Sunday, August 14, 2022

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Article Index

I. Punishment and the State Administration of Race and Gender

      Angela Davis has described the historical trajectory that formed the criminal punishment system as a response to the formal abolition of slavery. As she and others have pointed out, the Thirteenth Amendment's abolition of involuntary servitude includes a very important caveat: “except as punishment for crime whereof the party shall have been duly Davis describes how, in the years following the abolition of slavery, southern prisons drastically expanded and went from being almost entirely white to primarily imprisoning Black people. New laws were passed--the Black Codes--that criminalized an extensive range of behaviors and statuses, such as being unemployed or disobeying an employer, solely where the accused was black. These legal schemes permitted the capture of newly freed slaves into an only somewhat different system of forced labor, control, and racial violence.

      The nature of imprisonment changed during this time. Prisons adopted methods of punishment common to slavery, such as whipping, and implemented the convict leasing system that allowed former slave owners to lease the labor of prisoners, who were forced to work under conditions many have suggested were even more violent than those of slavery. In 1873, 25 percent of all black convicts who were leased died; in 1898, nearly 73 percent of total revenue in Alabama came from convict labor. People were literally captured and worked to death, providing cheap labor for white landowners and revenue for states.

      The contemporary criminal punishment system developed from this adaptation of slavery to create a somewhat different racially targeted form of control and exploitation. The continuation of those tactics can be seen in the prison system's contemporary operations. As Davis asserts,

       Here we have a penal system that was racist in many respects--discriminatory arrests and sentences, conditions of work, modes of punishment ....
       The persistence of the prison as the main form of punishment, with its racist and sexist dimensions, has created this historical continuity between the nineteenth- and early-twentieth-century convict lease system and the privatized prison business today. While the convict lease system was legally abolished, its structures of exploitation have reemerged in the patterns of privatization, and, more generally, in the wide-ranging corporatization of punishment that has produced a prison industrial complex.

      This analysis of the origins of imprisonment helps us understand imprisonment itself as racialized violence. Punishment and imprisonment were and are co-constitutive in the United States with processes of racialization. Today punishment systems are rationalized as race-neutral institutions for determining and punishing individual culpability, but such assertions are laughable in the face of the severe and obvious targeting of people of color in every aspect of policing, pre-trial imprisonment, prosecution, sentencing, imprisonment, probation, and parole. More than 60 percent of the people in prison are people of color, and one in every ten Black men age 30-39 is in prison or jail. Black youth are 16 percent of the youth population, but 28 percent of juvenile arrests, 37 percent of the youth in juvenile jails, and 58 percent of the youth sent to adult prisons. There are countless other statistics that demonstrate the racialized targeting of criminal punishment that is endemic to its formation and operation in the United States. The criminal punishment system in the United States, the most imprisoning country on Earth, is justified by the idea that it contains and neutralizes dangerous law-breakers. In reality, race, not dangerousness or illegal action, determines who is imprisoned. US prisons are full of low-income people and people of color who were prosecuted for crimes of poverty and minor drug use. Racist tropes of Black dangerousness that have been a central part of US culture since slavery are invoked and mobilized in media to justify and normalize the continuing expansion of criminalization and imprisonment. Scholars consistently expose the disconnect between the myth that criminal punishment is focused on public safety and the reality that it operates as targeted racial violence.

      Processes of racialization, like the slavery/criminalization processes described by Davis, are inherently gendered and gendering, and the construction and administration of gender categories is always racialized. Racial and gender classification systems were essential to the founding violence of slavery and genocide that created the material conditions of the nation and endure as political rationales and fundamental categories of administrative operation for all of the projects and programs that constitute the state. From the founding of the United States, the legal rules governing indigenous and enslaved people articulated their subjection through the imposition of violent racialized gender norms, such as the enforcement of natal alienation among slaves and European binary gender categories and gendered legal statuses among indigenous people. From the beginning, racialized and gendered statuses and norms were essential to the colonization and slavery that produced the United States and its legal systems. It is important to note that the statuses and norms established by these systems were, and are, racializing and gendering at the same time. They do not create rules for all women or all men or all white people or all native people or all black people. Instead, the laws governing slavery, land ownership, labor, health, mobility, punishment, and family create very specific statuses and norms according to specific race/gender positions. For example, white women have traditionally been forced into particular forms of domestic, unpaid labor; regulated through containment inside the legally mandated, marriage-based family form; and required to conform to a maternal role focused on “reproducing the race.” White women have been seen as fragile and weak, portrayed in law and politics as unfit for political life and wage labor. Various law and policy reforms, from early labor regulations to domestic violence criminalization, have been advocated on the basis of protecting white women. Meanwhile, black women have been denied access to recognized motherhood--their family bonds not recognized by law--and forced to do heavy labor both outdoors and inside the homes of white people. Their labor has often been excluded from protective regulation and not linked to eligibility for benefits. While white women's sexuality has been revered as pure and requiring protection, black women have been routinely sexually assaulted and abused by white men. Their relationships to their children have been subject to disruption and termination under slavery and racially targeted child welfare programs. The racial and gender norms created through property law, family law, and criminal law establish specific racialized-gendered statuses and norms that can never be adequately analyzed or understood solely through a single vector of harm such as race or gender. The specific vulnerabilities, responsibilities, and chances at life administered by US laws and institutions are racialized and gendered, not universal to all people assigned a particular gender or race category. Thus, to assess the conditions produced by processes such as criminalization, it is essential to analyze the creation of racialized gender norms and statuses that are enforced by legal and administrative systems.

      Trans studies scholars have provided analysis of how racialized gender norms are administered in spaces of concentrated state violence in the contemporary United States. Across the country, the spaces where people of color and poor people are concentrated for surveillance, punishment, targeted abandonment, and premature death--shelters, foster care and juvenile punishment group homes, psychiatric facilities, immigration prisons, jails, and the like--are sex-segregated, rigidly enforcing notions of gender binarism. The enforcement of racialized gender norms in these spaces operates through coercion and violence overseen by state agents, including law enforcement and social service providers. The violence in these spaces includes identity documentation and surveillance, dress regulations, strip searches, sexual assault, forced prostitution, family dissolution, verbal harassment, medical neglect, murder, and other contributors to early death. Sex segregation is a key component of racialized social control, and these institutions focus enormous energy on classifying, policing, harming, and disappearing people who occupy and exceed the borderlands of gender legibility and sexual normalcy. The insights provided by indigenous studies, women of color feminist scholarship, critical race theory, trans studies, and other intellectual traditions help ground an understanding of racialized gender norms as foundational, rather than incidental, to US legal systems and institutions.

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