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Dean Spade

Permission Requested:  Dean Spade, The Only Way to End Racialized Gender Violence in Prisons Is to End Prisons: a Response to Russell Robinson's “Masculinity as Prison, 3 California Law Review Circuit 184 (December, 2012) (42 Footnotes Omitted)

      In Masculinity As Prison: Sexual Identity, Race, and Incarceration, Professor Russell Robinson explores the creation of the K6G unit of the Los Angeles County Jail. Robinson describes how this unit, designed to protect prisoners who may be targets because of their non-normative gender and/or sexual orientation, operates as a site for the enforcement of racialized and classed norms about sexual orientation and gender. In order to be housed in the K6G unit, prisoners must undergo screening performed by two white, heterosexual deputies. These deputies quiz the prisoners on their familiarity with gay subcultural terminology and details about the West Hollywood neighborhood, a gathering place for white gay men in Los Angeles, in order to determine their suitability for the unit. Once prisoners are admitted to the unit, they wear special powder blue uniforms to differentiate them from general-population prisoners, who wear dark blue. Robinson's article exposes how the racialized, gendered, and classed construction of homosexuality, and the figure of the vulnerable gay prisoner, are produced and enforced in the Los Angeles County Jail to the detriment of queer and trans people of color and poor people who bear the brunt of racist, homophobic, and transphobic policing and criminalization. Robinson argues that the problematic practices of the K6G unit should be contested as a violation of the privacy rights of prisoners.

      Robinson's description of the K6G unit and its screening process offers an excellent site for engaging in a critique of projects that seek to protect those facing the most violent consequences of white supremacy, heterosexism, and gender binarism by achieving recognition or legibility for them in state apparatuses of security that are themselves key locations of that violence. This point is broadly useful given the centrality of recognition- and inclusion-focused legal equality strategies in contemporary white gay politics, which have both been a product of and worked to reify the limited and racist framings of gay identity that Robinson critiques in his article. The most well-resourced and well-publicized examples, extensively critiqued by many scholars and activists, are the efforts to seek inclusion in marriage and military service, which have dominated as the most legible political claims of gay and lesbian rights in recent decades. Scholars and activists have also critiqued hate crimes legislation as a project that seeks recognition for those targeted by violence by expanding the punishing power of the criminal punishment system. Critics argue that hate crimes laws not only fail to prevent violence against queer and trans people, they also build the arsenal of the criminal punishment system, which is the most significant perpetrator of violence against queer and trans people.

      This essay extends this critical engagement with recognition- and inclusion-focused reforms to look at the subject of Robinson's study, the K6G unit. It asks what Robinson's findings might suggest about how queer and trans politics addresses criminalization. Specifically, I argue that prison abolition scholarship provides the critical tools necessary to fully understand why reforms like the creation of a special unit in the Los Angeles County Jail for gay and trans prisoners will consistently fail to address violence and will, in fact, become new sites for enforcing racialized gender and sexuality norms to the detriment of the most criminalized populations. Robinson successfully exposes the absurdity of a project to properly identify vulnerable prisoners by quizzing them about and measuring them against white gay cultural norms. I suggest that privacy arguments do not do enough to help us analyze the problems with the K6G unit. We need the politics and analysis developed by prison abolition scholarship and activism in order to even begin to imagine any solutions that would reduce or eliminate the horrifying conditions facing trans, gender non-conforming, and queer prisoners.

I. Punishment and the State Administration of Race and Gender

      Angela Davis has described the historical trajectory that formed the criminal punishment system as a response to the formal abolition of slavery. As she and others have pointed out, the Thirteenth Amendment's abolition of involuntary servitude includes a very important caveat: “except as punishment for crime whereof the party shall have been duly Davis describes how, in the years following the abolition of slavery, southern prisons drastically expanded and went from being almost entirely white to primarily imprisoning Black people. New laws were passed--the Black Codes--that criminalized an extensive range of behaviors and statuses, such as being unemployed or disobeying an employer, solely where the accused was black. These legal schemes permitted the capture of newly freed slaves into an only somewhat different system of forced labor, control, and racial violence.

