Race as civic felonyn - Loı c Wacquant
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Race as civic felonyn
Loı̈c Wacquant
The highly particular conception of ‘race’ as these very same truths by the bondage of
national ‘principle of social vision and division’ millions of blacks.
(Bourdieu 1989) that America has invented, The Jim Crow regime reworked the racia-
virtually matchless in the world for its rigidity lised boundary between slave and free into a
and consequentiality, is a direct outcome of rigid caste separation between ‘whites’ and
the momentous collision between slavery and ‘Negroes’ – comprising all persons of known
democracy after bondage had been established African ancestry, no matter how minimal or
as the major form of labor conscription and (in)visible – that infected every crevice of the
control in an underpopulated colony home to postbellum social system and culture in the
an agrarian system of commercialised pro- South. With abolition, ‘status segregation’
duction (Fields 1982). No anchored by the division
other society has combined between free and unfree
Loı̈c Wacquant is Distinguished Univer-
those two contrary principles sity Professor of Sociology and Anthro- labor turned into a ‘verti-
of social and political orga- pology at the New School for Social cal social system of super-
nisation: bondage was abol- Research, Professor of Sociology at the and subordination’ that
ished in the Cape colony in University of California, and a Researcher ‘integrat[ed] the ethnically
at the Center for European Sociology in
1834, seven decades before divided communities into
Paris. His interests comprise comparative
the latter merged into the urban marginality, the penal state, bodily one political unit’ and fos-
nascent South African Re- crafts, social theory, and the politics of tered the continued mono-
public; the French restored reason. His recent books include Body & polisation of honour by
slavery under Napoleon in Soul: Notebooks of an Apprentice Boxer whites (Weber 1920, p.
1802 after suppressing it in (2004) and Deadly Symbiosis: Race and the 934). The ghetto, in turn,
Rise of Neoliberal Penality (2005).
1794 but it concerned only Email: loic@uclink4.berkeley.edu
imprinted this dichotomy
far-away colonies and it was onto the spatial makeup
eradicated in 1848, long be- and institutional schemas
fore the Third Republic of the industrial metropo-
firmly established democratic principles; Brazil lis. So much so that in the wake of the ‘urban
retained slavery longer but it was a moribund riots’ of the 1960s, which in truth were uprisings
institution that persisted until 1888 under a against intersecting caste and class subordina-
monarchical regime. That the USA alone was a tion, urban and black became near-synonymous
slaveholding republic premised on the doctrine of in policy-making as well as everyday parlance.
natural rights explains its elaboration of an And the ‘crisis’ of the ‘inner city’, which by then
aversive and all-encompassing conception of replaced the ‘wicked city’ of the late-nineteenth
‘race’ as denegated ethnicity geared to reconcil- century as the incarnation of urban dread and
ing the ‘self-evident truth’ that ‘all men are socio-moral dissolution in the nation’s collective
created equal’ and endowed ‘with certain un- conscience, came to stand for the continuing
alienable rights’ with the arrant violation of contradiction between the individualistic and
ISSJ 183 r UNESCO 2005. Published by Blackwell Publishing Ltd., 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.128 Loı¨c Wacquant
competitive tenor of American life, on the one that the percentage of young black men is
hand, and the enduring socio-spatial seclusion of positively associated with the belief that street
African Americans from it, on the other. crime is a serious problem, net of the effect of
As a new century dawns, it is up to another individual and neighbourhood characteristics
‘peculiar institution’ born of the adjoining of the (Quillian & Pager 2001, St. John & Bates 1995).
hyperghetto with the carceral system to uphold The equation of anonymous African-American
the social and spatial isolation of their residents males with peril on the street is moreover not
and remould the social meaning and significance limited to the white neighbourhoods and dwell-
of ‘race’ in accordance with the dictates of the ers of the dualising metropolis. By the 1980s, a
deregulated economy and the post-Keynesian ‘siege mentality’ had diffused into black districts
state (Wacquant 2000). Now, the penal appara- that inclined its residents to be ‘suspicious of
tus has long served as accessory to ethno-racial unfamiliar black males they encounter[ed]’ in
domination by helping to stabilise a regime under public places (Anderson 1990, p. 5). The result is
attack or to bridge the hiatus between successive that everywhere the dominant strategy for
regimes. Thus the ‘Black Codes’ of the 1860s ensuring physical safety in urban space is to
served to keep African-American labour in place avoid younger African Americans. In the dua-
following the demise of slavery (Myers 1998) lising metropolis, the appraisive slogan ‘black is
while the criminalisation of civil rights protests in beautiful’ has been effectively supplanted by the
the South in the 1950s aimed to retard the agony vituperative adage ‘black is dangerous.’
of Jim Crow (O’Brien 1999). But the role of the Along with the return of Lombroso-style
carceral institution today is different in that, for mythologies about criminal atavism and the
the first time in US history, it has been elevated to wide diffusion of bestial metaphors in the
the rank of main machine for ‘race making’. Its journalistic and political fields (where mentions
material stranglehold and classificatory activity of ‘pre-social superpredators’, ‘wolf-packs’, ‘an-
have assumed a salience and reach that are imals’ and the like are commonplace), the
wholly unprecedented in American history as massive over-incarceration of blacks has sup-
well as unparalleled in any other society. plied a powerful common-sense warrant for
‘using colour as a proxy for dangerousness’
(Kennedy 1997, p. 136). In recent years, Amer-
The resurgent dangerousness ican courts have consistently authorised the
of blackness police to employ race as ‘a negative signal of
increased risk of criminality’ and legal scholars
Among the manifold effects of the wedding of have rushed to endorse it as ‘a rational adapta-
ghetto and prison into an extended carceral tion to the demographics of crime’, made salient
mesh, perhaps the most consequential is the and verified, as it were, by the rapid blackening
practical revification and official solidification of of the prison population after the ghetto riots of
the centuries-old association of blackness with the 1960s, even though such practice entails
criminality and devious violence. The condem- major inconsistencies from the standpoint of
nation of Negrophobia in the public sphere has constitutional law (Kennedy 1997, pp. 143, 146).
not extinguished the fear and contempt com- Throughout the urban criminal justice system,
monly felt by whites towards a group they the formula ‘Young 1 Black 1 Male’ is
continue to regard with suspicion and whose routinely equated with ‘probable cause’ justify-
lower-class members they virtually identify with ing the arrest, questioning, bodily search, and
social disorder, sexual dissolution, school dete- detention of millions of African-American males
rioration, welfare profiteering, neighbourhood every year (Gaynes 1993).
