Omi and Winant describe the process of racial formation as occurring in the interactions between the state and social movements.  They read the state as a complex, often contradictory assemblage of institutions, policies and priorities that respond and adapt to political pressures leveraged both within the state and by external actors operating as movements.  Movements successfully arise during crises of racial signification and governance and engage in opposition to and ultimately negotiation with the state, often achieving a degree of reform.  This trajectory of racial formation results in the reestablishment of a tenuous equilibrium and a rearticulation of the meaning of race and the institutional arrangements that govern race.  They suggest that the representations and governance of race are intimately connected, co-constitutive, subject to ongoing political contest, and lacking in essential meaning or character (1994).

The punitive transformation of the juvenile justice system during the 1980s and 1990s hinged on inter-institutional conflicts within the state.  Judges, psychiatrists, social workers, and probation officers supported an individualizing therapeutic framework for rehabilitating youthful offenders, what many academic analysts have referred to as an ‘offender centered’ perspective (Fagan and Zimring 2000; Zimring 2005; Feld 2005).  This perspective and practice of government arose through the organizing and institution building of the largely white, middle class, and feminist ‘child savers’ of the early 20^th century (Tanenhaus 2004).  They suggested that proper state action (and hence, the structural orientation of the state toward youth of color) involved practices of ‘therapeutic’ confinement (Platt 1969), surveillance of families and young people, case management and psychological treatment, educational programming, and other features of a regime understood to be rehabilitative.  The relationship between formal social structure and youth of color was one of correction toward a normative white middle class standard.

During the broader context of assaults on the welfare state (Garland 2001) and efforts to roll back the gains of the civil rights movement (Omi and Winant 1994), these progressive era instruments of social control also came under attack from within the infrastructure of the state.  The retrenchment of the welfare state also marked the development and ascension of a prosecutorial mode of governance marked by practices and ideologies of categorization, condemnation and punishment (Simon 2009).  Prosecutors, police, and their allies heavily critiqued the role of judges and therapeutic staff within the juvenile justice system.  These officials, associated more closely with the executive arm of local governance, suggested that the court should focus on condemning and punishing young people of color.  The goal of the system, this officials argued, was not to correct young people of color but to protect law-abiding citizens normatively constructed as white and middle class.  These practices would shift the structural relationship between the state, youth of color, and middle class white people dramatically.  The apparatus of the juvenile court and its practices became a site of contest between those officials tied into penal-welfare governance and those officials invested in prosecutorial governance.  All of these actors played essential roles within the infrastructure of the system but were engaged in a direct struggle over the structural alignment of the state.

Co-occurring with these intra-institutional struggles over policy and practice in the juvenile court were highly public debates over the meaning of juvenile justice and the constitution of the subject position of ‘delinquent’.  While intellectuals and therapeutic fought to preserve the integrity of the subject position of the ‘delinquent’ as the center of juvenile justice policy, prosecutors and police moved to rearticulate the subject of juvenile justice as ‘criminal’.  The ‘delinquent’ was marked as racially non-white and classed as poor.  Earlier in the history of the court, the meaning of delinquent shifted.  Initially centered on young ethnic white immigrants, delinquency later moved to indicate youth of color, primarily black youth.  Delinquents were positioned as pitiable, misguided and impressionable young people in need of civilizing guidance.  They hailed from deficient or pathological cultural milieus and would benefit from exposure to normative, middle class white environments and education (Platt 1969).

Youthful criminals were also marked as non-white and poor.  Criminals were understood to be vicious, violent, remorseless and settled in their ways.  They also hailed from deficient or pathological milieus, but were deserving of punishment or incapacitation to express society’s disapproval and contain the threat they presented to ‘law abiding citizens’.  Prosecutors, police, and sympathetic members of the press developed a series of narratives and issue frames that collectively worked to destabilize the settled equilibrium of offender based rehabilitative ‘common sense’.  However, the breakdown of the liberal consensus that once supported the rehabilitative ideal produced conditions in which a crisis of the juvenile justice system and the racial meanings upon which it depended could be more easily articulated.  The widespread belief that ‘nothing works’ in rehabilitation (Garland 2001) coupled with the development of critiques from the left that the juvenile justice system functioned as an apparatus of racial social control (e.g. Platt 1969). In the context of this destabilized equilibrium of the rehabilitative ideal, tough-on-crime ideologues emerged to rearticulate the meaning of race, youth and criminality and shift the common sense of the court toward a retributive and prosecutorial paradigm.

Omi and Winant’s concept of racial formation as bounded within the rearticulative process of the motion of hegemony helps to connect the punitive political change of the juvenile justice system with the discursive transformation of the subject of the youthful offender.  Rather than suggest that discourse enabled policy shifts, or that policy shifts mandated a process of discursive legitimation (inherently reducing either discourse or policy to a function of the other), the notion of racial formation enables a model that is capable of seeing both policy and discourse as intricately bound together, and tightly woven into the historical context in which these changes emerged.  We can read the punitive transformation of juvenile justice as a racial project that engaged in both shifting the meaning of race and the relation of the state to different kinds of racialized bodies.

Richard M. Daley and other state officials were keen to participate in the  reactionary new right response to the gains of the civil rights movement by rearticulating race as criminality in an effort to not only undermine the political strength of Chicago’s black community (Rivlin 1992) but to consolidate their own political power.  The discursive foundation of articulating a law-and-order framework for coding blackness as criminal had already been laid by conservatives such as Barry Goldwater and Richard Nixon (Beckett 1997; Gottschalk 2006).  These prosecutorial state actors seized this opportunity to rearticulate the meaning of race within the context of the rehabilitative wing of the criminal justice system, suggesting that youth of color were becoming increasingly vicious and gaming the too-generous system, resulting in a crisis of safety for innocent white people.  Simultaneous with this process of shifting the meanings of race, they engaged directly in an effort to weaken the infrastructure of the juvenile court and buttress the capacities of the criminal court to directly engage young people of color as criminals rather than delinquents.  The discursive production of the youthful offender as criminal and the punitive transformation of the juvenile court were inextricably linked as a racial project that aimed to increase the punitive treatment of young black men, to assuage white fears and solidify political power.

References

Beckett, Katherine. 1997. Making crime pay: law and order in contemporary American politics. New York: Oxford University Press.

Fagan, Jeffrey, and Franklin E. Zimring, eds. 2000. The Changing Borders of Juvenile Justice: Transfer of Adolescents to the Criminal Court. Chicago: University of Chicago Press.

Feld, Barry. 1999. Bad Kids: Race and the Transformation of the Juvenile Court. New York: Oxford University Press.

Feld, Barry. 2005. “Race and the Jurisprudence of Juvenile Justice: A Tale in Two Parts, 1950-2000.”in Our Children, Their Children : Confronting Racial and Ethnic Differences in American Juvenile Justice, edited by Darnell Hawkins and Kimberly Kempf-Leonard. Chicago: University of Chicago Press.

Garland, David. 2001. The Culture of Control: Crime and Social Order in Contemporary Society. Chicago: University of Chicago Press.

Gottschalk, Marie. 2006. The Prison and the Gallows: The Politics of Mass Incarceration in America. New York; Cambridge: Cambridge University Press.

Omi, Michael, and Howard Winant. 1994. Racial Formation in the United States: from the 1960s to the 1990s. 2nd ed. New York: Routledge.

Platt, Anthony M. 1969. The Child Savers. Chicago: University of Chicago Press.

Rivlin, Gary. 1992. Fire on the Prairie: Chicago’s Harold Washington and the Politics of Race. 1st ed. New York: Henry Holt & Co.

Simon, Jonathan. 2009. Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear. New York: Oxford University Press.

Tanenhaus, David. 2004. Juvenile Justice in the Making. Oxford: Oxford University Press.

Zimring, Franklin E. 2005. American Juvenile Justice. Oxford University Press, USA.

However, such a view misses the contexts in which the law becomes an active collaborator in producing inequality, rather than simply stabilizing external patterns.  By paying attention to the legal practices involved in the production of spaces of exception, tax policy, and criminal justice, we can see that the law can co-constitute structures of domination, oppression and inequality in addition to legitimating and stabilizing them.  If the law seems merely superstructural in one circumstance, and structurally constitutive in another, than perhaps another logic is in operation.  Those contexts in which the law appears superstructural are the same contexts that might offer challenge to white supremacy and other structures of oppression.  Those contexts in which the law appears as forceful and co-constitutive of social structure are those in which it buttresses or exacerbates existing patterns of inequality.  The common thread is support for status quo power arrangements, and the law deploys either an active constitutive mode or a passive mode of legitimation and stabilization depending on context.

