QuasiAdjudicating Guilt, Innocence, and Citizenship in the Neoliberal Prison
Beginning in the late 1960s a series of reforms saw the emergence of vast numbers of bureaucratic instruments meant to standardize the care, custody, and control of inmates. Grievance and disciplinary procedures were largely homogenized to ensure inmates’ protection from the abuses that were prevalent especially in the southern plantation model of incarceration. These same procedures, however, resulted in the increasing removal of prisoners from the sphere of legal, judicial, and, more broadly, public discourse and oversight. This article analyzes how the failure to prosecute crimes committed inside the prison functions to diminish the legal and political standing of both criminal and victim. In handling crime as an extrajudicial matter, adjudicated exclusively by disciplinary boards, the prisoner-criminal and prisoner-victim are positioned as quasi-legal subjects, bearing neither the rights nor responsibilities of citizenship. The prison, therefore, is a model institution for downsizing citizenship, and its disciplinary procedures are an ideal model for the neoliberalization of public institutions.
neoliberalism, bureaucratization, corrections, victims’ rights, administrative discipline
Prisons do not house the most docile or easily governable persons.
— John W. Palmer, Constitutional Rights of Prisoners
[In] the aftermath of a fight between two prisoners of comparable strength, labels of aggressor and victim are ill-suited to describe the roles of those who took part.
— Kimmett Edgar and Ian O’Donnell, “Assault in Prison: The Victim’s Contribution” [End Page 139]
In 1974, Robert O. McDonnell, an inmate of what was then the Nebraska Penal and Correctional Center, filed a class action lawsuit claiming that the institution’s disciplinary proceedings violated prisoners’ due process rights. Among the disciplinary measures the prison had taken was a reduction in the good-time credits inmates had earned and that would have entitled them to early release. The Supreme Court held in Wolff v. McDonnell that prisoners are not entitled to full due process protections: “A prisoner is not wholly stripped of constitutional protections, and though prison disciplinary proceedings do not implicate the full panoply of rights due a defendant in a criminal prosecution, such proceedings must be governed by a mutual accommodation between institutional needs and generally applicable constitutional requirements” (555–56).1 In the Court’s opinion, inmates should be allowed to call witnesses and present evidence, as long as doing so does not impinge on institutional safety or correctional goals. Because prison administrators are the sole arbiters of what constitute institutional safety and prison goals, the Court’s ruling, while upholding prisoners’ partial rights to due process in the abstract, all but eliminates them in practice. Justice Thurgood Marshall dissented, claiming that the constitutional protections of presenting evidence and calling witnesses are absolute. Justice William Douglas agreed that due process protections are especially urgent for prisoners, who are already substantially deprived of liberty.
Wolff was preceded in 1972 by Haines v. Kerner.2 The petitioner, Francis Haines, a prisoner at Illinois State Penitentiary at Menard, was placed in solitary confinement after assaulting another inmate with a shovel. The Supreme Court in Haines echoed the district court’s previous finding in the case that “only under exceptional circumstances should courts inquire into the internal operations of state penitentiaries,” and the appeals court’s finding that “prison officials are vested with ‘wide discretion’ in disciplinary matters.” In fact, the only reason the case was heard by the Supreme Court at all was because the lower courts had failed to allow Mr. Haines to present evidence about the injuries he claimed he sustained while in solitary confinement.
Due process and other constitutional rights have been the object of considerable attention among legal and prison studies scholars. Academic and popular discourse has tended to center on the right of prisoners to be free from cruel and unusual punishment, and analyses of due process protections have centered on the rights of inmates to defend themselves during criminal and civil rights procedures. Except in the case of sexual assault, the topic of prisoner-victims’ legal rights often has been neglected. This is in stark contrast to broader public discourse, which, especially since the 1980s, has come to privilege victims’ rights above most other concerns in the criminal justice system (Ginsburg 2016).
Bureaucratic reforms instigated by judicial activism beginning in the 1960s sought to standardize the care, custody, and control of inmates. Grievance and disciplinary procedures were largely homogenized to ensure inmates’ protection from the gross injustices prevalent especially in the southern plantation model of incarceration. These same mechanisms, however, resulted in the increasing removal of prisoners from the sphere of legal, judicial, and, more broadly, public oversight. This article will address how the failure to prosecute crimes committed inside the prison functions to diminish the legal and political standing of both criminal and victim. In handling crime as an extrajudicial [End Page 140] matter, adjudicated exclusively by disciplinary boards, the prisoner-criminal and prisoner-victim are positioned as quasi-legal subjects, bearing neither the rights nor responsibilities of citizenship. In this way, the prison is a model institution for downsizing citizenship, and its disciplinary procedures are an ideal model for the neoliberalization of public institutions.
This essay is not a call to arrest or prosecute prisoners who commit crimes. Rather, it is a critique of the neoliberal tendency to remove increasingly important aspects of life from the public realm, and to adjudicate disputes of all kinds as private matters best handled “internally,” by human resources professionals and disciplinary review boards. Scholars of cultural studies of the law frame the law as the preeminent site for shaping normative claims about citizenship and social belonging, private property, and publicness (Aksikas and Andrews 2016: 11). In contrast, I argue that the neoliberal project increasingly has shifted the burden of negotiating these issues away from the law and toward ever more private agencies and individuals, who treat them, like the economy itself, as a matter of putatively technical and neutral expertise.3 Quasi-judicial procedures, such as the adjudication of guilt and innocence via disciplinary boards, perhaps especially when these occur in the context of public institutions, formalize the privatization of institutions and processes by and through which citizenship is negotiated.
The Neoliberal Prison
In Raphael Ginsburg’s (2016: 171) estimation, victims’ rights activism and advocacy arose alongside and within the neoliberal project, “emerging in the 1970s, gaining strength in the 1980s, triumphing in the 1990s and maintaining their predominance in the 2000s and beyond.” I would add to this list what is commonly referred to as the prison industrial complex, whose bureaucratization and standardization follow a similar trajectory. In her important analysis of the rise of the prison industrial complex during the 1980s, Ruth Wilson Gilmore (2007) argues, rightly, that California’s prison boom was a political solution to the economic problem of surplus land and dying farm communities. However, the neoliberal project more broadly necessitated the large-scale warehousing of surplus and readily available labor in the aftermath of the 1970s manufacturing crisis,4 and the success of this project was due in large part not only to an efficacious culture war, as Lisa Duggan (2003) has suggested, but also to the proper criminalization of racial and ethnic minorities.
The economic crisis of the 1970s was followed by a long period of stag-flation resulting from the combination of high unemployment and inflationary US monetary policy designed to stimulate the economy.5 High unemployment as a consequence of the steel crisis led to depopulation and poverty, especially in the Rust Belt. Former steel workers who could not transition into other sectors of the economy would be forced to rely on social welfare or find or create economic opportunities in the illicit economy. The Nixon administration, unwilling to broaden the social welfare system, adopted a rhetorical move in which the economic crisis was attributable to social crisis. In other words, the criminalized, black, urban poor were the cause of America’s social crisis, which in turn was the root of economic crisis. The problem of high unemployment was not attributable in this framework to a lack of jobs but to the criminality, social degeneracy, and laziness of poor, urban blacks. Alessandro De Giorgi (2006: 24) [End Page 141] notes that “mass incarceration of blacks has reduced unemployment rates among African Americans by almost one third,” and that, without this reduction, unemployment numbers in the United States would be as many as seven percentage points higher. Bruce Western and Katherine Beckett (1999) in fact view the prison as primarily a mechanism for manipulating unemployment numbers, since prisoners are not counted among the unemployed. They claim that “incarceration tightens labor markets in the short run and makes workers more unemployable in the long run” (1032). Moreover, this unemployability of black men tightens the job market—making jobs more accessible and increasing wages—only for whites.