decline, economic regression, and most signifi- In its 1968 decision Terry v. Ohio, just as
cantly violent crime (Hurwitz & Peffley 1998, race riots were roiling the metropolis, the US
Terkel 1992). Surveys of fear of crime have Supreme Court authorised the police to carry
consistently found that Americans are more out stops and searches on the ‘reasonable
scared of being victimised by black than white suspicion’ that criminal activity is afoot based
strangers, while studies of the determinants of on mere presence in a high-crime area and
perceived criminality in large cities have shown evasive behaviour. In the decades since, the
r UNESCO 2005.Race as civic felony 129
steady lowering of the threshold of evidence set area must be up to legal mischief.) The ‘out-of-
by the judiciary to meet this ‘location plus place’ doctrine applied in white areas and ‘ran-
evasion’ standard has ‘resulted in stops and dom’ investigatory stops and street sweeps applied
frisks of residents of inner cities – primarily poor in black ones ‘indicate how race is often the sole
persons, African-Americans, and Hispanic predictor in deciding which criminal suspects to
Americans – far out of proportion to their detain’ (Johnson 1995, p. 656; on the prevalence
numbers, and often without justification’ (Har- of racial bias in street searches and sweeps, pretext
ris 1994, pp. 622–623), setting off a self- stops, drug prohibition enforcement, and quality-
perpetuating cycle whereby the police arrest of-life policing, see also Cole 2000).
ghetto residents for the primary reason that the Together with the practice of pandemic
latter avoid them on account of the very ongoing overcharging, the widespread acceptance by the
harassment to which they are subjected by the courts of race as probative of criminal activity
police. Civil-rights organisations have so incor- and the steady erosion of the probable-cause
porated this practice in their normal ‘horizon of requirement set by the Terry decision ensure that
expectations’ that they have taken to training poor urban African Americans find themselves
black youths in major cities on how to handle caught in the clutches of the penal system in
routine checks, stop-and-frisk campaigns, and numbers and with an intensity far out of
street sweeps. In the Maryland suburbs of proportion with their criminal involvement
Washington, for instance, the local chapter of (Maclin 1998, Roberts 1999). The conflation of
the NAACP and the Black Lawyers’ Association blackness and crime in collective representation
joined with teachers and the police to run and justice policy (the other side of this equation
courses in high schools in which adolescents being the conflation of blackness and welfare
rehearsed with real officers their probable future receipt in the social policy debate) thus re-
arrest, bodily search, and interrogation so as to activates ‘race’ by giving a legitimate outlet to
minimise the likelihood of a serious incident and the expression of anti-black animus in the form
injury (Miller 1997, pp. 100–101). of the public vituperation of criminals and
But the conflation of blackness and crimin- prisoners. As writer John Edgar Wideman
ality is not limited to the perimeter of the (1995, p. 504) points out:
racialised urban core: in other districts of the
metropolis, the police have elaborated and the It’s respectable to tar and feather criminals, to advocate
courts have endorsed the ‘out-of-place’ doctrine locking them up and throwing away the key. It’s not
according to which a law-enforcement officer is racist to be against crime, even though the archetypal
warranted to find suspicious a person of one criminal in the media and the public imagination almost
ethnicity observed in an area primarily popu- always wears ‘Willie’ Horton’s face. Gradually, ‘urban’
and ‘ghetto’ have become code words for terrible places
lated by another. Thus when black men enter
where only blacks reside. Prison is rapidly being re-
white neighbourhoods their race is read as an lexified in the same segregated fashion.
outward indicator of potential unlawful activity
and used as justification for stopping, question-
ing, and searching them. When whites enter the
ghetto, on the other hand, the assumption of the Civiliter mortuus: the triple
police is either that they are engaged in criminal exclusion of convicts
activity, typically as consumers of drugs or
prostitution, or that they have lost their way and By assuming a central role in the post-Keynesian
are in need of assistance lest they be harmed. government of race and poverty at the cross-
(When we drove to and from the boxing gym roads of the deregulated low-wage labour
where I conducted ethnographic fieldwork in the market, a revamped ‘welfare-workfare’ appara-
Chicago ghetto neighbourhood of Woodlawn tus designed to support casual employment, and
for three years, my coach DeeDee always the vestiges of the ghetto, the overgrown carceral
instructed me to keep a brisk speed for fear that system of the USA has become a major engine of
the police would stop us on grounds that a symbolic production in its own right.1 It is not
young white man and an old black man riding only the preeminent institution for signifying
together in a beat-up Plymouth Valiant in that and enforcing blackness, much as slavery was
r UNESCO 2005.130 Loı¨c Wacquant
during the first three centuries of US history. that shrewd convicts were now committing
Just as bondage effected the ‘social death’ of crimes for the express purpose of gaining a
imported African captives and their descendants university degree for free behind bars (see
on American soil by tearing them apart from all Congressional Record, US Senate, 103rd Con-
recognised social relations (Patterson 1982), gress, vol. 139, n.157 [November 1993], 1st
mass incarceration also induces the civic death Session, Tuesday 2 November 1993). In reality,
of those it ensnares by extruding them from the at the time of their final deletion from the
social compact, thereby making them civiliter programme, felons receiving federal tuition
mortui. Inmates are the target of a threefold credit numbered not 200,000 (as maintained by
movement of exclusionary closure instigated their detractors) but 27,000 for a total outlay of
from above by the state and supported from 35 million dollars amounting to one-half of one
below by the fearful middle class and resentful per cent of the total Pell appropriation of $6.3
fractions of the working class. billion. In addition to gross exaggeration, the
opponents of college education in prison rhet-
1. Prisoners are denied access to institutiona- orically set up a dichotomous opposition and a
lised cultural capital: just as university creden- zero-sum game between convicts and the ‘chil-
tials have become a prerequisite for employment dren of low-income working people’ that are
in the (semi-)protected sector of the labour both spurious: first, prisoners themselves stem
market, inmates have been made ineligible for essentially from the lower fractions of the
Pell Grants, the main federal programme sub- working class and, second, their access to tuition
sidising college tuition for low-income students, support did not deprive other applicants since
starting with drug offenders in 1988, continuing the Pell grant program functions in the manner
with convicts sentenced to death or lifelong of a quasi-entitlement in which all students
confinement without the possibility of parole in meeting income qualifications receive funding.
