This paper is a draft. Please do not cite without author’s permission

Download 73.76 Kb.
Size73.76 Kb.

This paper is a draft. Please do not cite without author’s permission.

Prisons, Torture and Empire: On Angela Y. Davis’s Abolitionism

New York, Columbia University, March 23rd, 2005

Eduardo Mendieta

Stony Brook University

…racism is scattered, diffused throughout the entire United States; it is shifty, sullen, arrogant, and hypocritical. There is one place where we might hope that this racism would cease, but on the contrary, this is where it becomes more cruel than anywhere else, where it is aggravated at every moment, where it does its work directly on bodies and souls, where racism becomes a kind of concentrate of racism: American prisons, and, it seems, of all American prisons, Soledad Prison, and at its center, the cell of Soledad…we could say that racism is here in its pure state, tautly alert, radiant, and ready to spring.

Jean Genet1

Rousseau writes early on in his Social Contract, and I paraphrase, “humans are born free, but every where one looks they are in chains.” In the United States, the land of the putatively free, the historical metonymy of liberty and democratic freedom, there are more prisoners per capita than any other modern, industrialized, democratic nation in the world. In the June 26, 2004, editorial of the New York Times, the editors informed us that 13 million Americans have been “convicted of felonies and spent time in prison.” This number is more than the population of Greece. In July 25th, 2004, the Bureau of Justice Statistics, which is part of the U.S. Department of Justice, released a report that announces that there are almost 6.9 million Americans on probation, parole, or incarcerated in U.S. prisons, jails or correctionals. The report in fact names this group of citizens and “adult residents” the “correctional population.” Statistically, the report continues, this “correctional population” brakes down more or less in the following way: 13 percent are women, 41 percent are black, 40 percent are white, 18 percent are Hispanic and 2 percent are of other race or ethnicity. This report only exacerbated the presentation of a scandalous reality that had already been starkly reported earlier by the same organ of the state. Late in May, May 27th to be precise, the Bureau of Justice Statistic released a report that stated that nearly 2.1 million “adult residents” and “citizens” were inmates in the prisons and jails of the country. Thus, within the correctional population of almost 13 million, we have a prison or inmate population of over 2 million inmates. The report also notes that this prison population is made up of 43.6 white non-Hispanics –I pause to note this rather unusual nomenclature, in which whiteness is not differentiated not vis-à-vis blacks, but vis-à-vis the ethnicity of Hispanics. 39.2 percent are blacks, 15.4 percent are Hispanics. In general, the report affirms, “sixty-eight percent of prison and jail inmates were members of racial or ethnic minority groups.”

In fact, as was reported in the Baltimore Sun, the United States imprisons its populations at three times the rate of Iran, four times the rate of Poland, five times that of Tanzania and seven times more than Germany2. Compared to the competitor for this inglorious honor of being the supreme incarcerator in contemporary history, the United States has 702 prisoners for every 100,000 inhabitants and citizens, whereas Russia only has 665 per 100,000 per inhabitants. In terms of the “correctional population,” the United States has about 3.2 percent of the population, that is 1 in every 32 “adult residents,” in the grips of the correctional, justice, and punishment system of the state. Or, as Angela Y. Davis has put it, “the U.S. population is general is less than five percent of the world’s total, whereas more than twenty percent of the world’s combined prison population can be claimed by the United Sates.” (Davis, 2003, 11) But as glaring and scandalous as these statistics may appear, they also conceal an even grimmer reality. A recent study by the Legal Action Center has discovered and tracked the ways in which former prisoners or inmates continue to pay their “debt to society,” and continue to be punished by a series of seemingly innocuous measures that nonetheless have devastating consequences for the life of former inmates. 50 states, or in other words the entire official United States, bars former inmates from acquiring state licenses. This means that they are de facto excluded from many, if not most, jobs. A total of 7 states permanently disenfranchise formerly incarcerated persons. 7 additional states also disenfranchised certain types of former incarcerated person (which is determined according to the type of crime they allegedly committed), 33 states disenfranchise persons on parole, and 48 state disenfranchise persons in prisons, the sole exceptions being Maine and Vermont. These numbers are widely known and circulated as they are periodically reported by the Prison Policy Initiative and the Sentencing Project, two policy and advocacy groups that track the effects of penal policy on U.S. citizens. In summary, more than 4.7 million residents in the US have been de facto disenfranchised, either permanently or temporarily, in the United State. This amounts to about 2 percent of the population. But again, the statistics conceal, rather than reveal. As we look closer into these numbers we discover that 1.4 million African American men, that is 13 % of the Male African Americans, have lost the vote. In states that disenfranchise ex-offenders permanently, which also happen to have large African American populations, this number climbs to 40 % of the male African American population.
A carceral archipelago has colonized the land of the free. In fact, as Loïc Wacquant has suggested, the United States may have become the first carceral society in world history. Furthermore, not only is it the case that we live in a “prison nation,” but that its prisons are hyper-ghettos. The nation’s prisons are unequivocally ethno-racial sites of disciplining, penality, and social death. The American prison system, which has taken on the dimensions of an industrial complex, to use Mike Davis and Angela Davis’s term, is an ethno-racial penal institution. When, as Angela Davis notes in her Are prisons obsolete? that black, Latino, and native Americans have a greater likely hood of going to prison than school, and when the only way out from the ghetto is the prison or the army, there is something profoundly wrong with our society and the kinds of future we are constructing for our youth and future generations. To use Christian Parenti’s allegory, the contemporary American ‘ethno-racial prison is a slave ship landlocked and shipwrecked on the sharp reefs of American enduring and acute racism.’ Today’s American prison system is an institution that deploys a racial political economy of punishment that brands social agents with a scarlet letter that entrenches and exacerbates racial opprobrium and negative social capital.
The American landscape, dotted with hyper-ghettos and ethno-racial prisons, a veritable topography of racial terror and imprisonment, is not solely a concern for the social sciences. I want to argue today that the present state of the United States, qua carceral society, presents a profoundly philosophical quandary and challenge. I want to suggest that we fail as philosophers if we do not seek to grapple, wrestle, and toil with this morally and epistemologically dissonant and repugnant situation in which the idolatry of liberty co-exists so promiscuously and comfortably with the privation of freedom. I will also argue that Angela Y. Davis’s work is perhaps one of the best philosophical as well as political responses to the expansion of the prison system in the United States. I hope to clarify the ways in which Davis’s abolitionism is within a certain tradition, but also how it departs and revitalizes that tradition by introducing innovating elements of critique and analysis. I want to conclude with an analysis of this abolitionism and argue that it is not just an analysis of prisons in the United States, but also, and perhaps, most importantly, the elaboration of an ethical and political imperative that must give our struggles for social justice in 21st century U.S. In Davis’ words, “in the twenty-first century, antiprison activists insist that a fundamental requirement for the revitalization of democracy is the long-overdue abolition of the prison system”(Davis, 2003, 39) Indeed, in the 21st century, no democracy can coexist with prisons, and prisons cannot but continue a form of abolished democracy. Abolished democracy, or the democracy that we have failed to develop since the abolition of slavery in the US, is at the same time a casualty of empire.
The prison industrial complex, in fact, is emblematic of Empire, of empire that eviscerates the public and political life of a democracy. That the United States is facing one of its most devastating moral and political debacles in its history with the disclosures of torture at Guantánamo, Abu Ghraib, and other such prisons in the so-called global war on terror, requires that we try to discern the links between the racial character of the American prison industrial complex, its relationship to American Empire, and the pyrrhic embrace of torture by the present administration. In order to achieve some clarity concerning the triangulation among prisons, torture, and empire, I will trace, in broad strokes, the genealogy of what I will call a radical tradition of penality. This tradition finds some of its principal sources in the work of the first generation of Frankfurt School Critical Theorists, it was continued by Michael Foucault, under the guidance and auspices of these pioneers, and has been taken to a new level of development by U.S. public intellectual and activist Angela Y. Davis, who was herself a student of Herbert Marcuse and Theodor W. Adorno, and also a so-called enemy of the state.