While the standardization of prison administration had begun in the 1960s, especially in the aftermath of large-scale closures of state mental hospitals,6 it was not until the 1970s, according to Malcolm Feely and Van Swearingen (2004: 434), that a series of “superintending judges self-consciously sought institutionalized reforms by strengthening the organizational capacities of correctional systems through increased bureaucratization.” From their strictly legalistic perspective, the judicial system began acting not on precedent but in line with social and policy trends that had come to view the prison—and especially the southern plantation model—as regressive, cruel, and excessively punitive. However, as Feely and Swearingen also note, judicial activism in prison conditions cases was also motivated by other factors. It is worth quoting their observation at some length:
Despite the language of individual rights that gives rise to and shapes so much constitutional litigation, prison conditions cases were about institution building: clarification of basic mission, insistence on tight and responsible administration, development of written policies, cajoling legislatures to increase funding, and garnering public support for change. These goals were not explicitly articulated by prisoners’ counsel or judges in these cases, but they were loosely and intuitively embraced by both. The unarticulated reason: in the “organization society,” the protection of individual rights requires competent and constrained administration. Bureaucracy fosters rules, supervision, and accountability, and in so doing substitutes the rule of law for the will of the ruler.(436)
US racial justice efforts, garnering much broader support in the late 1960s and early 1970s than it had previously, prompted and was prompted by prison activism, including activist litigation. By the mid-1970s, these efforts had been well underway, and it is likely that the rhetoric of black, urban violence may have been on the minds of activist judges hearing these cases. The so-called epidemic of poverty and urban lawlessness, which was manufactured almost overnight, would require a solution. This is not to say that activist judges foresaw or wished to create what would become the contemporary system of mass incarceration, but that this system was on the horizon, first anticipated and then precipitated by the bureaucratization being ushered in.7
Part of this precipitation was due to the reliance of activist and policy-making judges on expert witnesses, largely comprising prison administrators themselves: “Nowhere did judges—or prisoners’ rights lawyers—attempt to innovate on their own. Nowhere did judges offer a new or novel approach to penology. Nowhere did any judge strike out boldly to promote new alternatives” (Feely and Swearingen 2006: 438). Thus, while these judges wished to improve the lot of America’s incarcerated [End Page 142] population, they could see no alternative to incarceration, nor envision a different kind of justice system. Judicial reforms saw the emergence of any number of bureaucratic instruments meant to standardize the care, custody, and control of inmates, and prison conditions did improve, especially in relation to the plantation model. However, the prison as an institution, solution, and way of life remained largely the same. Moreover, it could now be thought of as a “model” institution for the management of life that was both authorized and legitimated by the courts.
Loïc Wacquant (2009: 262) has drawn attention to the paradoxical relationship between neoliberal discourse promising small government and the staggering bureaucratization that emerges alongside it—across institutions but especially in policing and criminal justice. While the observation is important, accounts of neoliberalism, such as this one, often fail to account for the way that it is not strictly an economic phenomenon, and that many of its most salient features are extensions or outgrowths of political liberalism—for example its insistence on the inviolability and absolute necessity of individual freedoms and personal responsibility and autonomy. It is essential to understand neoliberalism not simply as the logic of the market (i.e., growth and efficiency) overtaking the sociopolitical sphere but also as a process that both intensifies and enshrines Enlightenment thinking about that same rationality and autonomy as it is applied to the human condition. Indeed, this may be why it has had such broad appeal: the rational and autonomous human being seems to merge seamlessly with the rational and autonomous market to produce the conditions under which “freedom” purports to emerge.
Thus, bureaucratization (qua nation or institution building) is constitutive of neoliberalism, rather than one of its side effects, precisely because it requires the implementation and administration of the principles of both political and economic liberalism. Liberty under political liberalism has always been tentative and has always required enforcement. To be sure, what this freedom means has shifted and continues to shift. This can be seen in the US context in the way that the right to bear arms under the Second Amendment has transformed almost exclusively into the right to gun ownership. The neoliberal reduction of freedom to the freedom to consume and own has required, and continues to require, substantial administrative efforts. The process of codifying and implementing neoliberal economic policies has required the bureaucratic administration of these transformed political rights, which has taken place in part through mass incarceration. This is not only, then, the “ritual reassertion of the sovereignty of the state in the narrow, theatricalized domain of law enforcement” (Wacquant 2009: 299; italics in original), but something even more insidious. Wacquant (2009: 303) claims that the prison boom beginning in the 1970s was “a ruling-class response aiming . . . to establish a new economic regime based on capital hyper-mobility and labor flexibility and to curb the social turmoil generated at the foot of the urban order by the public policies of market deregulation and social welfare retrenchment that are the core building blocks of neoliberalism.” I claim rather that the penal system does not simply manage social insecurity (although the initial prison boom may have been responding to these conditions); it is instead one of the primary mechanisms by which neoliberal reforms—in both the political and economic spheres—are administered. [End Page 143]
These reforms, first under Ronald Reagan, but even more so under Bill Clinton, also coincided with the broad-based emergence of victims’ rights discourse and policies. Among the most important of these reforms was the elimination of welfare as an entitlement and its replacement with right-to-work policies. As Ginsburg (2016: 194) notes, “Welfare reform was designed to compel people to think of themselves as individuals, not as members of society.” Welfare commonly has been referred to as the “social safety net,” and those members of society who rely on it are quintessentially social creatures, both part of and reliant on the broader social body for survival. Welfare reform relies on and reinscribes the capitalist logic that the individual and the family, and not society, are the foundational units of social and economic reproduction:8 “Reagan argued that welfare recipients needed to be liberated from . . . societal bonds by entering the workforce and getting off welfare, subjecting themselves to capitalist relations” (Ginsburg 2016: 194–95). Those who would not, or could not, be liberated would be much more likely to face incarceration in jails and prisons than they might have been only a few years earlier. The life being managed by the reformed prison system was the life of America’s underclass—the welfare recipient, the drug addict, the “petty hustler”—figures whose lives may have been managed in previous eras by the drunk tank, short-term mental ward, or rehabilitation clinic.9
As Ginsburg (2016) also points out, many of the same actors who were central to promoting the neoliberal agenda during the 1980s also played a crucial role in codifying victims’ rights. Both projects, he contends, undermine and deny society in favor of the individual. Ultimately, the wish of victims for peace of mind, and even retribution (especially in death penalty cases), trumps the goals of a more just and equitable society. In concert with policies such as welfare reform that foreground individual responsibility over social relations, victims’ rights have contributed to the success of the neoliberal project more broadly: “Victims’ rights denial of society is consistent with neoliberalism’s economic project and has been advocated for by neoliberalism’s champions, functioning as an integral element of its articulation” (196).
