“Don’t hold your breath, ‘cause the pretty things are going to hell…”
In the social spheres in which I circulate, both personal and electronic, reactions to the Supreme Court’s twin same-sex marriage rulings Wednesday have tended to fall fairly neatly into one of two categories, each sprinkled liberally with that unique brand of wry humor that long, bitter struggles breed. On one side, the watch-phrase of the day is that it is “the end of an era,” a legal victory so pragmatically important and symbolically immense as to mark a break with a past of marginalization and oppression, a coda or at least a caesura in a national timeline of violence. On the other side, there is a weary gladness that nevertheless casts a wary eye at the map of state-level battles won, and cautions that jubilance be tempered, slightly at least, with the reality that the race is still quite far from run.
You hear relatively few of those somber cynics of the legal system who otherwise are generally keen to point out that historically, grand Supreme Court victories tend not to turn out very well for civil rights movements in the end. Then, these tend to be a disagreeable sort to invite to a victory party, anyway.
In that description of my social world, though, lie the seeds both of a kind of beautiful promise and a form of quiet peril in this political moment that is easily lost behind the spectrum of satisfaction and still images of weeping couples. And how and if and what we capture and carry from this moment hinges, a little at least, in whether or not we can find it in ourselves to tarry on these two things for a time, before resuming our march to where we will have been. These musings should be taken for no more than that: no parades are meant to be rained on here, nor cynics bashed, nor innocence dispelled by piercing insight. Simply a tarrying. A more homemade kind of caesura.
Supreme Court decisions always reveal as much in what they do not settle as in what they do, and the palette of reactions I’ve described does too. In both cases it is the unsettled, the absent which is both silent and intrusive. It didn’t strike me until I began to work on this that I know literally not a single person who supported the Defense of Marriage Act (at least I don’t know that I do, which would simply signal another part of the same difficulty). Not one, and my places of birth generally make the politics of my friends rather diverse (or perhaps more appropriately, in the older sense, queer). And if that or something close to that experience is a fairly widespread one when we tarry long enough to notice – and I think it is, on both sides of the coin – that is deeply troubling, or ought to be deeply troubling as we paint each other pictures over tables and glasses of the road to come.
Some of the bitter fractiousness that marked Washington’s heights has died down a bit in recent months…this morning brought an until recently unthinkable immigration bill through the Senate, and while it faces a bloodier road in the House, that it may yet reach to foot of the road at all is an extraordinary thing, viewed through the eyes of ourselves a year younger. But the at least temporary waning of the sheer, violent ugliness of that divisiveness should not obscure the deeper truth that was revealed in those days of “death panels” and other repeated invocations of cold, dead hands. That the nation is deeply politically divided is facilely true, but also true of nearly all of its short history. But it is possible that we face now something new, or at least a dangerous new incarnation of an old imp from our democracy’s outlands.
One of the reasons some activists will now focus on finding state-level legal cases in which to use the emphasis on dignity in United States v. Windsor’s majority and Kennedy’s quite sweeping description of DOMA’s violation of equal protection is that there is a fear in parts of the movement that, without the power of the court, there remain what might be called “The Unreachables”: a handful of states (or more) in which opposition to non-hetero marriages is so entrenched that they cannot be won politically for the foreseeable future.
The idea of the Unreachable hints at something much deeper than a simple statistical diversion of views. If this were the only problem, then demographic trends are, if too slow for some couples who still wait to marry, at least strongly on the movement’s side. One of Hannah Arendt’s consistent concerns across her writings is the possibility of shared worlds. Underlying the idea of the unreachable state, whether or not it is recognized, is the possibility that the divergences in politics between various parts of this country are only the symptoms of a deeper reality that individual experiences of the world around them are so different, share so little in common from which to draw a common weal, that in some politically and socially salient sense they are no longer sharing a world. And in a nation with an ideologically divided media culture, extraordinary and accelerating wealth disparity, and any number of structural mechanisms that favor political extremism over moderation, there is more to this worry than we might be willing to admit. If I try to cast my soul into the shoes of an evangelical preacher – whose experience of consumption may be far different from mine, whose experience of events of the outside world comes to her or him described in terms immensely unlike mine and contain figures barely recognizable to me, whose social frames and urban structure are radically disparate from my own – who is today mourning with all sincerity, and not cheering…in that moment it’s not moral difference that concerns me, as Scalia invoked in his dissent. It is the vanishingly thin fabric of a jointly sensed world that seems at stake, a jointly sensed world from which a nation has to be imagined.
