May 24, 2010 Elizabeth Joh
Hear the word “banishment,” and the image that comes to mind will likely hail from an earlier time. Think Anne Hutchinson’s expulsion from the Massachusetts Bay Colony in the seventeenth century, or the transportation of British and Irish convicts to Australia in the nineteenth century. Banishment went the way of the rack and screw, so the thinking goes. Instead, the predominant form of modern punishment is a form of confinement: incarceration. If modern punishment is incarceration, and the criminal justice system its primary source, then anyone interested in modern punishment need look no further.
One of the chief virtues of a sociological analysis of law is that it loosens the grip of rigid thinking like this, particularly with respect to emerging developments that don’t fit into existing categories of scholarly attention. This is the goal of Katherine Beckett and Steve Herbert’s Penal Boundaries, Banishment and the Expansion of Punishment, and they’ve achieved it in such a way that makes it a compelling read for scholars and teachers of criminal law.
Banishment, according to the authors, isn’t dead. In fact, it’s reemerging as a significant form of official punishment. The reason it hasn’t been recognized widely is that it doesn’t come packaged as “punishment,” or even “banishment,” for that matter. The forms of banishment that Beckett and Herbert discuss are categorized as civil or administrative remedies, and so are unlikely to be discussed in the same breath as traditional criminal law offenses. Whatever their label, these strategies are best understood as banishment because they constitute formal spatial exclusion.
Beckett and Herbert look at the functions and consequences of modern day banishment, and rely upon empirical data they have collected from Seattle, Washington, considered to be at the “cutting edge of this trend” (P.5). Beckett and Herbert focus on three forms of banishment: parks exclusion orders, which permit the police to ban persons from public parks for minor infractions like being present after hours; trespass admonishments, which permit the police to act as agents of private property owners in restricting access to places normally open to the public; and off-limits orders that prohibit persons from certain geographic areas of a city as a condition of community release and supervision.
Based on interview data with those who have been subject to banishment, Beckett and Herbert contend that the lived experiences of these “alternatives” to criminal punishment are non-criminal in name alone. Using the terminology from Gresham Sykes’ seminal 1958 study of prisoners in The Society of Captives, Beckett and Herbert demonstrate that the pains of punishment that are associated with incarceration have close parallels in the experiences of those banished. Being legally barred from a place one calls “home,” even if an unconventional home, punishes the banished person in ways ranging from the symbolic (psychic pain) to the emotional (loss of contact with friends and family) and the mundane (difficulty in obtaining access to health services, social workers, and food).
This reemergence of banishment should matter to criminal law scholars for a number of reasons. First, it turns out that these civil alternatives are too often a backdoor to the criminal justice system. While each of the forms of banishment studied in Seattle is classified as civil, violations of park exclusion orders, trespass admonishments, and off-limits orders are criminal offenses. Note too that because the initial orders are civil, an individual subject to, say, a parks exclusion order receives nothing like the procedural protections that a conventional criminal defendant does. (In Seattle, the police may exclude a person from a public park without providing any evidence of wrongdoing.) The effects of the orders can be considerable; large swaths of the city can be designated as forbidden to the banished person. In addition, to the extent that Seattle is representative of the trend, these officially noncriminal tools are resulting in increasingly frequent use of the criminal justice system.
Second, the modern forms of banishment discussed by Beckett and Herbert are driven by the same motivations that spurred enthusiasm for “quality of life policing” in the 1990s. Many police departments credited a focus on the enforcement of minor crimes like public urination and open container violations for the drop in crime in major American cities. But later studies cast doubt on this thesis. Was quality of life policing really the key factor in crime decreases? And who defines “disorder,” anyway? This second question is underscored by the authors’ interview data. Banishment tools may seem to city officials and the police like a clear cut method to rid a city of unwanted behaviors, but from the viewpoint of those on the receiving end of these orders, banishment can be a separation from things, places, and persons that individuals hold most dear.
Third, the very focus of this fine article calls out to teachers of criminal procedure everywhere. Remember in scholarship and in teaching that criminal law enforcement is but one aspect of policing. Police do everything from chasing robbers to getting cats out of trees and enforcing civil and administrative codes. This basic insight has important consequences for the perennial questions in policing, like the tool of wide discretion the police enjoy to take care of the problem of disorder in cities. Civil banishment, as the authors suggest, may be too much tool and not enough problem.
May 3, 2010 Mary Fan
Paul Butler’s new book Let’s Get Free is essential reading for those who care about American criminal justice, prosecutorial power, and doing justice from inside the system. It is also a beautiful rarity for a book of big scholarly ideas: page-turning reading. The writing hums with the rhythm, flow, and narrative of hip hop at its best—one of the inspirations for an intriguing chapter and the book’s subtitle: A Hip-Hop Theory of Justice. The intimate portrait of the prosecutor and the criminal justice system that Paul presents is an important contribution to the literature penetrating the opacity of prosecutorial power, practices and pressures.