While the prison was fashioned in the 1970s as a necessary response to urban crime and lawlessness, it was figured during the 1980s as a solution to economic downturn, a sector of potentially unlimited growth, and one that would bring jobs and related economic development to the communities hosting them; as more and more prisons were built to save dying, rural communities, it became necessary to construct more criminals to fill them (Gilmore 2007). But where victims’ rights discourse continued unabated throughout the 1990s, 2000s, and beyond, prisoners’ rights discourse became increasingly narrow, focused almost exclusively on conditions and due process rights in criminal cases. Prison abolitionists have taken a broader view of the prison, seeing it as an extension of slavery and Jim Crow, a primary mechanism for the continued subjugation and exclusion from society and the economy of racial and ethnic minorities (see Alexander 2012; Davis 2003, 2005). This movement’s focus on exploring and ending the socioeconomic consequences of incarceration has meant that it less frequently examines how prison policies shape political and legal subjectivity for the incarcerated.10 In particular, it has not adequately examined how the prisoner-criminal or prisoner-victim are positioned as legal and political subjects. [End Page 144]
In 2001, Human Rights Watch (HRW) (2001) published a lengthy report highlighting the pervasiveness of rape in men’s prisons in the United States. Among its many recommendations is that rape should be reported to the police by Department of Corrections (DOC) officials and prosecuted to the fullest extent of the law. Like other crimes committed in prison, rape is more frequently than not treated as an internal disciplinary matter, subject to neither criminal investigation nor legal proceedings. HRW finds that prison rape is in many cases ignored by corrections staff, and in these cases, not even subject to internal disciplinary hearings.
While rape is a serious and pervasive problem in men’s prisons, it is not the only crime that goes unprosecuted. The relatively few cases of prisoner-on-prisoner murder also sometimes go unprosecuted, especially when the perpetrator is already serving a life sentence.11 Whether prosecuted or not, committing murder in prison usually results in multiple years of, or indefinite, solitary confinement. Very serious assaults, which under other circumstances would be prosecuted, are in prison either ignored or subject to internal disciplinary procedures. Even very violent assaults may be chalked up to “fighting,” so that the question of who the victim and perpetrator are is never under consideration. The second epigraph that opens this article is indicative of such an attitude. However careful these authors are to avoid the label of victim blaming, they nonetheless assert that prison fights—at least between two equally matched opponents—cannot be categorized as assault; since both parties are equally responsible, and, in their reading, equally willing to participate in the fight, there is no victim (Edgar and O’Donnell 1998), and therefore no crime. Importantly, however, there is no procedure to determine the willingness of each participant or the extent to which the “match” was even. The disciplinary procedure for fights typically determines only whether a fight has occurred and what type of punishment is suitable for disciplining the parties. The disciplinary procedure does indeed reflect the attitude of Kimmett Edgar and Ian O’Donnell, insofar as it, too, implies that a fight between inmates can have no victim; both parties in a fight are typically disciplined in the same manner.
Violence is a relatively routine aspect of prison life. The restricted economy of the prison, and prisoners’ unfavorable financial circumstances, make hustling one of the primary income-generation strategies inside. High-interest lending and borrowing of goods, such as food, cigarettes, commissary items, and prescription medication, are common practices that mirror street hustles. These illicit economies, not subject to the contractual or legal apparatuses that dictate so-called legitimate business exchanges, often necessitate private dispute resolution. This may mean that money or goods owed are stolen back, or that, if the borrower is unable to repay, alternative penalties will often be levied, sometimes in the form of additional interest and sometimes in the form of assault. The extralegal economies of the prison both reflect and are a reflection of the extralegal economies familiar to many inmates outside the prison; and the extra-judicial adjudication of crime and extralegal negotiation of property rights inside the prison—which are both systematized and legitimated by the institution—reinscribe the liminality of the marginalized and displaced quasi-citizens that inhabit it.
The normalized, routinized violence of the prison, in conjunction with the [End Page 145] quasi-judicial disciplinary proceedings that respond to and govern it, subordinate the crime victim. Francis Haines, whose assault of a fellow inmate with a shovel landed him in solitary confinement for fifteen days, sued the State of Nebraska for violating his due process rights. Haines’s guilt or innocence in the assault was not at issue in the constitutional case. What was at issue were his protections under the Fifth and Fourteenth Amendments. And federal courts have been reluctant to intervene in matters of prison discipline, since the prison is “vested with ‘wide discretion’ in disciplinary matters” (Haines v. Kerner 1972). The prison may do what it wishes with its criminals, whether their crimes were committed before being incarcerated or after. Constitutional due process clauses recognize the right to procedural due process in civil and criminal matters, and internal disciplinary hearings are neither civil nor criminal matters but administrative ones. Prisons have been granted the authority to settle disputes internally, and this is as true for disputes pertaining to the institution as it is for disputes among inmates.
Nebraska’s sentencing guidelines afford the courts wide discretion in punishing assault crimes: first-degree felony assault carries a one-to fifty-year prison sentence. Assault with a deadly weapon—such as a shovel—constitutes felony assault regardless of the injuries caused to the victim. Francis Haines, by admission, committed such a crime, and if he had been tried in court, he may have faced a substantial prison sentence. Administrative punishment for violent assault and murder, whether these were tried in court or not, often consists in multiple-year or indefinite commitment to solitary confinement. It is not at all obvious what punishment—for example a fifteen-day stint in solitary confinement—corresponds to a yearlong or a fifty-year-long prison sentence. But this case was never adjudicated. No one, now, will know the details of the assault, or what Francis Haines’s intentions were. No one will know what the subjective effects of the assault were on his victim or his victim’s family. Haines was punished, but he was punished without the benefit of being heard by a judge or jury. Whether or not his victim found any comfort in Haines’s punishment, it is certain that this victim was denied the benefit of testifying to the truth of what happened to him and to his damages, of being heard, of appealing to a court for justice, and of being recognized before the law. In handling this assault as a disciplinary matter, rather than as a matter of public interest, both the crime and its victim were effaced.
Crime victims are entitled to certain rights under the Crime Victims’ Rights Act of 2004 (CVRA) (Title 18 USC 3771), including the right to be reasonably protected from the accused; to timely notice of court or parole proceedings, and to be heard at those proceedings; to confer with prosecutors handling the case; to full and timely restitution provided by law; and to be treated with fairness, respect, dignity, and privacy. These are not simply administrative or technical rights. The right to be treated with fairness, dignity, and respect is akin to the right to be recognized as a subject and citizen with standing before the law, the community, and the polis. The instruments associated with the CVRA—preliminary hearings, court proceedings, prosecutor investigations, parole hearings—are absent from prison disciplinary proceedings. When a crime is adjudicated administratively, as it was in the Haines case, and as it is for many that are committed in the prison, the victims of [End Page 146] these crimes are denied such rights. Both perpetrator and victim are denied certain legal rights, but they are also denied the truth as it is constructed, authorized, and legitimated by the courts.
However, the CVRA is not without its problems. First, while it highlights victims’ right to be treated with fairness, respect, dignity, and privacy, victims’ rights advocacy has tended to focus instead on participation rights and sentencing laws. Beginning in the early 1980s, victims’ rights groups began to conflate several of their often overlapping goals: victim’s services, such as mental health counseling and support groups; victim participation in judicial proceedings; and tough-on-crime policies and legislation (Ginsburg 2016).