Critical scholarship on antidiscrimination law and legal remedies to racism offer insight into the discursive and legitimating mode of legal action.  Alan Freeman argues that the law primarily worked as a means to legitimate and stabilize racial disparities in a moment of crisis.  The embrace of a ‘perpetrator’ centered perspective centered on identifying harm and intent to cause harm foreclosed the possibility of a ‘victim’ centered perspective centered on the actual conditions of disparity (1977).  He argues that the law had the contradictory goal of holding out the discursive promise of racial equity while foreclosing the real possibility of attaining justice.  Formal equality and race neutral colorblindness serve as a legitimating mask that suggests that the state rebukes racism while strictly limiting the boundaries of actual remedial action.    Neil Gotanda suggests that the precept of a colorblind constitution requires substantial intellectual and performative gymnastics that result in the erasure of the historical meaning of race and racism.  He argues that a contradictory practice of “nonrecognition” (Gotanda 1991:6), combined with a move toward formal definitions of race and an insistence on the “unconnectedness” (1991:41) of race to extant patterns of inequality reinforces white supremacy through legitimating racism as a thing of the past.

Cheryl Harris argues that we can read the legal history of whiteness and property together; that they are co-constitutive.  She argues that contemporary claims to remedial action are being weighed against the settled expectations of white people’s privilege, and that white people have won legal protection for their investments in whiteness.  As such, the courts have legitimated and reinforced extant hierarchies.  Perhaps more than Gotanda and Freeman, Harris suggests that racial law itself has helped to constitute the frameworks through which privilege and exclusion operate (1993).  In the context of colorblind or unconnected formal-race jurisprudence (Gotanda 1991; Freeman 1977), we see the function of the court as primarily legitimating status quo power distributions.  In the context of whiteness as property or status-race in the pre civil-rights era, we see the court actively engaging in creating and reinforcing white supremacist social structure.  In these cases then, the mode that sees the court as primarily legitimating operates only in the context of the possibility of social change to white supremacy.  Anti-discrimination law in particular serves to suggest equity while refusing to challenge.  Property (as Harris suggests) and other sectors of the law are far more direct in their intervention.

Derek Gregory suggests that spaces of exception and colonial occupations are characterized not so much by the suspension of law but through an elaborate legal performance.  He suggests that we can’t see law in this context as merely offering the cover of legitimacy for the necropolitical (Mbembe 2003) regimes these spaces contain, but that these legal performances themselves render spaces as both interior to sovereignty and exterior to it simultaneously (2006:414).  The law co-constitutes this social structure of extreme racial domination in partnership (and perhaps inseparably bound with) imperialism and biopolitical governance.  Indeed the constitution of the space of exception and its governance is by necessity legal and by necessity racist (Foucault 2003:258; Mbembe 2003).  The law here does far more than offer legitimation, it actively builds social structure.

Similarly, the racial maldistribution of wealth which affirmative action policies seek to at least suggest challenge to, are at least partially co-created through legal action.  The establishment of the Bush-era tax cuts (and the precipitous decline in tax rates following the end of World War II) served to promote a massive upward transfer of wealth (Hacker and Pierson 2005).  Similarly, the rapid privatization of public goods such as public housing has created windfall opportunities for corporate tax evasion, thus enabling a different stream of upward wealth transfer (Guthrie and McQuarrie 2005).  In both cases, legal performance directly intervened into the fabric of social structure and buttressed already existing hierarchies.

Similarly, criminal law regularly intervenes directly and forcefully into social structures and actively builds a stigmatized underclass (Alexander 2009).  Criminal law though, shows us how both discursive superstructural work and material structural work often go hand in hand in legal action.  On the one hand, the enormous racial disparities in incarceration rates (Western 2006) produced by racist policing practices (Williams 2007; Parenti 2003), sentencing policy (Schlesinger 2011) and the targeting of racialized practices and spaces (Bobo and Thompson 2006; Mele 2004) naturalizes difference and legitimates and reinforces white supremacy (Wilderson III 2007).  On the other, these same legal practices actively build structures of white supremacy through creating exclusive stigmas (Pager 2007) and dramatically diminishing the life chances of people of color (Western 2006; Gilmore 2007).  In moments in which the legal system aligns with white supremacy, we see both the legitimation of Black subordination and the active building of structures that perpetuate white supremacy.

It is only then in moments in which the legal system potentially aligns itself against white supremacy that we see it function primarily with the discursive function of legitimation.  The non-intervention that characterizes anti-discrimination law, coupled with its discourse of fairness and race neutrality, serves to ignore patterns of racial inequity.  In this situation in which it ignores the problem, the court is compelled to engage in performances that communicate that it is in fact doing all that can be done to correct the problem, or that the problem of racism has been effectively dealt with (Freeman 1977:1117).  This is a rare instance in which the court intentionally avoids action.  In a range of other modes of legal action including criminal law, tax law, and the production of spaces of exception, the law actively engages in expanding or reinforcing white supremacy while at the same time engaging in communicative performance that seeks to naturalize power arrangements.  When the capacity to act against white supremacy has developed, the courts choose non-intervention.  When the capacity to buttress white supremacy arises, they actively engage.  In both circumstances legal action involves the communicative task of legitimation.

Works Cited

Alexander, Michelle. 2009. The new Jim Crow: mass incarceration in the age of colorblindness. The New Press.

Berg, P. E. 1999. “Ill/Legal: Interrogating the Meaning and Function of the Category of Disability in Antidiscrimination Law.” Yale Law & Policy Review 18:1–51.

Bobo, Lawrence D., and Victor Thompson. 2006. “Unfair by Design: The War on Drugs Race, and the Legitimacy of the Criminal Justice System..” Social Research 73:445-472.

Dunson III, M. D. 2001. “Sex, Gender, and Transgender: The Present and Future of Employment Discrimination Law.” Berkeley J. Emp. & Lab. L. 22:465–517.

Emens, E. F. 2009. “Intimate Discrimination: The State’s Role in the Accidents of Sex and Love.” Harv. L. Rev. 122:1307–1316.

Foucault, Michel. 2003. Society Must Be Defended: Lectures at the Collège De France, 1975-76. 1st ed. New York: Picador.

Freeman, Alan David. 1977. “Legitimizing Racial Discrimination through Antidiscrimination law: A Critcal Review of Supreme Court Doctrine.” Minnesota Law Review 62:1049.

Gilmore, Ruth. 2007. Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California. Berkeley: University of California Press.

Gotanda, Neil. 1991. “A Critique of “Our Constitution is Color-Blind”.” Stanford Law Review 44:1-68.

Gregory, Derek. 2006. “The black flag: Guantánamo Bay and the space of exception..” Geografiska Annaler Series B: Human Geography 88:405-427.

Guthrie, Doug, and Michael McQuarrie. 2005. “Privatization and Low-Income Housing in the United States Since 1986.” in Politics and the Corporation, vol. 14, edited by Harland Prechel. Oxford: JAI Press.

Hacker, Jacob S., and Paul Pierson. 2005. “Abandoning the Middle: The Bush Tax Cuts and the Limits of Democratic Control.” Perspectives on Politics 3:33-53.

Harris, Cheryl I. 1993. “Whiteness as Property.” Harvard Law Review 106:1707-1791.

Mbembe, Achille. 2003. “Necropolitics.” Public Culture 15:11-40.

Mele, Christopher. 2004. “The Civil Threat of Eviction and the Regulation and Control of U.S. Public Housing Communities.” in Civil Penalties, Social Consequences, edited by Christopher Mele and Teresa A. Miller. Routledge.

Pager, Devah. 2007. Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration. Chicago: University of Chicago Press.

Parenti, Christian. 2003. The Soft Cage: Surveillance in America from Slavery to the War on Terror. New York: Basic Books.

Schlesinger, Traci. 2011. “The Failure of Race Neutral Policies: How Mandatory Terms and Sentencing Enhancements Contribute to Mass Racialized Incarceration.” Crime & Delinquency 57:56-81.

