of my job. If a couple of students started getting a little too cozy, I would pull them aside, separately during the break or after class: ‘‘Look, I’m not a C.O. You’re consenting adults and I don’t care what you do. But I can’t have you jeopardizing my job or this class. So cool it.’’ Then I would remind them about the consequences of sexual misconduct, sexual misconduct being anything from touching in passing to passing kites (sexual kites being particularly damning) to holding hands to copping a feel to sexual intercourse.14 Consequences for an institutional charge of sexual misconduct were severe, and consequences were dire. The inmates in question could go to seg, face loss of all their good time, get sent to a higher security prison, and, finally, incur an additional year to their sentences.15 What the institution’s administrators feared most was that female prisoners might become pregnant, resulting in embarrassing press and unpleasant conferences with their superiors in Springfield. Every now and then, that is exactly what happened. A long, circuitous hallway leads from a classroom in the rear of the building to the building’s lobby, with inmate lavatories about halfway down. Clearly, this area could serve as a prime location for hooking up, and, occasionally, a woman did turn up pregnant. That in turn meant that the hunt for the man responsible was on, with student inmates as the usual suspects. All the instructors, particularly the adjuncts, held our breath until we were certain that the woman in question had not been in our class. Often they were not even students, only coincidentally holding jobs requiring them to be near the educational buildings. Usually, a male inmate was responsible (in one instance, a guard, suspicious of the time a particular woman was taking in the lavatory, entered just in time to see her boyfriend’s legs drop from above the ceiling tiles), though he could also be a guard. Indeed, every now and then, correctional officers did get fired for having sexual relations with inmates. Not just female inmates with male officers, but also male inmates with female guards: much more rarely, both inmate and officer were female. Classes and classroom buildings did not present the only opportunities for trysts counted in seconds, but perhaps because school provided the best opportunity for close scrutiny, administrative pressure on faculty and staff over this issue returned with frequent regularity. The prison administration would torque up scrutiny over possible ‘‘sexual misconduct’’ among
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student-inmates. In turn, the screws would be put to my immediate supervisor, who then had to give her faculty the heads-up. None of us, with the obvious exception of some of the correctional officers, enjoyed playing morality cop. To teach effectively, one must establish a rapport with the students, a difficult thing to do if they sense the teacher watches their every move so she/he can catch them passing a kite, or even just plain old reckless eye-balling. Aside from the straightforward discussions I engaged my students in, re: sexual misconduct, I simply emphasized teaching, administering ‘‘institutional discipline’’ only as absolutely necessary to maintain my authority sufficient to doing my job. After all, was I there to educate or was I there to spy and denounce? Institutional discipline, like everything else in the I.D.O.C., begins and ends with paperwork: either ‘‘behavior modification reports,’’ documenting disruptive behavior in class, used solely within the college; or ‘‘tickets’’ for more serious institutional offenses, such as fighting, theft, serious insolence, and, of course, sexual misconduct. If a student accrued enough ‘‘behavior modification’’ charges during the module, then she/he would get expelled, and have to go to the bottom of the college waiting list for re-admission at a later date. Expulsion could also result in a significant loss of good time. As for ticketable offenses, depending on the infraction, the sentence could range from a black mark in the inmate’s jacket to a few days in seg to far more serious punishment, such as transfer. While it may seem odd that college teachers would have to write up reports or tickets documenting the bad behavior of adult students, we must keep two factors in mind. Steven R. Donziger (1996) and Eric Schlosser (1998), for example, agree that, as a direct consequence of the Rockefeller era drug laws, an estimated 70% of those currently incarcerated, both in Illinois and across the nation, are doing time for relatively minor drug offenses, usually possession for personal use and/or very low-level dealing. Schlosser and Donziger hardly stand alone in their conclusions; authorities in criminal justice, social theory, social work, and other academic and/or professional disciplines too numerous to name here concur. Moreover, experts in drug and alcohol rehabilitation also agree that people who start abusing (as distinguished from experimenting with) drugs as adolescents suffer arrested emotional and psychological development (Funk, McDermeit, Godfrey, & Adams (2003). In short, if one develops a serious problem with marijuana, alcohol, crystal methamphetedrine, or cocaine, at, say age 14, and continues to use for 10 or 15 years until entering rehab, prison, or both, that person may be 24 or 29 in chronological years only. Since lower middle-class, working-class, and underclass families simply do not have the financial resources to send their
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drug abusing children to expensive treatment centers, they are far more likely to end up in the criminal justice system than the children of the middle and upper classes. Money and influence are the key differences: dysfunctions such as nasty divorces, parental abuse, emotional or physical neglect, outright desertion, and other adverse conditions cross all class boundaries. Money can cushion many falls as one climbs the class ladder. Consequently, not until the first offense serious enough to net hard time as an adult will the prisoner be offered the possibility of drug rehabilitation. The waiting lists for either treatment or school depend on the inmates’ outdate. (To its credit, the I.D.O.C. can get a prisoner into rehab within days of initial incarceration).16 The second factor would be the degree to which penal institutions infantilize the inmates. They are always answerable to someone else, whose authority over the pettiest matters stands absolute. Certainly, it can be capriciously invoked, leaving the inmate with very little hope of seeking redress, much less vindication, even in extreme circumstances.17 Living without autonomy 24/7/365, even under a relatively short sentence of, say, 3–5 years, takes a toll. Combining these two sets of factors, arrested development with relentless institutional monitoring, virtually guarantees that with additional stressors, student inmates revert to the age they were when they first lost interest in school. Eighth grade would seem to mark the emotional average. To illustrate, one day in a composition class, a young woman in her late 20s suddenly stood up, mid-discussion, sauntered to the front of the room, flicked a kite on another woman’s desk, and sauntered back. Her calculated disrespect, so egregious she may as well have flipped me the bird, came literally within a minute or two of the guard calling the students out for the lunch-time chow line. Since the men were called first, immediately, Maggie, the offender, took the opportunity to try to talk her way out of it: ‘‘Dr. Wilson could we talk about this? I know I really disrespected you, and I’m sorry.’’ ‘‘Good. I’m glad you’re sorry, Maggie. But you’re still in trouble.’’ Because of the kite, I had to write up a ticket, for both Maggie and the hapless woman at the front of the room.18 Suddenly, I felt a kind of nostalgic sympathy for my beleaguered teachers at Monticello Junior High, but had no qualms about asserting my authority, nor with having her contemplate the consequences with my immediate boss, the college coordinator, and the major.19 Another incident a module later left me feeling less sanguine. It was the last day of the term, and all students who had completed their work were free to socialize – without venturing across the orange stripes of ‘‘no man’s land.’’ I had been consulting with the few students still working on last minute details, then turned back, to record some last minute
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grades. Looking up, I caught a couple who had reached across the divide to hold hands. In the past, if behavior was not egregious, and I could convincingly manage not to see, I would not. Nobody’s fool, I know perfectly well that if I had to turn my back briefly to answer the phone or use the board, a student no doubt took advantage of the opportunity to cop a feel or fly a kite. Choosing instead to simply balance professionalism with rapport, I refused to ‘‘police’’ my students. However, this couple sat directly in my line of vision, and it was one of those moments when all the students were looking directly at me. They saw that I saw a breach of our delicately balanced, unspoken contract too blatant to ignore. I experienced emotions too tangled to sort out fully – fury at this couple’s taking such a stupid risk; betrayal at their having put me in that position; sympathy with two people, a man and a woman in late middle age, expressing mutual affection in such a sweet way. Had I seen them strolling down the street, their hand-holding would have moved and touched me. The poignancy of that gesture struck me, its gentleness so starkly contrasting with that sad, coarse environment. They dropped hands as soon as our eyes met, and Pete started talking fast: ‘‘Hey, it’s the last day of the module!’’ My response was to sink back on my stool, dropping my head in my hands. Strictly speaking, procedure required calling the correctional officer and having them walked out immediately. However, once again, we were minutes away from being called to chow, so rather than have them humiliated before their peers, I waited till everyone left to inform my supervisor and write out the ticket. The time would have been about 12:15; by 12:45, news would have spread through the housing units faster than Enron’s implosion: ‘‘Dr. Wilson turned in Pete and Melinda for sexual misconduct!’’ ‘‘No way! Dr. Wilson?’’ Because I knew the probable consequences for Melinda and Pete, I can honestly say that was the hardest thing I have ever had to do. Yet I also knew that if somehow I managed to finesse things so I could avoid reporting the incident, I would have lost all credibility with the student population, thus becoming wholly ineffectual, professionally and ethically. I do not regret it, but I do not have to like it.
EMISSARY FROM PLANET I.D.O.C. More exasperating and perplexing than the arcane rules within the walls, though, are the attitudes of people outside them. Time and again, when people ask me what I did for a living, I responded: ‘‘I teach.’’ ‘‘What?’’ ‘‘English.’’ Trying not to express visible annoyance at ‘‘Oh, I’ll have to start
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watching my grammar around you’’ proves more of a challenge with each passing year. Alternatively, hearing ‘‘English! That was my worst subject! I used to like to write, but my teachers hated my work,’’ allows me to commiserate sincerely over the emotional trauma inflicted by a long succession of insensitive English teachers. Inevitably follow questions about grade level. ‘‘Well, I’m a college professor.’’ My response to ‘‘Where?’’ became somewhat dicey, during my prison teaching career, because my freeway flying included various I.D.O.C. sites. The punitive, harshly judgmental responses I encountered staggered me. ‘‘Oh, so I have to commit a crime to get a free college education?’’ For the record, student inmates have long been ineligible for Pell Grants; even when they were eligible, the numbers awarded that demographic among Pell Grant recipients constituted less than 1%.20 Furthermore, inmates leaving the I.D.O.C. with a degree or vocational certificate in hand also leave with a bill: they are expected to reimburse the state for the cost of their educations.21 Yet the invective directed toward offenders, currently incarcerated, paroled, or even with complete discharge of sentence does not mitigate. We can see that most clearly in this election year, apropos the debacle of the Florida polls during the 2000 presidential election. In 2004, the question of ex-felons’ voting rights currently rippled through the media, generating renewed debate. Florida is one of 15 states prohibiting ex-felons from voting for life. Exconvicts typically can only get their rights reinstated through a complicated appeals process that requires the governor’s consent. A highly suspicious number of Florida voters had been disqualified, on the grounds that they were ex-offenders, grounds that proved even more dubious, since many otherwise legally eligible voters suffered disenfranchisement. Subsequently, the debate over whether ex-offenders should still be barred the rights of full citizenship burbles immediately below the fickle surface of public discourse. Drawing on my class discussions over the last 8 years as an informal polling population, I would have to say this punitive attitude remains deeply rooted, ripe, and hardy. A rigidly exclusionary ‘‘They committed a crimey’’ attitude, regardless of their paying their social debt, exiles ex-convicts forever beyond the cultural pale, a prejudice with which my inmate students are all too well-acquainted. ‘‘Ex-offender’’ translates to the ‘‘X on our backs,’’ that scarlet letter becoming visible the minute they fill out a job application. Standard on such forms is the question ‘‘Have you ever been convicted of a felony?’’ Lying on a job application stands as grounds for dismissal, and broadly speaking, one can hardly fault employers for wanting to fire employees who lie about their employment history, credentials, or other appropriate information. That
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particular question pertaining to one’s criminal history, however, becomes a terrible Catch-22 for the released offender determined to ‘‘go straight.’’ Admitting on the form to a felony conviction will not likely result in a job offer, even if the application in question allows for explanation of the circumstances of the offense, and even if the crime is unrelated to the job in question. Consequently, if an ex-offender did time for, by way of example, simple possession of narcotics (that is, possession for personal use), and applies for a position as a night manager at a 7–11, she/he faces a stark choice. Be honest, admit to the offense, and embark on a demoralizing round of employment refusal or leave it blank. Many offenders opt for the second choice, only to get canned once the employer discovers a criminal record, regardless of satisfactory job performance. Not surprisingly, many such ex-offenders, particularly those who have done time for minor narcotics convictions, start using again, a revolving door that sends them back to prison. When the issue came up in a class at one of the prison sites, as it frequently did, I could offer only sympathy and encouragement. ‘‘Nobody ever lost an election by swearing it’s time to get tough on crime,’’ I conceded many times over. So much for sympathy: urging them to complete their college educations took care of encouragement. True, the statistics seem heartening: convicts who leave prison with at least an A.S., according to the I.D.O.C., have a 2% recidivism rate. If degree completion prior to release should not prove feasible, then they could apply for credit transfers to accredited colleges, or enroll at a community college. Indeed, I spent a great deal of time informally counseling students, talking about their ambitions and dreams, suggesting possibly appropriate colleges, but always, always insisting they talk to the college coordinator, too. Outside hostility, nonetheless, is always there. With my students on the outside, I can pose a rhetorical: ‘‘If you’ve never committed a crime – driven a tad too much under the influence; boosted candy, jewelry, a cd when you were in junior high; been late paying your taxes, whatever, raise your hands. Okay, now, look around the room. Nobody? Notice I’m not raising my hand either.’’ While that exercise may soften resistance, it certainly does not significantly reduce it. ‘‘We all make mistakes. We all do things we regret. Yet we all want the past left in the past so we can get on with our lives. Why shouldn’t we allow released prisoners the same courtesy?’’ Let me be clear: I am emphatically not referring to sexual predators. Nor do I refer to the ‘‘Heinz 57@ varieties’’ of violent psychopaths currently doing time across the country. These two criminal demographics exist beyond the purview of rehabilitation, no matter what their other talents and capabilities.