A logical chain developed in which victims’ services were equated with victim participation, victim participation was equated with punishment and conviction, and, accordingly, victims’ services were equated with conviction and punishment. This chain worked to solidify the most questionable element of victims’ rights, the contention that punishment and conviction . . . themselves are a victim’s right, not the things designed to achieve societal goals, as previously conceived.
Since victims’ rights advocacy never faced significant barriers, their major goal—achieving participation rights—had been enshrined in most state constitutions by the mid-1980s (Ginsburg 2016: 181), and was later protected as a matter of federal law under the CVRA. Thus “having achieved victim participation rights, victims’ rights groups today primarily focus on making life worse for prisoners and harshening sentences and post-release conditions, all in the name of victims” (Ginsburg 2016: 182).
Second, this focus on participation rights and harsher sentencing—over the right, for example, to be treated with dignity and respect—is indicative of just who gets to be included as a rights bearer. As Ginsburg (2016) points out, victims’ rights advocacy never faced opposition. It was largely taken for granted from the movement’s earliest instantiation, by the courts and by legislators, that crime victims should be entitled to the rights they sought. Indeed, the history of victims’ rights advocacy appears as the history of formalizing or codifying rights that seem already to have existed. This may be due at least in part to the racial and class makeup of victims’ rights advocates, as well as the racial and class makeup of their victimizers. The way that victims’ rights were taken up as a matter of commonsense is perhaps indicative of who counts as a victim in the contemporary United States: those who have done no victimizing of their own.
The point, then, is not that prisoners are the only victims of crime who are illegible as victims, or whose perpetrators go unprosecuted. Instead, it is that the nonprosecution of crimes in everyday life implicitly disavows the social value and legal standing of some victims, whereas the prison systematizes and codifies the worthlessness of some victims. It does so through a series of very precise and formal mechanisms that not only make the courts inaccessible to prisoners but also produce a reality in which crime—and therefore its victims—does not exist.
Progressive criminologists, for example feminist and radical criminologists, have demonstrated convincingly that most prisoners and ex-offenders have at some point been the victims of crime. This is particularly true of women offenders, of whom some studies suggest a majority have [End Page 147] been crime victims at some point prior to their incarceration (see Chesney-Lind  2013; Warner 2012). In her study of women offenders, Kathleen Ferraro (2006: 1) argues that the “social evaluation of victims and offenders draws upon narratives of good and bad people that are also mutually constituting.” For her, these narratives, particularly when they are applied to women, are deeply tied to issues of race, class, sexuality, and work. The extent to which a woman adheres to or deviates from the norms of respectable white womanhood affects the extent to which she might be considered either a victim or an offender.
White, middle-class victims of violent or property crimes are legible as victims, whereas people of color, poor people, gender-nonconforming people, and especially criminals are not. The dignity and respect putatively on offer from the CVRA and state laws are on offer to those who are legible as victims. Ginsburg points out that many of the harsh sentencing laws that have been enacted as a result of victims’ rights advocacy have been named for victims. It is worth quoting Ginsburg’s (2016: 183) critique of these bills in full:
There are demographic similarities among the victims for which [these] bills are named. All of the victims are white, and most are children. Of these children, most were girls victimized by strangers. The particular horror of the crimes that catalyze vigorous legislative responses derives from the victim’s socio-economic location. Most of these victims belonged to socio-economic classes typically insulated from everyday criminal victimization. They were not homeless or addicted to drugs, did not live in high-crime areas, were not a member of a racial minority, were not involved in criminal activity themselves and did not possess any other socio-economic or behavioral factors that predicts [sic] one’s vulnerability to victimization. The absence of socio-economic risk factors enhanced the unique innocence of the victims these bills were named after. It was not their societal location that placed these victims at risk, but the evil of offenders.
Thus while members of the white middle class are much less likely to risk victimization than the poor, than racial minorities, and than gender-nonconforming people, they are much more likely to be viewed as members of the victim class. Correspondingly, the poor, people of color, and gender-nonconforming people, even when they are crime victims, are much less likely to be counted among this victim class. Ginsburg’s critique illustrates how this focus on white, middle-class victims and their unique innocence actually perpetrates violence by failing to account for the systemic, socioeconomic causes of crime. What is absent from his analysis is a consideration of why victimization has become the hegemonic narrative of white, middle-class society.
According to Stuart Hall (2011), Reagan-Thatcher neoliberal discourse of the 1980s was characterized by the libertarian fantasy of the private citizen who needed to be protected from what the right would come to call “big government.” Government interference in personal decision making was framed as the predominant threat to liberal freedoms, and the primary responsibility of Reaganite governance, rhetorically, was to protect so-called individual liberties. The definition of individual liberties also grew increasingly narrow, eventually coming to be characterized almost exclusively by consumption: the private citizen could watch, purchase, eat, wear, or drive whatever he or she wished. The period was characterized by a return to, or increased focus on, the individual and the family as the primary site of social bonds and economic reproduction, [End Page 148] creating a disparity between the Reagan-ite rhetoric of individual freedoms and the reality of the culture wars during the 1980s, when sexual behavior and morality were policed vociferously (Berlant 1995).
The family, especially qua the figure of childhood innocence, was framed as the future of the nation, and the individual citizen was tasked with ensuring that the family unit remained intact, protected from immorality and other dangerous pollutants threatening the American way of life. By framing the family as the site of political action, the site from within which the nation would be produced and reproduced, the citizen’s duties and obligations could center exclusively on the home and work. Reaganite discourse presented the government as a threat to the privacy and sanctity of the home, but increasingly, too, the dangers of criminality, sexual deviancy, and ethnic or other cultural difference would come to pose a threat to the sealed off and self-contained morality of the white, middle-class home. The fear of urban decay and degeneracy, which drove white flight from urban centers during the financial crisis of the mid-1970s, would be reactivated by Reagan-Thatcher discourse highlighting the vulnerability of the American family to the threat of any influence that came from outside the home.
Lauren Berlant (1997: 5) traces the shifting landscape of American citizenship, grounding her analysis in a “privatized, intimate core of national culture” that precludes a public sphere. The true legal and political subject—the citizen—is someone whose social and political value and values are always being negotiated within and produced by a broad array of institutions—family and work, certainly, but also schools, political parties, governmental and nongovernmental agencies and organizations. “Downsizing citizenship,” on the other hand, “to a mode of voluntarism and privacy has radically changed the ways national identity is imagined, experienced, and governed in political and mass-media spheres and in everyday life” (5). Within this shifting landscape, the American Dream continues to produce a certain kind of citizenship: “A popular form of optimism, it fuses private fortune with that of the nation: it promises that if you invest your energies in work and family-making, the nation will secure the broader social and economic conditions in which your labor can gain value and your life can be lived with dignity” (4). Citizenship generally, and not just for women, comes to be measured against one’s value as a worker and as a family member; political action is directed inward rather than outward.