1992, and ending with all remaining state and But the nightmarish picture of lavish
federal prisoners in 1994. This expulsion from government support for (black) prisoners rob-
higher education was voted by Congress in bing ordinary Americans committed to work,
knowing disregard of overwhelming evidence morality, and respectability of their fair shot at
that prison college programmes sharply reduce ‘the American dream’ resonated powerfully with
recidivism as well as help maintain carceral the racially inflected anti-welfare state sentiment
order for the sole purpose of dramatising the surging through the country as well as with the
divide between convicted felons and ‘law-abid- well-worn theme of the ‘coddling of criminals’ in
ing citizens’ (a detailed historical and analytical ‘five-star prisons’ (Flanagan & Longmire 1996,
account of the campaign to suppress public Gilens 1999). And it adroitly tapped widespread
funding of higher-education programs in US middle-class anxiety over the fast-rising cost of
prisons in the 1990s is Page 2004). Expulsion was college and the increased intensity and unpre-
extended a few years later by a clause of the dictability of educational competition: the price
Higher Education Act of 1998 that bars students tag for higher education expressed as a function
convicted of a drug-related offence from receiv- of the average hourly wage doubled between
ing any public grant, loan, or work assistance. 1972 and 1992 while the overall number of
fellowships declined, not to mention that ‘higher
In the parliamentary and media debates, oppo- education no longer offers a guarantee of
nents of federal sponsorship of higher education economic security’ (Mare 1995). Just when they
in prison wildly exaggerated its scope and are a sine qua non for membership in the middle
financial weight, alleging that inmate scholar- and upper classes, tertiary credentials have
ships had undergone ‘exponential increase’ to become so expensive that by 1995 nine states
200 million dollars and would soon bloat past had established programmes of anticipated
the billion-dollar mark; and they claimed that, as tuition payment allowing parents to start
a result of this misplaced liberality, ‘honest and ‘purchasing’ a future seat at the public university
hard-working Americans’ were being ‘elbowed from the birth of their child, and most states had
out’ of college. Oblivious to ridicule, senator instituted ‘529 plans’ providing tax benefits for
Kay Bailey Hutchison of Texas even asserted families saving money for paying for college. It is
r UNESCO 2005.Race as civic felony 131
far more expedient politically and financially programme to AFDC) and public housing for
sparing for elected officials to lambaste the all persons convicted of a felony offence for
funding of college education for prisoners, using or selling drugs – without exception, not
however negligible it may be, than to confront even for the most destitute and desperate such as
the sources of the rising cost and decreasing yield pregnant and addicted mothers in single-parent
of strategies of middle-class reproduction households (Hirsch 2001).
through the transmission of cultural capital.
What is most remarkable about this episode is This federal ban, which is imposed uniquely on
that politicians were willing to brush off the narcotics violators (and not, for instance, on
unanimous recommendation of correctional multiple murderers and serial rapists), was
officials, wardens, and penologists to retain debated in the Senate for a grand total of two
college education behind bars and dismantled minutes, one minute each per party, and not at
one of the few effective and efficient pro- all in the House before being adopted by an
grammes proven to reduce criminal offending overwhelming majority in both houses. Though
(the three-year recidivism rate of former prison- the law accords them the flexibility to opt out of
ers with a college degree is 5% compared with a this measure, most states have elected to adopt
national average of 40%) for the sheer sake of it: 22 apply the interdiction in full and another 20
deploying populist penal rhetoric portraying the have only modified its scope and terms, includ-
most unworthy of the unworthy poor – con- ing 10 that make benefits contingent on under-
victed felons – as social parasites festering on an going regular drug testing or drug treatment
overgrown welfare state and sucking the ‘hard- (Rubinstein & Mukamal 2002). The loss of
earned tax dollars’ of honest citizens who, welfare benefits gravely undercuts the ability of
though they work and save, struggle to transmit poor women to sustain themselves and to meet
their middle-class status to their offspring. the basic needs of their children, increasing the
likelihood that these will be placed in state group
2. Prisoners are systematically excluded from homes, in keeping with the Adoption and Safe
social redistribution and public aid in an age Family Act of 1997 which accelerates the
when work insecurity makes such programmes termination of parental rights for women serving
more vital than ever for those dwelling in the mandatory minimum sentences (typically for
lower regions of social space. Federal laws deny federal drug offences). It also diminishes their
welfare payments, disability support, veterans’ chance to escape from addiction as they cannot
benefits, and food stamps to anyone in detention enter detoxification centres after a criminal
for more than 60 days on grounds that inmates conviction since they no longer receive the
already receive food, clothing, shelter, and public aid with which to pay for their room
medical care from correctional authorities. They and board as they could before. Altogether, this
also prohibit convicted felons from many jobs in disposition has struck some 92,000 women and
government or with federal contractors, curtail 135,000 children, over half of whom are African
their parental rights, and strike them out from American and Hispanic (Allard 2002).
scores of federal benefits.2 The Work Opportu- Other federal legislation passed in 1996 and
nity and Personal Responsibility Reconciliation 1998 in the wake of ‘welfare reform’ establishes
Act of 1996 that ended ‘welfare as we know it’ strict criteria for admission to and eviction from
further banishes many ex-convicts from Medi- public housing under a new policy, proudly
caid, public housing, Section 8 vouchers (a announced in 1996 by President Clinton in
governmental rental subsidy), and related forms person, called ‘One Strike and You’re Out’.