Western, Bruce. 2006. Punishment and Inequality in America. New York: Russell Sage.

Wilderson III, Frank B. 2007. “The Prison Slave as Hegemony’s (Silent) Scandal.” in Warfare in the American Homeland: Policing and Prison in a Penal Democracy, edited by Joy James. Durham: Duke University Press.

Williams, Kristian. 2007. Our Enemies in Blue: Police and Power in America. Cambridge  Mass.: South End Press.

Through a discussion of the possibility of fundamental reform to the educational system in the wake of the election of Barack Obama, Henry Giroux (2009) evaluates the meaning or what it means to be “post-partisan” in a highly partisan environment.  He considers the extent to which a politics of neutrality and consensus either masks or quietly consents to the continuing neoliberal takeover of public primary and secondary education.  Taylor-Clark and colleagues (2007) consider a perplexing double motion of public opinion — as awareness of racial healthcare disparities increased support for federal intervention into reducing disparities declined.  They consider the role that the density of news coverage and the relative presence of different types of causal frames for healthcare disparities played in guiding public opinion in particular directions.  Alexandra Stern (2005) examines the continuities between policies of forced sterilization informed by eugenics in the early 20^th century, continued coerced sterilizations in the 1960s and 1970s, and policy today.  She argues that the logics, discourses and practices of eugenics became institutionalized in California in key ways, and shed light on much of the anti-immigrant vitriol we see today.  Ira Katznelson (2005) provides a detailed analysis of the processes by which the G.I. Bill exacerbated educational and class disparities between black and white communities.  While providing extensive access to higher education, home ownership and numerous other benefits to millions of white veterans (and a not insignificant amount of Black veterans), the political process that guided the bill’s crafting and implementation ensured that it’s benefits would map onto existing hierarchies by enabling decentralized Jim Crow application.

Obama’s education agenda, indicated by his selection of former Chicago Public Schools CEO Arne Duncan (and Duncan’s title of CEO rather than superintendent) and his competitive block grant program “Race to the Top” can’t be understood outside the context of the increasing privatization of the welfare state informed by a neoliberal ideology.(Giroux 2009) While Obama insists that he will pursue ‘what works’ in education reform, and he proceeds by insisting on a politics of consensus, these postures by default surrender to the hegemony of high-stakes testing, zero-tolerance discipline and market driven performance metrics.  Giroux rightly points out the disastrous consequences this regime has had for Chicago, but fails to recognize the ways in which this ‘new’ configuration, itself an agenda dating back to the 1980s, maps on top of an already existing system that has promoted deep disparities and provides institutional support for white supremacy.  Beyond recognizing the context of the current political climate, one dominated by unabashed praise of the virtue of the market, it is important to see that these reforms come into being within a context of a vastly unequal system and inherit the legacy of segregationist infrastructure.  These new reforms however insist on their novelty and refuse to address the inequities and injustices of past systems, thus grafting the mantras of privatization and testing onto the already existing failure to defeat educational segregation, resulting in an incoherent and wildly unjust educational system.

The news media play an important role in legitimating reforms and shifting the interplay of discourses that provide meaning to any particular policy.  We can understand journalism as mediating the relationship between policy and broader social context (though it alone does not fill this role). (Hall et al. 1978) Taylor-Clark and her colleagues argue that the news media often provide frames within stories that suggest causal mechanisms for certain social problems, as well as indicating what individual, group, or institution is best equipped to address or solve this social problem.  In their content analysis of journalistic coverage of healthcare disparities, they find that about 50% of news articles individualize the causal process of health disparities, in effect blaming the victim.  This process of individualizing social problems fits well within neoliberal frameworks of healthcare as a consumptive process, and helps us to understand one way that the discursive contexts enabling certain kinds of policies are formed.

While the G.I. Bill is remembered fondly by many scholars and politicians as creating the political infrastructure and direct investment necessary to create the American middle class, Katznelson reminds us that was developed and implemented within a context saturated with overt white supremacy, and as such the benefits of the bill were as segregated as the suburban communities it helped to spawn.  The G.I. Bill should perhaps be considered the most significant of the New Deal programs, and Katznelson’s historical analysis gives us a different lens with which to read the apex of the American welfare state.  He demonstrates that the process of the bill’s formation and implementation was guided by an impulse to reinforce segregationist institutional practice and ensure the continued economic subordination of Black people.  Mapped onto already existing racial disparities, the G.I. Bill’s massive infusion of resources catapulted white families ahead of the vast majority of Black families.  The G.I. Bill can be understood as a means of securing white supremacy and ensuring Black subordination, providing an image of New Deal generosity grafted onto the infrastructure of Jim Crow segregation and white supremacy.

Alexandra Stern reminds us that some welfare state policies have been far more overt in their attacks on communities of color.  She argues that it is necessary to dig deep into the history of eugenics and forced sterilization to understand the context for anti-immigrant movements and the problems of medical ethics today.  Eugenics and the practice of forced sterilization were themselves given context and legitimacy through the rise of Progressive era discourses about the scientific management of society and the ability of the state to improve the condition of the population.  (Foucault 2003) The practice of routinely sterilizing women of color admitted to state institutions as ‘invalids’, ‘feebleminded’, or any other of a range of ‘dysgenic’ conditions gave way to the Malthusian framework of overpopulation and the coded racism of discourses of welfare dependency.  Today’s anti-immigrant movements deploy the same rhetoric of containment, disease and public health.  The practice of managing and containing populations have been grafted on the institutional frameworks and ideological discourse built by eugenicists.

Though we see new developments in each era, the skeleton of old systems is clearly visible.  We have to understand particular developments of welfare state policy as being bound within current institutional and cultural contexts, but also as being laden with the weight of past policy and power structures.

Works Cited

Foucault, Michel. 2003. Society Must Be Defended: Lectures at the Collège De France, 1975-76. 1st ed. New York: Picador.

Giroux, H. A. 2009. “Obamaʼs Dilemma: Postpartisan Politics and the Crisis of American Education.” Harvard Educational Review 79:250–266.

Hall, Stuart, Chas Critcher, Tony Jefferson, and Brian Roberts. 1978. Policing the Crisis: Mugging, the State, and Law and Order. London: Macmillan.

Katznelson, Ira. 2005. When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth-Century America. New York: W. W. Norton & Company.

Stern, Alexandra Minna. 2005. “Sterilized in the name of public health: race, immigration, and reproductive control in modern California.” American Journal of Public Health 95:1128.

Taylor-Clark, Kalahn Alexandra, Felicia E Mebane, Gillian K Steelfisher, and Robert J Blendon. 2007. “News of disparity: content analysis of news coverage of African American healthcare inequalities in the USA, 1994-2004.” Social Science & Medicine (1982) 65:405-417.

The state of exception emerges in spaces in which a sovereign power declares that it need not abide by its own laws (Agamben 2000), and many theorists contend that these spaces are proliferating throughout society (Gregory 2006).  As Derek Gregory argues however, these spaces are characterized not so much by their lawlessness, but by an excess of legal performance enabling the production of bare life (the removal of political status and rights from individuals).  Rooted in colonial legal practices and with roots dating back to plantation society (Foucault 2003; Mbembe 2003), these formations have long been part of the American political landscape While it would be hyperbolic to suggest that a space of exception has fully crystallized across the United States, we can certainly see a trajectory of their production or reinforcement in the interlocking criminal justice and social welfare systems.

Though they do not form a conspiratorial or completely unified machine, the criminal legal system and the remaining institutions of the welfare state dovetail to produce social conditions that tend toward the elimination of rights and the production of bare life.  Institutions such as the public school increasingly resemble prisons both in their architecture and their operation (Kupchik and Monahan 2006) and youth of color frequently find themselves heavily policed and subject to the criminal legal system at very young ages (Skiba et al. 2006).  Successive policy reforms from the 1980s onward have increasingly rendered the receipt of any social welfare benefits contingent on submitting oneself and one’s family to heightened surveillance and harsh punishment.  On the one hand, those constructed as the deserving poor are stripped of their rights and exposed to increased policing and risk of arrest in order to continue receiving constantly diminishing benefits.  On the other hand, the ranks of the chronically poor determined to be undeserving because of violations of increasingly arbitrary rules find themselves stripped of benefits (often subjecting them to abject poverty) or incarcerated.  The effects and powers of these systems are concentrated spacially in primarily urban low-income communities of color, creating zones in which individuals have weakened legal rights and are far more likely to end up stripped of their rights altogether through arrest and incarceration.  Although there is not a perfect architecture locking these systems together, their effects combine incrementally to produce a near totalizing network of punishment and surveillance (Wacquant 2001) in which individuals are afforded few rights or legal protections.  Policy and state practices are pushing spaces marked by the presence of social welfare institutions and the criminal legal system forward on a trajectory toward becoming spaces of exception.