Berlant (1997) locates this shift as one that begins to occur during the 1970s and gains momentum as part of the Reaganite cultural agenda, an agenda constructed around and maintained by images of dangerous and threatening others. “In the cartoon version of the shaken nation,” she writes, “a citizen is defined as a person traumatized by some aspect of life in the United States. Portraits and stories of citizen-victims—pathological, poignant, heroic, and grotesque—now permeate the political public sphere, putting on display a mass experience of economic insecurity, racial discord, class conflict, and sexual unease” (1). It is this victimization, perhaps more than anything else, that comes to define citizenship in the Reagan and post-Reagan eras. While Berlant (1997) does not expressly take up the question of criminality, and focuses instead on national imaginary dangers mostly related to sexual immorality, her thoughts are in keeping with those who contend that national and social identities are constructed in opposition to the dangerous and threatening criminal (see Hoefnagels 1969; Young 1996). Against these “citizen-victims” are [End Page 149] those who threaten them and their national way of life, his American Dream.
The criminal in his or her heroic dimensions—the dimensions of Billy the Kid and Wild Bill Hickok—is someone who refuses to be taken in or co-opted by infantile citizenship, to buy into the fantasy that the nation is capable of fulfilling its promise of securing the conditions under which its citizens might thrive. But this image of the criminal rebel purely rejecting all social and cultural norms, constraints, and beliefs is itself a fantasy of the outlaw, a fantasy that has been central to the enduring appeal of the hugely popular American true crime genre (Harrison 1997: xxxii). These two narratives—one in which the criminal is a dangerous and polluting other, and one in which he or she represents the fantasy of American freedom and independence—strip the criminal of social ties and exclude him or her from the legal and political institutions that historically have shaped civic life. The outlaw’s status and value are imagined to be produced through something like the code or law of the street. The convict’s status and value are predetermined—first by the criminal code and later by the unambiguous set of institutions to which he or she is relegated: the criminal courtroom, the prison, and the probation or parole office. Where the convict is sometimes stripped of what in contemporary American terms is often considered the most important of citizenship rights—franchise—the infinitely more damaging consequence of a criminal conviction is the de facto exclusion from the institutions in and by which legal and political subjectivity is negotiated and produced.13 Thus, both versions of criminality represent a model of (non-)citizenship stripped of its social and political dimensions and constituted exclusively by a narrow set of rules and regulations.
While the neoliberal imaginary thus opposes the citizen-victim to the noncitizen-criminal (who therefore is excluded from becoming a citizen-victim him-or herself), both are formulated, albeit in sometimes different ways, as “pathological, poignant, heroic, and grotesque” (Berlant 1997: 1), and both are relegated to increasingly insulated, privatized spheres controlled and administered by putatively neutral and technical expertise. Against the modernist prison of Michel Foucault ( 1995), an institution designed to produce disciplined workers, the neoliberal prison has been framed as a labor market institution that responds to the surplus constitutive of capitalism (De Giorgi 2006; Gilmore 2007). Post-Fordist, namely, late capitalist and neoliberal, economies are mostly framed, especially by post-Marxists, as knowledge economies whose workers are inseparable—functionally and subjectively—from their work. The neoliberal worker is always working, never not working, and one’s “personal brand” is synonymous with one’s identity as a knowledge worker (see Berardi 2009). As De Giorgi (2006) notes, the contemporary prison does not prepare its inmates for this economy, as the modernist prison prepared its inmates to be productive, disciplined line workers. Nor, however, does it prepare its inmates for the marginalized and precarious work—in the fast food or meat packing industries, for example—that exists alongside it, since the law proper makes it entirely legitimate and acceptable to exclude from the workforce or housing market anyone convicted of a crime. Instead, the administrative processes that currently govern inmate life—namely, psychological and behavioral adjustment products, as well as disciplinary and grievance procedures—produce a different kind of productivity and efficiency having little or nothing to do with inmates or their future economic selves. [End Page 150] Rather, the prison has come to function as the primary site for reproducing neoliberal privatization. Inmates are little more than an unintended consequence of a model procedural apparatus for mechanizing the reduction of social citizenship to market relations.
The Neutral, Technical Expertise of Neoliberalism
The adjudication of guilt and innocence via administrative procedures encourages prisons to employ a putatively neutral and technical expertise to determine and implement appropriate disciplinary measures for a range of sometimes very serious crimes. Francis Haines was punished, but with little regard to anything external to the punishment itself, a process akin to the one that Robert Ferguson claims is ubiquitous in the US criminal justice system more broadly. For Ferguson (2014: 20), this system has come to resemble Franz Kafka’s penal colony, in which punishment becomes a matter of neutral, technical expertise. Ferguson claims that “In the Penal Colony” “teaches that punishment will trump every other concern, including the meaning of crime, procedural integrity, verification of guilt, the rights of the punished, proportionality in punishment, and the mental balance of the punisher” (23; Kafka  1996). For a punishment regime, such as the United States, these other concerns eventually become negligible, and punishment is carried out solely by way of administrative expertise.
While Ferguson levies his criticism against the criminal justice system as a whole, there are significant differences between the administration of justice in courts and the administration of justice in prison disciplinary hearings. Criminal courts, especially since the 1980s, have become progressively automated: prosecutors and judges are increasingly reliant on standardized instruments and algorithms that purport to gauge offenders’ chances of reoffending (Dressel and Farid 2018), and in the name of neutrality, sentencing guidelines have left judges in many cases unable to exercise the kind of discretion (including leniency) they once had in determining appropriate disciplinary measures.14 Nonetheless, the courts are subject to public scrutiny, and as public sentiment has begun to shift, some jurisdictions have implemented restorative justice and other reform-minded policies—at least for some types of crimes. That the courts are in many ways beholden to public opinion means that they are subject, at least to some extent, to reform. The distinction between judicial punishment and administrative discipline inside the prison is important because it can shed light on the different ways in which power is exercised over, and rights granted or withheld from, individuals who are considered dangerous, threatening, or criminal. It is equally important because prison disciplinary procedures are not only largely free from oversight by the courts but are also subject to very little public scrutiny. For infractions committed inside the prison, the distinction between discipline and punishment is equally important. While traditional punitive discipline does, of course, occur in the prison (for example in the form of privileges being revoked or time in solitary confinement), inmates in the US prison system also face an altogether different category of discipline from the putatively rehabilitative or punitive consequences imposed by the courts; these are also routinized and relatively homogenous, but they often do not resemble punishment in any traditional sense.
The ostensibly neutral and technical expertise of prison discipline begins with psychological and behavioral testing. Many prisons and parole boards continue to use [End Page 151] the Criminal Sentiment Scale (CSS)—Modified to determine new intakes’ and potential parolees’ propensity for future crime. The CSS is a generally accepted measurement of what social scientists call prosocial attitudes (see, for example, Banse et al. 2013). The scale is divided into three sections: Attitudes toward the Law, Courts, and Police (LCP); Tolerance for Law Violations (TLV); and Identification with Criminal Others (ICO). The LCP portion of the test evaluates respect for the law and criminal justice system, namely, as they are envisioned by the law. The scale generally calls for blind trust in the criminal justice system, and any response that indicates disrespect for this system results in a lower score. Some of the statements with which examinees are meant to agree include: pretty well all laws deserve our respect; it is our duty to obey all laws; all laws should be obeyed just because they are laws; the law is good; lawyers are honest; judges are honest and kind (italics added); court decisions are pretty well always fair; a judge is a good person; the police are honest; a cop is a friend to people in need. Some of the statements with which examinees are meant to disagree include: the law does not help the average person; the law makes slaves out of most people for a few people on the top; you cannot get justice in court; the prosecution often produces fake witnesses; the police are as crooked as the people they arrest.