Critiquing Prisons or the Political Economy of Punishment

It is important that we have a general idea of how prisons operate in the social imaginary, and how they are legitimately used within Western society. Any introductory text on prisons and any public official will say that prisons fulfill at the very least four fundamental purposes. Prisons are supposed to incapacitate, that is remove a criminal or violator of the law from society so that he or she may not inflict further damage. They are also supposed to act as a deterrent or as a mechanism of deterrence. The idea is that losing one’s liberty is the worst thing that can happen to a citizen and thus, these future violators of the law will think twice before engaging in felonious activities. Prisons are also supposed to be places for retribution or expiation, where felons and criminals “pay back” their debt to society and engage in acts of penance or self-cleansing. Finally, prisons are also supposed to be places of reformation, in which felons and criminals undergo a process of reeducation and re-socialization. These bland ideological justifications for prisons, however, operate at an extremely superficial level. They do not begin to address the many others roles that prisons play within society. Nor do they intimate the ways in which other factors are at play in the deployment of imprisonment as the preferred method for punishment. Nor do these justifications begin to address the simply question of the historicity of prison, that is to say, the way in which incapacitation, deterrence, retribution, and reformation are not trans-historical constants. Even a quick glance at the history of punishment in U.S. society will reveal a rich plurality of forms of punishment. What may turn out to be most pernicious about these bland ideological justifications for prisons is that they operate on an assumed rather than proved symmetry and causal relationship between crime and punishment, between infraction and sanction, between unlawfulness and legitimate retribution.