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Nonetheless, cultural templates established by New Jersey’s ‘‘Megan’s Law,’’ named for the 7 year old murdered by a released sex-offender who lived across the street from her family, poses a terrible conundrum in states that have encoded similar laws. While no one, including me, wants a sexual predator residing in the neighborhood, especially those that prey on children, all released prisoners must re-enter society. That nightmare class of convicts aside, we must address certain key cultural values relative to general attitudes toward prisoners and their treatment. Not that my incarcerated students were oblivious to that pervasive social hostility. On the first day of a rhetoric and composition class, one young man put the question to me quite directly. ‘‘How you feel ‘bout teaching us here, Dr. Wilson? Some of us done some pretty terrible things, you know.’’ ‘‘Mr. Garretson, what makes you think I haven’t?’’ ‘‘Oh, c’mon now, what could you have done that was so terrible?’’ ‘‘Not necessarily anything I should have been locked up for,’’ I replied (crossing my fingers behind my back) ‘‘but I’ve done a thing or two in the past that I’d give five years of my life, in exchange for the opportunity to go back in time and undo them.’’
THE SECRET HISTORY OF THE PRISON– INDUSTRIAL COMPLEX’S POLITICAL ECONOMY In his classic review of evolving ideologies in American penology, The Decline of the Rehabilitative Ideal, Francis A. Allen (1981) charts the long, downward spiral into punishment without the corrective corollary of rehabilitation, a descent, the emergence of which he believes began in the early 1960s. In the 23 years since he first published his treatise, not a great deal changed. Boot camps, ‘‘shock incarceration,’’ even striped uniforms and chain gangs became popular in the 1980s and 1990s, even for juveniles, occasionally with tragic consequences.22 Currently, a prison administrator in Arizona forces inmates to sleep under tents in the desert night, break rocks to no purpose, and requires male inmates to wear women’s underwear beneath their uniforms.23 Such draconian measures beg the question: how much punishment is enough? Sociologists refer to ‘‘useful myths,’’ i.e., myths and legends repeatedly and thoroughly debunked, but yet which still retain currency. Evidently those who credit these canards, whether innocuous (e.g., the Flat Earth Society contends the moon landing was a hoax; the overwhelming geophysical data and astrophysics affirming
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Columbus simply dismissed out of hand as further evidence of a conspiracy to prove otherwise), or vicious (e.g., the Holocaust never happened, and if it did, it was all the fault of ‘‘world Jewry’’ anyway), actively advocate their belief. Despite mountains of evidence proving them spurious, these beliefs satisfy some profound psychological need, even provide a community subset of ‘‘true believers.’’ Similarly, the old saw about prisoners having things ‘‘too good,’’ with cable television, three hots and a cot, getting education and medical care for free while hard-working, honest tax-paying citizens can barely scrape by seems to me a perfect example of a ‘‘useful myth.’’ Exploited and manipulated endlessly by those who seek to profit, politically, financially, or both, from public anxiety about criminal threat the myth serves, and serves very well, proving harder to kill than Rasputin. Beyond the loss of autonomy, privacy and any semblance of selfdetermination, random violence at the hands of the assorted violent sociopaths mentioned above, surely the crushing, the endless boredom of prison life figuring in all accounts of prison life must be odious nearly beyond endurance. That boredom, despair, frustration, and anger can combine to motivate more hardened convicts to become more sophisticated criminals, and perhaps even turn them from non-violent into violent offenders upon release. Offering rehabilitation simultaneous with ‘‘correction’’ could not only stem the tide of swelling prison populations, but concomitant costs to the tax-payers as well. Despite Disraeli’s caveat that there are ‘‘three kinds of lies: lies, damned lies, and statistics,’’ a brief statistical overview pertinent to what David Garland (2001) astutely terms the ‘‘culture of control’’ should serve us well here. As of June 30, 2003, an estimated 2,078, 570 adult offenders currently serve time in jails and prisons across the nation (Bureau). That total figure marked a 2.9% increase over mid-2002. Put another way, there are 480 incarcerated adults per 100,000 adults in the general United States population. This figure of 480 significantly increases over the figure of 411 per 100,000 for 1995. While it is beyond the scope of this article to engage in a detailed analysis of the political or cultural meaning of these statistics when broken down along gender and racial lines, these, too, bear repeating. Also as of June 30, 2003, according to the U.S. Department of Justice (2004), women represent 5.0% of the prison population, or 100,102 of all prisoners. The number of men incarcerated, on the other hand, rose by 2.7%, totaling 1,360,818. This statistic means that the rate of incarceration for women is increasing at virtually double the rate for men, making women, as a demographic, the fastest growing segment of the prison population. When broken down along racial lines, the numbers prove even more
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disturbing: 4,834 black men sit in prison for every 100,000 black men in the general population; 1,778 Hispanic/Latino men per 100,000; but only 681 white men per 100,000. African-Americans represent something slightly above 70% of the total prison population (U.S. Department of Justice). Yet according to the latest census, blacks constitute 12.3% of the total U.S. population of 293,764,095 and Hispanics/Latinos 12.5%, the remaining percentages taken up by much small minority groups, such as Asians and Native Americans, with Euro-Caucasians still the majority, albeit a shrinking one. By year end 2001, 5.6 million American adults had served time, whether state or federal. Of that total, nearly as many were black (2,166,000) as were white (2,203,000), with Hispanics/Latinos at a comparatively modest 997,000. United States’ residents between the ages of 35 and 39 were more likely than any other age group to have done time, an estimated 5.8% of that demographic, up from 2.3% in 1991. Finally, between 1995 and 2003, the overall prison population grew on average at 3.7%, annually. While it would be a grotesque exaggeration to claim these figures rival Stalin’s gulag archipelago at the height of the terror, an estimated 28 million, one cannot help but briefly entertain the comparison, particularly when one works out proportions relative to overall population and size of the country. Prisons too continue to be built at a record rate, usually in depressed, rural areas. Distressingly, competition for prison sites can be ferocious, for community and business leaders typically see them as boosting the local economy, and not just for construction contracts . New prisons promise new jobs for guards and administrative staff, offering an incentive to younger people to stay in the area, marry, and raise families there, thus keeping small towns viable and property values stable. In turn, prisons must be kept operative, which means they must remain full, if we expect them to provide long-term, local economic solutions. As a consequence, this phenomenon contributes to the rise of what Schlosser shrewdly terms the ‘‘prison– industrial complex’’ (passim). However, over the long term, using prisons to sustain an economy long term proves shortsighted at best, disastrous at worst. Maintaining and staffing prisons, whether through local, state, federal, or even private agencies actually strain their respective economies significantly. Even without educational or other rehabilitative programs, incarceration proves costly indeed. A medium security prison in Illinois, for example, requires about $25,000 per annum to oversee one inmate. Multiply that figure by, say, a 5-year stretch in the joint, and that cost morphs to $125,000. Recidivism rates drive the figure even higher, and we have not even factored in calculations for police man hours and criminal prosecution. For example, in Illinois, as of 2002, the I.D.O.C. estimated that while
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inmates in college programs recidivate at a rate of 13.1%, inmates not registered in such programs recidivate at the rate of 37.5%, nearly three times as frequently. As a result, college and vocational programs saved the state, in 2002, an estimated $9.5 million. Nonetheless, during serious economic crisis, states may face the stark choice of closing schools and cutting back on other vital public services, simply to maintain its prisoners, as we recently witnessed in California.24 When arguments over justice and cultural values fail, I frequently resort to cost analysis as given above. Taking a cue from politicians, I find pointing to people’s wallets usually gets their attention, but still only with difficulty. In January 2002, (former) Illinois Governor George Ryan, facing a severe state budget shortfall, federal prosecution on RICO charges, and a Nobel Peace Prize nomination, made a desperately foolish proposal in his State of the State Address. To save money (a) cut state Medicaid hospitalization benefits to the elderly indigent; and (b) eliminate all education programs in prison, including G.E.D. and vocational training courses. The first proposal was roundly denounced throughout the land. As for the second, a hastily formed coalition of concerned citizens, educators, prison administrators, and politicians, among others, managed to force a compromise. We saved the G.E.D. (and pre-G.E.D.) and the post-secondary, vocational programs, where students can earn an A.S., with academic credits, such as in English and mathematics, being transferable. As a participant in this effort, though by then as tenure-track faculty on the outside, I helped draft form letters and circulate petitions, sent letters to all my representatives, from the local city council to the White House, and published a letter to the editor in the local paper, The Pantagraph. Additionally, I published a brief article, focusing on the economic and political consequences of Governor Ryan’s proposal, in Bloomington-Normal’s local, community-based alternative newspaper, the Post Amerikan, apprising our readers of the situation. In response, the Post Amerikan received a two sentence letter, asking ‘‘Why should I feel sorry for prisoners and prison conditions?’’ We printed it along with my two page response, which began: ‘‘yyour query puzzles me, since nowhere in ‘‘Everybody look what’s goin’ down’’ do I ask for anybody’s pity for prisoners and prison conditions, much less yours.’’25
OCCAM’S RAZOR OR MENCKEN’S CAVEAT? 26
Earlier in this essay, I note how many of my incarcerated students insist that ‘‘teachers are rich,’’ and made preposterous assumptions about my
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income, or the kind of car I could afford to drive. Had I showed them my income tax returns, I doubt even then they would have believed my denials. More likely, they would surmise I must be hiding money in offshore accounts in the Caymans. Speculations and rumors such as these are by no means idiosyncratic. An astonishing number of our citizenry believe that educators at every level, from grade school through post-secondary levels are ‘‘rich’’ or indeed ‘‘overpaid.’’ Such beliefs originate in multitudinous misperceptions endemic to American culture: teachers can typically draw their 9 months’ salary over 12 months, which only spreads a less than princely sum thinner; teaching is neither really work nor truly valuable; the anti-intellectualism haunting America since the colonial period, to name a few. Nor does this ‘‘useful myth,’’ if one may call it that, exclude itself to the working class or underclass – the privileged and powerful, the legatees and the elite all too frequently insist on its truth. How else do we explain the cultural and social policies of the second President Bush’s administration(s), or Donald Trump’s otherwise inexplicable symbolic capital as an entrepreneur of vision, even genius? Conversely, debates about education – what should be taught and how, what the results should be, what community values should emerge salient in the classroom, levels of student accomplishment, and possible sources for funding, accountability for students, teachers, and school systems – remain equally prominent. Those who would deride its value in one breath insist on its necessity with the other. Yet it is beyond the scope of this project to determine the genesis of such dualistic, if not schizoid, assessments over education. Ambivalent, even contradictory, attitudes toward education remain a constant not only outside prison classrooms, but very much within them as well. Such attitudes affirm that like their values the prisonerstudents’ perspective on education stands indistinguishable from the population at large. American ambivalence toward the value, purpose, and efficacy of education as a means of sustaining a civil society or advancing social good can be summed up tersely enough: ‘‘There’s book smart and there’s street smart,’’ a folk wisdom one hears in more venues than one can count, but nowhere more frequently than in the classroom – on either side of the razor wire. Opposing education, formal or autodidactic, to knowledge gained through life experience as somehow mutually exclusive does much to sustain and perpetuate many of the social problems and cultural conflicts that we find ourselves returning to generation after generation. Shifting perspective so as to regard street smart and book smart as compatible, perhaps even binary, seems the best way to overcome the cycle of recidivism, insofar as education can provide the means for finding legal
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employment and social success. Diametrically opposing formal education with survival skills simply perpetuates self-defeat, implicitly denying that any individual can be equally adept at both. Privileging one domain over another clearly denigrates the value of the second, consequently implying the superiority of the inhabitants of one domain, and the inferiority of another, accomplishing nothing more than a perpetuation of hostilities. Let me illustrate this point through a brief example. Every now and then, an otherwise engaged and committed student would suddenly become a recalcitrant malcontent, who would insist that what we were doing, distinguishing, say, for example, a Petrarchan from a Shakespearean sonnet, or the characteristics of a villanelle, had no purpose beyond the province of literature. ‘‘I just want to get my degree and get a job when I get out. Why I got to learn this, Dr. Wilson?’’ ‘‘Terrell, you want to be a truck driver, right?’’ He nods his assent. ‘‘Okay, let’s say when you get out, you get a job with UPS. You work there for a few years, and then a supervisory position opens up. You decide you want to go for it. Your boss tells you ‘Holmwood, I’m going to be honest with you. You’re one of two finalists. You and Sorenson are equally qualified, with equal seniority. Since I’m not one to determine a man’s future with a coin flip, let me ask you this: can you tell me what a villanelle is?’ And you’ll reply, ‘Why sir, a villanelle is a poem consisting of nineteen lines, further broken down to five tersets and a quatrain. The first and third lines of the first terset alternate as the refrain of the subsequent four tersets, finally uniting as a couplet at the quatrain’s conclusion. Dylan Thomas revived the form, which had emerged among fourteenth-century French royal court poets, but had long been abandoned as effete, even rococo. Thomas’ elegy for his dying father, ‘Do not go gently into that good night,’ rehabilitated the villanelle’s unmatchable eloquence in expressing almost unbearable grief.’ At that point, Terrell, your boss will say, ‘Good man, Holmwood, the job is yours. Sorenson knew diddly squat about poetry’!’’