There’s a sense in which the one thing that Supreme Court decisions do not do, ironically, is decide. At least, they do not decide much: they must be interpreted by lower courts and in the process extended or evacuated, they are subject to legislative challenge and circumvention, they have to be enforced and pursued by those outside the legal system. In that sense, at least, a Supreme Court decision is not an end to anything, let alone an era, and this is why proponents of non-hetero marriage have cautioned each other against over-optimism, the piece of truth in the curmudgeonly dismissal of the power of the High Court. But this essential malleability and chimeric strength becomes a particularly acute problem when filtered through the problem of un-shared worlds. There will be some, in those 36 states that have banned non-hetero marriage (a fact which formally at least remains unchallenged by United States v. Windsor) who will be swayed by the rhetorical and symbolic power of Kennedy’s words, that handful that will actually be heard. But those words, such few of them as trickle down the communicative chain, and the content of the decision, will by necessity be received filtered through social worlds both rich and rigidified. And as sociopolitical soil for Kennedy’s words, some of those worlds are very hostile worlds, indeed.
But in another way, that is exactly the promise in moments like Kennedy’s decision. What’s important about decisions, contra their image and verbiage, is precisely that they are never an end to anything. Their more significant function is not their symbolism, but that they begin.
The irony of a legal judgment is that, from the moment it is uttered, it becomes itself the subject of judgment. It is judged by lawyers, it is judged by lawmakers, it is judged by commentators…and it is judged by janitors and welders and artists and firefighters, equally. And as we circle our collective judgments around a mass of words uttered into our national vocabulary, a possibility is born. Certainly, we may simply pat our social selves on each other’s backs, and revel in our joy (or anger) that we know already to be shared. That’s not such a terrible thing itself. But the greater promise of the day, and the institution, is that it begins something that is shared, however thinly, between Farragut, Tennessee and Coolidge, New Mexico. It raises the possibility that our thoughts and judgments, a few at least, through those connections that remain in our worlds across lines built by mobile histories, might find their way into corners of other worlds. It is in those moments, those moments when we are confronted by someone who is a part of our lives, national or personal, for whom the experience of the day is profoundly different, that a thin tissue of sharing an object of judgment is vital. It may lead to the discovery of commonalities, it may lead to violent disagreement along all-to-familiar lines, but either way, a language is being born across worlds. Here, in this issue, that language is a language around what is most intimate to us, the most precious and tumultuous and defining parts of our lives: our lives with intimate others. And if we can share our lives with intimate others across the bounds of un-shared worlds, even in fraction and splice…then that world will not remain so un-shared, and another small bridge has been built between that which joins ourselves and our partners, our friends, our paramours, to each of our impish outlands. And that, that is cause for hope.
This past weekend I took the time to watch Eugene Jarecki’s new documentary film The House I Live In, which calls passionately and insistently for the U.S. to end its decades-long War on Drugs. Jarecki’s previous documentary work includes The Trials of Henry Kissinger (2002) and Why We Fight (2006), and he is known for activist filmmaking that combines sharp social commentary with fluid storytelling. There is much to admire in Jarecki’s take on the effort to stamp out illicit drugs, and given the massive racial and class disparities that have emerged in prosecution and sentencing, he is right to cast the War as a litmus test of our national commitment to equitable democratic citizenship. But there is also something about the manner in which he makes his case, and the very sweep of his vision, that gives me momentary pause.