This scale, and others like it, determine the course of behavioral and psychological treatment and adjustment to which an inmate will be assigned in prison, will contribute to his or her classification status and play a role in the type of facility he or she is sent to (i.e., higher or lower security), and may impact the parole board’s decision to release the inmate once the minimum sentence has been completed. The decision to use, and how to use, these instruments is completely at the discretion of prison administrators. Social scientists have continued to validate the effectiveness of the CSS in evaluating prosocial attitudes and behaviors. Here, prosocial attitudes and behaviors are figured as pure and abiding faith in law, law enforcement, courts, and judges. These are the (only) apparatuses composing society. Deviation from this norm, including any acknowledgment of structural racism or gender discrimination within these institutions, constitutes an antisocial attitude, which in turn requires correction.
A prosocial attitude—blind trust in the law and criminal justice system—is figured, and made explicit in the intake process, as the condition for release. It is also figured implicitly as a condition for social belonging and, consequently, citizenship. If conviction strips the criminal of his or her relationship to the broader social and cultural institutions in and by which citizenship is navigated and produced, it also newly interpellates the criminal as a social, law-abiding subject whose navigational course through a new, more limited and unambiguous set of institutions is mapped out in advance by those very same institutions.
Prisons and jails usually produce inmate handbooks outlining facility rules and regulations. But these handbooks, especially in large county jails with frequently rotating populations, are sometimes not actually distributed to inmates, and in other cases, they may be misleading, especially when it comes to conveying to prisoners what their rights and responsibilities are. For example, according to Pennsylvania DC-ADM 004, and as outlined in the Pennsylvania DOC Inmate Handbook (Pennsylvania DOC 2017: 24), “If any act constituting a crime [End Page 152] in Pennsylvania is committed against [an inmate] by anyone, [an inmate] may press charges against that individual. If such an act occurs, it is [the inmate’s] duty to notify the staff so that they may take appropriate action.” Placing the onus of responsibility on the crime victim to bring charges against his or her perpetrator—making this his or her duty—not only shifts the burden of responsibility to the individual for pursuing justice but also serves to mitigate the prison’s responsibility for providing a safe, secure, and well-surveilled facility. Here, it is not the prison’s but the inmate’s duty to police the actions of its prisoners.
In the US justice system, criminal charges are brought by the state. Under criminal procedure, it is not the prerogative of the victim to press charges or not, as bringing charges is within the purview of the state. In certain cases, the state may opt not to prosecute a crime it knows to have taken place, for example in cases in which the victim may be unwilling to testify against a perpetrator or cooperate with the state in its prosecution. If the prosecution does not have sufficient evidence to prosecute a case, it will not bring charges. (Since the police are almost never invited into prisons to investigate crimes, these crimes have little chance of being referred to prosecutors.) However, the state may opt to bring charges whether or not it has any cooperating witnesses, or whether or not a victim wishes for her or his perpetrator to be prosecuted; the state would be unlikely to opt not to pursue serious felony charges, for example, if the victim of an armed robbery resulting in serious injury were unwilling to “press charges.” Taken to its extreme, one might speculate how often the state fails to prosecute a murder because the victim was unwilling to cooperate.
Individuals “pressing charges” is something that happens in television crime dramas. This language simply shifts the burden of responsibility onto the victim for pursuing justice in cases in which the state is disinclined to bring charges, either because it does not have sufficient evidence or because the case, perhaps a misdemeanor, does not, in its opinion, warrant the resources necessary for prosecution. Most often, though, the language of victims pressing charges is used in cases of sexual assault. Sexual assault is substantially underreported as a crime more generally (i.e., outside prison) for a number of reasons. These include the historical construction of women as liars and the tendency of juridical discourse to question the credibility of women victims of sexual assault (Ronner 1997; Yarborough and Bennet 2000). It is estimated that some two-thirds of sexual assaults go unreported (Truman and Morgan 2016: 6), and once a sexual assault is reported to police, police—and then prosecutors—have broad discretion to determine whether a crime has occurred (Frazier and Haney 1996). So while women may choose or not to report sexual assault, they have very little to do with whether they are believed as witnesses to their own assault, or the extent to which police will make an arrest or prosecutors will bring charges. But in most cases, the rhetoric of police and prosecutors, should a victim decide not to cooperate in an investigation or trial for these or other reasons, for example out of fear of retaliation or further victimization, will suggest that she was in near total control of investigatory and prosecutorial decision making.
Whether justice is to be pursued by the individual or as a matter of public interest often hinges on race, class, and gender. Historically, justice is pursued as a matter of public interest when the victim [End Page 153] is a white, heterosexual man. For women and racial and sexual minorities, especially when they are victims of white, heterosexual men, the burden of pursuing justice shifts rhetorically and oftentimes practically to the individual. As quasi-citizens, women and racial and sexual minorities are the bearers of partial rights. Women’s status as quasi-citizens depends on their continued construction as sexually manipulative liars and financial dependents. The “traditional” family in the contemporary United States is one in which the wife and mother is expected both to work full time and to be the primary caregiver to her children. While most women work, the burdens of housework and mothering have not decreased significantly since the 1970s.15 Women who work in low-wage or nonprofessional jobs often continue to be viewed as freeloaders who do not contribute their fair share to either the household or the nation.
Citizenship in the liberal imagination is a set of rights and obligations applicable only to those who are fully autonomous subjects—those who are either fully self-supporting through waged work or “independently” wealthy.16 The un-and underemployed, those who choose not to work, and the working poor are considered, like women, to be dependents, especially but not solely when they rely on public benefits. The poor are subject to increased surveillance in both public and private spaces, and their choices—especially the choices they make about what to purchase and consume—are subject to the strict scrutiny of the public.17 They are suspect, and they are less likely to trust the police when they have been victims of crime because they are assumed to be on the “wrong side” of the law.18 They are the population from which the citizen class requires protection.
Most inmates held in US jails and prisons come from this underclass (see Irwin  2011). Once they arrive in jail or prison, their status as dependents or wards of the state is confirmed and formalized. As the Supreme Court held in Wolff v. McDonnell (1974: 555–56), “a prisoner is not wholly stripped of constitutional protections,” although he or she clearly is stripped of some. Prisoners do not have the right to speech or expression, although they do maintain the right to practice the religion of their choosing.19 Prisoners have some due process rights, but only insofar as these do not impinge on the safety of the institution or its correctional mandate, both of which the prison has broad discretion to determine. Prisoners do not exercise freedom of movement or assembly, nor can they communicate privately via mail or telephone, excepting privileged communications with their legal counsel. Finally, as the class from which the citizen class needs protecting, they are assumed not to need or want access to law enforcement. If this last right is not a strictly constitutional protection,20 it is an assumed and at least semiformal right of American citizens to be served and protected by police.