At which point my recalcitrant malcontent laughed and returned to his otherwise cooperative self. My point – that formal education marks one not only as intelligent and educated, but cultured, cultivated, and reflective, something to which we all can aspire, claim, and contribute rather than merely support – was not lost on anyone that day, least of all me. In that moment, I realized how heavily implicated we as educators can be in sustaining the class tensions and social inequities that have so much to do with so many falling through the cracks. To the extent that we accept and perpetuate education and culture as the province of an ‘‘ivory tower,’’ as remote, even ancillary to a vibrant,
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functional, and just society, we too are guilty of maintaining a social divide, perpetuating the problem rather than contributing to the solution. Make no mistake: the above by no means constitutes a neo-Arnoldian ‘‘sweetness and light.’’ It is my sincere hope that prison education will provide an impetus for realigning perspective and programme among those in prison population who can begin to appreciate more fully that their predicament predicates not only upon bad personal choices, lack of opportunity, and a failure to take responsibility. A dynamic one can only characterize as over-determined, a confluence of interests whose hegemony draws only in part from the ancient human impulse to demonize as a barrier between civil society and antinomianism, configures that predicament, too. Given the conservative values that the majority of prisoners advocate, any attempt to radicalize them, if by radicalization one means to supplant their conservative social and cultural values with those of a leftleaning hue, would prove self-defeating. First, they would rightly resent such a pedagogical agenda as arrogant and condescending. Second, such a blatant insult could only alienate them from even a more ‘‘practical’’ educational agenda. Third, prison educators who adopted such a posture would only undermine the very good they hope to accomplish. Consequently, we would merely re-cast the same old divisions in different guise. Raymond Williams famously objected that the problem with too many Marxist intellectuals is that they ‘‘treat the working classes as if they are all a bit thick.’’ Similarly, too many prison educators and reformers make the mistake of offering a kind of secular redemption, a gesture just as insulting and patronizing as it is counter-productive. The paradox remains ineluctable. My inmate students, especially the men, stubbornly clung to a conservative world view, even though the concomitant values seem to have failed them thoroughly. The values I particularly have in mind are both social (i.e., marriage, family, and community) and political (economic opportunities and inequities). Some of the men particularly found in my status as a never-married, professional woman an implicit challenge to many of those assumptions. Given that my incarcerated students felt entitled to ask anything they liked, one should not be surprised by the following exchange: ‘‘Are you married, Dr. Wilson?’’ When I responded, ‘‘No,’’ they would then ask, with almost urgent hopefulness ‘‘But you have been married, haven’t you?’’ To my second, ‘‘No,’’ they sometimes asked ‘‘Are you a lesbian?’’ Once, after I responded with my third ‘‘No,’’ a cocky young man asked, ‘‘So, what are you waiting for?’’ ‘‘A man I can respect,’’ I snapped. Cracking wise ended many such exchanges neatly, but no tactic is foolproof. When, early in the module at Logan Correctional, Isaiah asked me a
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similar question, he was not satisfied to leave it there. After learning that for personal reasons I had decided early in life never to have children, he upbraided me: ‘‘Dr. Wilson, how can you, as an educated woman, not have children?’’ At my nonplused expression he continued: ‘‘You’re not contributing!’’ Before I could respond, Marquia responded sharply: ‘‘She’s teaching us, isn’t she?’’ Such exchanges were recurrent with that particular student, and echoed with others, though they may not have been quite so aggressive. While many of the women had children, their inquiries as to my marital status or children seemed largely just a matter of casual curiosity. If they thought my singularly childless state odd, they certainly never said so. The exchange between Marquia and Isaiah illustrates not only the social tensions but the cultural values that most of the men and women held. While the women were somewhat less rigid in their responses to alternative perspectives on cultural values, in the end, their flexibility was a matter of degree. Not surprisingly, respective to the men, there was a decided element of machismo informing their firm commitment to conservative social expectations. After all, the social construction of masculinity in very traditional terms remains not only historically rooted but hardy in its pervasiveness. Could we reasonably expect that men, simply because they come from the margins, would experience political epiphany as part of the shock of incarceration? Cynical though they tried to be about their chances in mainstream society, they too came of age in a society that proselytizes success through accepting and honing the self-same traditional values that have failed them. Little wonder then that at heart many of the students I encountered inside the wall believe that their situation reflects wholly individual failure. ‘‘If I just do it right,’’ they would say to me privately, ‘‘I’ll make it.’’ Or, to put it another way, ‘‘with nothing left, [they] would have to cling to that which had robbed [them], as people will’’ (Faulkner, 1924, p. 437). During a course devoted to ‘‘Myth and Literature,’’ I truly began to appreciate how deeply engrained such conservative traditions remain in American society. As an organizing principle for my syllabus, I decided to focus on ‘‘myths of manhood’’ in selecting various texts. I had taught ‘‘Literature by and about Women,’’ another title under MacMurray’s ‘‘Themes in Literature’’ rubric, several times, at least twice with all-male classes. I seized on this course as a rare opportunity for me as a woman to lead an all-male class in an extended critique of what it means to be a man. Therefore, we began with the eighth century Anglo-Saxon epic poem, Beowulf, and then moved on to John Gardner’s (1971) Grendel, a novel that reimagines the Beowulf (1957) narrative from the monster’s point of view. While the students found Beowulf a bit of a slog, despite all my efforts to
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ground that text historically, they responded with immense enthusiasm to Grendel. In many ways, their response to these respective texts becomes emblematic. Beowulf, a young man in his prime, a Geatish prince of what is now southern Sweden, arrives as a warrior-emissary in what is now Denmark, to deliver the Scyldings of three monsters: Grendel, Grendel’s mother, and a Dragon. His mission, to dispose of the rampaging Grendel et al., will prove him worthy of his lineage, worthy in the eyes of his father, a king, his countrymen, and, of course, their Scylding allies. Beowulf’s valorization of heroic male combat struck me as a perfect locus for an extended critique of traditional definitions and expectations of manhood. He will rule as king of the Geats, but his eventual victory in old age over the Dragon will be pyrrhic. With the benefit of hindsight, I no longer find their resistance to the text so unaccountable, stemming, I suspect, as it did from Beowulf’s clear insider status. Born to privilege, a prince of the realm, no less, not to mention a prophesied hero, he could hardly claim marginalized status. Conversely, Grendel literally is a monster, full of rage, angst, and despair over his foreordained fate, legated misery, and rejection by the absurdities of fate rather than his initial actions or intentions. Now there was a character with whom they could identify.27 Grendel is a philosophical novel, one that Gardner wrote expressly as an indictment of existentialism, a philosophical system he finds, in his idiosyncratically perverse reading, nihilistic to the point of antinomianism.28 The turning point for the ‘‘boy’’ Grendel comes when he meets the Dragon, an ancient, repulsive beast whose espoused cynicism would make Diogenes flinch. The Dragon, ferociously guarding a treasure, which he can only hoard but never use, argues that there is no divinity, and the universe random and absurd. Young Grendel, desperate for affirmation of divine purpose, to find a reason behind his miserable predicament, naively seeks validation for his tenuous hope of God and spiritual salvation. The Dragon responds: ‘‘What god? Where? Life-force, you mean? The principle of process? God as the history of Chance?’’ At Grendel’s timidly optimistic counterpoint, ‘‘Nevertheless, something will come of all this,’’ the Dragon laughs him to scorn: ‘‘Nothingya brief pulsation in the black hole of eternityy My advice to you, my violent friend, is to seek out gold and sit on it.’’ (Gardner, 1971, p. 74). Fatherless Grendel, young, impressionable, yet desperately hopeful, cannot hope for any explanations from his mother, because ‘‘She’d forgotten all language long ago’’ (Gardner, 1971, p. 28). His encounter with the Dragon remains pivotal, which the students grasped immediately. I can still hear Mac arguing that ‘‘he [Grendel] wouldn’t have
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been like that [violent and destructive; embittered and cruel] if it hadn’t been for the Dragon.’’ How could I not raise the question of personal accountability in response to such statements? ‘‘Doesn’t he have a choice? After all, is it any more reasonable to guard a treasure hoard just because you can? What good do all those shiny jewels and bright gold pieces do the Dragon? Why can’t Grendel choose another course? Perhaps set himself to create a meaningful perspective, and in effect give the Dragon the bird? Surely we’re all old enough not to take authority at face value? Instead, rather than think for himself, Grendel accepts the Dragon’s ‘wisdom’ and devotes himself to devouring humans. Seems purposelessly self-destructive to me.’’ We discussed allegory, as personification or de figura; I asked them to consider the following leap. Could we read Grendel’s character as a figural allegory of the underclass, here literally demonized, readily identifiable through physical configuration, branded by the ‘‘mark of Cain’’ (re: ‘‘the X on our backs’’). Ultimately, he embraces the outlaw status thrust upon him, reveling in his evil as a kind of revenge against a society that excludes him not because of what he has done, but because of who he is (re: any form of prejudice you like: ethnic, racial, gender, sexual orientation, class). Lonely and benevolent in intention, Grendel finds himself spurned and vilified, like the Creature in Mary Shelley’s (1818, 1992) Frankenstein. Given the rejection and persecution he experiences, when all he seeks is friendship and love, we might concede that his experience extenuates but does not excuse or exculpate his actions. Retaliatory behavior isolates him absolutely in his misery; Grendel can find no communality, because that is the vision Gardner imposes. We, on the other hand, can do more than just articulate the terms of our own entrapment. We do not have to content ourselves with wistfully pressing our noses up against the glass, any more than we do wantonly smashing them in retaliation. We may not effect a perfect escape, but we can re-assess, re-order, and realign, and our own goals and lives, even as we seek to re-define communality and find meaning within our struggles. A discussion of values, whether social, cultural, or moral, necessarily remains integral to humanistic study, yet student skepticism emerged quickly, even reflexively. Not that I could blame them; after openly acknowledging that, I could only further respond: ‘‘Look, we have to talk about values, in all senses. But just because I’m invoking the ‘v’ word does not mean I think you don’t have any. We undoubtedly share many.’’ After pointing out that I used the inclusive ‘‘we,’’ as opposed to the oppositional ‘‘you,’’ I concluded: ‘‘I’m an educator, not a missionary. The only soul I can save is my own, and there are days, like today, when even that seems beyond me.
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Now, let’s discuss it without getting into pointless debates about guilt, because nobody here is innocent.’’
NOTES 1. Beginning in roughly late January or early February of 1996 through September of 2001. After that period, my first hand knowledge of changes in institutional rules and requirements becomes occasional. From this point on, I will abbreviate Illinois Department of Corrections to I.D.O.C. 2. Marked clearly as the ‘‘Shakedown Room,’’ usually somewhere in or very close to the gatehouse. Correctional officers can arbitrarily request staff, part-time or otherwise, to go to shake down. A same-sex officer then pats the employee down, may ask for removal of shoes and inspection of the soles of the feet, or even to remove some layers of clothing. The point is to prevent contraband from entering or leaving the prison grounds. 3. ‘‘Seg’’ stands for ‘‘segregation unit,’’ commonly referred to in movies and television as ‘‘solitary confinement.’’ For aficionados of movies about Alcatraz, that would be ‘‘the hole.’’ 4. In August of 1995, I enrolled as a full-time student at LifePath@ School of Massage Therapy, a private vocational school accredited by both the State of Illinois and The National Council of Schools of Therapeutic Massage and Bodywork. Graduating with my class in June 1996, I became Board Certified through the National Certification Board for Therapeutic Massage and Bodywork, the following September. For 8 years, from 1996 to 2004, I practiced massage therapy on a parttime basis. My class awarded me the much-coveted ‘‘Fingers of Steel’’ Award, which I proudly framed and hung next to the spa door, along with my other credentials. In August 2004, mostly due to time constraints, I reluctantly gave it up. 5. Modules run 9 or 10 weeks, 2 for every one semester, depending on the calendar and the number of State holidays. When MacMurray College, of Jacksonville, Illinois held the contract with the Illinois Department of Corrections, adjuncts had their contracts assigned on a semester basis, rather than module basis. In other words, because adjuncts could teach only three classes per semester at the MacMurray campus, the college applied the same rule to MacMurray adjuncts teaching solely at the prison sites, even though our terms were determined analogous to quarter systems. That meant adjuncts could teach two classes every other module, which in turn meant that one’s income was constantly in flux. 6. The price of a college education has risen dramatically over the last 25 years; certainly in the last 10 years at double the cost of living, according to most sources. Currently, the College Board (2003), which designs and administers such standard entrance exams as the SATs et al., asserts the average cost for college tuition for the academic year 2003–2004 as follows: $11,338 for in state public colleges and universities, and $24,996 for private colleges and universities. These increases represent a 4–5% increase over the academic year 2002–2003. Calculated another way, after factoring in the costs of room and board along with tuition, the overall increase was worse for public colleges and universities, which saw costs go up by a whopping
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9.8%, whereas private colleges and universities went up only by 6.0%. Public community (2-year) colleges’ tuition on average stands at $1,095 for the academic year 2003–2004. http://www.CollegeBoard.com/prod_downloads/press/cost03/cb_trends_ pricing_2003.pdf. 7. ‘‘Ernie,’’ along with all other names assigned to students, is a pseudonym, intended to give the inmates in question some small measure of privacy. 8. I responded: ‘‘Well, my Lamborghini’s in the shop right now and the custom [Rolls Royce] Corniche is delayed at the factory. They’re having some trouble with the jets in the custom, fur-lined Jacuzzi, so I’m stuck driving a loaner Jag.’’ Wisecracks went a lot further in developing rapport than earnest attempts at disillusionment. 9. As of 1994, the Illinois Department of Corrections suspended all higher education programs in maximum security prisons, such as Pontiac and Stateville (Joliet), and by 1997 eventually rescinded Bachelor’s Degree programs, though those student inmates already in pursuit of their bachelors’ were permitted to finish and graduate. As of this writing, both prisoners’ rights groups and professionals in prison education and/or administration programs are lobbying to get 4-year degree programs re-instated in Illinois’ medium-to-minimum security prisons. 10. See Deborah S. Wilson, (1996, pp. 48–71). ‘‘Dora, Nora, and Their Professor: The ‘Talking Cure,’ Nightwood, and Feminist Pedagogy,’’ in Literature and Psychology. 11. According to the Federal Bureau of Prisons, as of May 2004, 150,048 people were incarcerated in federal prisons under federal control (these and subsequent statistics do not include federal prisoners under other forms of institutional confinement: e.g., military bases, private prisons, American installations in foreign countries). Of that number, 57,029 or 32.1% were Hispanic/Latino. Comparing this set of numbers to those for 1997 proves instructive: of the 110,160 people in federal custody under the conditions outlined above, 27,230 or 27.46% were Hispanic/Latino. Federal Bureau of Prisons, (n.d.) Quick Facts. www.prop1.org/legal/persons/facts.htm. Statistics for the southwestern states, Arizona, California, Nevada, New Mexico, Utah, and Texas, prove even more disturbing. For each state, the first statistic stands for the number of Hispanics and Latinos in the general population, the second for the corresponding number in the prison population, as of 2002: Arizona, 25.3% vs. 35.6%; California, 32.4% vs. 36.1%; Nevada, 19.7% vs. 16.4%; New Mexico, 42.1% vs. 57.2%; Utah, 9.0% vs. 20.4%; Texas, 32.0% vs. 31.4%. Human Rights Watch, (February 27, 2002, Table 5). Put another way, according to Human Rights Watch, from 1974 to 2001, U.S. incarceration rates for Hispanics/Latinos grew tenfold. 12. Stacy’s circumstances were not atypical. She had a child, about 10, but had been locked-up for criminal possession for personal use sometime before I met her. She had gotten clean in prison, and earnestly pursued legitimate work, but kept getting turned down because of her felony conviction, even though none of the circumstances involved fiduciary crimes or robbery. In desperation, she took a job as a stripper (she was classically beautiful). Like many strippers, she ended up using again just to get through her shift, which, of course, eventually sent her back to prison. (All of my women students, incarcerated or otherwise, who have told me that they worked in strip clubs, have also told me that it is very rare to meet a woman working that venue of the sex industry who does not use alcohol, drugs, or both just to keep going.) When Stacy was released again, some time after our class was over,