of means-tested assistance. It also excludes from These new rules, speedily adopted by three-
public aid parole and probation violators quarters of the nation’s housing authorities,
(regardless of the condition they infringed) and grant the latter wide discretion to eject tenants
denies assistance for ten years to anyone convicted of a drug-related offence and even to
convicted of misrepresenting their residence to evict an entire family for criminal violations
obtain support. Section 115 of the Act even committed by any one of its members inside or
institutes a lifetime ban on access to Temporary outside of the housing complex. Some agencies
Assistance to Needy Families (the successor have gone so far as to expel households after one
r UNESCO 2005.132 Loı¨c Wacquant
resident had minimal involvement with law- Wyoming).3 The result of the combination of
enforcement agencies, even a simple arrest by the widespread and broad ballot restrictions based
police leading to no criminal charges (Rubin- on penal sanction and astronomical conviction
stein & Mukamal 2002, p. 48). This state strategy rates is that at the end of 2000 an estimated 4.7
of public housing exclusion has impacted a million Americans – one of every forty-three
relatively small population thus far, numbering adults – had temporarily or permanently lost the
about 20,000 as of mid-2002, but its effect is ability to vote, including 1.8 million who were
draconian since it aggravates their social in- not behind bars and another 1.7 million who had
stability and makes family reunification after served their sentence in full, making felons and
incarceration considerably more risky and diffi- ex-felons the ‘largest single group of American
cult. And the message it sends is crystal clear: citizens who are barred by law’ from taking part
commit a drug infraction at the bottom of the in elections (Keyssar 2000, p. 308. Numerical
class and caste order and you will have cast estimates vary with the sources; these are taken
yourself out of the civic community, possibly from Appendix A in Uggen & Manza 2002, table
making your family homeless. p. 797). Given the ethnically skewed composi-
It should be pointed out that no compar- tion of the population under criminal justice
able ban on government redistribution is en- supervision, these statutes strike a particularly
forced at the other end of the social spectrum, severe blow at the electoral capacity of blacks: of
for instance through the suppression of tax the 1.2 million state and federal prisoners kept
deductions for mortgage interest payments for from the polls, some 632,000 are African-
middle- and upper-class households whose Americans; of the 1.6 million ex-felons denied
members commit drug felonies or other ‘crimes the franchise, over one half-million are blacks. A
of prosperity’ such as tax cheating, insider mere thirty years after finally acceding to the
trading, or financial fraud. It should also be voting booth thanks to the Civil Rights Revolu-
noted that the extensive efforts of the Social tion, fully 1.84 million African Americans –
Security Administration to detect cases of corresponding to one black man in six nationwide
erroneous payments of Supplemental Security – are banned from participating in elections
Income (a means-tested programme providing through penal prohibitions. By 1997, seven
cash payments to aged, blind, or disabled states had permanently disallowed the vote of
individuals to help them meet basic needs) have more than one-quarter of their black male
targeted only residents of jails and prisons and residents (Fellner & Mauer 1998, p. 8).
left out inmates of other public institutions such
as hospitals, clinics, nursing homes, shelters, and The disproportionate impact of felon disen-
drug and alcohol rehabilitation centres, who are franchisement laws across the colour line, with
also legally ineligible for aid but mostly middle- African Americans comprising a shocking 40%
class (USGAO 1995, pp. 2–3). of all persons thus barred from the polls, should
come as no surprise, for the long pedigree of
3. Convicts are banned from political participa- these laws ties them intimately to the history of
tion via ‘criminal disenfranchisement’ practiced racial domination in the USA. Though they are
on a scale and with a vigour unimagined in any impeccably colour-blind on the face of it, most
other country. All members of the Union except originate in the strategies of racial containment
Maine and Vermont deny the vote to mentally deployed by Southern legislatures in the late
competent adults held in state prisons and 44 1860s and 1870s, when denying the vote to broad
extend this denial to jail detainees. Thirty-four categories of convicts was an expedient device to
states further forbid felony convicts placed on exclude blacks while formally abiding by the
probation from exercising their political rights 15th Amendment to the US Constitution
while 29 also interdict parolees from the booth. prohibiting voting restrictions based on ‘race,
In 14 states, most or all former felons are barred color or previous condition of servitude’.4 To
from voting even when they are no longer under illustrate, the Constitutional Convention of 1890
criminal justice supervision – for life in eight in Mississippi, which had as its explicit aim to
of them (Alabama, Florida, Iowa, Kentucky, forbid ‘Negro domination’ at the polls, insti-
Mississippi, Nevada, Tennessee, Virginia, and tuted franchise qualifications selected specifi-
r UNESCO 2005.Race as civic felony 133
cally to prohibit blacks first and foremost: annihilating the black vote helps explain that
residency was chosen because whites thought many states re-enfranchised ex-convicts during
that the former slaves were an inherently the 1960s and 70s after the Jim Crow regime
‘rootless’ and ‘migratory race’; the poll tax was came tumbling down and the Northern urban
introduced because Negroes were believed to be ghetto was rocked to its foundation by the
naturally shiftless and improvident; literacy frontal attack of blacks and their progressive
requirements were well suited to select out allies in a political field made momentarily
members of a community denied access to responsive to pressures from below by the
education; finally ‘the list of disqualifying external imperatives of the Cold War (Dudziak
offences – which included arson, bigamy, fraud, 2000) and the ‘pacification’ of Vietnam. It
and petty theft, but not murder, rape, or grand explains why liberal voting laws ebbed again in
larceny – was tailored, in the opinion of the state the 1980s and 1990s as many states reinstated
supreme court, to bar blacks, a ‘‘patient, docile restrictions against the backdrop of anti-black
people (. . .) given rather to furtive offences than backlash and the waning of public commitment
to the robust crimes of the whites’’ (McMillen to combat racial inequality (Reed, 2001, Stein-
1989, pp. 42–43).5 Together with discrimination, berg 1995). Finally, the mutual intrication of
intimidation, and violent suppression, these caste division and legal restriction also accounts
measures caused the number of black voters to for the fact that the US criminal disenfranchis-
plummet from 87,000 in 1868 to 9,000 in 1892 ing practice is unique in the world for its severity
(and a paltry 28,000 as late as 1964) while the and scope. Numerous liberal democracies such
number of white voters held steady at 70,000 (it as Sweden, Ireland, Australia, and Spain allow
topped half a million by the passage of the their inmates to vote but that is not the real
Voting Rights Act of 1965). Even at their peak, differentiating factor here; what sets America
registered blacks never tallied 10% of the apart is the political exclusion of convicts not
African-American population of voting age in under lock and of ex-convicts who have com-
Mississippi. pleted their sentences. Many Western countries
A sophisticated event-history analysis using such as Belgium, Italy, and Canada impose
decennial data from censuses from 1850 to 2002 penal restrictions on the franchise for persons
confirms ‘a strong and consistent relationship placed on probation or parole but these are
between racial threat as measured by the limited in time and closely calibrated to their
percentage of nonwhite state prisoners and laws individual offence: civic disabilities are inflicted
restricting felon voting rights’: states with larger as a penal sanction running alongside other
shares of African Americans behind bars have penalties and typically concern small numbers of
been more likely to adopt broad statutes offenders. A few other countries, among them
forbidding convicts and ex-convicts from the France and Germany, disqualify some ex-felons
booth after controlling statistically for region, through judicial fiat but, again, strictly in cases
timing, economic competition, partisan political of serious violations of the electoral code or civic
power, population makeup, and incarceration crimes such as treason, and then only for a few
rate (Behrens et al. 2003). Even in those states years after their prison term or other sanction
where felon disqualification was not adopted for has been served. The USA is the sole country in
purposes of racial exclusion, it has operated with the so-called Free World to exclude by law,
such glaringly divergent effects across the colour without the possibility of judicial adjudication
line that the Director of the United States and recourse, broad categories of ex-convicts
Commission on Civil Rights pointed out as from the polls in disregard of the specifics of
early as 1974 that, whatever their intent, such their infraction and background, and, even more
laws ‘established an invidious racial discrimina- so, to exclude them for life.
