#crime control

[if-you-fan-a-fire]

"The New Deal’s simultaneous aggrandizement of carceral capacity and attention to rehabilitation served to construct carceral liberalism. In the early 1930s, Roosevelt deployed his bold ideas through the jurisdictional complexity that he inherited. Along with its national ambition and constitutional humility, carceral liberalism balanced radical reformism with disciplinary pragmatism, and so by the late 1930s a discernible program arose, combining discipline with a rejection of brutality. The conceit of humane incarceration promised to make the carceral state more palatable even as it expanded. Whether in defending repression in terms of its opposite or leveraging state power as a critique of itself, Sanford Bates [director of the Federal Bureau of Prisons], Homer Cummings [Attorney-General], and Howard Gill [former head of the Norfolk Prison Colony] each articulated different facets of this new paradoxical program.

Bates’s 1937 Prisons and Beyond offered one reconciliation of the tensions. Bates championed scientific understanding of every prisoner, the abolition of county jails, restorative justice, and a “more or less permanent” isolation of “incorrigible criminals” from society. He wanted effective parole and probation—a humane regime of “constructive discipline” that avoided “brutality on the one hand and sentimentality on the other.” Hardly a work of reactive expediency, Bates’s tract depicted the prison as a social constant, a fixture of the future, its core functions eclipsing historical particularity. Bates optimistically anticipated technocratic discipline, which had already defeated the draconian vagaries of antiquity. With “the failure of the British colonial penal ventures” now behind, “we have discovered much about sanitation, hygiene, and protective medicine,” Bates enthused. The world was made smaller by the “telegraph and radio” and there remained “no inherent reason why a prison colony should be a place where cruelty abides.” Bates enthusiastically envisaged the “prison of the future!” freed of the need for “silent, lonely” guards carrying firearms “at great expense to the taxpayers,” for the “institutions” might be “protected entirely by science.” Bates’s prison was liberated not only from history but also from materialist political economy, with disciplinary “public-work projects, labor camps, and opportunities for individual or group service” shorn from such considerations as unfair competition with free labor. Prison labor’s purpose was to provide prisoners with meaningful work.

Bates rejected brutality but eschewed the very notion of leniency, defending reform on disciplinary grounds. Restitution would prevent lax justice. Inmate psychiatry did not imply coddling. Bates’s ideal deputy warden was an “absolute monarch” who must “decide as justly as he can” whether inmates violated rules so as “to mete out punishment. He must be neither too soft nor too harsh.” Even Bates’s defense of parole venerated the punitive state. Far from lessening reliance on punishment, parole would augment and ensure it. Parole violations had loose standards of due process that could easily ensnare the guilty and afford “a higher degree of protection to the public.” Parole thus meant longer prison sentences. In sum, Bates’s harsh vision was not reactionary but visionary. His carceral utopia of discipline and redemption in reciprocal reinforcement, freed from its premodern and economically grounded past, was already on its way.

Bates even started sounding different on Alcatraz. Once a critic of its lack of rehabilitative functions, he now argued that even with the strictest “discipline” in the federal system, Warden Johnston ensured “that no brutality or inhumanity shall be practiced.” Bates’s change of mind pleased Cummings, who, now retired, was defending the prison against media depictions of torture and mistreatment, and criticisms from his successor, Attorney General Frank Murphy. Cummings vented: abolishing this “symbol of the triumph of law and order” would be a “tragedy.” Bates shared Cummings’s distaste for the “selfish and ill-timed” press reports and agreed that the institution was “humanely and efficiently administered” and its inmate treatment gave no “cause for concern.”

Whereas in the early 1930s Cummings and Bates represented distinct strains of New Deal penology, their carceral liberalism now converged on Alcatraz. While Bates defended rehabilitation for serving discipline, Cummings defended his unforgiving prison on reformist grounds. Cummings’s 1939 defense of Alcatraz turned on the dyad of control and humanity—mirrored in his depiction of Bates as a “career penologist of long experience . . . both a scholar and a realist.” Cummings stressed Alcatraz’s decency: Its prisoners enjoyed designated time to “talk freely” and smoke cigarettes. They could choose between “light” or “heavy” portions of the “good and wholesome” mess hall offerings, although they had to finish their plates unless sick. And despite its housing the 300 of the most seemingly dangerous inmates out of 17,000 federal prisoners—despite a founding purpose of unremittingly detaining the irredeemable—“even some of those in Alcatraz may sometime reform,” Cummings conceded. Consulting with Bates, he had transferred some prisoners from Alcatraz to other prisons. In other words, security and redemption were like yin and yang, each containing a seed of the other.

In response to his piece, Cummings received reassurance that Alcatraz would survive its public relations stumble and would serve “an essential public need through the years.” One letter hailed Alcatraz’s “stringent discipline without brutality,” which secured “humane treatment for the other nine tenths of society.” For the sake of “honest men crushed . . . by inexorable circumstances,” America should “stiffen her back against the brigand and racketeer in high places as well as low” and “let hardened criminals have the hard rock.” Bates applauded the diplomatic tone of Cummings’s article, which he guessed was “a little more dignified than you would have liked it to be.” Roosevelt responded with encouragement that “no one is in in a better position to explain the purpose” than its architect Cummings, but stayed neutral on the controversy between his attorneys general. Despite internal disagreements in the war-on-crime coalition, the island prison was secure in the New Deal state. It would stay open until 1963.

...

But carceral liberalism was not mere synthesis of discipline and reform— it contained one more paradox, a critique of itself, a radical dissent that legitimated the whole. The minority report lived in Howard Gill, author of volume 5 of the Survey of Release Procedures, published in 1940. Gill, once a superintendent at Norfolk Prison Colony in Massachusetts, issued a scathing indictment of prison growth. Gill lamented the increasing reliance on prisons. The public were told “that only with high walls, steel bars, and cage-like cells were criminals kept from breaking forth to murder, rob and rape law-abiding citizens,” but prison construction “created a vicious circle.” The system fueled “as much desperation and degradation as it has sought to restrain.” Incarceration had become blunt and indiscriminate, sometimes allowing “the most dangerous criminals” more “freedom” than lesser offenders. Prison design harmed prisoners and poisoned their will. Subjecting virtually all prisoners to “interior cell blocks, originally designed as punishment cells” was in fact “unnecessary, expensive, and detrimental to health and morale.”