Prisoners’ access to law enforcement is, in addition, mediated by the institution. A prisoner may inform a corrections officer or other staff member that he or she has been victimized, or he or she may file an internal grievance. A prisoner cannot simply call the police, and nor does the prison function as a law enforcement agency. While its mandate is the care, custody, and control of its inmates, the prison has a vested interest in shielding itself from the public scrutiny that might emerge from the regular prosecution of crimes committed within its walls. Instead, the internal grievance procedure is the primary means of [End Page 154] communication between inmate and institution. It is an all-purpose procedure for lodging complaints, requesting access to medical care, or reporting criminal or other misconduct. It is the primary mechanism by which inmates are denied access to the courts, and it also governs the process by which infractions and crimes are reported and investigated.
Prisoners’ ability to respond to and communicate with the institution is limited. Despite constitutional access to courts,21 prisoners’ actual access to courts is limited in several different ways. First, while prisons are required to maintain legal resources so that inmates may conduct legal research, most prisoners lack the kinds of financial and other resources necessary for successful litigation. Second, under the Prison Litigation Reform Act of 1996 (PLRA), inmates must exhaust internal, administrative grievance procedures before filing any suit related to prison conditions (Summs 2017: 469). Prison officials have broad discretion to determine what constitutes the exhaustion of grievance procedures, and inmates who grieve staff members are routinely targeted for intimidation and retaliation (469). Furthermore, inmates themselves may be unaware of the grievance process or the extent to which this process is or is not the only mechanism by which their grievances may be addressed.
Among the problems associated with internal grievance processes is that institutions determine, internally, the rules and procedures that must be followed by inmates in order for the grievance to be considered legitimate. Many institutions have restrictive time limits, so that, in some cases, grievances must be filed within several days of an instigating event. Other times, grievances are returned because an inmate has written on the reverse side of the form or outside the dedicated box. Further, “prisons and correctional departments have a set of priorities that is so at odds with prisoners’ interests that a neutral body might more effectively resolve inmate grievances” (Swearingen 2008: 1354). The adjudication of inmate grievances, which are largely directed toward the institution itself rather than toward, for example, other inmates, results in a process by which the prison is the sole arbiter of its own conduct and policies: “By having in place elaborate internal procedures guaranteeing multiple levels of review, prisons may signal compliance with judicially-imposed standards when, in fact, their grievance procedures do not actually protect constitutionally defined rights” (1354).
The grievance process, which emerged as part of the bureaucratization of prisons during the 1960s, is the means by which prisons may resolve inmate complaints internally, and it thus “tend[s] to keep . . . dispute[s] within the prison’s walls and out of the public sphere” (1354). In other words, unlike the rhetorical and practical effect of shifting the burden of responsibility from the state to the private individual for bringing criminal charges, the PLRA and concomitant administrative rules within the prison actually have the legal effect of eliminating the government’s burden to act within the confines of the Constitution. That prisoners’ access to the courts is mediated by the administrative grievance procedure means that inmates are frequently unable “to address serious, even life-threatening grievances” (Summs 2017: 468). The kinds of inmate grievances routinely dealt with in prisoner rights discourse include access to medical care, freedom of religion, and prison conditions [End Page 155] (i.e., under the cruel and unusual punishment clause of the Eighth Amendment). Concerns about the right not to endure physical abuse are typically directed toward the institution and its agents; these cases are brought by inmates against officers, for example. Much more rarely does prisoner rights discourse highlight inmates’ right to be free from victimization or abuse by other inmates.
While most state and federal inmates receive inmate handbooks outlining the basics of grievance and other procedures, inmates of county jails frequently do not. In neither case do inmate handbooks offer anything even nearing the kind of detail necessary to understand the complex administrative rules governing the institution.22 The Inmate Information Handbook for the Cook County Jail in Chicago outlines the types of complaints that may be addressed by inmates through the grievance process. These include violations of constitutional rights, breaking of law or institutional rules by Cook County Department of Corrections staff, threats to safety or well-being, unsafe or unclean living areas; mishandling of money or property, lack of access to programming that has been court ordered, and not receiving necessary medical attention (Cook County Department of Corrections 2013).23 Departmental policies and decisions by the disciplinary boards cannot be grieved.
I suggested earlier that the normalized, routinized violence that constitutes prison life results, at least in part, from the exclusion from socioeconomic life and subsequent creation of informal or illicit economies by the underclass. While some violence may be constitutive of these informal or illicit economies, and while these economies and this violence sometimes operate relatively unimpeded in the prison, there is frequently more violence inside the prison than outside. The documentary series Time: The Kalief Browder Story and the reporting related to Browder’s incarceration, highlight the systemic corruption and violence of officers and administrators at Riker’s Island in New York City (Furst 2017). Browder was sixteen years old when he was arrested and detained for petty larceny; the charges would later be dropped because of insufficient evidence. While incarcerated, Browder was the victim of regular, brutal beatings by fellow inmates. In the documentary, closed-circuit video footage shows officers turning their backs on these beatings, and related reporting demonstrates that officers at Riker’s used their positions to profit from gang activity, at times encouraging, facilitating, orchestrating, and even ordering violent assaults. Browder committed suicide two years after his release. While his story reveals that the prison victimizes youth offenders and detainees, it also focuses in sharp relief the disparities between this reality and institutions’ claims that crimes will be (or at least can be) prosecuted. It also serves as evidence to contest the claim that assault among prisoners is impossible, nothing more than two equally matched and equally willing opponents settling a score. Against Browder’s story, and the stories of others like him—others who have been victims of violent assault organized and instituted by the institution itself—the institutional grievance procedure is shown up as a massive deception. The prison views incidents of abuse, neglect, fraud, and corruption to be anomalies, exceptions that prove the rule of the smooth functioning penal system. That these incidents are ubiquitous is irrelevant, in much the same way that police misconduct is often framed as a case of “bad apples” in an otherwise just system [End Page 156] staffed by upstanding citizens and members of the community.
Privatization is not simply the relinquishing of public spaces and institutions to private interests but the separation and condensation of those domains that remain in the public sphere. During the 1980s, the government, broadly speaking, came to adopt an attitude of noninterference, not only in relation to individual citizens and private corporations but also in relation to itself. Any hint of government oversight came to be indicative of government overreach. Public school systems had to be fully independent from this overreach, except in the most extreme cases, and state departments of corrections could be almost wholly sealed off from the oversight of other agencies, including the federal government. State and local DOCs would be free to create or adopt their own policies, so long as they did so in accordance with their mission to advance institutional safety.
The transition from free market capitalism to neoliberalism included the shuttering of many public institutions, including the vast majority of state mental hospitals, and the privatization of many public spaces and institutions. The eradication of these public institutions not only relieved the government of its responsibility to serve its citizens, it also closed off these institutions from public governance and oversight and removed them as possible sites wherein norms, values, ideas, and ideals could be negotiated. The public institutions that remained adopted market principles for their style of what had become largely self-governance. The adoption and normalization of free market principles—efficiency, modernization, individual responsibility, and profit—by and within public institutions has meant that these institutions have come to operate in essentially the same way as private corporations, that is, as though the solutions to all complex social and political problems can be found in the market. Following this logic, prison grievance and disciplinary procedures remove the negotiation of rights, responsibilities, and normative reasoning from the public realm of law and position them as faits accomplis.