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the Illinois Department of Children and Family Services refused to return custody of her daughter, even though to the best of my knowledge, she had done everything they demanded she do, with the promise of being re-united with her child. Later, her parents informed the administrators at the prison that Stacy had killed herself. While the forces that drive people to suicide are complex and multi-faceted, in my opinion, DCFS no doubt deserves the lion’s share of precipitating factors. 13. In 1994, after Congress passed a bill amending the Pell Grant to exclude incarcerated students, the State of Illinois declared it could no longer afford to support college education programs in its maximum security facilities. For further information, see Note 20. 14. ‘‘Kites’’ are notes; for a kite to be a ‘‘sexual kite’’ it does not necessarily have to be obscene or graphic, indeed, it could take the character of a love letter. The term kite derives from all prisons using tiered galleries of cells. If a prisoner wants to send a message to another inmate in a cell below, she/he could fold the note, run a string through it, and drop it though the bars and tiers. This became a sort of informal postal system, and one could see strings of these notes, so that they did indeed look like the tail of a kite. 15. ‘‘Good time’’ refers to the number of days inmates can accumulate in order to get out earlier than their assigned released date, that is ‘‘time off for good behavior.’’ In the I.D.O.C., they can get one day of good time for every two days of class, if they complete the course with a passing grade. 16. According to Columbia University’s National Center on Addiction and Substance Abuse at Columbia University, between 1980 and 1996, the apogee of the Rockefeller Drug Law impact on the nation’s prisons, 80%, or 1.4 million of the 1.7 million inmates in U.S. prisons, were addicted or seriously involved with drugs at the time of their incarceration. Those figures translate to 1 out of every 144 inmates needing substantive drug rehabilitation while incarcerated, if they are not to recidivate after release. Since 1991, however, when most states started experiencing serious budget shortfalls, money available for drug rehab in state prison systems shrank dramatically, an effect still felt as of this writing, in 2005. The National Center on Addiction and Substance Abuse at Columbia University (1998). In Hawaii, for example, a state with serious economic problems, one estimate holds that only 14 out of every 100 inmates in need of addiction treatment will receive it before release. See J. Brannon (2004). However, rural Illinois’ exploding underground industry of crystal methamphetamine laboratories no doubt puts heavy pressure on the I.D.O.C.’s prison drug rehabilitation program. All things being equal, given Illinois’ economic woes specifically, and the nation’s generally, the waiting list for drug rehab programs may begin to echo the waiting list for the G.E.D. programs, which, again depending on out (release) dates, can be years. 17. In 1999, Amnesty International (1999) published ‘‘Not Part of My Sentence’’: Violations of Human Rights of Women in Custody. Released on March 8, International Women’s Day, the report addressed conditions of women in custody all over the world, but, for the first time in 10 years, the USA came under particular scrutiny. Documentation of the routine sexual exploitation and/or violation of women, by guards, other administrative staff, and sometimes male inmates, proved especially disturbing, particularly because some states actually hold the inmate responsible for
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‘‘sexual misconduct,’’ even if the inmate is the victim, rather than the perpetrator, of sexual assault (5). In its 2000 follow-up report, Amnesty International USA (2000) noted: In four states, the statute [defining inmate sexual misconduct while in state custody] allows for making the inmate criminally liable for engaging in sexual misconduct. In California, the inmate may be penalized for oral sex only. In Arizona, an inmate who is raped may be charged under this law. In Delaware and Nevada, the statute calls for punishment of the inmate if he or she is unable to prove rape (p. 1).
18. Maggie had dropped the kite into the lap of a woman, Lily, sitting in the first row, who clearly did not want it, swatting it away as though it were a mosquito carrying the West Nile Virus. Administrative procedure required that I write tickets for both Maggie and Lily, who, naturally was very distressed. I assured her that I would make plain – in writing – that she did not solicit this, and certainly did not want it, which I did indeed do. Moreover, as she had taken several classes with me before, I could affirm her exemplariness as a student. Nonetheless, I brought her back to my supervisor’s office for further re-assurance. My supervisor affirmed that, if necessary, Lily could call me as a witness on her behalf. Fortunately, she suffered no administrative repercussions. Given the Byzantine politics of inmate life, it was probably best for Lily that she could say ‘‘Hey, I got a ticket for that too, you know,’’ even though, of course, she had been subsequently vindicated. 19. The I.D.O.C. stands as a paramilitary organization, just like any other American branch of law enforcement, establishing hierarchy in military terms. The Major of the guards (correctional officers) conducts courts of inquiry for inmates accused of institutional infractions sufficiently frequent or flagrant to warrant a hearing. 20. Pell Grants, designed to assist low income students pursuing post-secondary education, can amount to as much as $4,050 per year per student. The Grant pays for books, supplies, and living expenses. In 1994, the Pell Grant Program had a total of $6.3 billion allotted to it through the U.S. Department of Education. A total of $35 million, or slightly less than six-tenths of 1% went to education programs for prisoners at the state and federal levels. Contrary to popular opinion, the Pell Grant money did not go directly to the prisoners. Instead, the grant money went to the states for improving educational program for prisoners. Sponsored by then Senator Jesse Helms, Pub L 103-322 &[sic] 20411 (1994), which in part amended 20USC & [sic] 1070a(b), which now states ‘‘(8) No Federal Pell Grant shall be awarded under this subpart to any individual who is incarcerated in any Federal or State Penal Institution.’’ Congress passed the bill unanimously, cynically pandering to outraged, bellicose rhetoric about prison inmates ‘‘living large’’ at taxpayer expense. For an incisive analysis of how this bill and other punitive laws denying federally sponsored financial aid for higher education to students with specific types of criminal records, see Blumenson and Nilsen (2002). 21. As of fiscal year 1997, annual costs per inmate were estimated at $25,000. 22. Gina Score, a 15-year-old girl from Canton, South Dakota, had been sentenced to 6 years in the military-style boot camp for adolescent female offenders. Evidently a habitual shoplifter and petty thief, Score had been in and out of the juvenile just
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system for years. Her supportive parents and social worker finally agreed to the bootcamp system, desperate to turn her around. Her death from what the emergency room physician attending her called ‘‘the worst case of heat stroke I’ve ever seen,’’ incurred during a mandatory 2.6 mile run in the burning sun, created a scandal in South Dakota. She collapsed within a few feet of her air-conditioned cottage, but was left lying on the pavement for 3 hours at the insistence of the guards, who refused to believe she was not ‘‘faking it.’’ This despite her turning blue and foaming at the mouth. She died July 21, 1999. The rectal thermometer at the emergency room registered her body temperature at 1081 Fahrenheit, the maximum the thermometer will measure. In effect, her internal organs cooked (Selcraig, 2000, pp. 64–65). Gina Score’s case, though extreme, proves not unusual, as many adolescent inmates in such prison facilities can document extreme physical and psychological abuses. See Selcraig (2000, pp. 64–71). 23. Sheriff Joe Arpaio, Sheriff of The Maricopa County (July, 2004) Jail in Arizona, is famous (or infamous, depending on your point of view) for getting tough on prisoners. By his own declaration, No other detention facility in the country, the state, or county can boast of 1200 convicts in tents; no other county or state facility can boast of a gleaning program that results in costs of 45 cents per meal per inmate; few others can say they have women in tents or on chain gangsyhttp://www.mcso.ord/submenu.asp?file=aboutmcso&page=main.
Sheriff Arpaio’s website does not stress the following facts: He houses his ‘‘toughest prisoners’’ in tents in the deep desert, where temperatures can reach 1001 Fahrenheit; requires inmates to wear stripes with ‘‘Escapee’’ on the back, to prevent escape, and forces male inmates to wear prison-issued male underwear dyed hot pink. Sherrif Arpaio claims the tents save the taxpayers housing costs. He also requires inmates to pay for their own food: since instituting this policy, he has cut the cost from $.90 per day to $.45 per day. As for the hot pink shorts, he claims this was necessary to stem a rising black market trade in prison issued men’s underwear; others that it is simply routine humiliation. Incidentally, Sheriff Arpaio, a self-proclaimed animal lover, opens the airconditioned cells made available by his tent city to abused and neglected animals, where they are cared for by female jail inmates. Commendable though his crackdown on animal abuse in Maricopa County may be, as is his compassion for the animals rescued, the real point of housing them in the jail (decorated with wall murals of trees, flowers, grass, etc.) strikes one as a vividly tacit reminder to inmates that, in the eyes of Arpaio’s Sheriff’s Office, inmates are lower than animals. 24. ‘‘California re-invents the wheel,’’ The New York Times (April 16, 2004, p. A:20). 25. See D. S. Wilson (as Dr. Attitude) (February/March 2002, pp. 10–11), ‘‘Everybody look what’s goin’ down,’’ Post Amerikan for the initial article. See ‘‘Dear Mr. West,’’ Post Amerikan, Wilson (as Dr. Attitude) (April/May, 2005, 2002, pp. 22–23), for West’s letter and my response.
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26. Occam’s razor – ‘‘pluralitas non est ponenda sine necessitate’’ – roughly, no more plurality than necessary, advises us that in the face of multiple explanations for a given phenomenon, the simplest explanation generally serves us best. For example, are crop circles elaborately coded signs for alien space ships, or merely an elegant hoax? The simpler, credible explanation would be they are a widely mimicked hoax. H. L. Mencken cautions us that ‘‘for every complex problem there is a solution that is clear, simple, and wrong;’’ we might wish that the Bush Administration would take that aphorism to heart, particularly in matters of state. 27. Medieval English legend holds that all monsters: e.g., trolls, ogres, and other monstrous beings were Cain’s descendants. The ‘‘mark of Cain’’ ranged from an identifiable blemish on the forehead to a physiological configuration of monstrosity. 28. See for examples D. Cowart (1983, pp. 42–43, 52).
ACKNOWLEDGMENTS For the generous fellowship that underwrote both my participation in Professor Austin Sarat’s seminar, ‘‘Punishment, Politics, and Culture,’’ at Amherst College and this project, I must thank the National Endowment for the Humanities. Those 6 weeks were well and truly a glorious intellectual experience, thanks to both Austin and my fellow participants, all of whom I recall with fond respect. Susan Blankenship, Wendy Hamblet, and Donna Van Raaphorst in particular provided invaluable feedback on ‘‘Nobody here is Innocent,’’ as well as on other, unrelated projects, in their crucial early stages. Thank you for your friendship and encouragement. Many thanks also to Dale M. Bauer and James D. Sullivan for their critiques; their suggestions proved invaluable. I owe Sherrin Fitzer a debt of gratitude, not only for her friendship, but for her help in getting that first job teaching at Logan Correctional Center. She also offered her own pertinent insights to ‘‘Nobody here is Innocent.’’ Finally, thanks to my students at the following I.D.O.C. sites: Decatur, Lincoln, and Logan, 1996–2001. I will not forget what you taught me.
REFERENCES Allen, F. (1981). The decline of the rehabilitative ideal: Penal policy and social purpose. New Haven: Yale University Press. Amnesty International. (1999). Not part of my sentence: Violations of the human rights of women in custody. Retrieved July 21, 2004, from http://AmnestyUSA.org/ailib/int/cam/ 2omenreport4.html Amnesty International USA. (2000). Abuse of women in custody: Sexual misconduct and shackling of pregnant women. Retrieved July 21, 2004, from http://amnestyusa.org/ womenindex.do.updab.2000
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Beowulf. (1957). (8th Century). In: D. Wright (Trans.), Beowulf. Hammondsworth, England: Penguin Books, Ltd. Blumenson, E., & Nilsen, E. (2002). How to construct an underclass or, how the war on drugs became a war on education. Retrieved July 24, 2004, from http://www./law.suffolk.edu/ faculty/eblumens/Underclass.pdf 2002 Brannon, J. (2004, January 18). Ice epidemic grows, overwhelms prisons [electronic newspaper] Honolulu Advertiser.com. Retrieved March 24, 2005, from http://honolulu advertiser.com/ article/2004/January 18/In/InO College Board. (2003). http://www.collegeboard.com/prod_downloads/press/cost03/ cb_trends_pricing_2003.pdf Cowart, D. (1983). Arches & light: The fiction of John Gardner. Carbondale: Southern Illinois University Press. Donziger, S. (1996). The real war on crime: The Report of the National Criminal Justice Commission. New York: HarperPerennial. Faulkner, W. (1924). A rose for Emily. (1946). In: M. Cowley (Ed.), The Portable Faulkner (pp. 433–444). New York: The Viking Press. Funk, R. R., McDermeit (Ives), M., Godfrey, S. H., & Adams, L. (2003). Maltreatment issues by level of substance abuse treatment: The extent of the problem at intake and relationship to early outcomes. Journal of Child Maltreatment, 8, 36–45. Garcia, C. O. (July 27 1994). Emotional baggage in a course on black writers. The Chronicle of Higher Education, 40, 1–6. Gardner, J. (1971). Grendel. New York: Alfred A. Knopf. Garland, D. (2001). The culture of control: Crime and social order in contemporary society. Chicago: University of Chicago Press. Graff, G. (1979). Literature against itself: Literary ideas in modern society. Chicago: University of Chicago Press. Human Rights Watch. (February 27, 2002). Retrieved July 25, 2004, from http://hrw.org/ backgrounder/usa/race Maricopa County Sheriff’s Office. (July 2004). Retrieved July 19, 2004, from http:// www.mcso.ord/submenu.asp?file=aboutmcso&page=main Moore, M. (Writer/Director/Producer). (2004). Fahrenheit 9/11. [Motion picture]. United States: Miramax. Schlosser, E. (December 1998). The prison-industrial complex. Atlantic Monthly, 282, 51–77. Selcraig, B. (FebruaryMarch 2000). Camp Fear. Mother Jones, 14, 64–71. Shelley, M. (1818 1992). In: J. M. Smith (Ed.), Frankenstein; or, The Modern Prometheus. Boston: Bedford Books of St. Martin’s Press. The National Center on Addiction and Substance Abuse at Columbia University. (1998, January 8). CASA* Releases Report: Behind Bars. Retrieved March 24, 2005 from http:// www.casacolumbia.org/absolutenm/templatesPressReleases.asp?articleid=167&aony United States Federal Bureau of Prisons. (n.d.) Quick facts. Retrieved July 25, 2004, from www.prop1.org/legal/persons/facts.htm Wilson, D. S. (1996). Dora, Nora, and their professor: The ‘talking cure,’ Nightwood, and feminist pedagogy. Literature and Psychology, xxxxii, 48–71. Wilson, D. S. (as Dr. Attitude) (February/March 2002). Everybody look what’s goin’ down. Post Amerikan, 31, 10–11. Wilson, D. S. (as Dr. Attitude) (April/May 2002). Dear Mr. West. Post Amerikan, 31, 22–23.