Interestingly, volume 5 included the most radical indictment of carceral systems, focused as it was on prisons themselves. And yet the radicalism of its critique barely extended to the problem of race, which would come to define the penitentiary in future years. Here and there Gill mentioned segregation and racial discrimination, but only in several passing mentions, such as noting that Texas prisons “usually separated” the races, as did Mississippi’s. Gill also gestured toward the strange racial practices of carceral discipline—but with very little commentary. He noted the curiosity that in Missouri’s “prison farms . . . a dozen white inmates act as unarmed guard-foremen over negro crews working in the fields.” In this respect Gill embodied the colorblind conceit of carceral liberalism. As he leveled the most adamant criticism of any of the volumes, he spent little time on the long-term racial consequences of the system that the national government was building in cooperation with the Jim Crow South and the discriminatory North.

Nevertheless, volume 5 dissented from the dominant ethos of prison discipline, articulated by Bates and Cummings in defending Alcatraz. In prisoners “the maintenance of discipline” remained “only skin-deep while underneath there smolder the fires of revolt, kept hot by the demands of those in authority.” Prison order relied on a myriad of “rules and regulations, not only for inmates but for guards and officers alike”—rules enforcing good manners, banning unpatriotic behavior, and much else. Unwritten rules were potentially tyrannical. The relationship between officer and prisoner resembled that between India’s higher castes and “untouchables.”

But Gill’s outlook was fatalistic. The need to shield society “from the depredations of the abnormal, sub-normal, or vicious criminal” made prisons necessary, however evil. This short-term pragmatism accompanied a long-term pessimism; searching the American history of incarceration for “rehabilitation, moral, physical, intellectual or industrial, does not incline one to an optimistic conclusion.” Volume 5 marked the radical boundary of carceral liberalism, simultaneously building and lamenting the instruments of repression."

- Anthony Gregory, New Deal Law and Order: How the War on Crime Built the Modern Liberal State (Cambridge, Massachusetts: Harvard Univervisity Press, 2024), p. 230-232, 233-234.

[basicallyanotherwitchesthing]

Norval Morris and Gordon Hawkins - The Honest Politician's Guide to Crime Control - The University of Chicago Press - 1970

[nuttynutcycle]

Prompt 23

“No Villain! Bad! You know better than that.” admonished Hero, looking disappointed.

Villain pinched the bridge of their nose. “Look, just because I have animal-themed powers does not mean you can- Hey!” A sharp burst of water hit their face. “Stop that!”

“Odd, this normally works with my cat.” Hero muttered. They frowned at the spray bottle in their hand.

“I will destroy you for this insult to my pride. The city will burn before your eyes as I watch you crawl away in the ashes of despair.”

Hero sighed and reached into their bag for the squeaky toy.

[if-you-fan-a-fire]

"The contested legitimacy of law threatened the political stability of the two parties. That Republicans took over at the moment of Prohibition’s constitutional codification complicated the emerging identity of conservative politics. Republicans notoriously provided little funding and federal oversight, and reformers thus had a convenient scapegoat for social dysfunction for which their own forbearers were largely responsible.

Prohibition’s unpopularity also flummoxed Democrats. Prohibition was both the grand culmination of bourgeois progressivism and anathema to the Democratic base, which had championed the right to drink since its clashes with antebellum Whigs. The Democrats identified the problems of legitimacy and lawlessness in the early 1920s but vowed to make Prohibition work. In the 1920 presidential election both Democrat James Cox and Republican Warren Harding were reluctant to divulge their enforcement plans, frustrating the Anti-Saloon League. Ultimately Cox signaled moderate support for the Eighteenth Amendment, a question “as dead as the issue of slavery,” and pledged full commitment to enforcement. Cox and his running mate Franklin D. Roosevelt lost to Warren Harding. In 1924, Democrat John Davis ran against Harding’s and Coolidge’s reputation of cronyism. Davis related law and order to his identification as “a progressive . . . [who] cannot see a wrong persist without an effort to redress it.” He lamented an impotent executive branch and a vigilante atmosphere, in which “administration of the law” had become a matter “little different from those of private vengeance.” The answer resided in steadfast “enforcement of the law, and all the law,” whether against “wealth that endeavors to restrain trade and create monopoly" or against liquor. Officials failing to enforce Prohibition should be held in contempt. Davis denounced the lawless social conflict undercutting political legitimacy. The “solidarity of the great war” had yielded to “a chaos of blocs and sections and classes and interests, each striving for its own advantage, careless of the welfare of the whole.”

Talk of national unity and the rule of law could not conceal the widespread violence and lawlessness, the corruption from top to bottom. Enforcement was conspicuously uneven, targeting the poor and people of color. In the legal black hole of upside-down federalism, enforcement sometimes fell to vigilantes, a haunting echo of World War I. Lawlessness abounded in both the flouting and the enforcement of the law. In September 1924, New York judge Alfred J. Talley was quoted condemning America’s high murder rate in an article titled “The Most Lawless Nation in the World.” In 1926, in testimony before a Senate committee, he attributed a doubling of homicide rates, and rampant corruption and crime, to the impossibility of enforcing Prohibition.

Americans agreed that Prohibition’s shortcomings could not be ignored, but sharply disagreed on the remedy. Some rethought their positions and others became more vigilant. Irving Fisher had opposed Prohibition but told Congress in 1926 that he had “radically changed” his “attitude,” and advocated “increasing the legal machinery” and only “fuller enforcement” would bring “real personal liberty.” In 1929 the Bureau of Prohibition moved from the Treasury to the Justice Department. That same year Assistant Attorney General Mabel Willebrandt conceded that her policy unleashed lawlessness. She condemned the “wholly unwarranted . . . killing by prohibition agents,” decried the hypocrites drinking while they enforced Prohibition. But she proposed strengthened enforcement, better coordination between Justice and the Treasury, more controls on industrial alcohol, tightening the border with Canada, and abolishing patronage.