The jejune ideological justifications that I just described were taken to task by Georg Rusche and Otto Kirchheimer, in their classic work Punishment and Social Structure. This work was originally written in the late thirties under the auspices of the Institute for Social Research in Frankfurt. The project was initially developed and carried out by Georg Rusche, but when the project came to the institute, Otto Kirchheimer was assigned to re-writing it and completing it, partly in order to make it more palatable to the virulently anti-Marxist American social scientists. This must be noted because it helps us understand the almost schizophrenic character of the work. The work was produced in Europe, but it was the first publication of the institute in English, in the United States, where the institute had transferred ---in fact, not far off from here and in a lose relationship with Columbia University-- by its members after escaping Nazi Germany. Rusche’s original insight, and methodological goal, was to use Marx’s labor model in order to show, and prove, the correlation between imprisonment and labor markets. More specifically, Rusche sought to correlate proportionally and causally the growth in the so-called labor reserve army with the rise or decline in prison population. In tandem, Rusche also sought to show that if the prison system was to work, it had to guarantee a punishment that was even more exacting that the worst condition of the least off of that society. Indeed, punishment should constitute a “negative conditioning factor,” lest it become risible and useless. I do not have time to rehearse and overview some of the arguments in this pioneering work. It should suffice for now to note that the work begins with an analysis of the uses of corporal punishment during the Medieval Age, and covers the transition from despotism to democracy, to the rise of Mercantilism and Industrial Capitalism. The book concludes with a quick overview of punishment trends in Germany during the first six years of Hitler’s regime and a quick overview of the United States during the first part of the 20th century.
One aspect of the work that certainly contributed to its becoming a classic, which was discovered in the late sixties, when it was it was reissued by Columbia University Press in 1967, is the way in which it correlated transformations in the labor market with the institutionalization of prisons. It also advanced a thesis that was voiced independently and perhaps without mutual knowledge by other Marxists. And that is the thesis that imprisonment as the preferred and main form of punishment is directly correlated with the rise of Mercantilism. I am here referring to the Russian Marxist legal thinker Eugeny Bronislavovich Pashukanis, whose Marxism and Law (published in 1924) talked about the ways in which the commodity form impacted the ways in which punishment became quantifiable in terms of time. On the one hand, Punishment and Social Structure also had do to with mercantilism’s fundamental need to have the law uncoupled from morality, and second, with the imperative to have law be calculable, dependable, transparent, that is dispassionate, cold, and blind. As law became formalized, and as the logic of juridification became functional and rationalized, imprisonment became a way in which the exercise of the law could appear calculable, neutral, mechanical, and if you will, perfunctory and procedural. In this way, Rusche and Kirchheimer demonstrated the correlation between punishment and the evolution of the judiciary.
Yet, what made Rusche and Kirchheimer’s work a classic was its brilliantly simple, albeit unsubstantiated and counter-intuitive, thesis that crime and punishment are not to be read in a continuum. The avowed Marxist aims of the study, however, were contradicted by this very central thesis. One of the most notorious supporting or axiomatic thesis of the work is announced in the introduction. I must quote:
Punishment is neither a simple consequence of crime, nor the reverse side of crime, nor a mere means which is determined by the end to be achieved. Punishment must be understood as a social phenomenon freed from both its juristic concept and its social ends. We do not deny that punishment has specific ends, but we do deny that it can be understood from its ends alone (5).
In others words, the bond, whether transparent or not, that allegedly exists between crime and punishment must be severed. Crime and punishment must be decoupled, or uncoupled, so that the history of the penal system can be fruitfully pursed. In addition, uncoupling crime from punishment means learning to see punishment uncoupled or dissociated from its putative social ends and from its legal sanction or quasi-legal mantle. Yet, this audaciously simple thesis raises a series of important questions. If punishment is not causally and teleologically linked to crime, then what functions does it perform? If punishment does perform specific ends, but they are not directly or solely determined by its social ends, then what are these other social ends that remain un-thought, unnamed, and un-deciphered?
The other two notorious auxiliary theses articulated by Rusche and Kirchheimer are presented in the conclusion, reportedly written only by Kirchheimer. One thesis claims that the “penal system of any given society is not an isolated phenomenon subject only to its own special laws. It is an integral part of the whole social system, and shares its aspirations and its defects.”(207). With this thesis, Rusche and Kirchheimer have already exceeded their original Marxist aims. Punishment is no longer an isolated and modular institution of society, which could be excised and removed without lasting damage to entire matrix of society. Instead, now punishment looms larger. It is integral to the entire matrix of the social system. But how is it integral to a social matrix –this is not explained or intimated. The final thesis that has made this work so generative is that which claims that punishment is integral to society both functionally and operationally. Or, in other words, without a prison and penal system, a given society may not be able to operate. In addition, punishment operates at a psycho-social level, that is at the level of the social imaginary. I need to quote a rather lengthy passage, especially because it speaks directly to the present situation of prisoners in the U.S.:
The futility of severe punishment and cruel treatment may be proven a thousand times, but so long as society is unable to solve its social problems, repression, the easy way out, will always be accepted. It provides the illusion of security by covering the symptoms of social disease with a system of legal and moral value judgments. There is a paradox in the fact that the progress of human knowledge has made the problem of penal treatment more comprehensible and more soluble than ever, while the question of a fundamental revision of the policy of punishment seems to be further way today than ever before because of its functional dependence on the given social order. (207)
Punishment, cruel and unusual punishment –to use the language of the amended US constitution--, while patently proven to be futile and even counter-productive, provides a cover, a mask, a curtain behind which we hide that which allegedly threatens us. Punishment is an “easy way” to both delude and assuage ourselves. But at the very moment when the system seems most unnecessary, anachronistic, even obsolete, at this very moment, it is hardest to dislodge it, to transform it, to even abolish it. Why? Because by now imprisonment and punishment, which were functionally fundamental to the developing of the present system, has become so functionally dependent of and to the system that revising it and even abolishing means confronting the entire fabric of the social system.
Imprisonment as political anatomy or the invention of a new technology of the self
If the economic take-off of the West began with the techniques that made possible the accumulation of capital, it might perhaps be said that the methods for administering the accumulation of men made possible a political take-off in relation to the traditional, ritual, costly, violent forms of power, which soon fell into disuse and were superseded by a subtle, calculated technology of subjection. In fact, the two processes –the accumulation of men and the accumulation of capital—cannot be separated, it would not have been possible to solve the problem of accumulation of men without the growth of an apparatus of production capable of both sustaining them and using them; conversely, the techniques that made the cumulative multiplicity of men useful accelerated the accumulation of capital. At a less general level, the technological mutation of the apparatus of production, the division of labour and the elaboration of the disciplinary techniques sustained an ensemble of very close relations (cf. Marx, Capital, vol. I, chapter XIII and the very interesting analysis of Guerry and Deleule)…Let us say that discipline is the unitary technique by which the body is reduced as a political force at the least cost and maximized as a useful force. (Foucault, 1997, 220-221)

Curiously as Rusche and Kirchheimer were being rescued and rediscovered during the late sixties, Michel Foucault was about to inaugurate a new paradigm. This new paradigm was not so much in tension with the one that Rusche and Kirchheimer inaugurated. Instead, the Foucauldian paradigm could be seen as carrying forward, and in fact delivering on those provocative theses already articulate by the masters. Indeed, Rusche and Kirchheimer have become acknowledged masters in the canon precisely because Foucault knighted them as masters and sources of inspiration in his own seminal work: Discipline and Punish. How punishment, and in particular imprisonment, are functionally fundamental to and dependent on the social structure of contemporary society, is precisely what Foucault set out to explicate in one of his most celebrated works: Surveiller et punir, a work written in the early seventies, published in 1975, only a few years after he had been elected to the College de France, and only a few years after his substantive involvement in the Prison Information Group. It should also be noted that Foucault’s work came after the major prison revolts in the United States, revolts that Foucault himself was very aware of, and that surely must have influenced his work, as is evident from some of the interviews he granted during the early seventies. We know for instance that Foucault and Jean Genet collaborated on the Prison Information Group, and that Genet was directly involved in defending and doing activist work around political prisoners in the US. We know that Genet wrote extensively on the Soledad brothers, and that he also did extensive activism on behalf of Angela Davis. Some of this work on behalf of Black political prisoners, that is to say, Black Panther political prisoners, has recently appeared in English translation in the book The Declared Enemy (Stanford University Press, 2004). We know that an early French pamphlet of translations from the Prison Letters of one of George Jackson, with commentary and other documents, was edited and introduced by Michel Foucault and prefaced by Jean Genet3. This is all relevant for a future analysis of the sources and genesis of Foucault’s work.