No-fault evictions allow local housing authorities (with a mandate from the US Department of Housing and Urban Development) to evict entire households if any member of the household or guest of a resident is accused of illegal, dangerous or disruptive activity anywhere.  Using the rhetoric of community empowerment and safety, a series of policies and laws enabled management agencies to leverage harsh civil penalties against an entire household if a third party connected by even a tenuous relationship stood accused of threatening the safety of the community writ large (with wide latitude granted to managers to determine what constitutes a threat).   Christopher Mele argues that these no-fault evictions constitute a form of coercive social control by requiring residents to actively police their relationships and manage their exposure to the risk of eviction.  Beyond creating conditions of coercion, however, no-fault evictions erode the rights of a specific group of people occupying a specific social and geographic space.  Individuals are now no longer free to maintain relationships with anyone they choose, and must subject their family and social lives to state scrutiny (Mele 2004).  No-fault eviction provisions closely resemble zero-tolerance policies found in other vestiges of the welfare state, reinforcing the increasing precariousness of any claim of a right to benefits.

Beyond sacrificing an apartment, a student loan, food stamps, or other social benefits, residents of public housing and people who live in the surrounding community also are subject to increased risk of incarceration.  Traci Schlesinger argues that while mandatory minimum sentences and sentencing enhancements are formally race neutral, these policies target behaviors and spaces that are highly racialized, such as weapon possession and being on or near a public school or housing campus.  The impacts of sentencing enhancements for conviction of a crime on or near public housing facilities or public schools are distinctly spacialized in urban environments (Schlesinger 2011:4).  These policies create zones in which low-income people of color will be automatically subjected to harsher and more certain punishment if convicted of a crime by simple fact of their place of residence.  Schlesinger shows that these policies serve to expand already existing disparities between the admission of white and black men to state prisons, incrementally buttressing racialized mass incarceration.

Many state-managed spaces primarily used by low-income people of color are becoming spaces of exception.  If we combine the civil coercion produced by no-fault evictions with the criminal legal punishment produced by sentencing enhancements they move the space of public housing closer toward rightlessness.

However, Bobo and Thompson remind us that this process does not always occur smoothly or without resistance.  Indeed, the discourses of race neutrality and formal equality upon which the contemporary criminal legal/punitive welfare systems have been built are being actively undermined by the clearly racist application and impact of these systems.  Bobo and Thompson argue that black people correctly perceive racial bias in the practice of law enforcement generally, and the war on drugs in particular.  At rates far greater than white people surveyed, black people indicated that they believed that the criminal justice system treats black people unfairly and that there is racial bias in the criminal justice system.  Bobo and Thompson suggest that this indicates a crisis of legitimacy for the criminal justice system, as the notion of fairness before the law becomes destabilized (2006).  Indeed, the concentration of the effects of the move toward spaces of exception renders the racism of the system hypervisible in those places in which it manifests itself while obscuring itself behind race neutrality outside of these spaces.  However, this hypervisibility may work toward producing a legitimation crisis, as Bobo and Thompson suggest.  The space of exception then might create the conditions of its own undoing.

Reading the work of Schlesinger (2011) and Mele (2004) as describing different facets of a system that adds up to produce something resembling a space of exception helps indicate the contours of an emerging space of rightlessness formed through the incremental effects of a range of policies.  Though by no means is public housing in the U.S. a purely rightless space now, we can see motion in that direction.  We can also see, however, that people of color are already well aware of the transformation and question fundamentally the intent of the criminal legal and punitive welfare systems, perhaps creating an opening in which movements can challenge the crystallization of spaces of exception.

Works Cited

Agamben, Giorgio. 2000. Means Without End: Notes on Politics. Minneapolis: University of Minnesota Press.

Bobo, Lawrence D., and Victor Thompson. 2006. “Unfair by Design: The War on Drugs Race, and the Legitimacy of the Criminal Justice System..” Social Research 73:445-472.

Foucault, Michel. 2003. Society Must Be Defended: Lectures at the Collège De France, 1975-76. 1st ed. New York: Picador.

Garland, David. 2001. The Culture of Control: Crime and Social Order in Contemporary Society. Chicago: University of Chicago Press.

Gregory, Derek. 2006. “The black flag: Guantánamo Bay and the space of exception..” Geografiska Annaler Series B: Human Geography 88:405-427.

Kupchik, Aaron, and Torin Monahan. 2006. “The New American School: Preparation for Post-Industrial Discipline.” British Journal of Sociology of Education 27:617-631.

Mbembe, Achille. 2003. “Necropolitics.” Public Culture 15:11-40.

Mele, Christopher. 2004. “The Civil Threat of Eviction and the Regulation and Control of U.S. Public Housing Communities.” in Civil Penalties, Social Consequences, edited by Christopher Mele and Teresa A. Miller. Routledge.

Mele, Christopher. 2005. “The Civil Threat of Eviction and the Regulation of Control US Public Housing Communities.” Pp. 121-138 in Civil Penalities, Social Consequences, edited by Christopher Mele and Teresa Miller. New York: Routledge.

Schlesinger, Traci. 2011. “The Failure of Race Neutral Policies: How Mandatory Terms and Sentencing Enhancements Contribute to Mass Racialized Incarceration.” Crime & Delinquency 57:56-81. http://cad.sagepub.com/content/early/2008/08/19/0011128708323629.abstract.

Skiba, Russell et al. 2006. Are zero tolerance policies effective in the schools?: An evidentiary review and recommendations. American Psychological Association Zero Tolerance Task Force.

Wacquant, Loic. 2001. “Deadly Symbiosis.” Punishment & Society 3:95 -133.

A series of sometimes overlapping sometimes competing narratives were produced to describe the “Chandler Roundup” discussed by Mary Romero.  First, we have a highly technocratic account generated by police reports of events spanning 5 days detailing dates, number of individuals arrested, the targeted spaces, and some information about police and INS strategies (2006:454).  Second, we have another official narrative that describes the history of white settlement and economic activity in the region, then points to the destabilization of the community by a flood of immigrants, often criminals who are destroying community life.  The immigration raid was articulated as a natural response to this problem (2006:459).  Finally, we have a third narrative (also officially endorsed) sourced from community members that describes conflict over an urban renewal program.  This narrative argues that conflict over urban space led to attempts by Chandler’s white communities to see immigrants as a barrier to economic development, thus creating strong incentive for them to invent an immigration problem and to displace the Latino community (2006:459).  Each of these narratives has different goals and different audiences.  The first is likely meant to be read by bureaucrats within the infrastructure of the police force or INS, and likely has the purpose of ensuring accurate reporting and procedural regularity.

The second and third are designed for public consumption, thus have a bit more for us to read regarding conflicts over legitimacy.  In the second narrative, we are presented with a stable white community besieged by an external threat.  The story proceeds from the first settlement of white people in the region, to detailing the history of the relationship between Mexican laborers and white capitalists in the region as somewhat harmonious until the current era in which ‘hordes’ of migrants began to threaten public safety and the quality of life, at which point the authorities intervened.  Obviously, this narrative relies on the erasure of the first nations communities displaced by white settlement, and the previous history of Arizona as a territory of Mexico.  It centers white residents as those worthy of concern, with Latinos as secondary or peripheral.  Latinos are then later characterized as alien and dangerous, menacing the primary white population.  Invoking two kinds of threats, public safety and quality of life, state action is justified.  We can understand these threats and responses to be legitimated through mapping an appeal to ‘public safety’ on to Weber’s notion of ‘rational authority’ (as criminal threat is well established as within the purview of the state) and ‘quality of life’ on to ‘traditional authority’ (as the stability of community life is threatened).  Thus if we accept the validity of the articulated threats, we are likely to perceive the state response (a massive immigration raid) as legitimate.