Willebrandt, “First Lady of the Law,” embodied this difficult time for both progressivism and the Republicans. Her presence in ways brightly captured the reform spirit as she had championed the hodgepodge of early-century progressive causes. She opposed Prohibition personally but supported strict enforcement for the sake of legal integrity. At any rate, Prohibition soon became her albatross. It had promised a middle ground of order between extremes and between different class interests. But instead of producing a middle ground between anarchy and despotism, it produced a mixture of both—the sort of fusion of lawlessness and mobilization that could be organized in a coherent, politically viable manner during warfare, but not during peacetime. America was in a state of pacifist militarism, drained from war but lackadaisically mobilized, and it needed rationalization under new structural and ideological patterns. Many progressive reformers, seeking more humane conditions for prisons or police reform, had staked their lot with Prohibition and lost credibility."

- Anthony Gregory, New Deal Law and Order: How the War on Crime Built the Modern Liberal State (Cambridge, Massachusetts: Harvard Univervisity Press, 2024), 60-63.

[if-you-fan-a-fire]

The “War” on Crime

“The “war” on crime that began within a few years of the publication of the Model Code is the most recent, and arguably the most radical and broadest-sweeping, manifestation of punishment as an exercise of the police power. Before highlighting some of the policial features of the war on crime of the past fifty-odd years, which since 2001 has been transmogrified and expanded from a domestic program of criminal incapacitation into a global war on terror, let me try to shed light on its policial nature in a different way: by exploring the sense in which it is a misnomer.

Within the framework of the distinction between police and law, the so-called war on crime more properly appears as a police action on crime, or more accurately still as a police action on criminals. (Slippage between crime and criminals—and more recently between terror and terrorists—as objects of penal action is characteristic of police governance.) Wars can be seen—conceptually—as an inter-communal conflict among equals. Wars, unlike police actions, are not essentially alegal; they are governed by a law of war, if only in theory. Modern wars are declared with the consent of the governed; police actions are prosecuted by the sovereign irrespective of that consent. 

To regard another as an enemy in war is to recognize that person, in certain respects, as an equal, governed by common rules, now codified as the law of war. There can be—and has been—talk of “just wars”; there are no “just police actions,” only necessary, prudent, successful, expedient ones.

Consider, for instance, the radically different treatment of regular enemy soldiers and partisans or guerrillas in the event of capture. Much of the law of war is devoted to determining who is entitled to the benefit of treatment as a prisoner of war. The perverse desirability of the classification, and treatment, as a prisoner of war has become explicit in the “war on terror,” which the U.S. has conducted as an extra- or alegal police action against terrorists, labeled “illegal enemy combatants,” who by definition, and by design, are not eligible for prisoner of war status.

The objects of the so-called war on crime likewise, though less explicitly, fall short of the status of enemy in war and, once captured, of prisoner of war. A war on crime would treat the foe as equal to the friend, not radically inferior to him. Take, once again, the law of war governing the treatment of prisoners of war, built on the principle of basic equality of captor and captive. Enemy prisoners of war must be tried “under ... the same court system and . .. the same procedures as members of the armed forces of the Detaining Power.” They are subject to the same “laws, regulations, and orders” that govern the “armed forces of the Detaining Power.”

Prisoners of war “shall be quartered under conditions as favorable as those for the forces of the Detaining Power who are billeted in the same area.” They may keep their uniforms, including indications of rank and medals.  “The Detaining Power shall encourage the practice of intellectual, educational, and recreational pursuits, sports and games amongst prisoners,” and a prisoners’ representative has a voice in the administration of the facility. Although an escape attempt may give rise to disciplinary measures, as opposed to penal sanctions, “even if it is a repeated offence,” recaptured escapees “shall not be liable to any punishment in respect of their previous escape.”

In general, then, the law of war can be said, at least in theory and within strict limits, to recognize the status of prisoners of war as persons and therefore also of the fundamental equality of captors and captives. Contrast the status of war enemies with that of offenders marked for penal treatment in the so-called war on crime. Penal treatment in American correctional institutions begins with a ritual of differentiation and degradation. Objects of correction are stripped of their connection to normal society. They are assigned a number, their possessions are confiscated, they are subjected to a full body “cavity” search, dressed in prison garb, and thoroughly cleansed. As a confirmed human threat requiring incapacitative isolation, the convict-inmate is prohibited from possessing anything, except as specifically permitted by the warden. 

From the moment they enter the prison, objects of penal correction fall under the virtually unlimited disciplinary authority of the quasi-patriarchal warden to whom authority to control the prison as a quasi-household has been delegated, regardless of whether the operative model of prison governance is the family, the factory, the military unit, or the slave plantation. Convicts are institutionally infantilized; they will depend on the warden for sustenance as well as for correction. They enter the prison not as a person, but as an “inmate” in the “custody” of the “warden,” i.e., as a member of a household subject to the governing discretion of the householder, as policial object, rather than as legal subject.

It is no surprise, then, that—if only to maintain the conceit of equality of status between captor and captive—the law of war takes pains to distinguish prisoners of war from “convict” prisoners. The internment of prisoners of war in “penitentiaries” is expressly prohibited. Not even for “disciplinary punishment” may prisoners of war be “transferred to penitentiary establishments (prisons, penitentiaries, convict prisons, etc.).” As a result, prisoners of war may not be housed in “prisons,” lest they be mistaken for prisoners of the war on crime; instead, they are placed in “camps.”

As one might expect in a police system of “penal treatment” that prescribes “interference to prevent disobedience,” the sanctions for disobedience in the eventual administration of the requisite treatment in peno-correctional settings are varied, comprehensive, and flexible in substance, and discretionary in application, as well as central to the treatmentist enterprise. Prisoners, after all, already have been diagnosed with abnormal obstreperousness as evidenced by their conviction of a criminal “offense,” i.e., an offense against the sovereignty of the state. (For this reason, the term “perpetrator” may be preferable to that of “offender,” at least in a theory of penal law, rather than of penal police; while crime as an interpersonal phenomenon can also be seen as giving offense, against the equal personhood of the victim, the notion of “offense” may be too intimately connected with its traditional usage, as an affront against the sovereign’s superior status, to be retained in a person-based egalitarian account of penal law.) Acts of disobedience, or any manifestation of a disobedient disposition, thus are subject to prison discipline, including the further differentiation and degradation implied in the use of solitary confinement and transfer to so-called “special housing units” within existing prisons, or entire prisons dedicated to the control of “problem inmates” (“super-max”).