It is difficult to write and think about Foucault’s work because there is so much jargon and misrepresentation of his work that one has to work through in order to get to the work itself. Furthermore, as we approach Discipline and Punish: the Birth of the Prison (the English translation was published in 1977), the challenges are the more formidable. The book is so prodigious in its theoretical and rhetorical exuberance that is difficult to get past the presentation to get to the theses. Nonetheless, the argumentative heart of Discipline and Punish can be provisionally, for my purposes today, focused on two central theses. The first thesis claims that punishment is not aleatory, incidental, peripheral to society, but is instead central, foundational, one must in fact say generative of contemporary sociality. In fact, in punishment we discover a fundamental aspect of what makes us uniquely modern, what makes us uniquely children of the European Enlightenment. Indeed, one of the central theses of Discipline and Punish is that punishment is both a condition sine qua non of rational society and an alibi of that rational order. It is for this reason that today we have come to associate prisons and reform. There is no prison that is not at the same time under a constant state of reform, of modernization, of humanization, or improvement and rationalization, and there is no reform of the institution that can call for its abolishment, but must instead call for more of the same, although as a more rationalized and efficient institution. It is in this way that the prison order, the carceral archipelago, entrenches itself further and further into our social fabric. Like a dessert plague, it burrows deeper into the epidermis of society, to the point that we being to confuse this new accretion for the social epidermis itself.
Discipline and Punish’s second theses has to do with a shift away from penology to penality, and perhaps more specifically, the book registers a move from penality, qua practice of punishment, to the political anatomy of modern subjects. In other words, we are moving away from trying to correlate the system of law, the political economy of imprisonment, and the calculus of punishment, towards a deeper level of analysis and understanding in which the practice of punishment, and the institutions of imprisonment, begin to constitute an exemplary instance of a political anatomy that announces and deciphers a new modality of agency and subjectivity. Let me put it in pedestrian terms: in Discipline and Punish we find simply a theory of the modern self, on the same level as Augustine’s Confessions, Kant’s Was heisst Aufklaerung? and Hegel’s Phenomenology of Mind. Indeed, and again to use colloquial language, in the prison we find crystallized the ways in which modern subjects are constituted and imaginable. Thus, in Foucault’s theory of modern agency, as is epitomized and emblematically represented in the experience of the prisoner and the institution of the prison, what we encounter is a correlation between a disciplining of the flesh and the domestication of the soul. Political anatomy is the bodily side of a technology of the self that proclaims that to be a subject means that one’s body has to be submitted to a certain torture, a certain lashing and laceration, but that at the same time, this violence against the flesh is but the obverse, the reverse of an equally discipling, exacting, demanding regimentation of the soul. The body is not the prison of the soul, but the soul is the prison of the body. The soul is a triadic relation: to the world, to others, to oneself by way of others. Insofar as the soul is to be regimented, to be disciplined and reformed, the body becomes a subaltern, a subject of the way we are to relate to the world, others, and ourselves. Subjectivity is subjection, agency is heteronomy, and selfhood is submission. Thus, what made Foucault’s work both so intriguing and certainly pornographic –to use the broadest sense of that term – is that it claimed in not equivocal terms, that the prison was the best and most eloquent representation of what it means to be a subject in modern society. Why? Because in the prison, and the practice of imprisoning the body and the self, we found celebrated a new modality of agency: one that correlated the body as corporeal technology and selfhood as a mechanism for self-monitoring, as self-surveillance, to refer to the other term in the French title of the work. The prison is indeed an allegory for how we have become both prisoners and guardians of our soul, but only because the body has already become docile and malleable. We have introjected and internalized the violence of punishment and control by constituting our subjectivity and agency as instances of surveillance and the object of an omniscient gaze that we aimed at our selves. We are guilty de facto because we have been seen, and we have been seen because we are the ones gazing at ourselves. We are the victims of our own despotic gaze. Let me make this last point more clear and explicit. When Foucault talks about punishment as being representative of a new political anatomy, and a new modality of agency, what he means is that we have entered a new paradigm of how self-hood and agency are both thinkable and enactable. We can only live our bodies and imagine our agency as instance of a corporeal-spiritual discipline. Thus, the prison that is an enactment of penality is but an instance, though a privileged one, of a political technology of the body through which modern agency is constituted.
Racialized Punishment and Abolition Democracy, or how there is no US democracy without the abolition of the prison industrial complex
Beyond slavery [..] a more expansive analysis of US historical specificities might serve as the basis for a genealogy of imprisonment that would differ significantly from Foucault’s. Such a genealogy would accentuate the links between confinement, punishment and race. At least four great systems of incarceration could be identified: the reservation system, slavery, the mission system, and the internment camps of World War II. (Davis, in James 1998, 97).

It has been said that Vladimir I. Lenin is supposed to have believed that prisons were universities of revolutionaries (Hardt, 1997, 64). But it does not take a revolutionary to realize that some of the great minds in Western and non-Western thought, have suffered the experienced of imprisonment. Jacques Ranciere’s The Philosopher and his Poor, appeared recently in English translation. This is a fascinating work that looks at the way in which philosophers have dealt with the theme of destitution, poverty, and economic privation. I think that we could just as effectively, and perhaps even with less contortions, write a book in which we discuss Philosophy and its Prisons. Socrates suffered imprisonment. In fact, he suffered the ultimate punishment. Boethius wrote his magisterial The Consolation of Philosophy in Prison. Karl Marx was exiled in London, Gramsci wrote some of his most important work while in Prison. Sartre’s Being and Nothingness was drafted while he was a prisoner of war. Angela Davis wrote some of her earliest pieces in prison, while she awaited for a trial whose possible outcome was certainly to be sabotaged by the then president Nixon, and the then Governor of California R. Reagan, when they proceeded to denounce her as a terrorist and public enemy number one. While in prison, Angela Davis researched and wrote two essays in particular that have become signatures of both her method and interests. One is entitled “Reflections on the Black Women’s Role in the Community of Slaves,” and the other is “Political Prisoners, Prisons, and Black Liberation.” To this time, namely the early seventies, also belong a series of “Unfinished Lectures on Liberation.” These lectures were in fact her lectures from UCLA, from her course “Recurring Philosophical Themes in Black Literature.”