      The nature of imprisonment changed during this time. Prisons adopted methods of punishment common to slavery, such as whipping, and implemented the convict leasing system that allowed former slave owners to lease the labor of prisoners, who were forced to work under conditions many have suggested were even more violent than those of slavery. In 1873, 25 percent of all black convicts who were leased died; in 1898, nearly 73 percent of total revenue in Alabama came from convict labor. People were literally captured and worked to death, providing cheap labor for white landowners and revenue for states.

      The contemporary criminal punishment system developed from this adaptation of slavery to create a somewhat different racially targeted form of control and exploitation. The continuation of those tactics can be seen in the prison system's contemporary operations. As Davis asserts,

       Here we have a penal system that was racist in many respects--discriminatory arrests and sentences, conditions of work, modes of punishment ....
       The persistence of the prison as the main form of punishment, with its racist and sexist dimensions, has created this historical continuity between the nineteenth- and early-twentieth-century convict lease system and the privatized prison business today. While the convict lease system was legally abolished, its structures of exploitation have reemerged in the patterns of privatization, and, more generally, in the wide-ranging corporatization of punishment that has produced a prison industrial complex.

      This analysis of the origins of imprisonment helps us understand imprisonment itself as racialized violence. Punishment and imprisonment were and are co-constitutive in the United States with processes of racialization. Today punishment systems are rationalized as race-neutral institutions for determining and punishing individual culpability, but such assertions are laughable in the face of the severe and obvious targeting of people of color in every aspect of policing, pre-trial imprisonment, prosecution, sentencing, imprisonment, probation, and parole. More than 60 percent of the people in prison are people of color, and one in every ten Black men age 30-39 is in prison or jail. Black youth are 16 percent of the youth population, but 28 percent of juvenile arrests, 37 percent of the youth in juvenile jails, and 58 percent of the youth sent to adult prisons. There are countless other statistics that demonstrate the racialized targeting of criminal punishment that is endemic to its formation and operation in the United States. The criminal punishment system in the United States, the most imprisoning country on Earth, is justified by the idea that it contains and neutralizes dangerous law-breakers. In reality, race, not dangerousness or illegal action, determines who is imprisoned. US prisons are full of low-income people and people of color who were prosecuted for crimes of poverty and minor drug use. Racist tropes of Black dangerousness that have been a central part of US culture since slavery are invoked and mobilized in media to justify and normalize the continuing expansion of criminalization and imprisonment. Scholars consistently expose the disconnect between the myth that criminal punishment is focused on public safety and the reality that it operates as targeted racial violence.

      Processes of racialization, like the slavery/criminalization processes described by Davis, are inherently gendered and gendering, and the construction and administration of gender categories is always racialized. Racial and gender classification systems were essential to the founding violence of slavery and genocide that created the material conditions of the nation and endure as political rationales and fundamental categories of administrative operation for all of the projects and programs that constitute the state. From the founding of the United States, the legal rules governing indigenous and enslaved people articulated their subjection through the imposition of violent racialized gender norms, such as the enforcement of natal alienation among slaves and European binary gender categories and gendered legal statuses among indigenous people. From the beginning, racialized and gendered statuses and norms were essential to the colonization and slavery that produced the United States and its legal systems. It is important to note that the statuses and norms established by these systems were, and are, racializing and gendering at the same time. They do not create rules for all women or all men or all white people or all native people or all black people. Instead, the laws governing slavery, land ownership, labor, health, mobility, punishment, and family create very specific statuses and norms according to specific race/gender positions. For example, white women have traditionally been forced into particular forms of domestic, unpaid labor; regulated through containment inside the legally mandated, marriage-based family form; and required to conform to a maternal role focused on “reproducing the race.” White women have been seen as fragile and weak, portrayed in law and politics as unfit for political life and wage labor. Various law and policy reforms, from early labor regulations to domestic violence criminalization, have been advocated on the basis of protecting white women. Meanwhile, black women have been denied access to recognized motherhood--their family bonds not recognized by law--and forced to do heavy labor both outdoors and inside the homes of white people. Their labor has often been excluded from protective regulation and not linked to eligibility for benefits. While white women's sexuality has been revered as pure and requiring protection, black women have been routinely sexually assaulted and abused by white men. Their relationships to their children have been subject to disruption and termination under slavery and racially targeted child welfare programs. The racial and gender norms created through property law, family law, and criminal law establish specific racialized-gendered statuses and norms that can never be adequately analyzed or understood solely through a single vector of harm such as race or gender. The specific vulnerabilities, responsibilities, and chances at life administered by US laws and institutions are racialized and gendered, not universal to all people assigned a particular gender or race category. Thus, to assess the conditions produced by processes such as criminalization, it is essential to analyze the creation of racialized gender norms and statuses that are enforced by legal and administrative systems.

