Controlling the Dangerous Classes: The Case of Immigrants and the Criminal Justice System in the United States*

                      

 

Randall G. Shelden

 

 

 

 

*Paper prepared for “Merging Immigration and Crime Control: An Interdisciplinary Workshop,” University at Buffalo School of Law, April 27-29, 2006.

 

Introduction

 

The history of the American criminal justice system reveals that one of the major functions has been to control groups of people considered as “dangerous” to the status quo. Many of the daily activities of the American criminal justice system have revolved around controlling, regulating, containing or in some way “keeping tabs” on those groups deemed “dangerous.”  This term is similar to what Marx called the lumpenproletariat, first used in his famous work with Engles, The Communist Manifesto, and originally published in 1848.  In the various English translations since then, the term “dangerous class” has been used instead of “lumpenproletariat.”  In its original usage, Marx and Engels referred to this segment of society as “the social scum, that passively rotting mass thrown off by the lowest layers of old society.”[1] The key idea that Marx conveyed is that this special segment of society was inevitable under capitalism in that it is “not wholly integrated into the division of labor.”[2]  For Marx, this was more of a moral evaluation of a certain segment of society.

A closely related term is what Marx referred to as the relative surplus population or reserve army which refers to a more or less chronically unemployed segment of the population, primarily because of mechanization which renders them “redundant” and hence “superfluous” as far as producing profits is concerned.  This segment helps keep wages down and is absorbed back into the general working population when labor is scarce.  This group is also a “lever of capitalistic accumulation” and in fact is “a condition of existence of the capitalist mode of production.”[3]  It should be emphasized here that this “surplus” population should be seen as a much larger category of people than the lumpenproletariat, the latter of which comes closest to what I would refer to as the “dangerous classes.”

This population has shown a remarkable growth during the last couple of decades of the 20th century, especially when we consider this on a global scale.  Weiss suggests that there are three parts to this “surplus population” as follows:  (1) the “officially” unemployed who are actively seeking work; (2) a group of completely discouraged workers at the bottom of the social order; (3) those who are “invisible” because they are not actively seeking work by reporting to state employment offices (those who are "unemployed" are those who are registered with these state offices).[4]

There is, it should be noted, a “dual character” to the dangerous classes or surplus population.  As Spitzer has noted, the surplus population has at times been viewed by those in power as a “threat” (viewed as social “junk” or “dynamite” - as was the case with almost the entire working class in the early years of the labor movement during the last half of the 19th century) or as a possible resource (e.g., a form of cheap labor or a group to exploit in order to keep wage levels down).[5] Moreover, the exact nature of this class has changed over the years, ranging from the working class in general in the 19th and early part of the 20th century, to very specific categories in more recent years, such as racial minorities, and especially illegal immigrants.  This last category has become especially threatening in the post 9/11 era.  More about this in a later section of this paper.

Many other writers have echoed the same themes, while using different words.  Thus, for example, John Irwin's excellent study on the functions of the modern jail, maintains the view that jails function to manage the “rabble” in society, rather than focus on serious crime per se.  By “rabble” Irwin means the “disorganized and disorderly and the “lowest class of people.”  They are people who have been regarded as “disreputable” and “detached” from mainstream society.  Just like social welfare has been used to “regulate the poor,” jails have been used for a similar purpose.[6]  In his most recent book, Irwin argues that the modern prison functions to “warehouse” and “dispose of” the “new dangerous class,” mostly urban lower class black males.[7]

This theme is echoed not only by Irwin, but also by and Jonathan Simon in his historical study of the parole system.  In fact, Simon is quite explicit on one of the main functions of the parole system in that it has become part of one of the main functions of the modern criminal justice system, namely, in his words to “secure” the underclass. He argues that in modern times in the middle of “declining public spending on most forms of social support for the poor, criminal justice is one of the few programs left that takes tax dollars from relatively better-off communities and their governments, and spend them on relatively poorer communities and their governments (even if only to lock them up).”  However, continues Simon, what is happening is that such resources are not used so much to control crime as to contain crime “in the underclass.”[8] What is even more important to note here is Simon's characterization of what is occurring as what he calls “waste management.”  He argues that since many of the young males caught up in the criminal justice system may likely become “lifetime clients” of this system, it behooves governments to figure out methods of maintaining this population “at the lowest possible cost.”  This, says Simon, means that we may have to rethink our reliance upon an increasingly costly penal system. Hence an expansion of parole.  It should be noted that Simon was predicting this in a book published in 1993, and since that time the prison system has expanded to reach an all-time high, although to be sure the number of those on probation and parole have also expanded at about the same rate.[9]

In my book, Controlling the Dangerous Classes, I did not intend to offer a precise definition of the term “dangerous classes.”[10] Historically, different groups have been so labeled at different points in time.  This is especially the case in the various attempts to control the use of drugs. Among the groups targeted via various drug laws during the past 150 years or so include: (1) the Chinese and opium laws around the late 19th and early 20th centuries; (2) marijuana legislation, which targeted mostly Hispanics and African-Americans during the 1930s; (3) heroin laws, targeting especially African-Americans in the 1950s; (4) various psychoactive drugs (LSD, etc.) used by mostly white “hippies” and ant-war activists, the “dangerous classes” of the 1960s; (5) “crack” cocaine used by mostly African-American inner-city youth, along with women (especially minority women) in the 1980s. 