The third narrative takes up the challenge issued by the second, and contests the validity of the threat posed by Latinos generally and migrants specifically.  They do so by suggesting that neither the threat to public safety or quality of life are valid, but that a third threat provided incentive for the city’s white residents to amplify the danger posed by migrants.  Through the vehicle of an Attorney General’s report, town residents suggest that intergroup conflict emerged after the unveiling of an urban renewal scheme.  They argue that the geography of the urban renewal plan coincided exactly with the boundaries of the raid.  If we accept their claim, then the real threat is one of an inability to capitalize on an economic opportunity.  This claim doesn’t map neatly onto an extant pattern of authority that people would willingly accept, and thus, if their argument is accepted, would challenge the legitimacy of the raid.

Narratives are more implicit in both Welch’s and Kanstroom’s arguments, but they certainly have a role to play.  They both discuss the conflation of terrorism and immigration and suggest that a narrative of threat enabled the federal government to dramatically expand the role of policing and punishment in immigration enforcement.  Welch uses the framework of ‘moral panics’ to describe the discursive conditions under which the net could be expanded (2003:320).  He suggests, however, that panic emerged naturally from terrorist attacks in the 1990s, and then ‘produced’ legislation, missing the fact that panics must be articulated (usually through the media in narrative format), and that legislators then may seize the opportunity to legitimate a crackdown.  There is very little that is automatic about the process.  However, narratives constructing and fanning this panic were abundant at the time, among others, the story of the ‘Clash of Civilizations’ (Huntington 1997).  Huntington and others helped provide a narrative of conflict between racialized groups, indicated a clear threat to the safety of ‘ordinary Americans’, and implied that criminal legal crackdown and military intervention would be legitimate responses to this threat.

Kanstroom details a small portion of the discourse used to promote the CLEAR act (requiring state and local law enforcement to enforce federal immigration law) that gives us a glimpse into larger narratives about terrorism and immigration in circulation at the time.  Tales of “roving alien child molesters” (2003:659) are linked in the same breath with Al-Qaeda members, suggesting a collapse of the figure posing a physical threat to the country.  The figure of the ‘terrorist’ and the ‘illegal’ are merged in a narrative of existential threat to the nation in the form of warfare and personal threat to residents through crime.  This identification of threats is coupled with a perceived crisis in the capacity of law enforcement to address these threats, thus setting the stage for a dramatic expansion of the scale and power of law enforcement.  As existential threats to the nation and threats to the personal safety of citizens are widely accepted as being the legitimate responsibility of the state, these expansions of authority can fit within a coherent narrative of the legitimate expansion of state power.  Kanstroom also presents challenges that appeal either to the delegitimation of law enforcement (e.g. criminalizing migration makes it far less likely migrants will rely on the state for safety), or by contesting the rational authority of these measures by suggesting that they aren’t the will of the people (2003:660).

While narrative does not bring policies into being as such, they do have the power to legitimate or undermine policies and practices.  Expansions of state power rely on narratives that identify an in-group, define an outsider threat, and describe a legitimate exercise of state power in response.  Counternarratives examined here seek to undermine either the definition of threat, the narrative that draws boundaries between groups, or the purpose of state power.  Through contesting any of these factors, they can destabilized a claim to legitimate state action and present an opening for political challenge.

Works Cited

Huntington, Samuel P. 1997. The clash of civilizations and the remaking of world order. Simon and Schuster.

Kanstroom, D. 2003. “Criminalizing the Undocumented: Ironic Boundaries of the Post-September 11th Pale of Law.” North Carolina Journal of International Law and Commercial Regulation 29:639.

Romero, Mary. 2006. “Racial Profiling and Immigration Law Enforcement: Rounding Up of Usual Suspects in the Latino Community.” Critical Sociology 32:447 -473.

Welch, Michael. 2003. “Ironies of social control and the criminalization of immigrants.” Crime, Law and Social Change 39:319-337.

Dorothy Roberts argues that torture has long been a tool for marking racial difference and producing ‘dangerous’ bodies.  She sees direct parallels between post-Reconstruction practices of lynching in the American South and the contemporary torture of detainees in the war on terror (2007).  Achille Mbembe argues that death and the sovereign power to kill are foundational to Western political thought and practice, and sees evidence of the necropolitical nature of state power permeating slave economies, apartheid states, and colonial governments old and new (2003).  Derek Gregory, in response to Giorgio Agamben, argues that the history of performative productions of spaces of ‘rightlessness’ that are permeated with an excess of ‘lawfulness’ go far beyond the ‘space of exception’ at Guantanamo Bay to practices developed by European colonial governments (2006).  Michel Foucault discusses the tenacity of an old mandate of sovereignty, the right to kill or let live, in the face of a new biopolitical edict to regulate and improve life that merged to create the menace of modern state racism (2003).  Each critic points to the tenacity of racist state violence and the technologies that enable its proliferation.  Far from reading the occupation of Palestine, racialized mass incarceration, or the War on Terror as ruptures with an established order or as fundamentally new and different, these scholars insist that we must see these phenomena as part of a long, deadly and continuous (though not unchallenged) history of biopolitical and necropolitical sovereignty.

Each critic however, points to the malleability or durability of different institutions and structures in response to different arguments about the novelty of contemporary political and social problems.  For his part, Derek Gregory disputes Giorgio Agamben’s claim that the state of exception has become the mode of governance par excellence, and that the space of exception that enables the production of bare life is somehow new (or at least relatively new) (2006:407).  While Gregory recognizes that Agamben locates the figure of homo sacer within the traditions of Roman law, Gregory argues that this is a largely hermeneutic tactic rather than a historical one.  Agamben argues that the space of exception declared by a sovereign power, a geography in which bodies are stripped of subjectivity and exist at the threshold of life and death, crystallized in the concentration camp and has since proliferated throughout the social fabric.  Gregory contests the argument on several points, noting that Agamben fails to see the colonial roots of the ‘space of exception’ and that the history of these spaces is marked by an excess of legislation and judicial interpretation, not their absence.    The threshold between the legal and the extralegal has historically been a site of struggle between sovereign power and those forces that would either seek to restrain or legitimate said power, and it is in the indeterminacy created by this contest that imperial powers can produce conditions of bare life (2006:420).  Guantanamo Bay itself is not a particularly novel space, as it is and has been governed by imperial logics and subject to the legal legerdemain that is able to create a space abundant with law that is simultaneously devoid of an guarantee of rights.  While the concentration camp may be a profound example of a space of exception and Gitmo may be a contemporary manifestation, the performative practices that enable and germinate these spaces have roots far deeper and less exceptional than Nazism.

Where Gregory points to the performative practices that enable zones of torture, Dorothy Roberts argues that practices of torture are foundational to making and marking race and have roots in political and legal theories of warmaking and colonization (2007:230).  In this context, Abu Ghraib serves not as an indicator of a disturbing new trend under the War on Terror, but rather as a symbol of an ongoing process of marking racialized bodies as dangerous and menacing through the practice of torture.  Roberts argues that torture has historically been deployed by the US both within and outside its borders to produce bodies that were both dominated within a racial hierarchy but also marked as dangerous.  Through different rituals and practices of publicity, these bodies have been rendered visible for consumption and communication.  The roots of these practices run deep, through the logics of slavery and colonization to the present.  Domestically, torture continues to operate within the symbolic matrix of a denial of the full humanity of black people and their marking as animalistic and dangerous.  Internationally, the logic of the ‘savage war’, in which laws of war are suspended because the enemy is constructed not as a rival state, but as a stateless, shifting and anti-civilizational figure continues to govern the use of torture to mark bodies as ‘terrorist’ (2007:243).  Though the politics of visibility have shifted somewhat, the theoretical and practical foundations of practices of torture continue in much the same way as they had at the birth of white supremacist governance.