      Trans studies scholars have provided analysis of how racialized gender norms are administered in spaces of concentrated state violence in the contemporary United States. Across the country, the spaces where people of color and poor people are concentrated for surveillance, punishment, targeted abandonment, and premature death--shelters, foster care and juvenile punishment group homes, psychiatric facilities, immigration prisons, jails, and the like--are sex-segregated, rigidly enforcing notions of gender binarism. The enforcement of racialized gender norms in these spaces operates through coercion and violence overseen by state agents, including law enforcement and social service providers. The violence in these spaces includes identity documentation and surveillance, dress regulations, strip searches, sexual assault, forced prostitution, family dissolution, verbal harassment, medical neglect, murder, and other contributors to early death. Sex segregation is a key component of racialized social control, and these institutions focus enormous energy on classifying, policing, harming, and disappearing people who occupy and exceed the borderlands of gender legibility and sexual normalcy. The insights provided by indigenous studies, women of color feminist scholarship, critical race theory, trans studies, and other intellectual traditions help ground an understanding of racialized gender norms as foundational, rather than incidental, to US legal systems and institutions.

II. The Limits of Prison Reform for Addressing Racialized Gender Violence

      Given the central role of racialized gender violence and the deadly administration of gendered racial norms in the programs and institutions of the United States, prison abolitionist scholars and activists have raised key questions about the role of reform projects in perpetuating and expanding these sites of violence. Robinson describes how an ACLU lawsuit led to the creation of K6G. The suit aimed to address the dangerous conditions facing people placed in the “homosexual inmate unit” at the jail, arguing that they were not adequately protected from “predators.” ACLU won a settlement in which the jail was required to establish procedures to protect these vulnerable prisoners. The result was the absurd screening process that Robinson describes, in which white, straight deputies assess whether or not particular prisoners belong in the K6G unit based on their responses to questions that gauge familiarity with white gay male culture.

      This story illustrates the concerns abolitionists have voiced about approaches aimed at refining, improving, or otherwise tinkering with how people are imprisoned. The ACLU's attempt to reform the jail to reduce violence against queer and trans prisoners resulted in a policy that subjects prisoners to a highly racialized screening that prevents queer and trans people of color from accessing purportedly protective segregation. Prison reforms, abolitionists argue, tend to refine and reify the racialized-gendered control of prisons. In general, reforms that try to address the violence caused by state enforcement of racialized gender norms and categories by slightly altering the categories being enforced or by adding additional categories consistently fail to meaningfully alleviate that violence. A typical response to the assertion that trans people face significant violence in prisons and jails is the proposal to build trans prisons. In response to the persistent problems trans people face with identity documents that have gender markers on them that are difficult or impossible to change, the proposal to create a third gender category for government forms and identification often emerges. These kinds of proposals, like the K6G unit, will inevitably fail to address the harms identified. Instead, they will become new sites for racialized gender norms to be enforced as state agents take up their posts enforcing identity categories in ways that will inevitably operate to the detriment of people of color, poor people, people with disabilities, and immigrants. The fundamental projects of security that animate criminal punishment and identity surveillance are established in and exist to secure and protect white supremacy and patriarchy. It is not a design flaw that these systems and institutions are sites of transphobic and homophobic violence. They are working perfectly.