PRISON, COLLEGE, AND THE PARADOX OF PUNISHMENT Daniel Karpowitz ABSTRACT Many attempts have been made to justify punishment by invoking the moral autonomy and dignity of those who are subject to it. Yet the most refined of these attempts have been informed by an awareness of paradox. For the practice of punishment, so closely linked to concepts of individual freedom, tends to degrade those subjected to it. And as a form of state action predicated on claims of moral or social solidarity, it often prevents inquiry into the ways that individual culpability coexists within broader political forms of responsibility. This essay explores the ways in which college in prison programs like the Bard Prison Initiative may intervene in this paradox of punishment.
INTRODUCTION Certain issues recur whenever we scrutinize what we do when we punish.1 Many attempts have been made to justify punishment by reference to the concept of the moral autonomy and human dignity of those who are punished. These attempts are inspired by the impression that there may be something inherently degrading in the experience of punishment, a degradation Crime and Punishment: Perspectives from the Humanities Studies in Law, Politics and Society, Volume 37, 305–331 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)37012-8
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which befalls both the agents and objects of punishment. The most interesting of those who defend punishment respond to this feeling at its root, arguing that the actual purposes of punishment must be found in our respect for the moral autonomy and dignity of those who are punished. Indeed, Herbert Morris (1970) has argued that we might go so far as to speak of a human right to be punished that is deeply consonant with our identity as morally autonomous agents. Freedom, dignity, and punishment, in Morris’s eye, constitute each other. Herbert Morris, however, was not at all insensitive to the great complexity of this issue. In particular, he was keenly aware of the problems that arise from the radical insistence on individualized moral agency that one finds embedded within our jurisprudence and its regimes of punishment. From within his own strong defense of the concept of an integrated and free human subject, and its corollary of a moral imperative to punish, Morris (1987) also tried to complicate our conceptions of guilt and moral agency. Controversially, he explored theories of what he called shared or non-moral guilt. Using such terms he discussed various forms of guilt that complicated the clear-cut boundaries of agency and identity traditionally associated with the inquiry into individualized culpability. Such liminal or destabilizing forms of guilt, Morris suggested, might arise from our complicity in the conditions that exacerbate crime, from our envy and resentment toward those who have indulged in the forbidden, or from the legally legitimized pleasures of indulging rage, fear, anger, or contempt against the condemned. Following Karl Jaspers, Morris was also interested in what the philosopher had called ‘‘metaphysical guilt’’ – a form of non-moral guilt that might justifiably arise from the very fact of bearing witness, rooted in a collective identification shared by victims, perpetrators, and witnesses in a body politic or a broader human community (Morris, 1974). It has also been argued that punishment is inevitably bound up with the construction of, and a commitment to, a sense of autonomous individuals, and is thus tangled in some of the ugliest and most repressive aspects of the formation and disciplining of identity. William Connolly (1995) has convincingly portrayed some of these repressions involved in contemporary representations of crime and practices punishment. He situates a critique of punishment in a field he defines as the micropolitics of identity, difference, and pluralization. While Morris remains deeply committed to the link between personhood and punishment, Connolly is far more radical in his critique of how the dynamics of punishment yield rigid categories of human personhood and identity that conceal the politically charged ways in which identity is governed and social responsibility avoided. Connolly traces these
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dynamics to repressive structures of identity and domination at the core of the Christian tradition. Grounding his analysis of both criminal and lawful violence in a critique of foundational notions of original sin, purity, and evil, Connolly assails the moral foundations of punishment itself.2 What these authors explore, then, is the paradox of punishment. Each shares a deep commitment to human dignity and the moral imperatives that are bound up with it. Yet each also shares a deeply troubled concern for the repressions, reifications, and degradations that flow through processes of legal punishment justified in the name of dignity and moral autonomy. Each seeks to respond to this situation by complicating the underlying notions that give punishment its moral significance. Morris intervenes by challenging the boundaries of ‘‘moral guilt,’’ and Connolly by challenging the boundaries of the identities it helps to constitute. In this essay, I explore the paradox of punishment by examining an institution that moves across the boundaries established by the contemporary American prison. The Bard Prison Initiative (BPI) operates a network of private campuses inside the state prison system of New York. The Initiative creates within the space of the prison another space dedicated to the goals and practices of a liberal education. It reflects a commitment that the institution of the prison should appeal to, and be engaged with, the moral agency and dignity of both the agents and objects of punishment. As such it is very self-consciously located at the nexus of the dignifying and degrading aspects of the paradox. But BPI does so in a way that differs greatly from the dominant methods of engaging with the moral agency of the punished. Unlike methods grounded in rehabilitation, corrections, and therapeutic behavioral modification, the Initiative cultivates students’ capacity for and engagement in the liberal arts. In this article, I ask what is at stake in this particular mode of crossing over from ‘‘the outside’’ to ‘‘the inside’’ of the prison – both for thinking about punishment and for thinking about the political nature of education itself. I also explore what distinguishes BPI’s approach from other sorts of transgressive institutions that move from ‘‘outside’’ to ‘‘inside.’’ Many educational institutions that cross the boundaries of the prison are based in religious or therapeutic models.3 They threaten to intensify, I suggest, the most problematic and dominant paradigms that underlie hegemonic approaches to the problem of moral agency and punishment. This may be the case despite and even because of their emphasis on concepts like change, transformation, and forgiveness. Their practical focus is trained on personal attention to individual behavior for the sake of its adjustment to ‘‘social
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norms’’ – whether these be through an embrace of moral responsibility and transformation, a confrontation with drug and alcohol addiction, or the control of private violence. Still other interventions in the prison distinguish themselves by not being motivated by a concern with the modification or adjustment of individual behaviors to standard or hegemonic social norms. Nor are they expressly religious. Self-consciously secular, in fact, they are often based on a strongly critical attitude toward conventional and hegemonic norms.4 Their teaching practices are often based on a radical pedagogy associated with the work of Paolo Freire (1970, 1973). Undertaken within the boundaries of a contemporary American prison, such projects share a great deal with BPI such as a commitment to critically engaging the concepts of agency and identity that lie at the heart of punishment itself. Here, however, I want to point out some of the dangers inherent in this Freirean pedagogy, especially within the context of prisons. At times, and especially under conditions of incarceration, such interventions can undermine rather than maximize the liberating or empowering potential of higher education inside a prison. Most importantly, their commitment to grounding pedagogy in the personal and social situations of the student – what Freireans call the ‘‘ethnographic’’ component of their pedagogy – can too easily collapse into an overly individualizing and solipsistic classroom. Also, while Freire and his followers avow their concern for the intellectual rigor of their approach, it often seems that radically democratized classrooms, with their distrust of the authority of faculty and the contents of highly informed and even expert knowledge possessed by faculty and not by their students, can easily fail to realize the full opportunity for the distribution of cultural capital. Such a pedagogy, admirably democratic, can nevertheless threaten to undermine the excellent goal of making educational practice, in Freire’s phrase, a liberating form of critical thinking rather than a training for the domestication of difference and dissent. Unlike the interventions based on a religious or therapeutic paradigm, I argue that BPI aims to enact a more critical approach to the concepts that lie at the heart of the problem of punishment itself. Insofar as the liberal education undertaken through the Initiative engages students with a critical inquiry into concepts like ‘‘self/other,’’ ‘‘inside/outside,’’ and the categories of individual identity and moral autonomy, its concerns resonate with some of the most interesting work in the modern social theory of punishment. The argument then is that BPI engages with the paradox of punishment by pursuing a practice, under conditions of incarceration, in which (i) the moral agency of the student is actively engaged in non-punitive ways, (ii) their
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dignity as human agents is respected and amplified, albeit very much within a particular regime of authority associated with a particular liberal educational curriculum and the hierarchies of the classroom. Finally, this education practice is relevant to the paradox because it encourages students to become close readers of texts, critical thinkers about social concepts, and articulate analysts of the social structures within which individuality and moral agency are themselves constructed. Students thus participate in an ongoing critical conversation of the very conceptual pillars on which the legal system establishes itself, and they do so as part of the practice which is officially expected of them. It is argued here that these aspects of liberal education are in the spirit of a commitment to moral agency upon which just punishment is supposedly predicated – while at the same time they amplify or extend the ways in which individuals who are themselves subjects of extreme punishment can think critically about the regime within which they live. The result is a response to crime undertaken as part of a regime of punishment, but one that critically engages the fundamentalist individualism which is so deeply embedded in the institution of the prison and the criminal justice system. To explore the potential differences between BPI’s project and these other approaches, I will briefly describe three distinctive aspects of Initiative’s pedagogy: (i) an emphasis on objective, rather than subjective studies; (ii) a pedagogical emphasis on structures over individuals; and (iii) an emphasis on ‘‘concept critique’’ over ‘‘normalization.’’ Finally, and much more tentatively, I suggest that the approach of the Prison Initiative, with its more traditional ‘‘hierarchical’’ privileging of the liberal arts faculty within the power-dynamic of the classroom, may be more suited to the emergence of a successful non-punitive learning environment, especially under conditions of incarceration, than Freire’s ‘‘pedagogy of the oppressed.’’
COLLEGE IN AMERICAN PRISONS Institutions roughly similar to BPI were not uncommon during the 1970s and 1980s.5 Pell Grants, the main federal redistribution program underwriting tuition for poor and working families, enabled campuses to flourish inside prisons across the country. Several hundreds were sustained on a tiny fraction – about one-half of one percent – of all federal Pell Grant redistributions.6 In 1994, almost all of these institutions collapsed within weeks after the United States Congress banned the incarcerated from eligibility for federal education Pell grants.7 In the past two decades, college-in-prison
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institutions have practically disappeared from the increasingly punitive and expensive American systems of punishment. BPI was founded by Bard students in 1999 in part as a response to this Congressional ban and the collapse of college programs in New York that immediately followed. My intention in this article is to describe the activities of BPI, which in the Autumn of 2001 developed into a college campus operating inside a maximum security prison in upstate New York. BPI continues to usher between 40 and 50 conventional undergraduates into regional prisons near the Bard campus on a volunteer basis. For some of them, American modes of punishment and the criminal justice system become the focus of their undergraduate study. The Initiative also enrolls with Bard College more than a hundred people who are incarcerated in New York prisons, who study a broad range of liberal arts courses and work their way to Associate’s and Bachelor’s Degrees from Bard. Incarcerated students now move from maximum to medium security prisons and toward release while remaining continuously enrolled with the college in a network of in-prison satellite campuses. Since 2001, I have been the Academic Director of the Prison Initiative, and have both taught in and administered the program.8
Difference and solidarity Ironically, the significance of college-in-prison programs has been clarified by the ban forbidding the incarcerated from receiving federal Pell grants. This ban is one part of the much more extensive landscape of harshness, degradation and control in contemporary American systems of legislation, enforcement, and punishment. The ban is, of course, a direct assault on one important form of social redistribution. It also reinforces the image of a severe and rigidly enforced boundary dividing the inside and outside of the prison, and the gulf that separates the identities of the convicted contained behind its walls and of the free who are protected beyond it. One might also suggest that it heightens the association of the concepts of ‘‘citizenship’’ with ‘‘obedience,’’ in that, increasingly, those who are legally punished are stripped of various aspects of life and identity associated with civic participation, from education to voting to the rights associated with due process and equal protection. In the recent past, a number of social analysts have examined the social effects of regimes of punishment, proposing forms of subaltern solidarities that are fashioned in and through prison life or other regimes of law
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enforcement and criminal punishment. Such social effects have been fruitfully explored in work on gangs and ghettos (Wacquant, 2000), on career criminality and communities of coercive mobility (Clear, et al., 2001), and on what have been called ‘‘nihilistic communities’’ (West). Following Meade (1918) and Garland (2001), my interest here is rather with the solidarities fashioned by the state among the community of those who punish, in the state’s exercise of violence through the law and through its institutions of punishment. Much of critical criminology, is based on the argument that punishment, and the ‘‘othering’’ associated with it, performs a problematic and even corrupts social function. Punishment and the representation of the offender help to create an experience of social solidarity grounded in sentiments of violent inclusion and exclusion. Variations on this idea have been explored by analysts as diverse as Rene´ Girard (1977) in his work on violence and the sacrificial victim, and George Herbert Meade (1918) in his writing on the repressive unity fashioned through punitive and warlike states of mind and social practice. Recently, Joshua Page (2004) has applied this sort of punitive-solidarity thesis in reading Congress’s attack on the ability of the incarcerated to get access to an education. For all of these writers, practices of radical marking, isolation, cutting off, and systemic degradation express a nexus between legalized violence and moral solidarity. Membership within a group, with enforced and normalized identities, is accomplished in part through the othering and punishment of its others. From this perspective, all activities, like tertiary or higher education in prisons, which reach out to a common humanity shared by victim, punisher, and condemned, complicate the boundaries cutting across the society and threaten existing structures of moral solidarity. Insofar as the boundaries between self/other, same/different, member/enemy, and good/ evil are seen to be implicated in repressive regimes of daily life or national politics, practices which undermine, resist, or complicate such dichotomies can be considered critical and perhaps even liberating – if by the latter we mean primarily the negative work of challenging the entrenched and violently defended position. Indeed, interventions along these lines of clear-cut dichotomy, including a liberal arts college run inside a prison, may be part of a pursuit of what Connolly (1995) has called an ‘‘ethos of pluralization.’’ The workings of the college involve the continual movement of persons not employed by the prison apparatus across the barrier of its walls, and the continuous engagement by outside faculty and students with the incarcerated person qua student. That is to say the terms of this social exchange are based on the person’s enrollment with the college, rather than primarily on
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the basis of their status as ‘‘convict’’ or incarcerated person. It enacts a response to crime within practices of punishment that resists the worst of the system – it’s radical othering and its corrosive effects on the ability to imagine alternative forms of social solidarity. One imagines that its effects circulate differently among the students themselves, faculty, and for the paramilitary and civilian staff at prisons.