When one turns directly to Davis’s work on punishment, prisons, and penality, one is immediately struck by its sources. As we already made it evident, one of the sources of Davis’s concern with prisons is her own experience as a Black Women, political prisoner, who was also labeled enemy of the state and was on the five most wanted list of the FBI. Another source, or point of departure for her work is her continuous engagement with the canonical figures in what one can call a tradition of black critical political philosophy that has found two towering figures in Douglass and DuBois. This engagement in fact harkens back to her early seventies lectures on liberation, in which we find a neo-Marxist, or Frankfurt School engagement with the thought of Douglass. In other words, in Douglass philosophical-political autobiography we find an American version of Hegel’s Phenomenology, as well as elements of Marx’s Introduction to the Critique of Hegel’s Philosophy of Right. In the essay that Davis wrote while she was in the Marin County Jail, already mentioned above, Davis turns to DuBois, for it is in him that she finds the most severe and explicit critique of the prison system in the United States. It is in DuBois, furthermore, that Davis discerns the historical links between slavery, the failed reconstruction, the lynchings and riots of the post-civil war period, the emergence of the KKK, Jim Crow, and the rise of the racial ghettos in all major US cities.
It is important that I underscore Davis’s engagement with Douglass’s and DuBois’s work, not because I want you to have the rather obnoxious idea that she defers to male canonical figures. Very few contemporary Black and White scholars have done as much as Davis has done to rehabilitate and acknowledge the contribution of women thinkers, artists, activists, and revolutionaries. I think that Douglass and DuBois stand in for two philosophical approaches in Davis’s work, approaches that must be juxtaposed against one another so that a new perspective may emerge. Douglass represents a phenomenological-existential concern with freedom that easily translates into a gospel of deference to political freedom in terms of voting rights. Indeed, in a 1995 essay, entitled “From the Prison of Slavery to the Slavery of Prison: Frederick Douglass and the Convict Lease System” Davis develops a devastating critique of Douglass’s myopia and inability to both speak out and mobilize around what was obviously a betrayal of the freedom won by blacks. As many of you know, shortly after the civil war the south underwent a process of democratization that was awe inspiring and utopian, although tragically short lived. Union troops were stationed in the South to make sure that blacks could be protected when going to the voting polls. Blacks were elected as senators. Schools were opened. A black public sphere began to emerge. This short-lived period came to be know as the reconstruction. But within a decade, the reconstruction had been halted and a process of roll back began. White legislators began developing a series of laws that took black freed men and turned them into indenture servants by criminalizing them. The prerogatives of white master were legislated and legalized in the infamous blacks laws. These in turn lead to the massive criminalization of blacks. Once in prison, convicts were leased or rented for absurd moneys to the private entrepreneurs of the new south. This system became known as the convict leasing system, and historians of it have so far as to say that it was “worse than slavery.”4
The black laws of the south turned black free men into criminals so that their labor could be exploited even more pugnaciously and rapaciously than when they had been slaves. The convict leasing system became one of the most lucrative mechanisms for simultaneous control, and gerrymandering of black free labor, and extreme exploitation. DuBois put it this way:
This penitentiary system [the prison leasing system] began to characterize the whole South. In Georgia, at the outbreak of the Civil War, there were about 200 white felons confined at Milledgeville. There were no Negro convicts, since under the discipline of slavery, Negroes were punished in the plantation. The white convicts were released to fight in the Confederate armies. The whole criminal system came to be used as a method of keeping Negroes at work and intimidating them. Consequently there began to be a demand for jails and penitentiaries beyond the natural demand due to the rise of crime. (DuBois, 1976, 506)
According to historians, precious little is known of Douglass’s views on the “convict leasing system.” Davis is correct to focus on the loud silence on Douglass part as it concerned what was surely something that most blacks in post-Civil War America lived and experienced as a metamorphosis of slavery into something perhaps even more dehumanizing that slavery itself. Douglass, in Davis’s view, may have been blinded to this reality because he was so thoroughly focused on getting the ballot for blacks that in the process he entirely neglected the economic well being of blacks. For Davis, “[c]onvict leasing was a totalitarian effort to control black labor in the post-Emancipation era and it served fully as a symbolic reminder to black people that slavery had not been fully disestablished.” (James, 80). Davis also faults Douglass for his overconfidence in the law, as an allegedly dispassionate and impartial tool that could not be used to roll back the gains of the emancipation period. As an enlightenment thinker, Douglass saw law as a mechanism to bring about justice and democracy for Black Americans. Douglass’s blind faith in the law lead him to fail to see how it was that the law itself that branded the black human being as criminal. As citizens, they were free, as black citizens, they were criminals, as criminals, they were slaves of the states. And it was the law itself, and the amended constitution that negotiated and legitimated these transactions and transitions.
In contrast, Davis turns to DuBois as the exemplar political thinker, even as Davis also acknowledges the pioneering work of D.E. Tobias and Mary Church Terrell, two other black scholars who studied and documented the devastating effects of the prison leasing system. In DuBois, Davis finds a critique of Douglass’s naïve trust in both the economic and political independence of black in post-slavery blacks. In DuBois Davis also found a pointed and direct critique of the ways in which the state was direct party to preservation and mutation of slavery, now under a legal cover. In DuBois, Davis also found a radical critique of the idea that punishment and crime are correlated. In fact, DuBois saw clearly how the state participate in the criminalization of blacks so that their labor then could be extracted through the mechanism of the prison leasing system. As DuBois put it in his monumental Black Reconstruction, “In no part of the modern world has there been so open and conscious a traffic in crime for deliberate social degradation and private profit as in the South since slavery. The Negro is not anti-social. He is no natural criminal. Crime of the vicious type, outside endeavor to achieve freedom or in revenge for cruelty, was rare in the slave south. Since 1876 Negroes have been arrested on the slightest provocation and given long sentences or fines which they were compelled to work out. The resulting peonage of criminals extended into every Southern state and led to the most revolting situations.” (DuBois, 698). For DuBois, black labor was neither economically free, nor politically self-determining. Thus, blacks could not enter as equal into the public sphere of American democracy. Democracy for blacks had been abolished at the very moment of the abolition of slavery, for with the abolition of slavery blacks ceased to be slaves, but became immediately criminals, and as criminals, they became slaves of the state. Thus, DuBois represented and still represent for Davis an anti-capitalist, anti-statist, anti-law perspective that is simultaneously profoundly attentive to what we have here already called the social imaginary, or what we can also call a politics of the imagination.
Davis, however, has not remained an exegete or historian. She is herself a radical thinker, whose contributions to an emerging radical theory of penality, have yet to be seriously evaluated and analyzed. Since I do not have time to analyze here in great detail Davis’s most recent presentation of her work on prisons, in her particular Are Prisons Obsolete? and the soon to be published Rene Wellek Lectures, I will have to resort to listing what I take to be the elements of Angela Y. Davis’s contribution to a radical theory of penality or punishment:

  1. Disenfranchisement –For Davis, one of the functions of the prison industrial complex is to withdraw the vote from African Americans

  2. Capital extraction –mechanism of wealth extraction from African Americans not just through exploitation of prison labor, but also by appropriating black social wealth

  3. Mechanism for social branding that marks some with a negative stigma that accumulates as negative symbolic capital.

  4. Psycho-social racial contract: the political contract is a racial contract which is facilitated by a psychic cathexis, in which it is better to be white than black, and all social norms are de facto whiteness norms. But at the same time, social punishment is accepted because it is done primarily to black. So, we tolerate a highly punitive society because it is done to THEM, and not to us.

  5. Ritualistic violence that cleanses and expiates the present order. Ritualized lynchings.

  6. Sexual coercion and surplus sexual violence. The prison is a sexualized dispositif for social control. It is a sexual violence that is at the same time highly racialized, and it is racialized because it is sexualized.

  7. Surplus repression, what was called cathexis above in 4, “carceral society.”

  8. Historical continuity of punishment and prisons in American history: racial geographies of the carceral archipelago in American history.

  9. The symbiotic relationship between the Prison and military industrial complexes

  10. topographies of terror and penality: the regimes of confinement in American geography. The American prison industrial complex offers a unique social topography that maps a racial and racializing geography.

As can be gathered from this list, which is not exhaustive, Angela Davis’s work on a radical theory of penality both synthesizes and supersedes the gains made by Rusche, Kirchheimer, and Foucault. In Davis’s work we discover the synthesis of a historical materialist analysis of punishment, with a psycho-social insight into the ways in which prisons fulfill an important role in the social imaginary of the United States. At the same time, Davis offers a genealogical analysis, in the Foucauldian tradition, but one that does not eschew historical and geographical specificity. For Davis, an anatomo-politics and genealogy of biopolitical subjects must attend to the intersectionality of race, class, and gender, as it is most eloquently and visibly displayed in the U.S. prison industrial complex.