Let me touch on the film’s strong suits first. Above all else, Jarecki sheds powerful light on the intimate impacts of the drug trade and the law enforcement crackdown against it. He does so in no small part by giving a prominent role to Nannie Jeter, the African-American woman that Jarecki’s family employed as a housekeeper in his youth. (Nannie is Jeter’s given name, not a reference to her role in the family’s life.) Jarecki regards Jeter as a second mother, and he often played with her children as a boy. We learn, however, that their paths in the world diverged sharply from his own, and several of them eventually became entangled in drug use, drug-related HIV/AIDS, and incarceration. Jarecki unflinchingly relates how his family’s privilege had adverse if unintended consequences for Jeter’s, and while some viewers might fault him for inserting himself into the film, his approach ultimately lends moral heft to his pointed political argument. Jarecki maintains that we are all implicated in the circumstances that led to the War on Drugs, and he refuses to remove himself from the film’s critical scrutiny.
In addition, The House I Live In includes revealing commentary from the many varied participants in the American drug crackdown: dealers and cops, defendants and judges, prisoners and wardens, activists and lawmakers, parents and children. The film features articulate reflections from people who have dealt drugs in the past and are now in correctional custody. Significantly, not one of these individuals denies responsibility for their actions—“I messed up” is a common refrain—but all seek to situate their decisions and actions within larger structures of constraint and disadvantage. At the same time, Jarecki includes remarkably candid insights from law enforcement personnel. Although a few of them make disturbing admissions about the perverse incentives that encourage profiling and drug-bust profiteering, the film does not demonize police officers and corrections officials. It instead allows them to express both the pride and the ambivalence they feel toward their work.
Lastly, Jarecki musters a wide array of legal and other experts, including prominent academics like Michelle Alexander and Charles Ogletree, to lend his film critical perspective and authority. To be sure, almost all of these commentators are sympathetic to Jarecki’s viewpoint, but it is nevertheless refreshing to hear intellectuals speak as intellectuals in any kind of feature-length American film. What is more, these figures do not merely touch on what are, at least for me, the most familiar and even well-worn points about recent drug-related criminal justice: the introduction of mandatory minimum sentencing guidelines in the 1970s and 1980s, the precipitous increase in rates of incarceration, and the dramatic expansion that ensued in both the state-run and private prison industries. For these commentators also relate the War on Drugs to the years of Jim Crow in the South; the Great Migration of African Americans to the Northeast and Midwest; the redlining and other practices that contributed to the formation of racially segregated ghettos; and the far-reaching impacts of deindustrialization. This attention to the longue durée of U.S. history is one of the film’s strongest attributes.
At the same time, Jarecki’s commitment to accessible and engaging narrative sometimes gets him into trouble. Although he and his collaborators are quick to criticize the reductive sound-bites that have defined mainstream public discourse from Nixon to George W. Bush, the film is occasionally too content to rely on its own slick editing and glib turns of phrase. There are also moments when sobriety yields too much ground to showmanship. Of all his interlocutors, Jarecki grants the most prominent role not to any person directly impacted by the War on Drugs, but to David Simon, the former journalist who went on to create the HBO hit “The Wire.” To his credit, Simon is a generally subdued and thoughtful commentator, but should the maker of a television series, however relevant and critically acclaimed, really receive this kind of precedence?
Jarecki’s priorities as a filmmaker also entail some unfortunate substantive trade-offs. At one key point in the film, he relies on interview footage with several experts to contend that the criminalization of opium, cocaine, and marijuana in the early twentieth century was not ultimately driven by benign public health and safety concerns; it was rather motivated by racially charged anxieties over the arrival of immigrant groups and the challenges they posed to white workers on local and regional labor markets. I am willing to grant that racist and nativist resentments may have played some role in the crackdowns against the users and distributors of these substances.
I can only imagine, however, that this claim—at least in its bald formulation in the film—is much more contentious in scholarly and other circles than Jarecki is prepared to admit here.In any case, such a line of argument cannot explain the more recent public response to methamphetamine, a drug that is more closely associated with (poor) whites than any minority or immigrant group.
Perhaps the most troubling aspect of the film, however, concerns the dubious parallels that Jarecki proposes between the War on Drugs and other cases of group exclusion and violence. Drawing once more on footage from multiple interviewees, he suggests that American law enforcement since the late 1960s has followed a sequence of collective identification, ostracism, confiscation, concentration, and annihilation that can also be observed (most notably) in the Nazi genocide of European Jewry. The film is quick to add that the “chain of destruction” evident in the contemporary U.S. is not equivalent to the one that unfolded in Central and Eastern Europe during World War II. But that does not prevent David Simon from casting the War on Drugs as “a Holocaust in slow motion” against America’s poor and minority populations. Such hyperbolic language strikes me not just as deeply misguided, but entirely unnecessary. Viewers do not need such problematic analogies in order to grasp the film’s claims and stakes.