THE PEDAGOGY OF A COLLEGE IN PRISON CAMPUS BPI’s mode of education is an important part of its intervention within the prison system. This mode emphasizes objectivity over subjectivity, the concept of ‘‘structure’’ over the concept of ‘‘the autonomous individual,’’ and the critique of concepts over the process of identifying and assimilating norms. I use each of these three terms in a specific but non-technical sense. By an ‘‘objective’’ educational process I mean simply one that calls on students and teachers to focus their attention overwhelmingly on the objects of study – the subject matter, texts, concepts, and positions put forward by the authors encountered. The curriculum and discourse of instruction are heavily biased in favor of the analysis of primary and secondary texts that range across a diverse liberal arts curriculum. This bias toward texts and their contexts is emphasized as opposed to reflections in the prison setting, the life-experiences, ethnicity, or moral, and juridical status of the incarcerated students. Issues directly associated with the individual personal beliefs, opinions, preferences, and above all, life-stories and identities of the readers are placed in a secondary position. The administration and students of the Initiative recognize that these dichotomies between subjective and objective approaches are ideal types. The diverse situatedness of students and faculty in fact inform many aspects of discourse, interpretation, and meaning, and the practice of critical thinking discussed below are indeed brought to bear by students and teachers into these areas. That said, the pedagogy of BPI places these aspects of analysis in a substantially secondary position, and this ‘‘objective’’ emphasis stands in such sharp contrast to the hegemonic modes that are cultivated within the discourses of rehabilitation, corrections, and religious transformation.9 I return to this assertion below in the section ‘‘The text as object.’’ By an emphasis on the ‘‘structural’’ over the ‘‘individual’’ as categories of analysis, I mean that structures and systems are usually given analytic
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primacy across the range of the liberal arts curriculum. As with the subject/ object distinction, these are abstractions which are overdrawn for the sake of clarity and emphasis. In reality, mature analysis, teaching, and student thinking partake of a nearly infinitely subtle sense of how structures and individual agents inform each other. That said, the drawing of this distinction within the curriculum and throughout the way the liberal arts are generally taught today, contrasts it with the dominant alternative modes in which people who are incarcerated speak and exchange with authorities. These dominant modes, such as therapeutic rehabilitation and the correction of individual behavior tend to emphasize individual choices, individually oriented systems of rewards and punishments, incentives and disincentives, and the logic of personal transformation. Finally, by ‘‘concept-critique’’ I mean the entire field of the educational curriculum and practice that is concerned with identifying, analyzing, and historicizing concepts as part of an ongoing ethical and political critique. The social space of the classroom, and of the college itself, is largely dedicated to this process.10 The critique of concepts is paramount across the liberal arts curriculum, most notably in the disciplines of history, philosophy, and anthropology, but also in those traditionally humanistic fields which have been so strongly shaped by anthropology and the philosophy of history. The result is an emphasis on teaching concept-critique over and above the goal of ‘‘normalizing’’ individual behavior. (i) Structures before Individuals, or ‘‘on Classroom Seating.’’ In my function as an academic advisor, a second-year student approached me for advice while choosing courses from the semester. Something was bothering him from his professors’ comments on his work from the previous semester. On nearly all of papers, various members of the faculty had told him that his work needed to go farther, more in depth. While his arguments were wellconstructed, their contents remained superficial. In response, I began by offering him a hypothetical example of a student paper that we would critique together in order to think more about the difference between ‘‘deep’’ and ‘‘shallow.’’ I began by asking him to imagine the opening paragraph of a hypothetical student essay: College is a interesting place. Many people find college interesting because of the diversity of the people they encounter there – no two students, and no two professors, are alike. I, however, am most interested in college because of the courses I find there. Indeed, each course, to me, is something like a person – unique in and of itself – and rather than being engaged by the diversity of faculty and students in the college – the
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people I meet there – I am struck by the diversity of courses that I meet there, each class as unique and fascinating as a person.
This, I suggested, was an interesting beginning to a student paper. Then I went on with the hypothetical. For example, consider height. Just as no two people are the same height, so no two courses are the same length. Some are short – lasting only fifty minutes – while others are long, and can go on for as long as three hours.
The student began to laugh. ‘‘Why are you laughing?’’ I asked. ‘‘Because that’s not what makes classes different from each other,’’ he said. ‘‘Different in an interesting way.’’ ‘‘So what is a more interesting – or ‘deeper’ thing – that might distinguish one class from another?’’ ‘‘What goes on inside of the class – the subjects, the points of view, stuff like that,’’ he answered. I acknowledged that we were on the right track, and then continued. ‘‘OK, so let’s go inside the class. Let’s say our imaginary student continues their paper as follows.’’ For example, then, consider the arrangement of seats in the classroom. Classes differ in how the seats and desks are arranged.
The student smiled again and protested. ‘‘That’s not what I meant by what goes on inside. I meant the actual contents – of the class – of what the teacher says, of what you read,’’ he said. ‘‘Yes,’’ I answered, ‘‘but let’s consider for a moment the possibility that this fact – the arrangement of the seats – which looks superficial, like the sort of thing you’re trying to avoid – is in fact interesting, that is has some ‘depth’. Maybe we’ll consider later the possibility that details like these – seating arrangements – are rarely ‘superficial’ or ‘deep’ in and of themselves, and that they’re interesting or not depending on what we have to say about them – the light that we ourselves can cast on to them. At any rate, let’s stick with the tables and chairs. What might you be able to learn, or understand, about a particular class, based on how the seats in it are arranged?’’ ‘‘Well,’’ he thought a minute. ‘‘You can tell a lot about how someone sits in class. If they’re slouching, or hunched over, they’re not going to be getting much, but if they’re sitting up, you know, focused and all of that, if they’re clean and whatnot, then they are going to be good students.’’ ‘‘Notice how you’ve changed the subject.’’ The student looked at me puzzled.
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‘‘Think over what we’ve just been talking about, and think about you’ve just shifted the subject from one thing to another.’’ The student thought for a moment, and nodded. ‘‘All right. I see that. You asked about the seats – where they were placed – the desks and the seats in the room, in this room right here, or in all the class rooms in the prison, and I switched the subject to how individual students were sitting in them.’’ ‘‘Exactly right. Now that is really interesting. That might tell us something ‘deep’ about the sorts of things that are going on here. How does the actual arrangement of seats in a classroom change from class to class?’’ ‘‘Sometimes they’re in a row – like now – all lined up, one next to the other.’’ ‘‘And facing?’’ ‘‘And facing the board. And the teacher.’’ ‘‘Yes, great. And other times?’’ ‘‘Other times they’re in a circle, or in a half-circle,’’ the student said, beginning to speak increasingly quickly. ‘‘That’s when we – when students in the class can see each other, and in those classes, it’s true, we tend to – the teacher also seems to try and get us to – talk more to each other. To have more conversation, more class discussion. And that’s a big difference in terms of what can go on in one type of class or another – the way we, the students, you know, relate to each other – in class and also, outside, when we’re studying, in the yard, or working, or in the cell-blocks.’’ ‘‘Who determines how the seats in a classroom – let’s say this classroom – are arranged?’’ ‘‘Well,’’ he answered, ‘‘the correctional officers. Or the teachers – the prison teachers. The rules of the facility.’’ He paused. ‘‘Also tradition.’’ ‘‘Great. Now you’re talking about all of these things which influence the arrangement of seating, and of people, and of talk, inside the classroom.’’ ‘‘Parts of the structure,’’ the student clarified. ‘‘That’s right, that’s a great word for it.’’ ‘‘We’ve used it in classes,’’ he said. ‘‘So we started with a detail, a fact – the arrangement of the seats and desks and teacher and students in the rooms, and now you’re drawing connections that making this student’s hypothetical paper deeper than it started out.’’ There was a pause, and then I took a certain risk, a risk in the interests of pushing the conversation one step further, coming far closer than usual at an explicit analysis of the environment and regime of the prison itself. ‘‘Now let me throw something out there,’’ I said. ‘‘Consider for a moment that ‘Corrections’ tends to focus on individuals. Let’s say, on things like how
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each student sits in their chair – on what we might call questions of individual comportment. In contrast, ‘the college’ – teachers, the syllabi, the subjects of the courses – tend to focus on structure, tend to emphasize the concept of structure.’’ We both fell silent, and the student stared at me intently, gravely, and stone-faced. A long moment passed. I imagined that he was weighing my sincerity, or my trustworthiness, as I drew closer to this sensitive line which representatives of the college, and our students, treat with the greatest discretion. At the same time, I expected him to try out the idea to analyze the world in which he lived his life, and in which I was only an occasional visitor. Then he smiled, and just as quickly the smile passed from his face, and, in a total departure from the formal posture we had both been maintaining, the student – a man of 40 or so – stretched his arm out on the school desk, and laid down, resting his chin on his forearm, his head just above the table. He stared ahead, and a sequence of changing expression passed across his face, some of them dreamy and distant, and some of them very focused. Then he sat up, and nodding, said, with a smile that struck me as a mixture of gravity and pleasure, ‘‘Yes, I can see that. I hear that.’’ ‘‘So here’s what I’d like to suggest. A teacher has made an assertion – about the college curriculum and the concept of ‘structure’ and the concept of ‘individuals.’ Take these course descriptions from the catalogue back with you now and look them over. And come to office hours next week, just before the semester begins, prepared to discuss whether or not the course descriptions support this assertion or contradict it.’’
Structure, Individual Culpability and Political Responsibility As in many areas of the legal system, criminal justice policy embodies and constitutes a moral perspective that is radically individualistic. Within the civil law, efforts to engage the morally and legally relevant aspects of social structure are clumsy and usually seemed doomed to failure.11 Within the criminal law such efforts are even more rare and less successful.12 Their absence from the criminal justice system manifests itself powerfully in the rhetoric and practice of rehabilitation, corrections, and containment within the prison. Prisons fashion solidarity in deeply problematic ways in part because they distort the mutual coexistence of individual guilt and political responsibility. The clarity of the boundaries of the prison establishment, and the view of
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the criminal subject which is inspired by it and which it helps to reproduce, has a deleterious effect on the ethical commitments that could more properly articulate the body politic. The radically truncated model of individual responsibility that underlies much punishment, and is greatly reinforced by the practices of correctional incarceration, obscures pressing questions of political responsibility, for the social contexts of criminal activity as well as for the effects of incarceration on the body politic itself – on those who are punished within it, on those who are employed within its apparatus, and on those whose desires for security or revenge are felt to depend on its functioning. In part, of course, a deeply individualistic approach to matters of crime and punishment is inseparable from the commitment, shared by most educators outside of and within the prison, to the moral autonomy of the individual. Taken to its extremes, however, it has any number of obvious and severe problems. One of these is that it fails to speak honestly about the degree to which a society may, or may not, cultivate the conditions under which individuals are actually supported in the complex project of developing the capacity for moral autonomy. While defending punishment Herbert Morris (1981), characteristically emphasized the social reality that belied his own principled position, pointing out that his society was mostly not ‘‘one in which those who are liable to punishment have roughly equal opportunities to conform toyjust norms’’ (p.56). Indeed, to support a college inside a prison is to expose the mendacity of any purely individualized attitude toward crime and punishment. As David Garland has put it, such institutions, frankly redistributive and ameliorative, were typical of the ‘‘welfare’’ approach, and are perhaps morally most interesting because of the degree to which, as responses to crime and forms of punishment, they themselves ‘‘imply a social critique’’ (Garland, 2001, p. 200). (ii) An Emphasis on the Text as Object: Crime and Punishment – The Novel. The first-year curriculum of BPI contains four introductory courses: expository writing, critical reasoning, and informal logic; social science; and a reading literature.13 I will focus on the introductory ‘‘reading literature course’’ as it was first developed. It is perhaps the most expressive component of the first-year curriculum as it relates to the larger discourses and practices of corrections and the prison within which it unfolds. This course is based on the semester-long reading of a single work: Fyodor Dostoevsky’s Crime and Punishment. The course has two main components, each of which is an example of what I have called ‘‘objective’’ learning and concept-critique. The first component is the practice, week in
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and week out, of the close reading of a text. The focus here is on the basics of the reading of a novel as an object, as the product of human artifice and craft. Students are introduced to questions of plot, development, scene structure, character, and also symbol and theme. The second component is an introduction to the historical context in which the novel was written, with a particular emphasis on the early nineteenth century emergence of the radically secularized disciplines like ‘‘criminology’’ and the tremendous challenge that they represented to traditional and theological constructions of the problem of freedom, sin, evil, and crime. Indeed, for Dostoevsky this novel was a complex but radical attack upon the secular disciplines, and what he felt to be their revolutionary and corrupt assault on the Christian experience of the essential moral categories that define the sphere of crime and punishment. (Introducing students to these sorts of ideas and their historical is itself a vivid example of what is referred to below as teaching and ‘‘concept-critique.’’) This is our threshold course. One enters the Bard College at Eastern and one’s first course is a semester-long reading course with a single required text: Dostoevsky’s Crime and Punishment. What do the students expect? What is ‘‘typical’’ of the ‘‘class room’’ environment for them, and one built around a text as ‘‘relevant’’ to them as Crime and Punishment? They are likely to expect 15 weeks of reflection, introspection, and confession. The expected narrative is something like, ‘‘We are all guilty, and in confessing, we find our common humanity.’’ The course, at first glance, stands at the threshold of the college curriculum as a paradigmatic example of the creation of yet another therapeutic community. But never once, in 12 weeks, does the course ever speak to the students about their experiences – about their crime, its social contexts, about their punishment, their life in prison, and so on. Despite the title of the book, despite the subject and content of the book, and indeed, of the ‘‘historical’’ component of the syllabus – their own personal relationship to the subject material is never invited. And while the class explores the central importance in the novel of the theme of confession for Dostoevsky’s theology and his social theory, no student is asked, or ever expected, to make this ‘‘personal.’’ Remarkably, never during the entire semester in which this course was offered did a student relate these or similar issues to themselves – not in class discussion and not in their papers.14 This, then, is the class that is designed to introduce students into the space of the college within the prison as distinct from the space within the prison more generally. It is a class in which the single most important thing in it is that which is not said, is the absence that lies at its center.