More mundanely, prison discipline deprives inmates of “privileges,” which are granted, and denied, at the discretion of the warden. These privileges, say, to possess certain items—such as a television set—or to wear certain clothes or to don a particular hairstyle or to earn money or to leave one’s cell, and so on, represent markers of normalcy and equality, and more specifically of the ability to exercise one’s capacity for autonomy consistently with others’ exercise of that capacity, i.e., to live in a community of equal persons. 

In this sense, to deny these privileges to the prisoner, or to deprive her of them once given, is to reconfirm her sub- or at least apersonal status. More fundamentally, the very rhetoric of discretionary privileges, rather than of personal rights, reflects the alegal nature of so-called correctional institutions in a penal police system. Even a privilege granted remains a privilege, as even a benevolent patriarch remains a patriarch.

In the wake of the events of September 11, 2001, the “war on terror”—or rather the police action against terrorists—continues the policial project of the so-called war on crime on a global scale, and simply redesignates its object, from crime to terror. To the extent the substantive criminal law plays a role in the war on terror it is in the form of enforcement tools long familiar from the war on crime. The crimes are traditional offenses, including standard offenses against the person, ranging from assault to murder and property destruction, along with the likewise familiar staples of inchoate and vicarious criminal liability such as conspiracy, possession, and complicity. These ingredients are combined, and remixed, in the “new” offense of “provid[ing] material support or resources to a foreign terrorist organization, or attempt[ing] or conspir[ing] to do so,” which the U.S. Supreme Court upheld against a specificity (void-for-vagueness) challenge (Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)).

Beginning with the general part of substantive criminal law, American penality in the age of the wars on crime and terror is characterized by the ubiquity of, and heavy reliance on, so-called inchoate (or incomplete) and vicarious criminality. Inchoate criminality comes in various forms, including attempt, conspiracy, solicitation, facilitation, and—perhaps most important—liability for possession in all shapes and sizes, including simple and compound possession (i.e., possession simpliciter or with the intent to use the item possessed) actual (or physical) and constructive possession (i.e., possession through the (potential) “dominion or control” over an area containing the item in question or over a person in actual possession of the item) of scores of items, ranging from firearms and all manner of other weapons, dangerous weapons, instruments, appliances, or substances, including toy guns, air pistols, and rifles, tear gas, ammunition, body vests, and anti-security items, to burglary tools or stolen property, and of course drugs, and everything associated with them, including drug paraphernalia, drug precursors, not to mention instruments of crime, graffiti instruments, computer-related material, counterfeit trademarks, unauthorized recordings of a performance, public benefit cards, forged instruments, forgery devices, embossing machines (to forge credit cards), slugs, vehicle identification numbers, vehicle titles without complete assignment, gambling devices, gambling records, usurious loan records, prison contraband, obscene material, “premises which [one] knows are being used for prostitution purposes,” eavesdropping devices, fireworks, noxious materials, and so on.

The war on terror, if it doesn’t simply draw on it, supplements this list of contraband, with such things as “radiological dispersal devices,” “any funds in which a foreign terrorist organization, or its agent, has an interest,” or, in the U.K., “money or other property” intending “that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism,” and, more broadly still, “an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.” (The Australian Criminal Code similarly criminalizes possession of a “thing” that is “connected with preparation for, the engagement of a person in, or assistance in a terrorist act.”)

Possession offenses are significant not only because they expand the concept of inchoacy beyond the already wide boundaries of more familiar inchoate offenses such as attempt and conspiracy (which are likewise prominently featured in the war on terror), but also because they nicely expose the futility and groundlessness of even the most basic of basic principles of Anglo-American criminal law, actus reus. Traditionally, both attempt and conspiracy require the commission of some act, however remote or minute. Attempt liability in theory attaches only once the elusive line between preparation and attempt has been crossed. Conspiracy ordinarily (though in contemporary American criminal law, not necessarily) requires the commission of some overt act in furtherance of the conspiratorial agreement.

Possession requires no act, no matter how framed. Possession is a status, rather than an act, a status that describes the relationship between a person and an object, most obviously through physical contact or at least proximity, but—in the case of so-called constructive possession—also indirectly through another person. Possession liability extends the general project of inchoate criminality beyond the artificial, and notoriously malleable, bonds of the law of attempt and conspiracy by permitting the state to identify and eliminate perceived threats at a still earlier stage. There is no need to await action of any kind once the possessor, through the possession, has revealed himself to pose a risk of offense, where the possession may represent sufficient evidence of dangerousness by itself or, more commonly, in combination with a characteristic of the possessor, including a prior conviction as in “felon-in-possession” offenses. 

The significance of the contraband, after all, lies in its relevance to a diagnosis of the dangerousness of its possessor, rather than of its dangerousness. Judgments about the possessor’s dangerousness are inherently discretionary and drive much of contemporary policing, not merely the war on terror, which is facilitated by a dense and wide net of possession offenses so common that the question ordinarily is not whether a suspect has committed a possession offense but which one, and most important, whether this offense is taken to signify sufficient dangerousness to warrant more intrusive state intervention (beyond the initial observation, investigation, search, and seizure).

Possession offenses combine inchoate with vicarious, or derivative, criminality in at least two senses. In all cases, possession liability is derivative insofar as it is based not on an act, but on the association with a dangerous thing. Liability for possessing contraband flows from the contraband itself, without more. In the case of constructive possession, liability derives from the actual possession of the contraband by another (so that constructive possession in fact is twice derivative, from object to physical possessor and then from physical possessor to constructive possessor). As a result, constructive possession can also be shared, with more than one person being in constructive possession of a thing, particularly when the constructive possession results from “dominion or control” over an area (such as an apartment or a car) rather than over a person (who is in actual possession).