It is a tribute to how successfully Paul liberates his scholarly ideas from the stilted prose that dooms legal scholarship to limited readership that one of my law students recommended this hot new book to me. He was moved and inspired by the book enough to spread the word and seek to discuss it. This is the power of great ideas, set in beautiful prose, made compelling through narrative. And narrative is the thread that binds this book of many big ideas.
A Recovering Prosecutor
We begin with a redemption story: Paul is about to impress his mom watching him in trial by letting the prostitute he is prosecuting have it on cross-examination. This is just practice for Paul the star prosecutor rising fast through the ranks to join the elite Department of Justice Public Integrity section. Paul’s story is inspirational. Raised by a single mom in a poor black neighborhood on Chicago’s South Side, Paul went on to study at Yale and Harvard, and then to a prestigious clerkship and law firm.
The story then takes a twist. The star prosecutor becomes the prosecuted. I will not give away the story by revealing for what crime, except to say that it is a ridiculous accusation and would be comedic if it had not been endured by a real person. Paul never told his mom. Poignantly he writes that he would rather have her memory be of her son in trial, not on trial.
Paul thus opens by powerfully and frankly framing his positionality—something anthropologists are wonderful at doing and legal scholars should be more aware about. Arguments are more compelling when situated in context with credibility, vantage, and experience fronted. Paul has credibility in abundance from his complex place as an outsider who made it inside and is now telling us about the system like it is and what we can do to transform it.
Criminal Justice, Indicted
The system is not pretty—and perversely makes us less safe by locking too many people up, Paul writes. With the highest rate of incarceration in the world, we have reached a tipping point where more convictions and incarceration mean less safety. Going to jail is starting to seem like a rite of passage for young men in some low-income communities. When conviction and incarceration start looking normal, the criminal law loses its stigma—draining criminal law of its deterrent power. Moreover, mass incarceration is also counterproductive because it disrupts families and social organizations, which are much more important in constraining crime than any ham-fisted police power or prison. Paul also riffs on how the drug war fuels over-incarceration and how the heavy use of “snitches” — (a word I hate because it is too often misused to silence and intimidate brave people who come forward out of concern for their communities) — stains the integrity of criminal justice and harms communities we aim to help. Paul distinguishes between “snitches”—typically criminals who offer information for a bounty, usually cash or leniency—and people who altruistically step forward to be witnesses.
What of the beautiful dreamers, who hope to change the system from the inside? Dream on, but do not be deluded, Paul tells us. You may go in as he did, thinking he would be the Undercover Brother on the inside, but instead end up collaborating in injustice, Paul writes. He recollects how the system changed him rather than him changing the system. He played a symbolic and legitimizing function in a jurisdiction where the arraignment court line-up of defendants recalls the Ntozake Shange poem that begins “The suspect is always black and in his early twenties.” Butler, the elegantly suited, Ivy-educated, clean-shaven 6’3” black man reassured black jurors in every inflection that everything’s cool, go ahead and convict this scumbag defendant (who contrasts so jarringly with him).
What about the discretion to do justice? Paul tells us discretion is mainly a myth at the line prosecutor’s level. The head of the office may have vast power to set the prosecutorial policy, but the line-level prosecutor must implement. In short, Paul tells us good people should not be prosecutors.
Though I love this book, I do not always agree with it. This is one such point of disagreement. Perhaps it is because I worked under a brave exemplar of a leader, a U.S. Attorney who truly believed in doing justice — even if that meant braving political fire to go after the powerful and not just the poor and easy targets. Then again, she was one of the U.S. Attorneys controversially cut by the Bush Administration. So to paraphrase Paul’s memorable turn of phrase, “the shit’s complex.” But I still have hope that people with courage and integrity can do great things from the inside.
The Beautiful Struggle
My favorite works do not just critique—they offer a vision of transformation. Paul offers a multidimensional vision and many concrete ideas. You may not agree with some or even all of what he argues and proposes. But the genius of the visionary is to open your mind to the universe of possibilities and an array of ideas, some of which may take wing even if others do not.
The nation’s leading expert on jury nullification, Paul tells ordinary citizens what they can do to check a system out of control, raging on the steroid of the War on Drugs. He explains principled nullification when it comes to unjust laws. Do not let the violent criminal off, Paul tells potential jurors, but do spare the casualties of the War on Drugs, swept up for low-level drug offenses.
He also offers numerous other ideas—including a seven-point plan—that I will not outline here because you should read the book. I will just mention one other fascinating proposal. Paul talks about how technology may help liberate us from our addiction to prisons. For example, ankle bracelets are preferable to pushing nonviolent offenders into the brutal boiler of prison, where they are initiated into race-based gangs for survival.
What I love about this book is that it is deeply real and does not shy away from the gritty and the gray. Paul does not ignore the deep conflicts that the criminal justice system must navigate and the need to punish the bullies who hurt others. He has locked up thugs who he thinks should not see the light of day. He powerfully argues, however, that our system should not perversely do violence to communities by incarcerating vast portions of their people for non-violent crimes. The book is at once radical and practical, from a visionary with real-world credibility. We vitally need such practical radicals and visionaries with real-world credibility in the hard task of defining and better realizing criminal justice.