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My claim is not that this mode of teaching is a social learning process somehow devoid of its own disciplinary mechanisms. It is rather that calling upon students first and foremost to describe the text before them, richly and in great detail, and to explore the other social and analytic worlds which such texts invoke, is preferable to using that text as an immediate opportunity to reflect back upon the opinions, attitudes, or life-experiences of the student. In part, the former approach can serve in the longer-term interests of the latter – as it strengthens precisely those skills of description, analysis, and critical thinking about concepts, social structures, and subject-positions which would themselves be at play in any reflection by the student on their own more immediate experience and situation. Yet this focus on, say, a close reading and historical analysis of Dostoevsky’s novel is also important within the prison environment because it functions as an alternative to the modes of rehabilitation or corrections. All of these modes, including that of the college instructor, are enacted by individuals in positions of authority within the hierarchy of the prison. Yet the authorities functioning properly within the prison establishment bring their ‘‘expertise’’ or authority to bear, and apply the brunt of their energy and discursive engagement, onto the students themselves, and as subjects the inmates are constructed as transgressors or addicts or convicts or individual nodes of rational choice-based behavior. Thus students are encouraged – or permitted – to read Crime and Punishment within the norms of literary criticism, rather than as a device to immediately further a reflection on their own sense of crime, guilt, or redemption. While ‘‘students’’ are expected to conform their behaviors, and discursive practices, to the norms of the liberal undergraduate education, these norms themselves are constructed in part out of a celebration of selfconsciousness and critical reflection.
Objectivity and Its Alternatives One of the other major institutional interventions inside the prisons where BPI operates is called The Network Program. Network, I would suggest, is characteristic of the interventions that cross from the ‘‘outside’’ into the ‘‘interior’’ of the prison in that it has an overwhelming the subjective orientation. The Network Program, as described by Stemen, rests on the therapeutic community model of behavior modification, a group-method approach that is recognized for its effectiveness in reducing drug abuse behavior. Therapeutic communities seek to build individual self-esteem and a sense of community among participants by focusing on personal responsibility for behavior and individual
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attempts to learn from and change that behavior. By confronting and examining its members’ behavior, the group reinforces positive ways of thinking and acting consistent with those of the wider society (e.g. hard work or personal responsibility). The ultimate goals of treatment or recovery are changes in individual participants’ lifestyle and identity’’ (Stemen, 2002; p. 4).
During one of my sessions teaching Crime and Punishment, I had a visitor from the founder of Network, who was at that time the Executive Director of a philanthropic organization called Episcopal Social Services. An ordained minister, and a tireless advocate on behalf of the interests of the incarcerated, this man, now in his 70s, had been a crucial player in gaining Bard access inside the prison. In his long career in corrections he has worked as a chair of the state commission on corrections (in the tumultuous era immediately after the Attica revolt) and a superintendent of a prison. He had developed the Network Program based on the concept of voluntary ‘‘therapeutic’’ communities on inmates and the formerly incarcerated. This minister sat in on a 2-h class session during which we discussed the symbols, characters, scenes, and key ideas of Crime and Punishment. Several members of the class were asked to give detailed summaries of the plot covered in the day’s reading. Discussion focused first of all on the author’s themes and techniques – the imagery of feeding and sharing food as a symbol of solidarity and alienation; the use of conversational ellipses and actual fainting to indicate the moral and social condition of the guilty man; the word-play associated with the pawnbroker’s ‘‘the pledge.’’ Secondly, students spoke to the different and competing interpretive perspectives on physical illness and crime given by each of Dostoevsky’s characters: the medical student’s interest in a moralistic neuropsychology; the radical’s emphasis on material conditions and a rigid model of social causation; the young girl’s emphasis on popular and deeply felt beliefs nurtured under peasant Russian Orthodoxy. Afterwards, the visitor commented on the tremendous opportunity that such a course presented for the inmates to reflect on and share their experiences as people who had done wrong and were now, together and as part of a therapeutic community, transforming themselves into morally reflective individuals who could comfortably confess their wrongs and share their hopes among each other. I responded that it was our feeling that the inmates had numerous opportunities for such interactions within the prison environment, and that the college provided something quite different – an opportunity to master the role of student. Typical of ‘‘corrections’’ and other rehabilitative practices is a heavy emphasis on the discourse of self, drawing on a wide array of therapeutic
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discourses which characterize an enlightened approach to corrections. In contrast to this set of practices, the college faculty and administration functions on a policy and practice which begins with the exclusion of the discourses of both self and the therapeutic. The BPI, working to create a campus inside the prison, seeks to cultivate a social space that has little or any authorized therapeutic discourse. (iii) Concept-Critique or ‘‘Not All Freedom is Made in America.’’ BPI has something like a core curriculum, a small set of classes that we encourage all students to take: a history of the civil rights movement, an introduction to anthropology, and a civics class that I teach at several in-prison college campuses. In civics, we look closely at some of the foundational texts of the American political structure and make sense of them within broader ideas of classical liberal theory. Our first reading for the class this last time around was the National Security Strategy of 2002. A National Security Strategy is a document that Congress requires each administration to publish – laying out the principles and goals for America’s use of force in the world – our vision, basically, of a good world order, and how the use of our strength in the world will help realize that vision of the good. As usual, we read some secondary texts to go along with the primary ones, and this semester we read a short article by Eric Foner, looking at the National Security Strategy and its rhetoric of freedom in historical perspective. The piece was entitled ‘‘Not All Freedom is Made in America’’ (Foner, 2002). I asked the students to begin by summarizing the article. One of them, a man who recently graduated with an Associate in Arts Degree from the college, responded by saying, ‘‘The author’s point is a simple one. Not uninteresting – just simple. The author’s point is that freedom has a history.’’ Then the student interrupted himself and paused. He pursed his lips and frowned. He is a very serious student. ‘‘Excuse me –’’he said, ‘‘the author’s point is not that freedom has a history, but rather that the concept of freedom has a history.’’ And in that one phrase one hears an entire education unfolding. In that phrase one hears the drawing of a distinction: on the one hand an idea – such as ‘‘freedom’’ – seen as an almost natural object, as something that lies ‘‘out there’’ somewhere, beyond us; and, on the other, ‘‘the concept of freedom’’ – freedom understood as something meaningful and alive because we conceive of it, and act on it, and as an idea that has a history inseparable from our own.
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This is one of the most difficult and fundamental things we learn to do in the classroom – this distancing from ideas and concepts – this stepping back from a piece of reading – or from an idea – like freedom. And it is a stepping back that we learn in the classroom but that we then practice everywhere, a stepping back that allows us, once again, to draw closer.
Concept Critique and the Problem of ‘‘Normalization’’ Prison education schemes obviously offer a way to engage the morally autonomous subject, the culpable agent of crime, in ways that support rather than belie the moral justifications for punishment. Those built along BPI’s sort of pedagogy also critically engage a fundamentalist individualism that typifies correctional discourses of work, therapy, and behavioralist training. Contemporary liberal arts education is inherently political. Much of it consists of a critical engagement with hegemonic concepts. Bard’s ‘‘Civics,’’ for example, explores the historically shifting meanings given to terms such as freedom and citizenship in American history (Foner, 2004; Smith, 1993). Rather than defining and then prescribing a doctrinal mode of citizenship, or a fundamental definition of freedom, students are introduced to the situated histories and contested visions of the good that underlie our constitutional framework.15 When Nietzsche (1956), remarked that ‘‘all terms that semiotically condense a complex process elude definition; only that which has no history can be defined,’’ he articulated a deeply political orientation to knowledge which is typical of contemporary liberal education (p. 212). When higher education in prison is studied and defended through the lenses of conventional criminology, this crucial issued is lost and the more meaningful aspects of educational practices within the prison setting are obscured. Typical of this mode of analysis is the work on ‘‘correctional education.’’ Such work (Johnson, 2001) emphasizes the correctional effects of education, especially in so far as it appears to reduce rates of recidivism. Sociologist Michael Harer (1994a) has defended college prison programs well. Yet his deeper analysis, written for the Federal Bureau of Prisons, is problematic. Harer (1994b) explains the lower rates of recidivism that follow from the experience of going to college in prison as a result of what he calls ‘‘normalization.’’ Contrasting this to what Gresham Sykes (1958) had called ‘‘prisonization,’’ Harer suggests, that ‘‘prison education program participation normalizes by offering relief from the pains of imprisonment and by
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helping inmates to appreciate and adopt pro-social norms’’ (Harer, 1994a, p. 14). In Harer’s work for the Federal government, Aristotle’s classical humanism and Durkheim’s social-democratic views on the moral effects of education are folded seamlessly into the contemporary field of incarceration. The most notable problem with the view of education as ‘‘normalization,’’ situated deeply within larger frameworks of corrections, is that it obscures and even inverts that which is most important about higher educational activity in general, and especially under conditions of contemporary incarceration. A typical instructor in the humanities or social sciences is unlikely to object to all of the ends associated with rehabilitation, especially in regards to things like recidivism, or the moderation of violence, rage, and humiliation. Concept-critique, and the objective education of which it is the centerpiece, may indeed permit the cultivation of anger or aggression into other modes of intellectual, social, and political life, in contrast perhaps to a therapeutic attention applied directly to the self or soul. Yet the actual practice of teaching and learning complicates this picture, and a keener sense of what education actually involves should inform attempts to link the moral foundations of criminal justice to the moral autonomy of individuals and their capacity for freedom. Conventional pedagogy destabilizes concepts that appear normal, through historical or other comparative methods. Another example might better illustrate this point. In the course of teaching undergraduate courses, students’ grammar – spoken and written – is regularly ‘‘corrected’’ – as students are inculcated in the norms of a conventional hegemonic classroom, with its peculiar standards of expression, its enforcement of the norms of Standard American English, and so on. At the same time, a teacher may draw attention to the historical and socially conventional nature of the very linguistic standards to which their students are held accountable. Interestingly enough, this often requires a teacher to resist the students’ own assertions that they are being taught ‘‘better’’ English. In my experience, students are themselves far quicker to pass judgments of ‘‘good’’ and ‘‘bad,’’ ‘‘better’’ and ‘‘worse,’’ ‘‘right’’ and ‘‘wrong,’’ than their faculty. Often it appears that one of a teacher’s primary roles is to postpone and delay our students’ own proclivity for the passing of a quick and simple judgment – a proclivity they seem to share with the legal, and punitive, institutional environment which characterizes their formal institutional life beyond the college classrooms. When drawing students’ attention to the language-norms expected within the classroom, and ‘‘correcting’’ students’ grammar, faculty can also open up the possibility of alternatives to thinking
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of ‘‘better’’ and ‘‘worse’’ forms of spoken language. When reminding students of the norms of Standard American English, teachers in the Prison Initiative often introduce the humorous aphorism of the linguistic anthropologist Eric Wolff, who asked ‘‘What is the difference between a language and a dialect?’’ And, answering his own question, declared, ‘‘A language is a dialect with an army and a navy.’’