Conspiracy liability, another long familiar feature of American penality that also makes frequent appearances in the American war on terror, likewise can be seen as both inchoate and vicarious, most obviously in jurisdictions that—like U.S. federal criminal law—follow the so-called Pinkerton rule that holds all conspirators liable for any substantive offense foreseeably committed in furtherance of the conspiracy, even absent the ordinary prerequisites for accomplice liability (notably the requirement of intentional facilitation or solicitation).

...

A penal regime that is driven by enforcement and regards substantive criminal law as a hindrance at worst and as an imperfect, if technically necessary, facilitator at best, does not favor narrow and precise offense definitions. Small wonder, then, that the war on crime and the war on terror show no particular concern for the principle of legality in general, and the principle of specificity (void-for-vagueness) in particular. Two of the central substantive tools in the federal war on crime, RICO and honest services fraud, are not only marked by great flexibility and breadth, but are championed for that very reason. Their malleability and scope mark them as powerful tools in the hands of state officials who, in their unfettered discretion, wield and mold them as necessary in the penal police action of the moment, against crime, drugs, and terror.”

- Markus D. Dubber, The Dual Penal State: The Crisis of Criminal Law in Comparative-Historical Perspective. Oxford University Press: 2018. pp. 217-222.

[if-you-fan-a-fire]

TOWARDS THE CLASSIFIED SOCIETY

“Let me return to those original early nineteenth-century transformations. But now, instead of seeing state centralization, segregation, mind control or professionalism as the crucial changes, imagine the enterprise of classification to be the centre of power.

The great projects of discipline, normalization, control, segregation and surveillance described by the historians of this transition were all projects of classification. Foucault's version of this history conveys this element most clearly. His theory is curiously close to functionalism, labelling theory and to Illich's notion of iatrogenic growth: the system is non-rational and non-utilitarian in that it creates and classifies deviance rather than seeks to eliminate it. Foucault, indeed, greatly exaggerates this irony: the prison system has nothing to do with turning offenders into honest citizens; it simply manufactures new criminals, drives offenders deeper into criminality and recruits them to the criminal class. The regrouping of delinquents into a 'clearly demarcated card-indexed milieu' is seen by Foucault as a typical episode in the mechanics of power: the prison falls, so now there takes place 'a strategic utilization of what had been experienced as a drawback'. There is no need, however, to accept all the implications of this rather crude type of left-functionalism to see how the emerging control system neither prevented nor eliminated crime but translated it into different terms. The unorderly and inefficient world of eighteenth-century crime control gave way to a regulated, ordered universe. The bifurcatory form became theorized and formalized: the criminal to be separated from the poor, the poor to be divided up into deserving and undeserving, the criminal then to be divided into bad and mad. The asylum, the closed institution, performed the initial sorting out. This was the roughest filter. Then, within the asylum, all sorts of elaborate and intricate systems of classification began to evolve. Students of nineteenth-century prisons describe institutions in which up to 29 separate categories of inmate were worked out. The logical end of the process was solitary confinement - each individual in his own category. In the idealized panopticon, each one of these cells could be observed totally by a few unseen people. The exposure to cognitive passion was absolute - the smallest gestures, the merest words could be observed, described, classified and compared. Eventually these elaborate systems inside broke down because of their sheer complexity. But the passion for classification remained, to be redefined and made scientific by the twentieth-century enterprise of scientific testing. The elaborate systems inside the prison are duplicated by the equally elaborate systems outside - the new 'continuum of community corrections' with all its fine gradations and notations.

The obsession with classification is truly baroque, something like the life work of a mid-European lepidopterist. And the whole enterprise is largely spurious, not just because of the difficulty of matching people to methods, but because changes in control policy keep demanding new schemes of classification. Each part of the system starts with its own selection criteria to accommodate the 'right' client around whom the regime or service was designed and for whom a particular professional specialism exists. But if there are not enough 'right' clients, that is who fit the selection criteria for the diversion agency, community correctional centre, half-way house or prison - then the norm changes. Other clients are admitted, the regime is altered accordingly and a new technology of selection has to be devised.

Like methods of punishment or treatment themselves, these classification systems mayor may not 'work'. The category might be too broad or too narrow, the wrong candidate might be selected. Sometimes these mistakes can prove fatal, particularly at the output end where an offender might be classified as 'safe’ so to be released, but turns out to be dangerous. But these "forms of failure are perfectly suited for the crime-control system. Unlike the failure of a correctional measure itself, the 'failure' of a classification system rarely evokes troublesome ideological questions and never threatens professional interests. It simply calls for more and better classification - an agenda which can be followed with total agreement from everyone. Liberals and conservatives, reformers and managers, psychologists and guards, all are committed to seeking further refinements to whichever bifurcation they are concerned with - soft or hard, treatable or untreatable, safe or dangerous. The non-contingent nature of these refinements matters not at all.

Nor do fads and fashions in penal philosophy matter very much. At first sight, the just-deserts movement and the attack on rehabilitation seem to threaten the whole edifice of individual classification. But the various judicial modes within classicism and the disciplinary or treatment modes within positivism are more complementary than they appear. At one point, Foucault gives a pleasing explanation of the 'furious desire' of judges to assess, diagnose, receive reports and listen to experts (even the 'chatter of criminology'): it was as if they were ashamed to pass sentence. But as he shows, the need to classify runs deeper than this; I will try to simplify his tortuous and confusing 'history'.

The form of punishment in the great codification reforms of the eighteenth century simply refers the offence to a corpus of law which contains a single binary classification: the legal  opposition between permitted and forbidden, with prescribed categories of reaction.

Though it has to appear general and universal, a precisely adapted code, in fact, is aimed at individualization. Punishment has to be finely calibrated 'with neither excesses nor loopholes, with neither a useless expenditure of power nor with timidity.’ There was little psychological knowledge in the eighteenth century (tests, examinations, etc.) to supply this 'code-individualization link', so this Linnaeus-type taxonomy has to be found elsewhere. Criteria such as the repetition of the crime could be used to make the tactics of power more efficient. 