Empire as a way of life, and the Insignias of Power

Hitherto I have not spoken of empire, and how it relates to the prison industrial complex. Angela Davis’s work on prisons and the development of a radical theory of penality is directly, if not overtly, a critique of empire as a way of life. In fact, we must turn to the important American historian, William Appleman Williams and his little book Empire as a way of life in order to get a better understanding of the ways in which Davis’s critique of empire and imperialism are really critiques of the ways in which empire has become quotidian and capillary to our social bodypolitic. In his little book, Empire as a way of life, published in 1980, Williams offers one of the most sophisticated analyses of empire because he is able to weave a historical narrative, with an analysis of the ways in which empire has eviscerated the political and moral imagination of citizens. Williams in fact argues, anticipating and corroborating many of Edward Said’s own insights into empire, that empire entails an ‘imperial history, an imperial ethic, and an imperial psychology.’ (xi) Most of Williams’ work was dedicated to tracing and chronicling that imperial history. At the center of the imperial ethic, according to Williams, was the propensity to externalize conflict and to vilify outsiders. As he put it “One of the major characteristics of an imperial way of life is its tendency to define domestic problems and difficulties, and to explain the failure to resolve them, in terms of external developments. Empire turns a culture away fro its own life as a society or community. Ultimately, everything is seen primarily in terms of foreigners; the culture considers itself embattled and beleaguered, and hence unable to define or deal with reality in ways that are appropriate and effective.” (149) Thus, the imperial ethic, as oxymoronic as this may sound, boils down to a fundamental attitude of disavowal and disengagement from ethical and civic responsibility. At the core of what Williams called an imperial psychology is the substitution of community by “paranoid togetherness.” In other words, an ersatz sense of community is generated by the mutuality of fear of an alleged external threat. This is the psychology that says that “the enemy of my enemy is my friend,” or “we are brothers in arms against a common foe.” Evidently, this form of ersatz community is short lived, belligerent, and self-destructive. This imperial history, ethics, and psychology, that Williams diagnoses so aptly, result in what Williams calls the destruction of the vitality of a citizenry. Empire kills democracy by destroying the ability of citizens to set up their own political goals, to come to an agreement about them, and to ultimately to decide on a standard of living that is commensurate with the entitlement of every other citizen. This analysis, developed by Williams more than two decades ago has been uncannily re-enacted by Andrew J. Bacevich. Here I have in mind his analysis of the events subsequent to 9/11 in his recent book American Empire: The Realities & Consequences of U.S. Diplomacy.5 For our purposes here, I will focus on Bacevich’s last chapter, “War for the Imperium,” and, more specifically, on his analysis of what he calls the Bush doctrine. Through an analysis of Bush’s speeches since September 11, Bacevich traces the particular emergence of a new imperial doctrine. Bacevich focuses, in particular, on the ways in which the Bush doctrine transformed the war against terrorism, a complete misnomer, into a war on behalf of freedom and the security of the world, allowing it to obtain three important aims: First, by turning the war against terrorism into a war for peace and global order, the Bush administration was able to transform America’s possible guilt and complicity into innocence, and furthermore, violated innocence and abused goodness. Second, by transforming the war against terrorism into a war for freedom and security, it allowed the Bush administration to draw on the moral authority and memory of the “good wars” of the first half of the twentieth century, the wars against totalitarianism and genocide. As Bacevich writes, “A war on behalf of freedom and against evil akin to Nazism relegitimated the exercise of American power both now, in response to the crisis at hand, and until terror had been eradicated and the objectives of American strategy achieved.”6 I want to remark that Bacevich wrote this even before Bush had given an ultimatum to Saddam Hussein and did so precisely in terms of the Nazi and fascist threats of the twentieth century. Third, and finally, the transformation of a nebulous, amorphous, and endless war against a strategy of resistance, i.e., terror, into a war for, on behalf, in the name of, peace and justice, security and democracy, freedom and rights, has allowed the United States to shrug off the constraints imposed by the cold war stalemate, and to disregard its allies, and contenders for moral authority. The war not against terrorism but for democracy and security, so beautifully enshrined in the American Constitution, has “removed the fetters that had hobbled the United States since the demise of its latest ideological competitor.”7
Where Williams and Bacevich coincide, uncannily, is the ways in which both discern the logic of disavowal, externalization, and an ethic of entitlement and complete infallibility that contributes to imperial psychology and ethics. It is this psychology and ethics, or anti-ethics, that has resulted in the use of the prison as a social mechanism for the elimination of an internal problem. The prison is the place where our social problems are relegated, or as Kirchheimer put it at the end of Punishment and Social Structure, “the futility of severe punishment and cruel treatment may be proven a thousand times, but so long as society is unable to solve its social problems, repression, the easy way out, will always be accepted.” (207). What may need revision in Kirchheimer’s statement, is the phrase “futility of severe punishment.” Indeed, severe punishment may be futile and even counter-productive from the standpoint of the actual benefits society may derive from maiming, scarring, and disabling many of its citizens by submitting them to the experiences of imprisonment. Yet, from the standpoint of the ethics and psychology of empire, “severe punishment” is not useless and futile, but highly important and effective. Severe punishment is the euphemism we give to torture, and torture is one of the most important and visible insignias of empire and imperial power. Torture, or what Primo Levi called “useless violence,” (Levi 1989) is fundamentally a display of power. Torture is integral to the pageantry of imperial power. Elaine Scarry, in her The Body in Pain: The Making and Unmaking of the World (1985), has argued that torture is predicated on a series of asymmetries: voiceless embodied pain versus disembodied voice that inflicts pain; objectification and medicalization of pain versus the de-worldling and de-linguistification of the tortured person’s embodiment; the transformation of the tortured flesh into an insignia of power versus the inability to face the scene of torture by the tortured (1985, 51-59). Torture is useless in that no “social” utility can be derived from it, although it is at the same time immensely productive because it is but the celebration of exorbitant and unconstrained power. Empires torture because they can, and their power is confirmed in the very act of de-worldling and unmaking of worlds by means of useless pain and violence. The fundamental asymmetry between torturer and tortured that Scarry discovers at the core of torture has been thematized by Ariel Dorfman in terms of what the infliction of useless suffering on putative enemies does to the moral life of citizens. Here, I must like quote him at length:
“Torture is, of course, a crime against a body. It is also a crime committed against the imagination. Or rather, it presupposes, it requires, it craves the abrogation of our capacity to imagine other’s suffering, dehumanizing them so much that their pain is not our pain. It demands this of the torturer, placing the victim outside and beyond any form of compassion or empathy, but also demands of everyone else the same distancing, the same numbness, on the part of those who know and close their eyes, those who do not want to know and close their eyes…Torture corrupts the whole social fabric because it prescribes a silencing of what has been happening between those two bodies, it forces people to make believe that nothing, in fact, has been happening, it necessitates that we lie to ourselves about what is being done not far from where we talk…Torture obliges us to be deaf and blind and mute.”8
Torture confirms the imperial ethics and psychology that both Williams and Bacevich diagnosed so well. Torture is also a way to buttress this ethics and psychology in turn. The more evil is externalized, the more our sense of community is predicated on our being made to feel that we are under siege and attack, and the more we must be submitted to a manufactured panic and paranoia, the more then we will resort to a form of violence that confirms our privilege place as insiders and the destitute status of those surrendered over to torture.

Abolition Democracy

Amendment XIII. Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been dully convicted, shall exist within the United States, or any place subject to their jurisdiction.