Despite these warts and missteps, The House I Live In is well worth watching. The film makes a daring claim on viewers’ conscience, and it calls on all of us to undertake the challenging work of thinking through our convictions as citizens in fundamental ways. We need more, not less, of this kind of provocation.
In my last blog (June 20, 2012), I highlighted a few scholars’ recent efforts to situate current patterns of African American imprisonment within this country’s longer history of racial conflict and subjugation. More specifically, I focused on some of the central claims in Robert Perkinson’s book Texas Tough (2010), which offers a sharp account of the historical connections between racial hierarchy and mass imprisonment in the Lone Star State and the larger American South. In its broadest outlines, Perkinson’s book contends that incarceration in Texas has, from its very outset, been closely bound up with chattel slavery and its legacies.
This entanglement is perhaps most evident in the state’s long-standing commitment to forced inmate labor, much of which took place—as late as the 1970s—on state-run prison farms that bore a striking resemblance to antebellum plantations. It is also discernible in the late nineteenth- and early twentieth-century practice of “convict leasing,” which allowed private entrepreneurs to purchase the right to use inmate labor power from the state prison system.
Despite regulations that required the humane treatment of prisoners, convict leasing generated widespread neglect and abuse, and in the early twentieth century it drew the ire not only of many African Americans, but also of white labor leaders, radical farm organizers, and progressive middle-class reformers. This last group launched a concerted campaign to move the state prison system away from punitive revenue-bearing production and toward newer, ostensibly more benevolent forms of rehabilitation. In the second decade of the twentieth century, modernizers in the prison administration implemented a variety of reform measures, including better food and medical care, religious services and reading classes, ten-hour workdays, and even nominal compensation for prison workers (ten cents per diem). In Perkinson’s account, however, these efforts were undermined by vocal opposition from prison personnel and, perhaps counter-intuitively, a surge in inmate dissent and rebellion. This uptick in prisoner discontent in particular prompted administrators and lawmakers to reassert penal authority, and the prison system basically reverted to its former pattern of plantation agriculture and severe discipline.
To be sure, progressive reform campaigns reemerged in Texas in the late 1920s, the 1940s, and the 1950s. They commonly looked for inspiration to similar initiatives in New York (which represented the cutting edge of inmate participation in prison management) and California (which led the way in inmate counseling and the professionalization of prison staff). But they also responded to homegrown scandals, including a spate of self-mutilations among Texas prisoners in the 1940s. In a desperate effort to avoid and/or protest harsh work conditions, unsanitary housing, and guard mistreatment, hundreds of inmates chopped off digits or limbs, injected gasoline into their arms and legs, or severed their Achilles tendons. As Perkinson notes, similar tactics were common in the era of slavery and convict leasing, and prisoners’ recourse to such deliberate violence against the self ultimately drew a more sustained response from the state government than previous reform efforts.
Nevertheless, when a new system of prison management coalesced in the 1950s, it continued to emphasize “work and force” (Perkinson, p. 228) as the central pillars of incarceration, even as it embraced certain forms of rehabilitative programming like church services, formal schooling, vocational training, and after-work programs. This emerging style became known as the “control model,” and it garnered significant praise for Texas in the national press and in professional organizations like the American Correctional Association. As eventually became clear, however, the “control” that this model promoted ultimately rested on a culture of routine repression among prison guards as well as systemic reliance on convict enforcers, or “building tenders.” Since the late nineteenth century, building tenders in Texas prisons had dispensed disciplinary violence against fellow inmates with impunity, and they had enjoyed a variety of unsanctioned privileges, including the prerogative to engage in consensual and non-consensual sex with other prisoners.