When the new disciplinary society emerges, so does a psychology of classification. The mind, not the body, the actor, not the act become the judicial object. The offender is examined, assessed and normalized - his 'soul' is brought before the court. This is not only to explain his action or to establish extenuating circumstances, nor to humanize the face of justice, but to re·-organize yet again the economy of punishment. The new methods of punishment and treatment (aimed at changing the offender) have to be legalized. The individualized classifications, that is, have to be reproduced in the system as legal forms.

The 'knowable man' now becomes the object of the human sciences. Inside and outside the court (but always sanctioned by the law) they begin testing, measuring, allocating each person to the correct space on which he can be differentiated. 

At every stage, classification is deeply lodged in the framework of punishment. It is no less important our current deterrence theory (punish Just enough to prevent repetition) or current just-deserts theory (punish just enough to redress the social balance). And even if they are not very good at matching, even if they are not too sure what works, and even if the court has a somewhat less than 'furious desire' to listen to them, the professional classifiers are still at work. In every judicial system we know, the number of social enquiry reports or recommendations submitted to the court grows incrementally. The soft/hard bifurcation makes the professional classifier even more important. As we move away from sentencing into the punitive apparatus itself, the urge to classify remains. In prisons, the magic wand of classification has long been held out as the key to a successful system. If only those who mess up the regime could be weeded out (sent to special prisons, units or isolation centres), the system could go ahead with its business. All that has changed over the last century is the basis of the binary classification. It used to be 'moral character', sometimes it was 'treatability' or 'security risk', now it tends to be 'dangerousness'. For example, at the end of the seventies, the Federal Bureau of Prisons set up a Task Force to investigate how to establish inmate 'custody level' in terms of dangerousness. They grouped the inmates according to 47 potentially significant factors from an initial list of 92 possibly relevant items, gahered from 329 staff. Institutions are grouped into a Security Designation Form according to 7 features, ending up with 6 security levels. Pertinent information is then teletyped to a central Designation Desk. Step-wise Multiple Regression is used to test validity. Each inmate has a Unit/Classification Team working with a Custody Classification Form. 

At the softer, community end, the classification business, as we have seen, lacks the rationality of models such as 'dangerousness', 'security risk' or ‘incapacitation' (which can all be empirically validated). There are just endless pitouettes between psychological characteristics (self-esteem, conduct impairment, hostility to authority); composite categories (risk, amenability, proneness); treatment modalities (reality theory, camping, behaviour contracting); and places (7.8 on the normalization scale?). Even cruder legal categories become shifting and uncertain. One official study commissioned to solve the problem of who were the 'status offenders' to be deinstitutionalized, found that 46 classifications were being used, and that, for the most part, these had no effect on the selection of target groups. This last project is an example of the convergence of academic with managerial and professional interests. There are workers who devise classification systems, others who operate them and meta-workers who classify these operations. Some professionals specialize entirely in the area. In one American enterprise, some 10 federal agencies, 31 task forces and 93 experts got together to study the impact of classification systems for children. To study the impact of classification systems though, is quite a different matter from joining the quest for the Golden Goose of systems that 'work'. For despite their apparently self-sealing logic, classification systems do indeed have an impact on the external world. Professional expansion is directed towards creating new categories of deviance and social problems, that is defining more people as belonging to special populations and then slotting them into one or other category. This is what labelling theory - correctly - means by the socially constructed nature of deviance. Professionals play a crucial role in making claims about the boundaries of the category and then ruling on who belongs to it. The logic of professionalism requires either that these boundaries be expanded to bring in new populations or that they be changed to relocate old populations. Types of deviance such as homosexuality, hyperactivity or drug abuse, the very nature of mental illness itself, categories such as dangerous, treatable or high-risk, have all been subject to this type of boundary adjustment. This is what happens in what sociologists variously call the 'politics of deviance', 'stigma contests', 'reality negotiations' and the 'power to criminalize'. But the real significance of classification lies in the form, not the content, the enterprise itself and not its end-results. The power to classify is the purest of all deposits of professionalism. This is what Orwell meant when he said that the object of power is power. And this is what Foucault meant when reminding us that power is not just a force which excludes and says 'No', but a form of creation: 'we should not be content to say that power has a need for such and such a discovery, such and such a form of knowledge, but we should add that the exercise of power itself creates and causes to emerge new objects of knowledge and accumulates new bodies of information.’“  - Stanley Cohen, Visions of Social Control. Crime, Punishment and Classification. Polity, 1985. p. 191-196.

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Social services as crime control “Abolitionists often emphasize the historical and political construction of crime and how crime control in the post-Emancipation era was used to limit Black people’s freedom and movement. In Are Prisons Obsolete?, Angela Y. Davis writes, “In the immediate aftermath of slavery, the southern states hastened to develop a criminal justice system that could legally restrict the possibilities of freedom for newly released slaves.” In the field of criminal-justice studies, there is a wing called radical criminology. While not all scholars of this subarea promote abolition, they do raise critical questions about crime as a sociopolitical construction, as well as the study of crime itself.

In other words, what do people talk about when they talk about crime? Some who employ the suburb frame address this question. For example, in her recent op-ed for the New York Times, “Yes, We Mean Literally Abolish the Police,” Mariame Kaba discusses how crime is popularly imagined versus what actually puts many people in contact with the police: “The first thing to point out is that police officers don’t do what you think they do. They spend most of their time responding to noise complaints, issuing parking and traffic citations, and dealing with other noncriminal issues.” On Twitter, Josie Duffy Rice has stressed the same.

Unlike those, such as Kaba and Duffy Rice, who underscore that criminalization is a targeted process, proponents of the suburb model like that proffered by Ocasio-Cortez reify an explanation of crime consistent with a liberal concern about deprived groups acting out. For example, in a June 10 interview on Good Morning America (GMA), George Stephanopoulos asked Ocasio-Cortez to comment on Joe Biden’s refusal to support defunding the police. Ocasio-Cortez responded by situating defunding the police as divestment-investment. As she told Stephanopoulos, “not enough resources are being put into the very kinds of social programming and investments that prevent crime and social discord in the first place.”