BPI AND FREIREAN PEDAGOGY In the early stages of BPI, we have pursued an approach to education that seeks to cultivate critical thinking of the particular sort that I have earlier called ‘‘concept-critique.’’ This goal seems similar to what Paolo Freire (1973) calls teaching for ‘‘critical consciousness.’’ Freire’s concern that education be more about ‘‘liberation’’ than ‘‘domestication’’ has much in common with my efforts here to distinguish why higher education inside a prison can be, and perhaps inevitably is, quite different from corrections, therapeutic behavioral modification, and education understood as ‘‘normalization.’’ At the same time, we have adopted a teaching method that is fairly conventional. On the one hand it is often quite dialogic, in Freire’s sense of the term, by which he means that there is a lot of classroom discussion in which the teacher responds to and engages dynamically with the concerns, insights, interpretations, and forms of expression of students. And yet ours is quite clearly not the radically democratic or anarchistic pedagogy espoused and practiced by Freire. Lecturing still plays an important though not an exclusive role. More importantly, the curricula, course syllabi, and daily subject matter of the work reflect the contemporary concerns of the somewhat conventional disciplines that make up the contemporary liberal arts. Materials are further shaped by the particular concerns, training, and interests of the professor. They have, except for explicitly ethnographic courses, no grounding in the daily life of the prison, the opinions or tastes of the student body, or of the life-experiences from which the incarcerated students supposedly come. The power structures and discourse of the classroom and its dynamic are not democratically decentered, as if to place students and professor on a level of imagined equality. If there is a field which provides a space of relative discursive equality, it is made up of the texts themselves and the mutual demand of respect for, close attention to, and mastery of those texts. The teacher is not quite a ‘‘banker’’ depositing knowledge in the containers of impoverished students, as Freire would have it. But she is seen as
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the possessor of skills, knowledge, and access to a world of knowledge, imagination, information, and skills which are all seen as the rightful inheritance of each and every student regardless of their origin or experience. It is true that students often encounter basic axioms of contemporary historicist pedagogy – axioms that fields like, say, American history are profoundly shaped by the differing identities, embedded knowledge, or social origins of each new generation of scholars. But such truths are encountered by way of the texts themselves, not by way of a framework developed directly from the students’ own lives. My aim here is not to reject all of the theories or practices associated with Freire’s critical pedagogy. I only suggest that BPI’s experiment with teaching for critical consciousness but in contrast to Freierean pedagogy – especially as the latter grounds the subject-matter of classes in the everyday knowledge of the students – is especially important when it is undertaken within the prison environment, and within the larger social-discursive field of contemporary American prison. Ira Shor (1993), in his fine article entitled ‘‘Education is Politics,’’ states that the goal of the Freirean education is ‘‘critical consciousness,’’ and identifies it with four faculties: an awareness of how power is exercised to shape society by organized groups; ‘‘analytic habits of thinking’’ that emphasize ‘‘the social contexts and consequences of any subject matter’’; what they call ‘‘desocialization’’ – namely the recognition and challenging of ‘‘the myths, values, behaviors, and language’’ of the dominant or pervasive culture; and directly political activities of changing – the school and the social environment within which it is situated. All of these concerns resonate strongly with BPI pedagogical aims I have described above.16 Shor is equally concerned with the ways that critical pedagogy is supposed to achieve such goals. For our purposes the most important of these are that ‘‘students do a lot of discussing and writing instead of listening’’ to the teacher; ‘‘the course material is situated in student thought and language’’; subjects are presented with an emphasis on their immediate and direct relationship to the students’ ‘‘[own] conditions’’; and the discursive dynamic is allegedly radically democratic in that ‘‘[s]tudents have equal speaking rights in the dialogue as well as the right to negotiate the curriculum’’ and are asked to ‘‘co-develop and evaluate the curriculum’’ (Shor, 1993, p. 33). This Freirean curriculum is above all rooted in what we could call the ethnographic construction of curriculum. In Shor’s words, ‘‘[t]he anthropological definition of culture – situated in the experiences of everyday life, and discovered by observing the community life of students – democratizes pedagogy because the curriculum is built around the themes and conditions
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of people’s lives. Applied to academic coursesythe subject matter isypresentedyas problems posed in student experience and speech, for them to work on’’ (Id, p. 31).17 Shor is fairly clear as to why he and Freire consider this to be so important: ‘‘In contrast, traditional education, which invents its themes, language and materials from the top down rather than from the bottom up, as culture is defined scholastically as the Great Books, or as a Great Traditionyor as the correct usage of the upper classes, or as the information and experience familiar to the elite. This culture and language are alien to the lives of most students’’ (emphasis added). Perhaps the different pedagogical approach is based on a conviction that the underlying content and significance of ‘‘this culture and language’’ are not alien to the lives, minds, or circumstances of students and that our job as teachers is to empower students so that they can taste of a tradition which is itself in constant flux, and in the process, make it their own. If anything, BPI, while less ‘‘critical’’ in its pedagogy, is also less skeptical and more optimistic. Shor (1993), claims that ‘‘[f]aced with unfamiliar scholastic culture, denied an anthropological appreciation of their own culture, students become cultural deficits dependent on the teacher as a delivery system for words, skills and ideas, to teach them how to speak, think, and act like the dominant elite, whose ways of doing these things are the only ones acceptable’’ (p. 35). BPI’s commitment to the analytic emphasis on structures and the practice of concept-critique through historical and comparative methods clearly shares these Freirean goals. Yet BPI’s commitment to a largely ‘‘objective’’ way of teaching, grounded in texts and the critical engagement with authorities, rather than with the cultural environment of the students, entails a partial resistance to the methods of critical pedagogy and the ways that our shared goals are both achieved and enacted.18 It is my understanding that such embedded or subjective methods are too much in danger of reproducing the individualistic, therapeutic, and correctional modes of the prison establishment. Embedded or subjectivist methods are also too naive in their approach to democratic empowerment, and may, in an sincere effort to enact social change, actually deprive students of their ability to partake of the broadest cultural inheritance which is their due as human agents within a larger context of societies and civilizations. It is precisely in the encounter and acquisition of authors, texts, and contexts beyond and outside of their immediate experience that is, when combined with a care for critical consciousness, an empowering form of education.
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CONCLUSION: ‘‘CRIME IS WHAT THEY DO, PUNISHMENT IS WHAT WE DO’’ A murky, insistent model of individual agency competes with a dense, insistent, model of social causality. William Connolly
In situating BPI within a contemporary landscape, I have drawn on a loosely affiliated current of critical thinking about punishment. It is exemplified by writers who range from a turn of the century psychoanalytic progressive like Meade, to a mid-century paternalistic humanist like Morris, and a post-modern critical theorist like Connolly. Perhaps these writers are more important for what distinguishes them from each other than for what connects them. Yet each centers their work on punishment around a critique of the boundaries conventionally drawn around individual moral agents. Perhaps this is due to their respective attempts to theorize an affirmative theory of social solidarity under cultural conditions dominated by radically individualistic, and even atomistic, social theory and practice. In their work on responsibility and punishment, each has challenged the conventional boundaries of moral agency as part of a broader effort at reimagining alternative solidarities. If punitive systems like prisons do help to produce regressive forms of social solidarity among the communities of those who punish, or among those who feel that punishment is being meted out on their behalf, then the presence of outside colleges within the institution of punishment can inform these processes, complicate their workings, and presents the system with an ameliorative set of confrontations. As a result of our collective decisions and commitments, prison is now one of the most important public institutions in the landscape of the contemporary American polity. This no doubt tells us much about the current health of the republic. For present purposes, one of its most problematic aspects is the way that it articulates a way of conceiving of the relationship between individual moral culpability for crime, and the political responsibilities of the polity for both the conditions of crime and the modes and effects of punishment. In the excesses of our current systems of punishment, in the degrading and often radically individualistic and behavioralist modes of such punishments, the state builds public institutions and political positions which abnegate or occlude its other responsibilities. Furthermore, unlike other interventions where ‘‘outsiders’’ come ‘‘inside’’ the prison for humanitarian purposes, the pedagogy described here offers an opportunity to engage with persons in ways that move against the grain of the standard ways of normalizing the convicted offender. The crucial
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features of any such attempt will lie in the way that it engages with the paradox of punishment, in its search for a style or mode of practice in which the autonomy and responsibility that lies at the heart of valid justifications of punishment are not undermined in the very processes in which punishment is meted out. The pedagogy of a college-in-prison program, then, will need to be evaluated first and foremost in the ways that individual and political responsibilities are articulated and enacted within it. Individualistic modes of understanding crime and punishment are dangerously partial aspects of a complex truth. The public emphasis on one aspect of a moral and political question – especially its individual aspects – often functions to obscure and repress more problematic, and indeed more structural aspects of the very same phenomenon. Prisons acknowledge and inscribe responsibility onto the culpable individual; colleges within prisons resonate with the acceptance of what Morris called non-moral guilt, and with kindred concepts of political responsibility. What is most important about this for a critical theory of legal systems generally, and systems of punishment, in particular, is the possibility that the more fiercely we emphasize individual guilt and the concept of culpability, the more we repress questions of shared or non-moral guilt and the political responsibility that gathers together victim, perpetrator, and the state that punishes. I end here with the idea that ‘‘crime is what they do, punishment is what we do.’’ Like a college inside a prison, the phrase seems to recapitulate an individualistic understanding of crime, and the moral importance of undertaking punishment. But it is also a reminder of how deeply we betray our own responsibilities when we construct the criminal and respond to their deeds, a reminder of the violence of the law and the paradox of punishment.
NOTES 1. I would like to thank Austin Sarat and the National Endowment for the Humanities. I cannot imagine a more rich and thoughtful introduction to the field. Thanks also to the other members of the 2004 NEH seminar, at Amherst College for their cameraderie, intellectual generosity, and – despite pretenses to the contrary – their enduring commitment to more parks. 2. One could argue that what G.H. Meade tried to do with repressively created boundaries of social solidarity, Connolly tries to do for repressively defended boundaries of human identity (see Meade, 1918). 3. For the purposes of this article, I consider the Network Project, housed at Episcopal Social Services, to be paradigmatic here.
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4. For the purposes of this article, I consider the ‘‘Inside/Outisde Prison Project,’’ based at Temple University, to be paradigmatic here. 5. In New York’s experience, college-in-prison programs flourished largely in the aftermath of the Attica rebellion. By the late 1970s, nearly every one of the 70 state prisons in New York hosted such a program. 6. Despite a rhetoric of parsimony and ‘‘just desserts’’ in contemporary American politics, genuine cost-benefit analysis plays an insignificant role in determining the distribution and redistribution of social goods and the means and ends of punishment. 7. U.S. Code, Title 20, Ch. 28, Sub ch. IV, Part A, subpart 1, y 1070b. The denial was enacted as part of the ‘‘Violent Crime Control and Law Enforcement Act of 1994,’’ signed by President Bill Clinton. 8. For much of this time I have been a Visiting Assistant Professor in Political Studies at Bard, and closely affiliated with the Bard Human Rights Program. For the past 2 years my work has been supported by a Soros Justice Fellowship from the Open Society Institute. 9. There is a vast and contentious literature on these themes in pedagogy and hermeneutics. Consider Adorno’s work on the status of the work of art: ‘‘Today the consumer is allowed to project his impulsesyon to anything he pleasesy. Ideally, the individual effected his identification with art not by assimilating the workyto himself, but by assimilating himself to the work. This is what the term ‘aesthetic sublimation’ was meant to denote. Earlier on, Hegel had called the same mode of conduct freedom towards the objecty. pay[ing] homage to the idea of a subject which becomes a spiritual subject only by externalizing itself in an object, in contrast to the philistine who craves art for what he can get out of ity. The two extreme forms of Entkunstung of art, therefore, are reification – art viewed as a thing among things – and psychologism – art viewed as a vehicle for the psychology of the viewery. Art is...a type of praxis that is better than the prevailing praxis of society, dominated as it is by brutal self-interest. This is what art criticizes.’’ (Adorno, 1970, pp. 16–17). 10. I thank Austin Sarat for offering his students this extremely useful phrase, and, more importantly, for clarifying so energetically and vividly its importance in what we do when we teach and when we learn. His own teaching is a beautiful performance of this principle. 11. One fascinating example would be the near total failure to expand the judicial recognition of ‘‘disparate impact’’ and the predominance of ‘‘discriminatory intent’’ in the federal enforcement of civil rights. Individualizing emphases on that which is culpable seems always preferable to structural change. 12. A fascinating example would be the dynamics of mitigating evidence, through which the social history of defendants became admissible in the latter twentieth century. 13. BPI’s expository writing curriculum is also dedicated to the objective mode. Emphasis is placed on expository writing, to the exclusion of their autobiography – especially to the exclusion of ‘‘how I got here’’ or ‘‘what life is like here.’’ Such subjects are of course open to students to pursue in their own time, and a number choose to do so. But the writing sequence is a sequence that leads away from the personal essay and toward objective exposition.
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14. I have no doubt that many if not all of the students in this course entertained a powerful and meaningful relationship to Dostoevsky’s novel on deeply intimate and personal terms, many of which may have resonated directly with their immediate personal experiences. Indeed, on occasion, in office hours, students would very occasionally allude to such connections. I also have little doubt that many students may have discussed and shared such aspects of the book’s significance with others, both in and outside of the class. The point, of course, is that as far as the college and the college course were concerned there was an implicit but firm expectation that these resonances were to be mediated through the ‘‘objective’’ realm of the text, their close analysis and reading of it, their interpretations of it, and their ability to summarize and comment on the related historical materials about the middle nineteenth century, religious morality, and the dawn of a radically secular criminology. 15. I am grateful to Prof. Henry Kamerling for his invaluable suggestions and clarity on this subject. 16. The last one, insofar as it concerns the immediate social environment of the prison, must be treated with prudence, as the college space is at once parasitic and dependent on the prison, and functions only at the will of the prison’s authorities. 17. Shor elaborates: ‘‘Freirean educators study their students in their classrooms and in their community, to discover the words, ideas, conditions, and habits central to their experience. From this material, they identify ‘generative words and themes’ which represent the highest-profile issues in the speech and life of the community, as the foundational subject matter for a critical curriculum. These generative subjects are familiar words, experiences, situations, and relationships. They are ‘problematized by the teacher in class through a critical dialogue, that is, represented back to students as problems to reflect and act on. Inside problem-posing dialogue, students reflect on the lives they lead, asking questions to discover their meaning and value. They no longer live unreflectively in relation to these themes. Their experience includes a self-reflective dimension because of problem-posing around generative themes from daily life. With dialogic reflection among their peers, they gain some critical distance on their conditions and can consider how to transform them’’ (Shor, 1993, p. 31). 18. Freire’s emphasis on the sense of ‘‘dialogue’’ in the classroom is indeed part and parcel of much contemporary teaching style, especially at Bard, as distinct from the more radical democratization of the syallabi, curricular choices, and above all – the commitment to what Freire and Shor, perhaps quite problematically, term an ‘‘anthropological’’ approach to teaching.
REFERENCES Adorno, T. (1970). Desubstantialization of art. Aesthetic Theory. London: Routledge, Kegan Paul. Clear, T. R., Rose, D. R., & Ryder, J. A. (2001). Incarceration and community: The problem of removing and returning offenders. Crime and Delinquency, 47(3), 335–351. Connolly, W. (1995). The ethos of pluralization. Minneapolis: University of Minnesota. Foner, E. (2002). Who Owns History? Foner, E. (2004). Who is an American? In: Who Owns History. New York.
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