In the face of such endemic brutality, a small number of convict activists began to draw on the 1871 Civil Rights Act to sue the state of Texas for violations of their constitutional rights. One of the most prominent activists, David Ruíz, filed a petition in June 1972 that offered a harrowing chronicle of his treatment at the hands of prison staff and building tenders, and a small team of lawyers and judges transformed it into a class action lawsuit, Ruiz v. Estelle, on behalf of the state’s entire inmate population. The presiding district judge ruled in 1980 that the Texas penal system had subjected prisoners to cruel and unusual punishment and deprived them of due process of law on a massive scale, and he ordered the state government to undertake sweeping changes. The Ruiz decision effectively ended Texas’s regime of plantation-style prison farming, and it represented the most comprehensive reform order that a federal court had issued to a state penal system up to that point. Drawing on the momentum created by the lawsuit, prison modernizers in the early 1980s lobbied for the redistribution of the state’s inmate population into smaller, less isolated facilities with understated security and extensive links to outside communities.
These reform efforts were (yet again) outweighed, however, by rising crimes rates, the ascendance of the New Right, and a concomitant turn toward “law-and-order” politics on both the state and national level. Texas’s prisoner population increased dramatically as both Republican and Democratic lawmakers passed stiffer sentencing guidelines and curtailed inmates’ eligibility for parole. These trends spurred a massive prison construction boom, but with the collapse of the control model following the Ruiz decision, the new facilities were increasingly structured less like plantations and more like warehouses that emphasized “confinement, separation, and complete architectural control” (Perkinson, p. 315). As violence against both prisoners and guards increased once more, Texas prisons resorted to extended “administrative segregation” (i.e., solitary confinement) and “super segregation” cell blocks in their efforts to contain not just disruptive inmates, but relatively compliant ones as well.
This recent punitive turn in criminal justice has not been restricted to Texas: rates of incarceration and prison construction have increased sharply in most states over the past three decades, as has the proportion of African American and Latino inmates. Meanwhile, the federal government—particularly under former Texas governor George W. Bush—has displayed a striking commitment to expanded law enforcement, extended sentencing, and more frequent recourse to capital punishment. In Perkinson’s analysis, then, the historical arc of American imprisonment has not bent toward the rehabilitative goals championed most forcefully in northern states like New York. Rather, “the northern prison became more southern rather than the other way around…. If northern prisons once gestured toward freedom and southern penal farms toward bondage, the whole Union is in alignment now, pointing back toward the eternal bifurcations of slavery” (Perkinson, pp. 362-363).
This provocative argument raises serious questions about America’s commitment to the granting of ostensibly inalienable rights to all its citizens, and it suggests that race continues to shape how we approach the protection and violation of human dignity. To be sure, there are moments when Perkinson’s claims overstep the limits of his evidence. I am not convinced that the recent proliferation of prisons in Texas and other parts of the South and wider U.S. can be read as a reaction to the end of Jim Crow and the successes of the civil rights movement. I also doubt that the second Bush administration’s conduct in Guantanamo, Afghanistan, and Iraq can be traced to the practices of southern slavery and imprisonment as neatly as he suggests. Nevertheless, the heart of Perkinson’s argument skillfully outlines disturbing historical linkages between slavery and incarceration without equating these two forms of domination. In the process, he implies that we may need to rethink the relationship that prisoners, especially prisoners of color, have maintained with American citizenship in both the past and present.
On some occasions, incarcerated people have not merely constituted a recognized exception to juridical norms, which nevertheless enjoys “some kind of human equality,” as Hannah Arendt described criminals in The Origins of Totalitarianism (p. 286). Rather, they have formed a social category whose claim to “retain [their] rights over [their] bodies” (p. 444) has been substantially limited by their exposure to forced labor, sexual degradation, and violence that often has not been subject to public scrutiny and political accountability. This point does not imply that prisoners’ experiences can therefore be conflated with those of slaves, stateless persons, or concentration camp inmates, to name only a few of the dominated groups that concerned Arendt in the Origins. But it does suggest that prisoners’ enjoyment of constitutional and human rights cannot be taken for granted, as she seems to presume. It is still an exaggeration, I think, to say that prison inmates live “outside the pale of the law” (p. 277) in Arendt’s understanding of that phrase. But I would also insist that, in all too many instances, they have resided closer to its margins than we may care to admit.