tion against minority citizens’ (quoted in Hench In addition, much as they use incarceration
1998, p. 768). profusely to respond to a wide gamut of offences
The fact that generalised felon exclusion that are typically punished by community
from the ballot was one in a panoply of measures sanctions or suspended prison sentences in other
adopted during and after Reconstruction to advanced societies (Tonry & Frase 2001), the
shore up white supremacy by shrinking or American authorities do not reserve disen-
r UNESCO 2005.134 Loı¨c Wacquant
franchisement solely for violent ‘career’ crim- his discretion. The entire procedure takes about
inals who, one might plausibly argue, have de two years and costs several thousand dollars, a
facto severed themselves from the body civic. In sum well beyond the means of the average ex-
several states post-sentence disqualification is convict who, in addition, rarely has the cultural
triggered by convictions that do not entail skills to navigate government offices and the
imprisonment, as in the case of a resident of leisure to spend weeks and months travelling to
Mississippi who discovered that he was debarred and from them to amass the needed documents.
from the polls for life due to having pleaded This explains why every year some 40,000
guilty to passing a bad cheque in the amount of residents of Florida are newly disenfranchised
150 dollars (Fellner & Mauer 1998, p. 5). This as against fewer than 2,000 who regain their
points to one last feature that sets the USA voting rights (Dugree-Pearson 2002, p. 382–
further apart from other liberal democracies that 383).
practice limited penal disenfranchisement: its Yet arguably the most striking feature of
furtive, nearly invisible, implementation. Every the mass disenfranchisement of former felons in
year tens of thousands of Americans are stripped the USA is that it is utterly devoid of policy or
of the franchise without even knowing it due to penological rationale. Legislators, legal scholars,
the prevalence of plea bargaining that carries as and judicial professionals have been at a loss to
a silent and distant rider the loss of this specify and agree on its purpose. The official
fundamental civic power. This is particularly rationale, based on the ‘fear that ex-convicts
the case in juvenile justice, where ‘an 18-year old might use their votes to alter the content or
who exchanges a guilty plea for a lenient non- administration of the criminal law’ (Harvard
prison sentence (as almost all first-timers do, Law Review Association 1989, p. 1301) is easily
whether or not they are guilty) may unwittingly shown to be without foundation. First, no
sacrifice forever his right to vote’ without even evidence has ever been adduced that ex-felons
being informed of it by the prosecutor (Shapiro vote differently than others on matters of crime
1997, p. 62). and justice and, were they to do so, they
Finally, most of the US states that exclude constitute such a tiny fraction of the electorate
persons with a criminal background have (about 0.8% nationwide at their peak today)
clemency and rights recovery procedures but that they are unlikely to affect the dispensation
these are generally so complex, costly, and of penal sanctions. Second, a blanket exception
cumbersome as to ensure that few former banning all ex-felons from the booth to guard
convicts regain the right to enter the booth. In against recidivism on the part of those of them
Florida, which alone disqualifies one-third of the sentenced for election violations is both over-
disenfranchised nationwide, the sheer quantity inclusive (it disqualifies masses of former con-
of paperwork required of an ex-felon to apply victs who never committed voting fraud) and
for restoration of his voting prerogative, to under-inclusive (several states do not disqualify
quote an attorney specialising in the procedure, violators of electoral laws).
‘fill[s] two file cabinets, with fifty sources Broader philosophical justifications for the
spanning twenty to fifty years of a person’s life’ civic exclusion of ‘ex-cons’ are equally thin and
(Dugree-Pearson 2002, p. 381), among them unconvincing. The social contract argument,
complete documentation of his educational, rooted in Lockean liberalism, and the civic-
residential, and employment history (with the republican argument for disenfranchisement,
names of all his supervisors) for over a quarter- according to which former felons should be
century, copies of all his financial, credit, and tax excluded because they have demonstrated ‘mor-
records, as well as all court documents from all al turpitude’ that makes them ‘unfit to exercise
jurisdictions in which he appears (including all the privilege of suffrage, or to hold office, upon
traffic tickets received in his lifetime along with terms of equality with freemen who are clothed
proof of payment for each). After his file has by the State with the toga of political citizenship’
been assembled and reviewed, the applicant is (Harvard Law Review Association 1989, pp.
put through a personal hearing before the 1083–1084) turn out upon examination to be
governor and his cabinet members, at the end similarly groundless. In particular, the view that
of which the governor makes a final decision at ‘the manifest purpose’ of denying the vote to ex-
r UNESCO 2005.Race as civic felony 135
convicts is ‘to preserve the purity of the ballot Hirsch 1993, pp. 6–19). Much as the doctrines of
box, which is the only sure foundation of liberalism and republicanism can provide only a
republican liberty’ (as expressed by the land- thin rhetorical veneer to embellish the mass
mark 1894 Alabama Supreme Court case disenfranchisement of current and former fe-
Washington v. State) is incompatible with the lons, no consistent theory of punishment can
basic commitment of the modern state to validate and still less mandate this practice,
inclusion and equality.6 And the racial imbal- especially on the scale and with the severity it has
ance caused by felon disenfranchisement effec- assumed at the threshold of the twenty-first
tively violates the equal protection clause of the century.
