B. Ritual Theory & Application to Crime
This section outlines basic concepts of ritual studies as a theoretical backdrop for interpreting punishment practices. Academic study has no unified definition of “ritual,” but instead, there are competing accounts in social science, anthropology, psychology, and religious studies, among other disciplines engaged in a common venture that can be called “ritual studies.” This section attempts to lay out some of the common characteristics as distilled from the myth-ritual school, phenomenological, and psychoanalytic approaches. Of the various accounts, the functionalist model, as advanced by Durkheim and later progeny, is the most relevant to this Article. This approach stresses the practicality of ritual activity as opposed to the mystical or emotive aspects, and is more concerned with the “social” work of ritual performance, including enhancing group solidarity, defusing social contradictions, channeling and resolving social conflict, and, as Michel Foucault has argued, exercising power.
Broadly speaking, ritual activity might best be conceived in terms of structure and strategy. The structure of ritual performance corresponds to the quality of a particular act, which articulates a distinctive way in which any action may be performed. That any act can become ritualized is important since it “keeps us from thinking of activities as if they either are or are not ritual,” and instead, “allows us to specify in what respects and to what extent an action can be ritualized. Ritual is not a ‘what,’ nor a ‘thing.’ It is a ‘how,’ a quality, and there are ‘degrees' of it. Any action can be ritualized, though not every action is a rite.” This theoretical orientation lays a foundation for understanding imprisonment and capital punishment as viable subjects for ritual inquiry.
The structure of ritual activity is often related to religious narrative and myth. In the religious context, the activity aims to recreate stories from tradition. A simple example is Catholic communion, a weekly reenactment of the ““last supper” of Jesus and his disciples. The religious narrative supplies the script and the weekly rite is its recital. Religious narrative informs church doctrine and liturgy, and as will be shown, informs criminal law and procedure as well.
As a strategy, ritual often corresponds to concerns about risk, danger, and impurity; “the need to construct a safe and ordered environment;” and the “potency of disorder.” As a psychological mechanism, ritual activity is “geared to the detection of and reaction to particular potential threats to fitness.” The cleansing function of ritual activity is of critical importance in this respect since “fitness” is often threatened by pollution. Pollution is what compromises purity with dirt and disorder, and must be contained by ritual practice.
In the American context, concerns about racial purity produced the infamous ““one-drop” rule and anti-miscegenation laws to combat pollution of the “white” race. Of all social transgressions, the pollution of the “white woman's purity by the black man's sexual assault was the ultimate contamination--an abomination that polluted the community as well as the woman.” The violence of lynching often corresponded to rumors of such rape, which rendered the punishment a ritualistic means of patrolling sexual borders. In later times, the threats of miscegenation reappeared in the civil rights struggles in the 1950s and 1960s, with Brown v. Board of Education ending school segregation and Loving v. Virginia, another high court decision that struck down anti-miscegenation laws. These threats to white superiority represented some of the driving forces of the ritual punishment that ensued in the 1970s, 1980s, and beyond. As in the era of mass lynching, white purity was at stake, and punishment was used to keep order.
Associations between cleanliness and lawfulness have long historical roots, including the “unclean hands” doctrine, which equated unethical activities and bad faith with being “unclean.” Equally ancient are associations between dirt and crime, and in early modern times, cleanliness was an intended goal of legal punishment. The logic was simple:
Low-status persons are polluted persons. Status and pollution in turn are connected to risk: things that we regard as “dirty” or “polluted” are, broadly, things that we regard as freighted with risk. Criminals, of course, are persons whom we regard as presenting us with risk, and it follows that we often tend to regard them as polluted.
Accordingly, for the crime to be adequately punished, it was necessary for wrongdoers to be cleansed of their iniquities before reentering society, and sometimes, there was a cleansing of the location where the crime was committed. In the modern period, the polluting nature of crime is clearly articulated, particularly in the language of political and law enforcement officials' talk of “cleaning up crime,” “cleaning up the streets,” or the “crime-scene cleanup;” labeling schemes that characterize criminals as synonymous with dirt. Thus, when Jose, the “dirty bomber,” Padilla was branded as such, there may have been implications to his name other than nuclear weapons, including crime and the idea of “doin' dirt.” This logic makes it sensible to say that government officials “got off clean” with his imprisonment and torture. Like “dirty criminals” and their “dirty money” that has to be “laundered,” crime symbolizes attitudes that are as basic as when a parole officer asks, ““keeping clean?” As the rest of this Article demonstrates, sometimes the best way to keep clean is to keep dirt under control; if cleanliness is about matter out of place, uncleanliness must be approached through order --law and order, to be more precise.