Deena Varner is a Global Perspectives on Society Fellow at New York University Shanghai. Her research interests include prison studies, cultural studies of the law, carceral and criminal geographies, and politics of work and leisure. Her work has appeared recently in Frontiers: A Journal of Women Studies, the Journal of Historical Geography, and Women’s Studies.
1. Wolff v. McDonnell, 418 US 539 (1974).
2. Haines v. Kerner, 404 US 519 (1972).
4. Alessandro De Giorgi (2006: 47) contends that the transition from Fordism to post-Fordism is the transition from disciplining scarcity to controlling surplus; such a transition is reflected in the emergence of the prison industrial complex and the shifting role the prison plays in the broader political economy.
5. My treatment of US economic policy during this period of stagflation is necessarily brief, but for exemplary analyses of US and global economic development and the decline of US economic hegemony, see Arrighi (2007) 2009, (1994) 2010.
6. People with mental illnesses are overrepresented in America’s jails and prisons, although the extent to which this is due to transinstitutionalization is hotly contested. State hospitals faced many of the same criticisms that prisons today face: they were overcrowded, often provided inadequate care, were underfunded, and patients often suffered under horrendous conditions. While conditions litigation sought to remedy these issues, funding adequate public mental health treatment for the seriously ill proved too costly for states and the federal government, and by the 1980s the state asylum had largely disappeared. While some blame declining state hospitals for the increasing incarceration of the mentally ill, it is also possible that increasing incarceration contributed to the rapidity of the decline of the state hospital. For more on the debate about transinstitutionalization, see Lamb and Weinberger 2005; Prins 2011.
7. This sequence of events follows a logic similar to the logic of empire that Michael Hardt and Antonio Negri (2000) develop in Empire: neoliberalism does not emerge organically, as it were, from either economic or political liberalism but as a direct and immediate response—a repressive response—to socialist organizing that precedes it. In this analogy, the prison industrial complex does not emerge organically as a response to crime but is precipitated by the broad push toward a more equitable society, which mass incarceration tamps down, creating the conditions of its own existence.
8. The family as the site of social and economic reproduction has been a central concern for socialist feminists, as well as for feminist political theorists (see, for example, Dalla Costa and James 1975; Pateman 1998). These concerns are redoubled, however, in the context of American race relations. Judith Butler (2002: 15), for one, writes that “African American kinship has been at once the site of intense state surveillance and pathologization, which leads to the double bind of being subject to normalizing pressures within the context of a continuing social and political delegitimation.” Thus, the black family cannot be the site of social and economic reproduction because it is surveilled, pathologized, and criminalized. In this way, it must be contained to protect the broader neoliberal social relation.
10. This is not to say that abolitionists are unconcerned with these effects. However, they have tended to focus on two main areas of inquiry: disenfranchisement and the sexualized violence of pat downs and strip searches, as well as the more overt forms of sexual assault that happen inside.
11. Prosecutors sometimes claim that bringing a murderer to trial is too costly, especially when no additional actual discipline can be imposed by the courts, for example when a suspect is already serving a life sentence. Others claim that prosecuting murder is necessary as a deterrent. Much more rarely does a district attorney’s office recognize the legal rights or subjectivity of the victim or the victim’s family (see Cordona 2012).
12. It is worth noting that Ginsburg takes a particularly idealistic view of previous eras’ approaches to punishment and rehabilitation. Beginning with the earliest American penitentiaries, there were significant disputes about whether incarceration could, or should, achieve social goals (see Varner 2018).
13. This focus on franchise as the most important of all American rights, and on voting as the most important of all civic duties, fails miserably at producing meaningful political action, and succeeds radically in producing a meager and insubstantial version of citizenship. This is in part why the reduction of prison activism to rights-based gains is so dangerous. The right to vote does not restore the ambivalent and complicated relationship to social norms and the law that historically has characterized social and political life.
14. Sentencing guidelines give the appearance of neutrality while often reinscribing racial disparities. Similarly, prosecutors have broad discretion to determine which charges are brought and against whom, and these decisions continue to disproportionately impact people of color (see, for example, Hofer, Blackwell, and Ruback 1999). For more on prosecutorial discretion and judicial departures from sentencing guidelines, see Wilmot and Spohn 2004.
15. The domestic division of labor and women’s increasing time poverty has been an ongoing concern for feminist scholars since women’s large-scale entrance into the workforce (Hochschild 1997; Warren 2003). More recently, time poverty has been taken up by social scientists as a broader, more gender-inclusive phenomenon (Williams, Masuda, and Tallis 2016).
16. For a classic analysis of the relationship between class, waged work, and citizenship, see Marshall and Bottomore 1986; for an important political analysis of women’s place in the economy of work and citizenship, see Lister 1997; and for a more recent socialist feminist perspective, see Weeks 2011.
17. In her now-classic black feminist manifesto, Patricia Williams (1991: 22) writes that in contemporary America the “haves are entitled to privacy, in guarded, moated castles; have-nots must be out in the open-scrutinized, seen with their hands open and empty to make sure they’re not pilfering.”
18. Kimberlé Crenshaw’s (1991: 1257) foundational legal analysis of intersectionality describes the ways in which the lives of people of color are subject to police scrutiny; considered to be always already criminals, communities of color have adopted a “generalized . . . ethic against public intervention, the product of a desire to create a private world free from the diverse assaults on the public lives of racially subordinated people.”
19. While religious freedom is not absolute, for example as held in Turner v. Safley (482 US 78 ), the Religious Freedom Restoration Act of 1993 (42 USC §2000bb) applies to federal prisoners, who are entitled to have access to religious literature (Sutton v. Rasheed, 323 F.3d ) and to participate in prayer and attend religious services (Mayweathers v. Newland, 258 F.3d ).
20. The Supreme Court has ruled that police are under no constitutional obligation to enforce a restraining order. Jessica Gonzales called the police on her husband, against whom she had a restraining order, who then murdered their three children (Castle Rock v. Gonzales, 545 US 748 ). Previously, the Court had ruled that that county’s social services agency’s failure to protect a minor from abuse by his father did not constitute a violation of the Constitution (DeShaney v. Winnebago County, 489 US 189 ).
21. The US Supreme Court has held that inmates have the right to access courts and that prisons must provide adequate resources for inmates to access them, namely, in the form of libraries. Prisons are not required to provide legal assistance (Bounds v. Smith, 430 US 817 ).
22. While some inmate handbooks outline the types of disciplinary measures that can be enforced—solitary confinement, loss of privileges—few, and possibly none, outline exactly which measures are used for which kinds of infractions. In many cases, inmates are forced to rely on precedent and word of mouth: certain infractions seem to result in cell restriction, while others result in thirty days of solitary; some infractions seem to result in the loss of visitation privileges while others result in the loss of commissary privileges. More often than not, especially for minor institutional infractions—wearing improper attire on the floor, not locking in at count, nicking food from chow—discipline is meted out by the attending officer on the spot. For more serious violations, a hearing may be scheduled, at which the inmate may or may not appear, and a disciplinary review board determines both culpability and disciplinary action.
23. The internal statute of limitations for grievances at the Cook County Jail is fourteen days, excepting sexual discrimination or harassment, for which there is no time limitation.