Fourteenth Amendment due to its demonstrably The same applies to the policies of criminal
disproportionate impact on an identifiable sec- debarment from university credentials and from
tion of the national population, which effectively state-sponsored social redistribution. All three
‘deplet[es] a minority community’s voting of these forms of exclusionary closure trained on
strength over time’ (Hench 1998, p. 787). Close past and present prisoners are driven not by
examination of both the American liberal and practical or theoretical penological aims but by
republican traditions converges with cross-na- the political imperative to draw sharp symbolic
tional comparison, then, to lead to the conclu- boundaries that intensify and extend penal
sion that the generalised and indefinite stigma by turning felons into long-term moral
disenfranchisement of felons serves no compel- outsiders akin in many respects to an inferior
ling government interest and is fundamentally caste. The etymology of felony, descended from
‘incompatible with a modern understanding of the medieval Latin fello meaning villain or
citizenship, voting, and criminal justice’ (Ewald wicked and designating an evil person before it
2002, pp. 1134–1135). And that this expansive came to mean perpetrator of an infamous crime,
policy of civic excommunication of convicts is reminds us that felon disenfranchisement is
joined at the hip with the country’s rigid racial quintessentially ‘a symbolic act of political
division, past and present. banishment, an assertion of the state’s power
to exclude those who violated prevailing norms’
(Keyssar 2000, p. 163).
Race as civic felony But then one must ask, what prevailing
norms and how are they infringed upon? Here
Penological warrants for the civic extirpation of one comes upon what, in the opening lines of
former convicts are even weaker than political or The Souls of Black Folk, W.E.B. Du Bois (1903,
philosophical ones. The measure cannot possi- p. 3) wistfully calls ‘the strange meaning of being
bly serve the purpose of deterrence given its black here’ in America. From the birth of the
near-invisibility as well as the weak and fading colony to the present day, albeit with variations
involvement of the lower-class electorate that is in intensity and scope, blacks have been cast in
its primary target (Teixeira 1992). It is an the role of the living antithesis to the ‘model
‘incoherent extension of punishment theory’ American’, even when, given the opportunity,
from the perspective of rehabilitation since it they have embraced that nation’s core values
takes no prospective account of the likelihood to and myths with more zest and abandon than any
re-offend and ‘fails to include an opportunity for other group. After the social and symbolic
the offender’s reintegration into society’ (John- separation of European servants and African
son-Parris 2003, p. 136; Keyssar 2000, pp. 162– slaves crystallised in the closing decades of the
163, 307–308). It is also devoid of value from the seventeenth century, slaves were merged into a
standpoint of incapacitation as it leaves ex- compact faceless mass deemed untrustworthy,
felons free to commit all manners of crimes dissipated, and slothful – in short, the walking-
outside the voting booth. And it blatantly and-breathing despoliation of the Protestant
violates the principles of proportionality and ideal, at once civic and religious, of the
parsimony central to the doctrine of ‘just ‘dependable, orderly, and industrious worker’
desserts’ by applying the same blanket exclusion that the Puritans sought to create by creating the
on all criminals irrespective of the seriousness Republic, and vice versa (Kolchin 1993, p. 68).
and civic pertinence of their infraction (von During the revolutionary period, citizens of the
r UNESCO 2005.136 Loı¨c Wacquant
new nation were taught to equate the term tion. For nearly four centuries, blacks have been
‘freeman’ with political freedom and economic consistently constructed symbolically and
independence, again by contraposition to the handled institutionally, not merely as non-
dark-skinned slave, who was forcibly denied citizens laying outside of the inaugural social
these twin prerogatives of membership on the compact of the republic, but as veritable ‘anti-
spurious grounds that (s)he was congenitally citizens’ (Roediger 1991, p. 57) standing over
incapable of assuming them. By the mid-nine- and against it. This explains the recurrence of
teenth century, working-class formation oper- schemes and movements aimed at extirpating
ated via racial consolidation by fusing blackness them from the societal body by migrating them
and servility as the reviled antonym of genuine back to Africa, from Thomas Jefferson’s advo-
Americanness, ‘the perils and pride of Repub- cacy of deportation after eventual emancipation
lican citizenship’ being defined by opposition to to the creation by white philanthropists of the
a black population pictured as the embodiment American Colonization Society in 1816 to the
of ‘the preindustrial, erotic, careless style of life popular success of the Universal Negro Im-
the white worker hated and longed for’ as he was provement Association of Marcus Garvey with
being pressed into the ambit of wage work and its plan to repatriate African Americans to
subjected to crushing industrial discipline (Roe- Liberia a century later. It also accounts for the
diger 1991, pp. 11, 14). Throughout most of the prohibition against blacks enlisting in the US
twentieth century, the racialist strain of Amer- military until 1862 and for the cataclysmic socio-
icanism that construes the nation ‘as a people symbolic impact of their service under the flag
held together by common blood and skin color during the two world wars of the twentieth
and an inherent fitness for self-government’ century, which did more to shake the social and
prevailed even as the universalistic forces of mental foundations of the US caste order than
civic nationalism gained strength (e.g., the 1790 all the internal movements of protest until then
law limiting US naturalisation to ‘free white by eroding the divide between Negroes and
persons’ was formally abrogated only in 1952, whites inside the most honorific organ of the
even as a law of 1870 included ‘persons of state apparatus, the military (Gerstle 2001,
African nativity and African descent’ among chapters 5–6; Klinkner & Smith 1999, pp. 200–
eligible categories). The slow and begrudging 201, McAdam 1989).