Prohibition laws throughout the 19th and well into the 20th century focused mostly on lower class immigrants, starting with the Irish in the mid-19th century.  Most of those in the forefront of the Temperance movement were middle and upper class people who associated most of the problems of urban America with the consumption of alcohol.  Corporate leaders argued that drinking (especially in working class saloons) would interfere with productivity and profit. It was no accident that saloons were often the location of much labor organizing.  And most of those organizing and most union members were immigrants.  So for the dominant classes, “clamping down on drinking and saloons was part of a much broader strategy of social control...”  In fact, the passage of the 18th Amendment to the Constitution was considered a “blow against Bolshevism and anarchy...”[11]

               It has become a cliché but bears repeating that the United States is a “nation of immigrants.” Indeed, accepting those from other countries has been as American as “apple pie.”  This is revealed quite succinctly and emotionally in the words etched into the Statue of Liberty: “Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore, Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door” (written by Emma Lazarus in 1883).  The historical record, however, reveals that such altruism was not always evident. Starting almost immediately after the American Revolution, the dominant classes readily accepted the cheap labor supplied by immigrants, but treated them like slaves. The criminal justice system was repeatedly used to keep them in their place and to violently repress any attempts on their part to protest their condition in life.  Any reading of the history of the labor movement proves this.[12]
               Most often the various components of the criminal justice system function to regulate and contain various immigrant groups within specific neighborhoods, focusing especially on mostly petty crimes, while ignoring the crimes of the wealthy (witness the hands off policy toward the “robber barons” of the late 19th century).  Some specific examples will suffice, beginning with the early years of the juvenile justice system.
 

Controlling Immigrant Youth: The Early Years of the Juvenile Justice System[13]

 

In the United States, interest in the state regulation of youth was directly tied to explosive immigration and population growth. Between 1750 and 1850 the population of the United States went from 1.25 million to 23 million. The population of some states, like Massachusetts, doubled in numbers, and New York's population increased fivefold between 1790 and 1830. Many of those coming into the United States during the middle of the nineteenth century were of Irish or German background; the fourfold increase in immigrants between 1830 and 1840 was in large part a product of the economic hardships faced by the Irish during the potato famine. The social controls in small communities were simply overwhelmed by the influx of newcomers, many of whom were either foreign born or of foreign parentage.

This was to change, slowly at first, with the transition to capitalism (specifically the factory system in the New England area) during the late eighteenth and early nineteenth centuries. With the breakup of colonial society, in addition to the beginning of immigration, came an influx of poor, homeless young people, many of whom flocked to the cities of the Northeast, particularly New York. With this increase came a growing concern among prominent citizens about the “perishing and dangerous classes,” as they would be called throughout the nineteenth century.  With the shift from agriculture to industrialism came the age of adolescence and with this age came the problem of “juvenile delinquency” and attempts to control it.

During the early nineteenth century prominent citizens in the cities of the East began to notice the poor, especially the children of the poor. The parents were declared “unfit” because their children wandered about the streets unsupervised and committing various assortments of crime just in order to survive. Many believed that here was the major source of problems in “social control” and forerunners of even greater problems in the future.  It was the class of poor and immigrant (in this era the Irish) children and their life styles and social position that would soon be associated with crime and juvenile delinquency.

A number of philanthropic associations emerged in eastern cities to deal with these problems. One of the most notable was the Society for the Reformation of Juvenile Delinquents (SRJD), founded in the 1820s...   A member of this group, lawyer James W. Gerard, expressed a view that was typical of other members of this society when he commented that most of the children appearing in the criminal courts of New York were “of poor and abandoned parents” whose “debased character and vicious habits” resulted in their being “brought up in perfect ignorance and idleness, and what is worse in street begging and pilfering.” The solution that was offered became one of the most common solutions to the problem of delinquency in years to come: remove the children from the corrupting environments of prisons, jails, “unfit” homes, slums, and other unhealthy environments and place them in more “humane” and healthier environments.