While acknowledging in her Instagram response that “something harmful,” including “harmful crimes” can happen in the affluent, white suburb, Ocasio-Cortez makes suggestive comments regarding the healthiness of these communities. At the Rising Majority event, she described the suburb as a place where “schools are fully funded, and there are trees in the street, and children can eat nutritious food, where their brains are able to adequately develop, and that there are policies that people fight for so that the community is healthy enough . . .”

Talk of “crime and social discord,” as well as references to “nutritious food” and brains being “adequately able to develop” run the risk of aligning a discussion of crime control with the trope of Black-on-Black violence, which started gaining traction among politicians and pundits in the 1980s. While many proponents of the Black-on-Black violence discourse are conservatives, David Wilson emphasizes, “liberals were complicit in this constructing.” Unlike political and fiscal conservatives, liberals might deploy the narrative of Black-on-Black violence to solicit support for “full-scale liberal intervention into inner cities” and in the process integrate “notions of powerful local culture with imperfect capitalist economic and political foundations.”

While Ocasio-Cortez would likely reject racist imagery depicting Black people as violent, comments about healthy nutrition and developing brains put her suburb model dangerously close to the liberal version of the Black-on-Black violence framing. It also hints at an epigenetic approach, which posits that structural factors, including racism and deprivation of needed social resources, impact social groups on a biosocial level and that this can shape sociological outcomes. Unfortunately, as Kenyon Farrow has pointed out, epigenetic discourse has become popular among those expressing a commitment to fighting racism.

Affluent, white suburbanites have different priorities During her GMA interview, Ocasio-Cortez stated, “And it may sound strange, but many affluent suburbs have essentially already begun pursuing a defunding of the police in that they fund schools, they fund housing, and they fund health care, more as their number one priorities.”

This messaging suggests that affluent, white suburbanites were once over-policed and underfunded but have taken the steps to get their priorities in order. More, the suburban model, as employed by Ocasio-Cortez, obscures how racial capitalism structures public finance, such as how racism and pro-policing politics shape national, state, and city economies in terms of the gutting of the social welfare state, the racial politics of municipal credit, corporate funding  of police organizations, residents paying for punishment, “police brutality bonds,” and taxpayer politics.

In doing so, the suburban frame fetishizes the affluent, white suburban taxpayer as leading the charge for abolition in practice.

Camille Walsh examines how, as a trope, “the taxpayer” is a citizen who is white, tax paying, and deserving. While African Americans have at times invoked taxpayer rights, Walsh shows how “the taxpayer” is a raced figure that implies “an ‘untaxed other’ who does not pay taxes and therefore has not earned rights.” Raúl Carrillo and Jesse Myerson note a related danger of the “taxpayer” frame: “Although most of us pay taxes of some kind, every time we say ‘taxpayer money’ we prolong the illusion that society depends on certain kinds of people so we can have nice things.” Ocasio-Cortez’s depiction of affluent, white suburbanites as simply pursuing different budget priorities politically puts “the taxpayer” in the driver’s seat and also suggests that affluent, white suburbanites are the vanguard of abolitionist budgeting. In this scenario, their tax revolt is against the carceral state.

Ocasio-Cortez’s suburb model and its deployment to support defunding the police treat state and city budgets as if they are balanced like a household budget. She is not alone in this approach, as many divest-invest strategies do the same. What Carrillo and Myerson draw our attention to is that there is actually enough money to fund whatever we want: “Politicians may act like the U.S. government has the same constraints as a household or business, but the U.S. government can’t go broke. It can impose silly constraints on itself, like the debt ceiling, but people who actually know how monetary operations work know the U.S. government cannot run out of dollars.” Or, as Carrillo has provocatively stated elsewhere, “The U.S. government can never run out of money in the same way that the NBA can never run out of points.”

So what does this mean for local budgets? States, cities, and municipalities are not monetarily sovereign in that they do not print their own money and, as monetary subjects, they must get revenue in ways that are legally allowed. This can involve taxes, fines and fees, municipal bonds, philanthropy, and private investment. The federal government, however, is monetarily sovereign, as it can print money. Thus, the federal government can provide funding, whether through the Federal Reserve or Congress. Some have considered how this works in relationship to defunding the police. Eric Levitz notes, “It is not possible to mount a remotely credible response to the recent uprisings over police violence and discrimination while forcing cities to slash spending. . . . Anyone who would like the United States to make meaningful progress on racial justice . . . must call on Congress to cease needlessly starving state governments of funding.” Along with calling on Congress to stop starving us, another demand can be for the democratization of the Federal Reserve, as proposed by Jasson Perez in a recent podcast.

What Levitz and Perez don’t mention is that the federal government can always fund more of everything — including both local policing and social services. Such a possibility could undercut a divest-invest strategy and means we need to make more explicit the political demand to never fund the police, regardless of the budget. What their commentaries do draw our attention to are the layers of public finance that shape the budgets cities have to work with and that are obscured in Ocasio-Cortez’s emphasis on budget priorities among affluent, white suburbanites. They also help us move beyond the taxpayer frame, which is useful since putting the taxpayer in the driver’s seat could always backfire as a divest-invest strategy. After all, those with more power and money may decide they are willing to pay higher taxes to keep policing and may weaponize their identity as “taxpayers” to do so.

While Ocasio-Cortez is familiar with modern monetary theory — which is associated with the finance approach delineated here, in her support for a divest-invest strategy she nevertheless promotes a taxpayer-driven model in which the affluent, white suburbanite serves as the paragon of moral budgeting and social innovation. In the process she obscures how affluent, white suburbanites are the beneficiaries of a racist-classist financial infrastructure whose operations remain relatively underexamined by the general public.

Abolition as the privatization of accountability Ocasio-Cortez’s suburb model posits that when crime and harmful activities happen in affluent, white suburbs, residents are committed to using different means than the police, courts, or incarceration to deal with them. On a surface level, this aligns with a basic goal of abolitionists: to address harms in ways that do not involve criminalization or captivity.