acceptance of Southern and Eastern European Blacks were not part of this ‘We the People’
immigrants into ‘God’s melting pot’ confirmed that formed ‘a more perfect Union’ to ‘secure the
and reinforced the continued socio-symbolic Blessings of Liberty to [them]selves and [their]
marginality of African Americans, as liberal posterity’, to quote the preamble of the US
leaders committed on principle to colour-blind Constitution. The African and African-Amer-
inclusiveness ‘periodically reinscribed racialist ican slave, later the Negro sharecropper and the
notions in their rhetoric and policies’ (Gerstle black industrial proletarian, and today the
2001, p. 5). heinous member of the inner-city ‘underclass’
Race or, to be more precise, blackness – for, have been persistently pictured and processed in
since the origins, it is the presence of dishon- national discourse and public policy as enemies
oured dark-skinned persons brought in chains of the nation – as slaves have been throughout
from Africa that has necessitated the (re)inven- world history.8 Richard Wright vividly captured
tion and perpetuation of racial vision and this sense of combined strangerhood and nefar-
division – is properly understood as America’s iousness in Native Son, the signal allegorical
primeval civic felony. Not in a rhetorical or portrait of the black-American condition at mid-
metaphorical sense but in full accord with the twentieth century, torn between the glorious
Durkheimian conception of crime as ‘an act’ profession of democracy and the gruesome
that ‘offends strong and definite states of the reality of caste domination. In the scene of the
collective conscience’ of the society (Durkheim trial of Bigger Thomas, a clumsy black youth
[1893] 1930, p. 47),7 in this case imputed ways of who, out of broiling racial confusion and
being and behaving that breach America’s resentment, accidentally kills a young white
idealised representation of itself as the promised beauty, the bohemian daughter of an upstanding
land of freedom, equality, and self-determina- patrician family from Chicago, Thomas’s attor-
r UNESCO 2005.Race as civic felony 137
ney utters this plea on behalf of the murderer sequent sullying of caste separation via Jim
and alleged rapist (for whites cannot imagine Crow and the urban ghetto as reactivated by
that the slaying was not sexually motivated) indelible penal sanction.
who, because of the very enormity of his offence Replacing current penal trends within the
(after smothering his victim in panic, he cuts her full arc of ethnoracial domination promptly
head off to throw her body into the furnace of divulges the close kinship between the rhetoric
her parents’ mansion), is made to stand for every and policy of political exclusion of felons and ex-
black person in America: felons in the late twentieth century, on the one
hand, and, on the other, the discourse and
Excluded from, and unassimilated in our society, yet practice of racial division in its two pivotal
longing to gratify impulses akin to our own but denied periods of the revolutionary upheaval against the
the objects and channels evolved through long centuries British Crown and the post-Civil War decades,
for their socialized expression, every sunrise and sunset that is, the two historical conjunctures in which
makes him guilty of subversive actions. Every move- criminal disenfranchisement rules were first
ment of his body is an unconscious protest. Every desire,
introduced and then broadened.10 In both the
every dream, no matter how intimate or personal, is a
plot or a conspiracy. Every hope is a plan for
notion of ‘purity’ – of the ballot in one case and
insurrection. Every glance of the eye is a threat. His the white community in the other – is the national
very existence is a crime against the state. (Wright 1939, treasure to be preserved. In both the abridgement
p. 821; emphasis in original) of ‘natural rights’ and the dilution of constitu-
tional protection are forcefully effected to excise
Thus the routine resort, particularly pronounced from the social body categories deemed inher-
in periods of transition between regimes of racial ently defective and indefinitely defiling. (In
rule, to the penal apparatus to ensure that ‘the Washington v. State, the 1884 Alabama Supreme
swarthy specter sits in its accustomed seat at the Court case that codified the ‘purity of the ballot’
Nation’s feast’ (Du Bois 1903, p. 10).9 Thus also doctrine, felons are assimilated to ‘idiots, insane
the persistent refusal, in the administration of persons, and minors,’ i.e., individuals constitu-
penal law as in public discourse more generally, tively lacking in ‘the requisite judgment and
to individualise blacks, resulting in their lump- discretion which fit them’ for voting). In both, the
ing into a collective type defined by the status category thus struck by public banishment is
and deeds not of the average member but of the made into a permanently subordinate outgroup
lowest and most fearsome (Walton 1992, pp. held responsible for its own civic liminality and
397–401) – such that blacks are always liable to inferior legal status, which absolves the ingroup
be treated as humiliores whenever they fail to of its role and responsibility in producing that
furnish tangible proof, by appearance, conduct, very distinction and condition. As with the
or title, that they deserve to be accorded the imposition of a naturalised caste boundary, ‘the
minimal dignities of civic membership, as in the disenfranchisement of ex-offenders simulta-
urban tale of the black Harvard professor who neously justifies and is justified by an idea that
cannot flag down a city taxicab at night. Save for deviants are the source and embodiment of
the qualifier ‘impermissible’, legal scholar corruption, pollution, and moral turpitude; that
George Fletcher is on the right track, then, they can and must be isolated, fenced out, and
when he argues that ‘categorical divestment of politically sterilized’ (Harvard Law Review
voting rights introduces an impermissible ele- Association 1989, pp. 1314–1315, 1316).
ment of caste into the American political system’ The penal alienation of today’s convicts
insofar as it treats former convicts ‘as inherently makes them social similes if not legal replicas of
unreliable not only for purposes of voting but antebellum slaves in yet another respect:
also in giving sworn testimony at trial’, as although they are barred from civic participa-
persons whose social standing is terminally tion, they nonetheless weigh on the political
impaired by prior convictions. With the accel- scale at the behest and to the benefit of those
erating conflation of blackness and criminality, who control their bodies, much as bondspeople
felon disenfranchisement is indeed a ‘continua- benefited their plantation masters under the
tion of infamia’ (Fletcher 1999, pp. 1895–1908) ‘three-fifths’ clause of the US Constitution.
tapping the discredit of slavery and the sub- Because inmates are tallied by the census as
r UNESCO 2005.138 Loı¨c Wacquant
residents of the counties where they serve their correctional jobs, taxes, subsidies, and political
sentence, they artificially inflate the population pull to their communities, to the direct detriment
count as well as lower the average income level of the segregated urban districts that furnish
of the rural towns that harbour most prisons. As these convicts.