Rather than seeing a break in old models of sovereignty that privilege the sovereign right to kill by theories of political right and autonomous subjectivity, Achille Mbembe insists that the fundamental organizing principle of modern and late modern politics is the threshold between life and death (2003:14).  Echoing Roberts and Gregory, Mbembe sees traces of what he calls the necropolitical permeating throughout colonial practices, but argue that they also emerge forcefully throughout the political history of early modern Europe.  Returning to Foucault’s description of the ritualized torture of the regicide Damiens (1995) and the revolutionary terror following the French Revolution, Mbembe argues that death and terror are tightly woven into the Western political imaginary.  Throughout a series of systems of political thought, he shows how death and terror have been constructed as “the unfettered power of reason” (2003:19).  He sees the mode of governance pursued by this drive to kill/drive to suicide/drive to survive enacted in colonial and apartheid regimes and in slave economies.  Far from a progressive narrative of refining the mechanisms of disciplinary and biopolitical governance, or from seeing the horrors of today as a break from the past, Mbembe argues we can see a long history of the perfection of the technologies and spacialization of death throughout modern Western governance (2003:39).

Foucault’s reading of the relationship between two types of sovereign power helps to place all of these scholars work into perspective as telling the longue durée history of the persistence and modification of a Hobbesian conception of sovereignty that insists on the absolute power of the sovereign to “kill or let live” (2003:240).  Whether we discuss Gregory’s ‘spaces of exception’, Roberts’ notion of racialized biopolitical torture, or Mbembe’s necropolitics, the ability of the state to designate which bodies are good and must be protected and which bodies are bad and can be killed with impunity is central.  Foucault argues that through the merging of an old right of states (the power to kill) with a new sovereign power (the ability to know and manage characteristics of a population as a mass object) led to a tight interlocking of the logics of racism and the capacity of the state to act violently in the 18^th and 19^th centuries (2003:255).

This collapsing of the biopolitical and the necropolitical has, our four scholars argue, permeated both the history of the US and the West more broadly as manifested in racist state violence, and continues today through neocolonial occupations, racialized mass incarceration, and practices of torture and indefinite detention.  They argue that it is crucial that we see the continuity between old forms of governance and the horrors we confront today, rather than approaching them as somehow fully contained within the contingencies of the present.

Works Cited

Curtin, Mary. 2000. Black Prisoners and Their World, Alabama, 1865-1900. Charlottesville: University Press of Virginia.

Foucault, Michel. 1995. Discipline and Punish: The Birth of the Prison. 2nd ed. New York: Vintage Books.

Foucault, Michel. 2003. Society Must Be Defended: Lectures at the Collège De France, 1975-76. 1st ed. New York: Picador.

Garland, David. 2001. The Culture of Control: Crime and Social Order in Contemporary Society. Chicago: University of Chicago Press.

Gilmore, Ruth. 2007. Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California. Berkeley: University of California Press.

Gottschalk, Marie. 2006. The Prison and the Gallows: The Politics of Mass Incarceration in America. New York; Cambridge: Cambridge University Press.

Gregory, Derek. 2006. “The black flag: Guantánamo Bay and the space of exception..” Geografiska Annaler Series B: Human Geography 88:405-427.

Mbembé, Achille. 2003. “Necropolitics.” Public Culture 15:11-40.

Roberts, Dorothy. 2007. “Torture and the Biopolitics of Race.” University of Miami Law Review 62:229-248.

Simon, Jonathan. 2009. Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear. New York: Oxford University Press.

Williams, Kristian. 2007. Our Enemies in Blue: Police and Power in America. Cambridge  Mass.: South End Press.

Garland deploys the rhetoric of psychoanalysis to discuss the ways that doing something comes to prominence as a feature of criminal justice policy (Matravers and Maruna 2005).  As part of a ‘crime complex’ that arises in late modernity, a deep fear of victimization comes to have profound influence on the habitus of the (largely white) middle classes along with an ambivalent assessment of the potential of the capacity of the state to prevent crime.  Doing something about crime comes to have critical importance for social policy through two mechanisms.  For the middle class public(s), the experience of victimization (either real or vicariously lived through mediatized emotive portrayals of crime victims) leads to a call for swift and decisive action in an effort to allay fear and achieve catharsis.  The expression of outrage through retributive punishment has therapeutic effects on an insecure public.  Politicians faced with their own inability to effectively combat crime have a marked tendency to ‘act out’ through policy.  They insist that “something is being done” (Garland 2001:135) through overtly expressive laws such as California’s three strikes legislation, hiding their incapacity while simultaneously meeting calls for action with swift and harsh justice.  Doing something is called for by an insecure public and acted out by a state repressing its self-knowledge of impotence.  Marked more by its expressive character than its social effect, the call that something must be done is for Garland synonymous with the retributive mode of late modern punishment in the US and UK.

Though different in character and context, we can see the impulse to do something in earlier moments in the criminal justice system and in different institutional and social contexts.  Even in the dispassionate work of penal-welfare professionals and progressive social reformers a sometimes knee-jerk and expressive mode of action could be found when they confronted the criminal.  Once convicted, individuals were ushered into a system of coercive re-socialization and punishment.  A system emerged that responded to people in regular and routine ways depending on the type of label they received.  Despite its explicitly individuating and therapeutic aims, in practice people were subjected to a routinized set of actions, sentences, and treatments based on stigmatic labels, race, class or gender and based on a set of normative expectations that they were expected to conform to.  These automatic actions persisted despite evidence of their ineffectiveness and arbitrariness, but within the rhetoric of rehabilitation, they constituted ‘doing something’ as a response to the presentation of a problematic individual.  While it was offender focused rather than offense focused, many of the dynamics of action remained the same.  A person identified as a social problem was labeled as such, then subjected to a regime of treatment designed to communicate to the subject of punishment, the state institution, and the public at large that something was being done to remedy the social problem, regardless of whether anything was in fact being done to address underlying issues.  Though perhaps not in as dramatic a fashion as we might see today, the work of Gottschalk (2006) and Tanenhaus (2004) reminds us that public mediatized concern with crime is not a new phenomenon, and that criminal justice systems and politicians were routinely called upon to assure the public that ‘something was being done’.

In contemporary social work, we can see a wide range of communicative action whose impact may work against the stated goals of an organization or the social problem to which it is addressed.  With the aim of ‘doing something’ about human trafficking (a problem very much misunderstood because of disinformation), many programs end up further isolating young people from their communities and introducing them to criminal sanction.  Despite the reality that the foster care system is underfunded and many young people experience severe abuse and neglect within it, social workers are compelled to remove children from homes deemed by the state to be unfit.  Once a problem is identified and because these agents wield state power they will be compelled to act.

The Department of Child and Family Services caseworker has a quite different audience than does the opportunistic politician.  Though the caseworker may on occasion have to confront the public, their general audience is the bureaucratic hierarchy.  The formal logics of the institution create a set of standardized practices that must be followed upon the recognition and labeling of a particular problem.  The individual caseworker, through extensive documentation, communicates to the institution that ‘something was done’ when the problem was identified, and they can then move on.  Once something is done, the problem is understood as solved.  There need not be a public outcry for the automatic impulse to do something and communicate that it has been done to relieve anxiety about the necessity of action.

In building upon Garland’s work, Marie Gottschalk (2006) argues that rather than seeing the emergence of the punitive-segregation mode of criminal justice as indicative of fundamental cultural change, we should look instead at the incremental development of the state’s capacity to police and incarcerate.  She argues that moral panics and fear of crime are endemic to American culture, recurring regularly from the Salem witch trials to Leopold and Loeb to today.  What differs in this moment of mass incarceration is the capacity of the state to act.  In previous moments, the state certainly did respond to moral crisis, but never before has it had the ability to do so with such force.

When the state or an agency operating as an agent of the state has capacity to act and confronts an individual or situation it understands to be a problem, it will be compelled to do something regardless of whether the action will provide any measurable benefit.  The form of the action, the person or group upon whom action is targeted, the audience, and the message will all vary widely with context.  But uniting the institutional and political practices of the punitive-segregation mode of crime prevention with the penal-welfare mode of crime prevention is a common impulse to take deliberate action when confronted by the criminal and communicate that action to a relevant audience (whether that be through a press conference or a set of case files) regardless of whether the action is successful.  Neither system is capable of inaction.  Doing nothing is not an option.  Where Garland sees the return of the repressed in cathartic punitive action, I see a predictable Weberian pattern of expanding bureaucracies and shifting logics.  Regardless of context, when capable an agency will act.

Works Cited

Garland, David. 2001. The Culture of Control: Crime and Social Order in Contemporary Society. Chicago: University of Chicago Press.

