Racing Abnormality, Normalizing Race: The Origins of America's Peculiar Carceral State and Its Prospects for Democratic Transformation Today
2017; Northwestern University School of Law; Volume: 111; Issue: 6 Linguagem: Inglês
ISSN
0029-3571
Autores Tópico(s)Criminal Law and Evidence
ResumoIntroductionThe U.S. carceral state has achieved global notoriety for its extremity. Comparative scholars of punishment and society have pointed to a variety of important structural and historical features of the United States that might account for this, including its early and high degree of democracy,1 the localized and fragmented nature of government in the United States,2 the high degree of market orientation in preferences for government,3 and our history as a settler colonial and slave society in which racial othering has remained a central axis of privilege and coercion.4 In this Essay, I will focus on the racial underpinnings of the carceral state. Race is the most consequential of these features, as it shapes the distinctively punitive and degrading nature of the U.S. carceral state. It is also, in my opinion, the most vulnerable to transformative change in the near term.one signal of this is the striking resonance of the Black Lives Matters Movement with a near majority of white Americans and a majority of white millennials.5 Another signal is the eagerness of many criminal justice leaders and elected officials to champion reform of the system.6 With striking evidence of racial disproportionality in all aspects of its operations, the U.S. carceral state confronts an acute deficit, or even crisis, of legitimacy. This crisis is made starker by historically low levels of crime.7 If the carceral state cannot stand up to scrutiny even under the weak colorblind standard of equality that prevails in contemporary constitutional law and politics, and is not able to escape sustained demands for change through political fear over rising crime rates as it did in the 1960s, we may be able to achieve an historic realignment that will bring the carceral state back in line with global democratic norms for the extent of punishment and the protection of human rights.In this Essay, I explore the of the carceral state between its legal penal sphere and its police/prison sphere, which is a universal feature of the modern carceral state.8 I examine how, in the United States, this has been marked from the start by the fact of slavery and the creation of whiteness as a citizenship property of some Americans.9 This white background (not white people exclusively, but a form of privilege originally associated with white European settlers in distinction from indigenous, or slave populations) has framed the direct threats of slave uprising, Native American resistance to dispossession, and competition from Mexican citizens absorbed by the conquest of northern Mexico and in the West by immigration from China and Japan. The American carceral state in its inception was (and remains today) inseparable from these colonial projects.Because the carceral state is a state, the meaning of citizenship is always of great consequence. The Civil War and Reconstruction created a singular national citizenship formally blind as to race.10 Since the end of Reconstruction, the modern American state has normalized ongoing racial othering largely by transforming its operation from the legal state to the less visible administrative state, and especially, the nearly invisible carceral state.The abnormal is the twin of crime in the modern carceral state.11 If the crime is something that state lawyers must prove beyond a reasonable doubt,12 abnormality is the judgment made by police and correctional agents with no minimal legal burdens.13 This gap in the law and its administration created by the twinning of criminal law on the one hand, and the apparatus of police/prison power in the modern carceral state on the other, has, in the United States, been profoundly distorted by the racialized othering of colonial dispossession, slavery, and their afterlives. The broad principle of legality, which arose in the late eighteenth century and which the United States shares with the European legal systems and their global extensions, constitutes the central principle of legitimacy for democratic extensions, constitutes the central principle of legitimacy for democratic criminal justice systems as well as its engine of reform in many periods. …
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