Angela Davis’s radical critique of penality, however, is not a just a critique of the ways in which the ideological construct of crime and an exorbitant deployment of punishment are racially inflected in the United State. Davis’s contributions to a radical critique of penality are also, and perhaps principally, a contribution to a radical theory of democratic empowerment that preserves while going beyond the work of Rusche, Kirchheimer and Foucault, on the one hand, and the works of Douglass and DuBois on the other. Her philosophical political contribution to democratic theory is characterized by her project of an “abolition-democracy,” by which Davis means at the very least two things.
This is the democracy that is to come9, that is promised by the abolition of slavery. Abolition democracy is the democracy that would be possible if we continue with the great abolition movements in American history: slavery, lynching, and segregation (Davis, 2003, 24). So long as the prison system remains, American democracy will continue to be an abolished democracy. Abolition democracy, therefore, is also the name for that democracy that was de facto abolished at the very moment of its inception because of its very legal foundations. In this violent act of juridification, in which the force of the law establishes a new order, black life was reduced to bare existence, homo sacer. As DuBois put it: “The wage [labor power] of the Negro worker, despite the war amendments, was to be reduced to the level of bare subsistence by taxation, peonage, caste, and every method of discrimination.” (DuBois, 1976, 670). This bare existence, so eloquently described by Agamben in the book Homo Sacer: Sovereign Power and Bare Life (Stanford, 1998) describes human life that has been reduced to the barest biological subsistence. This bare existence, this bare life is one that can be extinguished with impunity. Abolition democracy, qua abolished democracy, lives off the legal reality that brands blacks as criminals, and that as alleged “criminals” condemns them to be slaves of the state. In tandem, punishment is chromatically indexed through the law: punishment must be deployed against the human body as though it were a black body. Indeed, to be accepted de jure in the jus publicum Americane, the black person must enter or be granted admission but as a criminal body. For this reason, the death penalty survives not as the ultimate punishment, but because it was primarily a form of punishment against the black flesh and the black freedom. And this is what is so indelibly announced in the 13th amendment to the constitution.
Andrew J. Bacevich, American Empire: The Realities & Consequences of U.S. Diplomac (Cambridge, MA: Harvard University Press, 2002)
Angela Y. Davis, Are Prisons Obsolete? (New York: Seven Stories Press, 2003)
Angela Y. Davis, If They Come in the Morning: Voices of Resistance (Lagos, Nigeria: Thiird Press Publishers, 1971)
Angela Y. Davis, Lectures on Liberation (New York: N.Y. Committee to Free Angela Davis, c. 1971 [n.d.])
Ariel Dorfman, “Forward: The Tyranny of Terror: Is Torture Inevitable in Our Century and Beyond?” in Sanford Levinson, ed., Torture: A Collection (New York: Oxford University Press, 2004), 8-9.
W. E. B. DuBois, Black Reconstruction (Millwood, NY: Kraus-Thomson Organization Limited, 1976 [1935])
Thomas L. Dumm, Democracy and Punishment: Disciplinary Origins of the United States (Madison, WI: The University of Wisconsin Press, 1987)
Joel Dyer, The Perpetual Prisoner Machines: How America Profits from Crime (Boulder, CO: Westview Press, 1999)
Joy James, ed., The Angela Y. Davis Reader (Malden, MA: Blackwell Publishers, Inc. 1998)
Eric Foner, Reconstruction: America’s Unfinished Revolution 1863-1877 (New York: Harper & Row, 1988)
Jean Genet, The Declared Enemy: Texts and Interviews (Stanford, CA: Stanford University Press, 2004)
Michael Hardt, “Prison Time” Yale French Studies, No. 91 (1997): 64-79.
Adrian Howe, Punish and Critique: Towards a feminist analysis of penality (London and New York: Routledge, 1994)
Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution 1750-1850 (New York: Pantheon, 1978)
Primo Levi, The Drwoned and the Save (New York: Vintage International, 1989)
Marc Mauer and Meda Chesney-Lind, eds., Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New York: The New Press, 2003)
March Mauer, Race to Incarcerate: The Sentencing Project (New York: The New Press, 1999)
Dario Melossi, “A New Edition of Punishment and Social Structure Twenty-Five years Later: A Timely Event” in Social Justice Vol. 30, No. 1 (2003): 248-263.
Eduardo Mendieta, “Plantations, Ghettos, Prisons: US Racial Geographies” in Philosophy & Geography, Vol. 7, No. 1 (2004): 43-60.
Norval Morris and David J. Rothman, eds., The Oxford History of the Prisons: The Practice of Punishment in Western Society (New Yor and Oxford: Oxford University Press, 1995)
Georg Rusche and Otto Kirchheimer, Punishment and Social Structure (New York: Rusell & Russell 1968 [1939])
Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (New York: Oxford University Press, 1985)
William Appleman Williams, Empire as a way of life: An essay on the causes and character of America’s predicament along with a few thoughts about an alternative (New York and Oxford: Oxford University Press, 1980).
Franklin E. Zimring, The Contradictions of American Capital Punishment (New York and Oxford: Oxford University Press, 2003)

1 This is from Jean Genet’s introduction to Soledad Brother, see Jean Genet, The Declared Enemy: Texts and Interviews (Stanford: Stanford University Press, 2004), 51-52.

2 “US population largest in the world” The Baltimore Sun, Post and Courier Charleston.:

3 In French the pamphlet was entitled L’assassinat de George Jackson (Parigi, Gallimard, 1971). I have seen a translation to the Italian, entitled L’ assissinio di George Jackson, a cura di Michel Foucault, Gilles Deleuze e del Groupe d’Information sur les Prisons. Prefazione di Jean Genet (Milano: Giangiacomo Feltrini Editore, 1971)

4 David Oshinsky, “’Worse than Slavery’: Parchman Farm and the Ordeal of Jim Crow Justice (New York: The Free Press, 1996)

5 Harvard UP, 2002.

6 Ibid., 230.

7 Ibid., 230.

8 Ariel Dorfman, “Forward: The Tyranny of Terror: Is Torture Inevitable in Our Century and Beyond?” in Sanford Levinson, ed., Torture: A Collection (New York: Oxford University Press, 2004), 8-9.

9 Here I am making reference to Jacques Derrida’s notion of the democracy avenir. See Matthias Fritsch “Derrida’s Democracy to Come” Constellations Vol. 9, No. 4 (December 2002).

Directory: law culture
law culture -> Introduction, “At the Bar of Public Opinion”
law culture -> Paradoxes of Constitutional Democracy Kevin Olson
law culture -> =-law 294: Law, Culture and Community Week 5-6 ppt: Introduction to the Social Contract Tradition Hobbes and Locke – Slide 2
law culture -> Fearing "Yellow," Imagining "White": Media Analysis of the Chinese Exclusion Act, 1882
law culture -> The Presumption of Guilt and the English Law of Theft, 1750-1850
law culture -> # 066 Braving Jim Crow to Save Willie McGee: Bella Abzug and the Fight for Civil Rights, 1948-1951
law culture -> *note: a summary of the novel follows the endnotes
law culture -> Chapter One Interrogating Torture and Finding Race
law culture -> Law’s Empire: The Legal Construction of “America” in the “District of China” Teemu Ruskola summary
law culture -> # 049 History and the Drafting of Brown

Download 73.76 Kb.

Share with your friends:

The database is protected by copyright © 2023
send message

    Main page