Gottschalk, Marie. 2006. The Prison and the Gallows: The Politics of Mass Incarceration in America. New York; Cambridge: Cambridge University Press.

Matravers, Amanda, and Shadd Maruna. 2005. “Contemporary Penality and Psychoanalysis.” in Managing Modernity: Politics and the Culture of Control, edited by Matt Matravers. London ; New York: Routledge.

Tanenhaus, David. 2004. Juvenile Justice in the Making. Oxford: Oxford University Press.

Williams argues that police act (often with extreme violence and impunity) to maintain social order and its attendant hierarchies by historical design.  Each characteristic function of the modern police arose as a partial response to crisis (real or perceived) by political elites and through the inexorable expansion of bureaucratic power.  While police power is an incredible force in the contemporary United States, it is also historically contingent.  Modern policing arose as the state (or certain sectors of the elite) sought to expand its control in response to perceived and real disorders.  The responses to these particular disorders and the theory and practice of policing developed during these responses each brought their own momentum and raisons d’etre into the system. Each of these shifts changed the character and logic of policing until new challenges were confronted.  Williams challenges evolutionary or progressive theories of the development of the police by showing effectively that there is nothing natural or inevitable about their rise nor their ever expanding power.

Williams asserts forcefully that the management, containment, and terror of black slaves in the south and free blacks and ‘the dangerous classes’ in urban centers were the primary objects of America’s early experiments with police power.  However general the social forces might be however, regional trajectories varied widely and were often contested.  The development of nascent police forces was far from automatic or orderly.

In contrast to many historians of policing, Williams argues that the earliest American institution that resembled a modern police force was not the NYPD, but rather were the slave patrols and City Guard of the antebellum South.  Often in explicit conflict with individual white slaveowners who depended upon an anti-state ideology of individualism and paternalism, these early expansions of state and communal power arose in explicit response to collective white fears and governmental crisis provoked by the threat or reality of slave revolts.  Slave patrols, drafted from the white men of rural slaveowning communities served as a state and community mandated check on black communities’ mobility and ability to assemble as well as serving as a visible and potent reminder of the terroristic rule of white supremacy.  In cities such as Charleston, different economic structures and an urban environment led to the institution of an institutionalized City Guard whose sole purpose was to intimidate and terrorize the black community.  The explicitly white supremacist function of these early police forces developed and maintained substantial momentum, forming a core of what became common sense and ordinary for policing in later eras.

Following slightly different paths, Northern, Midwestern, and Western cities’ police forces developed in the context of machine politics and civic state building.  Illustrating both the general conditions of urban governance and the importance of local conditions, Philadelphia’s early experiments with policing arose out of specific conflicts over political power between ward organizations leading to a push for centralized power and the means to defend it.  Rival ward organizations, led by volunteer fire companies and youth gangs engaged in violent and widespread confrontations throughout the city.  Political bosses were loath to relinquish their control or to call of the conflicts. “Their personal fiefdoms were inextricably tied to the ward-based structure of government; it allowed them a distinct realm of influence and a base of support…”(Williams 2007:61).  After a failed experiment with city mandated policing, the state legislature intervened, mandating a precinct based police system managed by a single marshal.  Linking the process to European state formation, Williams argues that the creation of the police force enabled the co-optation or elimination of ward bosses.

The new police force , and others like it around the country, was under the exclusive control of the dominant political party, enabling the building of a sophisticated and powerful machine for the maintenance of political power and the punishment of rivals.  Simultaneous with the consolidation of political machines came widespread urbanization and industrialization and the familiar crises of poverty, political militancy and corruption that accompanied them.

… the police appeared when broad social trends intersected with local crises and the particular needs of the city.  Of course, the authorities only responded to the crises on a rather shallow level, never acknowledging the underlying causes that produced them.  Instead, local elites preferred to blame the crises of urbanization on the moral shortcomings of the poor, and the idea of the “dangerous classes” was born. (2007:67),

In both the Southern antebellum and industrializing urban contexts, policing arose out of historical contexts and political crises.  Policing was always already a partial solution to these crises, seeking management and containment of troubling/troublesome populations rather than resolution of the crisis’ generative conflicts.  These solutions for social control carried their ideological frameworks and practical routines (e.g. enforcing white supremacy, criminalizing poverty, thriving on corruption) into other contexts, becoming embedded in what became hegemonically understood as the proper function of the police.

If on the one hand, the core functions and institutions of the police arose and expanded as partial responses to crisis and varied by region, the bureaucratic organization of the police and their development of self-conscious political power further expanded their role and achieved a degree of autonomy from the control of politicians.  The police became both the power of the state and a power within the state (2007:148).  As technocrats and politicians sought to ‘rationalize’ police departments, rank and file officers began organizing into Fraternal Orders and Benevolent Associations.  They built political organizations through which they could resist bureaucratic management and assert their independent political muscle.  They became a vital constituency for local politicians to court and become beholden to, making and breaking many candidates.  Through this power, police organizations have been able to effectively expand their power and limit oversight.

While the police became ever more powerful, and continue to enforce the interests of capital and white supremacist social order, this state of affairs was far from automatic or natural.  Their power and constitution are the result of concrete policy decisions in response to political crises, the tendency of bureaucratic organizations to expand their interests (“inactivity is bureaucratic suicide”(Williams 2007:201)), and the organizing of police to articulate and defend their power.  Police power and social order are in a tightly interconnected relationship, each having profound influence on the other throughout American history.

Williams, Kristian. 2007. Our Enemies in Blue: Police and Power in America. Cambridge  Mass.: South End Press.

Systems of power and knowledge regularly operate with a degree of autonomy from formal political interests, creating their own rationales and expanding their purview regardless of whose direct interest is being served, more subject to contingency and internal logics than command.  Where Parenti reads the slave patrols accurately, he misunderstands the logics of social work, the internet, and many consumer technologies.  Systems of power and surveillance all produce certain kinds of subjects and certain kinds of disciplinary practices, but each operates with some autonomy from the other.   Parenti wants us to see that surveillance practices push us toward a vaguely defined regime of social control in a linear manner.  He fails to see that these systems are often more interested in reproducing and expanding themselves according to their own internal logics, rather than at the command of a ruling class with coherent and specific interests.

Chinese exclusion, a formal ban on Chinese immigration to the United States in effect between the 1880s and 1940s, the discourses that accompanied it, and the attempt to enforce exclusion led to a rapid expansion of systems of individual identification and bureaucratic social control (and vigorous resistance from many in the Chinese community).  Surveillance regimes initiated by the state under exclusion were deployed explicitly for policing and containing a population targeted by xenophobic discourses and practices.  In this historical moment, there was a one to one relationship between the expansion of systems of social control and a coherent political agenda.

Parenti argues that in an effort to control and contain the Chinese population, officials developed extensive paper records detailing family histories, photographic records, and body measurement indexes, and attempted to implement mandatory registration of Chinese Americans.  Widespread resistance and forgery mitigated the extent to which Chinese communities became docile and manageable, not to mention the hundreds of thousands of immigrants that slipped through the attempt to enforce the ban.  However, practices that we now understand to be routine in immigration proceedings, fingerprinting, photography, evaluating family and individual history, in effect, compiling an extensive dossier, developed during this moment of intense surveillance and persecution of a specific ethnic group at the explicit direction of the state.  The systems of surveillance developed during Chinese exclusion were an intentional and internally coherent effort at social control and the management of a specific population.  The means and ends were almost entirely overlapping.

In contrast, the rise of modern social work produced an incredibly intrusive and constricting regime of policing and control, but without the kind of internal coherence or explicit political mission that accompanied Chinese exclusion.  Parenti argues that social work is about keeping people in poverty (2003:168) and that the discipline emerges to police those rendered useless to capital.  While he may be correct that this was, and remains, the effect of social work on a structural level, this assertion belies the complexity and contingency of the development of private and public welfare organizations.