But abolition is not just the absence of policing or captivity; it is also about creating different models of accountability and harm reduction. It is about recognizing the social and political construction of crime as well as the violence and futility of captivity for trying to make us safe, while also attending to the reality that people can and do engage in harmful and violent behaviors that need to be socially addressed. Abolition, then, involves figuring out what nonpunitive accountability looks like in public.

Affluent, white suburbs are not where we should look for models of accountability. Yet this is where Ocasio-Cortez directs our attention.

In her Instagram response, Ocasio-Cortez writes, “When a teenager or preteen does something harmful in a suburb (I say teen bc this is often where lifelong carceral cycles begin for Black and Brown communities), White communities bend over backwards to find alternatives to incarceration for their loved ones to ‘protect their future,’ like community service or rehab or restorative measures.”

We can consider how Ocasio-Cortez’s narrative of white communities “bending over backwards to find alternatives to incarceration” is consistent with her image of affluent, white suburbanites being presumably more committed to other budget priorities. Also questionable is her suggestion that not being policed is a matter of self-design as opposed to not being targeted. According to her, “affluent White suburbs also design their own lives so that they walk through the world without having much interruption or interaction with police at all aside from community events and speeding tickets (and many of these communities try to reduce those, too!).”

If anything, what Ocasio-Cortez is actually describing is the way that affluence and whiteness provide these communities the means to avoid consistent targeting by the police, to ignore laws, or to evade punishment. To be able to be the target of less policing, as well as to hire attorneys and use money and networks when accused, is a thing that white affluence provides — an affluence tied up in and made possible by the racist-classist financial infrastructure concealed by the suggestion that affluent, white suburbanites just have different budgeting priorities. In cases where harm might be perpetrated, using one’s resources in terms of money and connections to avoid criminalization and incarceration can be more an evasion of accountability than abolition.

If, as Angela Y. Davis reminds us, we as a society avoid dealing with the structural dimensions of harm, when it is committed, by disappearing perpetrators in prisons, the other side of the coin is this privatization of accountability available to elites. There are notable differences, of course, as captivity in a cage is a much different and vicious form of being tucked away from public view. I would never confuse captivity with the privacy, money, and racial status shielding an affluent, white suburbanite. But a shared dimension is that each approach tries to make people, when they have committed harm, be disappeared from public view and consciousness while the structural roots of harm go unaddressed and society operates as normal. Again, abolition involves figuring out what nonpunitive accountability looks like in public. Affluent, white suburbanites being shielded from the violence of carceral systems while others are not offered the same opportunity is not a model of abolition. It is just an expression of relative power and racism.” - Tamara K. Nopper, “Abolition is Not a Suburb.” The New Inquiry. July 16, 2020.

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“The 'renaissance' of the concept of dangerousness in contemporary penology depends on the decline of the rehabilitative ideal, together with the acceptance of a policy of hard-soft bifurcation. While old treatment modalities based on mentalistic concepts are discredited, new behavioural experts are given more power to perform the crucial role of separating out the dangerous from the rest and then devising suitable technologies to contain their behaviour ('predictive restraint') or change it through 'last ditch' treatment modalities (drugs, electronic control, psychosurgery).  All forms of clinical prediction, notoriously inefficient because of the 'false-positive' problem, are being abandoned in favour of actuarial prediction based on observable criteria - a clear move in the behaviourist direction. Leaving aside all possibilities for the behaviourist-inspired treatment and surveillance of these individual offenders, the trend towards 'applied behaviour analysis' or 'behavioural criminal justice' has signalled a new way to evaluate correctional policy in general. Behaviour is the problem, not words, motives, attitudes or personality: 'the focus of the approach is not on what people report they do, but on how they actually behave and the conditions under which that occurs.' The target for attack is 'behaviours' in daily living - the offence itself but also social, vocational and learning skills. The weapon is an applied technology, with procedures consistently replicable by other similarly trained personnel. For some time, now, the few criminologists who have looked into the future have argued that 'the game is up' for all policies directed to the criminal as an individual, either in terms of detection (blaming and punishing) or causation (finding motivational or causal chains). The technological paraphernalia previously directed at the individual, will now be invested in cybernetics,  management, systems analysis, surveillance, information gathering and opportunity reduction. This might turn out to be the most radical form of behaviourism imaginable - prevention of the act of crime by the direct control of whole populations, categories and spaces. This approach, however, is not at all a move to the 'social' and is quite antagonistic to traditional liberal social reform. As one leading ideologue makes clear, the point is direct control over behaviour, to be set in motion before any offence. This rules out 'indirect devices' such as 'anti-poverty programmes, ego development and education'. 'Environment' means the physical and not the social environment. 

What I term 'new behaviourism' is just as opposed to social reforms as it is to mentalistic psychologies. The talk now is about the 'spatial' and 'temporal' aspects of crime, about systems, behaviour sequences, ecology, defensible space, environmental psychology, situations, opportunity structures, feedbacks, target hardening, spatial distribution of offenders. Crime is something which can be 'designed out' by changing the planning and management of the physical environment, and massive financial and intellectual investment has been devoted to this effort. Grandiose claims are even made for the emergence of a new 'paradigm' for crime prevention in which architects and planners, or else geographers, mathematicians and economists, have become the new experts. Unbelievable as it may sound (though only marginally less believable than what happened in the heyday of the psychodynamic enterprise), governments and universities are actually paying money to researchers to fit robbery trip-frequencies into Pareto exponential curves, to find that the average distance between criminal origin and eventual destination is 1.93 miles and to measure the time and space differences between robbery and armed robbery trips. From token economies in prisons to electrodes implanted in the skull, from aversion therapy with electric shocks to simulating offender spatial patterns, from behaviour contracting between client and counsellor to redesigning parking lots - these are some of the many manifestations of the new behaviourism. Only the observable act matters; older mentalistic concepts such as mind, thought, intention, motivation, guilt and insight are edged right out of the discourse.”   - Stanley Cohen, Visions of Social Control. Crime, Punishment and Classification. Polity, 1985. p. 148-149.