      This analysis raises important questions about Robinson's invocation of privacy claims to address his concerns about the K6G unit. What does it mean to assert individual privacy rights in a system where strip-searches and other forms of forced nudity are daily realities, where consensual sex is criminalized and rape is routine, where filing a grievance or lodging any kind of protest means risking severe violence or death? How might individual rights arguments obscure the nature of imprisonment as racialized state violence? How can one imagine a privacy right in a context of extreme control and constant humiliation and abuse? Given the role of slavery in forming the legal and economic systems of the United States, appeals to the Constitution both obscure how its text, including the Thirteenth Amendment, establishes ever-expanding racialized imprisonment and overlook the daily reality that law enforcement is lawless. It is no secret that police, wardens, parole officers, corrections officers, and Immigration and Customs Enforcement do not follow the laws and policies that are supposed to prevent the outrageous violence and abuse they commit every day. Even when advocates win cases about the access to medical care or nutrition or protection from harm that law enforcement agents are supposed to provide, it is still inadequate, selective, or rarely provided, if at all. Selective enforcement, medical neglect, nutritional deprivation, harassment, and sexual violence are not anomalies in law enforcement systems: they are fundamental to them.

      Because of the nature of our criminal systems and prisons, there is not a fair or safe way for queer, trans, and gender non-conforming people, or anyone, to be imprisoned. Starting from that premise, we can take different approaches to questions of reform, focusing more on decarcerating and dismantling systems of criminalization, and being extremely wary of reforms that purport to offer recognition and inclusion but actually expand and legitimize violent institutions. The best ways to protect queer, trans, and gender non-conforming people from police and prison violence is to keep them out of contact with police and prisons and to support them while they are locked up. In some places, people are pursuing this by working to decriminalize sex work or stop the creation of “prostitution free zones” and other special programs that enhance policing of the sex trade. Some are working to oppose gang injunctions, “stop and frisk” practices, collaboration between immigration enforcement and criminal punishment systems, mandatory minimum sentences, prison building projects, and other expansions of criminalization. Some activists and advocates are focused on individual advocacy for current prisoners, knowing that broad-based policy reform often expands the system or provides an inappropriately “one size fits all” solution. Instead, they advocate on a case-by-case basis for the changes individual prisoners believe will make them safer in their current environment, recognizing that prisoners' situations and contexts differ and prisoners often have the best information about what might be safer in their particular circumstances. Others focus on establishing resources for people coming out of prison to prevent the poverty and housing insecurity that often results in further criminalization. Many are also working to establish community responses to violence that do not utilize police and courts, recognizing that calling the police often escalates violence for queer and trans people of color, immigrants, and people with disabilities. These organizations and projects understand the significant dangers queer, trans, and gender non-conforming people face at the hands of law enforcement and seek to offer material relief by helping people survive these systems, dismantling the pathways to criminalization that entangle vulnerable people, and creating alternative ways for people to get their needs met given that the criminal punishment system promises safety but never delivers. This approach to addressing homophobia and transphobia in criminal punishment systems rejects the quest for inclusion and recognition in violent legal and administrative apparatuses and the fantasy that any constitutional claim before a court will bring relief, and instead seeks the abolition of criminal punishment and immigration enforcement. It properly identifies the fruitlessness of seeking safety at the hands of the most significant perpetrators of racialized gendered violence. The K6G unit and its absurd and terrifying screening process provides an excellent illustration of the necessity of abolition-centered responses to homophobia and transphobia and of a critical understanding of the limits of legal recognition for social movements seeking relief from poverty and violence.

[]. Dean Spade is an Associate Professor at Seattle University School of Law. He is the author of NORMAL LIFE: ADMINISTRATIVE VIOLENCE, CRITICAL TRANS POLITICS AND THE LIMITS OF LAW (2011).