a result, these towns accrue added political In light of the fiasco capping the 2000
power in terms of representation in their state presidential contest, it is ironic as well as iconic
legislature as well as garner extra federal funding of the increasingly constrictive impact of Amer-
intended to remedy poverty: public monies that ican electoral codes regarding felons to note that
would go to providing services such as educa- Florida leads the nation with 827,000 disenfran-
tion, medical care, and transportation and chised convicts and ex-convicts, distributed
housing subsidies to poor blacks in the inner among 71,200 prison inmates, 131,100 proba-
city are diverted to the benefit of the predomi- tioners, a paltry 6,000 parolees (testifying to the
nantly white population of prison municipali- strictness of correctional policy in that state),
ties. It is estimated that Cook County will lose and a staggering 613,500 former felons who,
$88 million in federal funding during the current though they have fully repaid their debt to
decade because of the 26,000-odd Chicagoans society, will never cast a ballot for the remainder
(78% of them black) reckoned as residents of the of their lives. In November of 2000, over 256,000
downstate districts where they are incarcerated of these potential voters kept from the rolls were
(Dugan, 2000). black. Had Albert Gore, Jr., the Democratic
Similarly, the enumeration of convicts candidate, collected the vote of a mere one per
transfers political influence from their home to cent of these electors – many of whom were
their host county, thereby diluting the electoral illegally barred from the booth due to data
strength of blacks and Latinos living in the recording and processing errors by the private
metropolitan districts from which most prison- firm contracted by the Florida Election Board to
ers stem – and the more so as detention facilities verify the eligibility of former felons who
are located further away from major cities. Thus migrated across state lines11 – he would have
80% of New York state prisoners are African- handily won the Sunshine state and conquered
American and Hispanic and two-thirds come the presidency. But there is a measure of poetic
from New York City; but 91% of them are justice in his court-ordered defeat in that for
housed upstate, in the conservative lily-white eight years Gore served as Vice-President in an
districts where all of the new penitentiaries built administration that worked to increase the
since 1982 are located. Counting urban prisoners number of convicts and ex-convicts with a zeal
as rural dwellers for purposes of representation and efficiency unmatched by any other in
(even though the state constitution specifies that American history (Wacquant 2005b).
penal confinement does not entail loss or change The debarment of ex-felons from the ballot
of residence) violates the one-man, one-vote years after they have served their sentence
rule, and translates into a net loss of 43,740 constituted a far more potent bias than all of
residents for New York City, which is computed the ‘hanging chads’ and misdesigned ‘butterfly
to have cost urban Democrats two seats in each ballots’ of Broward County that consumed
of the state house and senate (Wagner 2002, p. public attention during the weeks and months
10–12). And, just as counting slaves boosted the after the aborted Florida election. This episode
political power of Southern states and allowed has reenergised social activists and analysts alike
them to entrench slavery by controlling the in their denunciation of the seeming infringe-
national agenda, the ‘phantom’ population of ment on the sanctity of the democratic compact
black and brown prisoners enhances the political it entails. In a systematic study of the impact of
influence of white politicians who pursue social felon disenfranchisement laws on electoral out-
and penal platforms antithetical to the interests comes over the past three decades, Uggen and
of ghetto residents. In particular, these elected Manza (2002) have confirmed that, because they
officials have acquired a vested interest in the strike primarily black and poor potential voters,
punitive policies of criminalisation of poverty criminal disqualifications subtract more votes
and carceral escalation suited to replenishing the from the Democratic than from the Republican
supply of unruly black bodies that guarantee camp and have likely reversed the results of
r UNESCO 2005.Race as civic felony 139
seven US Senate elections in addition to the 2000 Indeed, it suffices to break with the domi-
presidential race by curtailing the minority vote. nant ideology of civic universalism, running from
But this justifiable concern for the skewing of Alexis de Tocqueville to Gunnar Myrdal and
electoral outcomes skirts the deeper significance Louis Hartz and their latter-day epigones,
of the process of felon exclusion, which is to according to which American citizenship was
enforce and communicate the degraded status of ab initio accessible to all those willing to embrace
convicts by turning them into a quasi-outcaste of its liberal ideals and republican institutions, and
the American civic community, irrespective of its to recognise, with recent revisionist political
influence on this or that vote. It is instructive history, that US democracy has been founded
here to recall that, during the phase of imposi- from its inception on a restricted compact for the
tion of the racial restrictions that gradually deserving in which only the ethnically and
erected the Jim Crow regime, opposition to the spiritually worthy partake, for racially skewed
Negro vote in the segregationist South was not felon disenfranchisement laws to cease to appear
proportional to the actual or potential weight of anomalous.12 Far from ‘eroding democracy’, as
blacks at the polls. Rather, it was a principled their critics complain, these laws reactivate and
opposition based on the racial syllogism (or, update one of its deepest springs and remind us
rather, paralogism): voting signifies political that caste division has been a core and not a
equality, which implies social equality, which peripheral trait of US society, a constitutive and
in turn incites sexual assaults on white women, not a teratological feature of American repub-
i.e., threatens the societal myth of the racial licanism. Measures shutting out felons from the
purity of whites (Litwack 1998, p. 221). It was distribution of valued cultural capital, social-
not political expediency so much as caste welfare redistribution, and the vote converge to
necessity that mandated the political exclusion perpetuate a ‘sphere of group exclusiveness’ – to
of the descendants of slaves. The same may well recall Herbert Blumer’s (1958, p. 4) expansive
be true today about felons as they have been definition of racial prejudice – and testify to the
made over into the latest historical avatar of the stratified and restrictive complexion of American
‘bad nigger’. citizenship at the dawn of the new millennium.
Notes
n
This article is the abridged subjectivities, forms of authority 4. A thorough historiographical
version of a talk by the same title and social relations’ at large account of black disenfranchise-
presented to the Colloquium on (Garland 1991). ment in and after the
Inequality and Culture of Reconstruction era is Kousser
Department of Sociology, (1974). Free blacks had already
Princeton University, on 1st 2. In 1997, the Bureau of Justice been the target of a sweeping
March 2004, prepared with the Assistance’s ‘Fact Sheet’ on movement of political excommu-
editorial counsel of Daniel Denial of Federal Benefits nication during the half-century
Sabbagh. It draws on chapter 4 of Program and Clearinghouse listed prior to the Civil War, alongside
my book Deadly Symbiosis: Race 750 programmes for which paupers, vagrants, and felons
and the Rise of Neoliberal Penality eligibility was potentially affected (Keyssar 2000, p. 54–65).
(Cambridge, Polity Press, in by felonious status (Olivares et al.
press). I am grateful to Bruce 1996). 5. When blacks protested that
Western for his invitation and to these measures effectively
the colloquium participants for annulled the 13th, 14th, and
their patient attention and 3. For a more detailed discussion 15th amendments to the US
vigorous questioning. of the evolving legal complexities Constitution, Governor James K.
of penal disqualification and its Vardaman replied forthrightly
1. This argument is indebted to variants than is possible here, the that the convention was ‘held for
David Garland’s explication of reader is referred to Harvard Law no other purpose than to eliminate
‘penality as a set of signifying Review Association (2002), and the nigger from politics; not the
practices’ that ‘help produce the literature cited therein. ‘ignorant and vicious’ as some of
r UNESCO 2005.You can also read