Parenti argues that social work practitioners felt an intense need to legitimate their work, and appealed to the rhetoric and practice of science to do so.  He argues that the adaptation of narrative case histories, and a legalistic and medicalized rhetoric served a double interest of professionalizing social work, while providing a framework within which the individual targeted for services could become legible as ‘the case’.  While acknowledging the role of early sociology (particularly Chicago school narrative ethnography) in providing a social scientific model for social work to adopt and use to buttress its claims to scientific practice, he fails to see the scope and power that notions of objectivity and science had on attempts to legitimate both academic and activist institutions writ large (Novick 1988).  Deploying science as a framework was not unique to social work by any means, nor was it merely strategic.  Social work was bound up within larger academic and cultural systems of knowledge and power.  The framework of scientific knowledge shifted the ways that subjects were understood and acted upon according to its own internal logics.

While Parenti recognizes the impact that this expansion of ‘scientific’ observation and documentation had on the manner in which individuals were interpellated by social workers, it is not clear that the political mission of social control is more relevant to the discipline than the continued power of scientific and psychologistic discourses.  He fails to see how the competing logics of benevolence, science, state directives, and social control operate in tension with each other to produce systems without coherent objectives or strategies.  The means and ends of social work no longer necessarily overlap, nor is it easy to argue that social work operates with the explicit purpose of containing, controlling, and knowing specifically defined populations.  In his language, these may be ‘latent’ functions of the discipline, but they are far from explicit.

It is important to distinguish between the effects of systems and the intent of systems.  In the case of Chinese exclusion, we see an overt effort to control a group of people, and a proliferation of surveillance and disciplinary practices toward that end.  The story of social work is far more complex, involving the intersection of protestant ethics, the rise of social science, progressive social movements, and urbanization.

Parenti deploys the concept function slippage to discuss how these systems developed for one purpose, tend to move into other, broader contexts (Social Security Numbers being his case par excellence).  ‘Slippage’ reduces these technologies, however, to tools deployed for the end of social control.  He fails to see that the defenders of systems of thought the produce truth claims (e.g. social work or modern policing) constantly move to expand their purview, independent of the more political goal of population management.  The expansion of a discursive field of knowledge and power and formal and explicit political goals of social control can and often do overlap, but it is by no means necessary that they do so.

Parenti argues that power may operate through capillary and networked practices, but he retains a vision of the state and capital as monolithic and ideologically coherent social structures informing surveillance and disciplinary practices directly.  While it is certainly true that the continued expansion of surveillance into our daily lives has profound impacts for the operation of the state and capital, these practices are by no means under their exclusive control.  Parenti cautions us that surveillance and fear cultures tend to produce a binary mode of thinking, “…it’s good versus evil.  No middle ground.  No thinking“(2003:197).  However, reducing the often competing and contradictory practices of surveillance and disciplinary control to a single unifying logic achieves the same binary thinking.  Surveillance becomes ‘Big Brother’ for Parenti, leaving us with an unlikely proposition for binary oppositional politics against a power structure that is incredibly fragmented.

Works Cited

Foucault, Michel. 1995. Discipline and Punish: The Birth of the Prison. 2nd ed. New York: Vintage Books.

Novick, Peter. 1988. That Noble Dream : The “Objectivity Question” and the American Historical Profession. Cambridge [England]: Cambridge University Press.

Parenti, Christian. 2003. The Soft Cage: Surveillance in America from Slavery to the War on Terror. New York: Basic Books.

Following the lead of DuBois (1903) and numerous other scholars of African American history, Curtin recognizes that experiences of collective oppression and resistance have profound impacts on people’s cultural and political practices and discourses.  She argues that the legacy and memory of political struggles for justice in Alabama during Reconstruction provide an important context for understanding the ideological and cultural context of black prisoners’ resistance in the convict lease system.  The brief historical moment between the collapse of chattel slavery and the 1874 Democratic ‘Redemption’, enabled by racist terrorism and fraud, contained a series of protracted political battles in which black communities, through the mechanism of the Republican Party, and reactionary white communities fought directly over control of the state.  She argues that post-emancipation, communities in Alabama’s black belt developed strong identities and institutions, along with a high degree of self-organization and a sophisticated popular justice ideology.  They organized to elect candidates, waged pitched battles against white intimidation, made demands of the courts and state institutions, and developed strong practices of community regulation, though not without internal conflicts over class, sexuality, and gender, among other factors.  These experiences of self-determination and resistance, occurring within an epochal structural shift and struggle for political control, later “enabled black prisoners to create new challenges against white control and forced prison labor” (Curtin 2000:41), precluding them from becoming passive victims of a brutal system.

Black prisoners brought a ‘shell of importance’, developed through the experience of slavery and buttressed by memories of Reconstruction, with them to the coal mines of Alabama.  Throughout the early history of the convict lease system, black prisoners, communities and families presented unrelenting challenges to unjust incarcerations, abuse and poor conditions, and companies’ routine practices of holding people past their release date.  The interactions between R.H. Dawson, penitentiary inspector between 1883 and 1896, and black people impacted by the prison system illustrates the dynamics of demands for justice and survival, structural forces, and the limits of top-down paternalistic reform.

Prisoners had already made regular use of the court system and regularly petitioned state officials for change and justice in the mines.  While Curtin perhaps reads him too generously as a benevolent figure, while heading the penitentiary Dawson implemented a successive series of reforms after persistent demands from prisoners.  With each reform, prisoners quickly seized the measures of freedom allowed, and used that space to demand improved working conditions, strengthen relationships with families, insist on timely release.  After successfully demanding and winning an early release system, prisoners fought company attempts to restrict good time releases through false disciplinary reports, invoking further oversight from state officials.  Many times when conditions became unsafe, workers would demand action from state officials.  If that action didn’t come, they would engage in sabotage and work stoppages to protect themselves.  As each small measure of reform came from the state, prisoners seized new opportunities to wrest some degree of control over their lives and safety.  High levels of mortality and physical abuse never resulted in widespread submission of black prisoners to this regime, and with whatever opportunities institutional and formal political arrangements provided, prisoners fought to preserve their freedom and their lives.    Prisoners’ insistent demands for their rights in the context of a less-brutal prison administration enabled a broad series of policy changes.

Curtin argues that as some prisoners, especially those at the Tennessee Coal and Iron company mines, won better conditions, increased freedom, and even pay, they also developed a critical working class consciousness that would figure heavily in the history of Alabama mining.  After fighting for survival as a prisoner, many black miners understood well the contours of power and the value of their work, and formed critical parts of a series of massive strikes in the state during the 1890s.  The experience of pushing back against the harsh conditions and torturous discipline of prison work framed demands for decent and safe working conditions, good wages, and enabled moments of cross-racial solidarity.

Despite experiencing the double oppression of racism and patriarchy, black female prisoners often developed effective methods of resistance that eventually forced prison officials to open a separate women’s prison.  Many women resisted sexual exploitation by guards, maintained close connections with families inside and out, fought for redress from state officials, refused to wear prison uniforms, and refused to offer deference to guards and overseers.  They were at times, able to pressure Dawson to intervene.  Eventually, Dawson became convinced that the black women incarcerated in Alabama were unmanageable, and resolved to house them without an expectation of extracting profit.

It is clear that structural forces, memory, and experience all shaped the palette of strategies available to black prisoners for survival and resisting white supremacist social control.  Prisoners used formal legal complaints, sabotage, escape, and forms of passive resistance, informed by experiences and perspectives that history had taught them.   The manners of change brought about by prisoners’ acts were varied.  Dawson and other state officials were susceptible to pressure through formal complaints, and could sometimes be impelled to act.  Arson and escape attempts exposed unsafe conditions, producing de facto work stoppages.

What can we say about the impact that these practices of survival and resistance had on social structures?  State officials quickly rolled back many reforms after Dawson’s retirement, showing the overwhelming momentum of white supremacy and the profit motive.  However, we must acknowledge that both male and female prisoners extracted policy change from the state and had some degree of power over the day-to-day operation of prisons.  Curtin’s work reminds us that as sociologists, it is critical to pay attention to how small acts of self-preservation can impact the operation of oppressive institutions when carried out over sustained periods by large groups of people.  That impact isn’t always definitive, positive, or certain, but it does show that even the most brutal systems of white supremacy are not monolithic, and are at times subject to forces outside of their ability to control.

Works Cited

Curtin, Mary. 2000. Black Prisoners and Their World, Alabama, 1865-1900. Charlottesville: University Press of Virginia.

DuBois, W.E.B. 1903. The Souls of Black Folk. A. C. McClurg & co.

Oshinsky, David M. 1997. Worse than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice. Free Press.