The SRJD, composed primarily of wealthy businessmen and professional people, convinced the New York legislature to pass a bill in 1824 that established the New York House of Refuge, the first correctional institution for young offenders in the United States. The bill created the first statutory definition of juvenile delinquency and authorized the managers of the refuge “to receive and take into the House of Refuge... all children as shall be convicted of criminal offenses ...or committed as vagrants” if the court deems that they are ‘proper’ objects.”

The statutes contained vague descriptions of behaviors and life styles which were synonymous with the characteristics of the urban poor (especially Irish immigrants). Being homeless, begging, vagrancy, and coming from an “unfit” home (as defined from a middle-class view point) are examples. The legislation that was passed also established specific procedures for identifying the proper subjects for intervention and the means for the legal handling of cases. According to law, the state, or a representative agency or individual, could intervene in the life of a child if it was determined that he or she needed “care and treatment,” the definition of which was left entirely in the hands of the agency or individual who intervened.

Immigrants received the brunt of enforcement of these laws, especially children of Irish parents. Pickett notes that a house of refuge superintendent accounted for a boy's delinquency because “the lad's parents are Irish and intemperate and that tells the whole story...[14] The results of such beliefs are reflected in the fact that between 1825 and 1855 about two-thirds of those sent to the refuge were Irish.

The majority of those committed to the New York House of Refuge were children whose parents came from working-class backgrounds, many of whom could be classified as “working poor” or just plain poor.[15] Rothman notes that the family was generally considered a major source of the problem. He writes that such phrases as “poor upbringing,” “bad habits,” “drinking,” and “immorality” (indicative of an anti-Catholic bias so common at that time) were commonly heard. Other factors commonly associated with crime and delinquency included the lack of respect for authority and failure to abide by the “work ethic” (ironic since most immigrants were so eager to come to this country and work). All of these were characteristically associated with the behavior, life styles, and living conditions of the urban poor (especially Irish-Catholics).[16]

While the early nineteenth century reforms did not have much of an impact on crime and delinquency, they did succeed in establishing methods of controlling children of the poor (and their parents as well).  Rothman concludes: “The asylum and the refuge were two more bricks in the wall that Americans built to confine and reform the dangerous classes.”[17]

 

The Role of the Police in Controlling the Dangerous Classes

 

The historical record is clear with regard to the functions of the police: one of the main roles of this institution was and continues to be controlling the dangerous classes.  In fact, early histories confirm that the establishment of full-time uniformed police departments came about on the behest of the wealthy who feared disorder among the poor and the working classes. The formation of the Metropolitan Police of London, for instance, was supported primarily because of a growing concern by those of wealth and power about the presence of mobs.  One historian has argued that the passage of the Metropolitan Police Act would shield the rulers from the masses. 

 

If the power structure armed itself and fought a riot or a rebellious people, this created more trouble and tension than the original problem.  But, if one can have an independent police which fights the mob, then antagonism is directed toward the police, not the power structure.  A paid professional police force seems to separate "constitutional" authority from social and economical dominance.[18]

 

               In American, throughout the nineteenth century there was widespread political turmoil and resistance as workers, in response to gross exploitation by capitalist owners, sought to gain some form of democratic control of their lives, especially the workplace.  The owners used various techniques to keep workers in line, such as hiring “scabs” to work while workers were on strike, token advancement of leaders, and, more commonly, the use of both private and public police forces.  The police became the tools of the owners in many cases, for they were ordered to break up strikes and arrest workers on vague charges, such as “disorderly conduct.” The police, in short, were hired to assist factory owners in their attempts to defeat the growing labor movement, led mostly by immigrant workers.[19]

At the height of the labor movement occurred the Haymarket bombing in Chicago in 1886, as about 3,000 workers assembled at Haymarket Square.  About 180 policemen were ordered to be present.  A bomb exploded, killing seven policemen.  Eight so-called “anarchists” were arrested, tried, convicted and sentenced to death, despite little evidence that they did it; four were hanged, one committed suicide in jail and three were eventually pardoned by Illinois Governor John Altgeld and sent to prison.  To the present date, no one knows who threw the bomb and serious questions have consistently been raised about the guilt of those arrested.  This case drew international attention and would continue to draw protests well into the 20th century.  Subsequent to this event, police continued to be hired by industrialists to quell labor protests, which often led to indiscriminate violence against protestors and arrests and imprisonment on disputed or minor charges.[20]

Finally, mention should be made of the series of events during and after World War I and the Bolshevik Revolution.  It was during this time that we had the “Red Scare” resulting in the massive roundup and deportation of thousands of immigrants of Eastern European descent and in particular Italians.  I am referring to the “Palmer Raids of 1919 led by Attorney General Mitchell Palmer who ordered the roundup, based upon a plan devised by a man named John Edgar Hoover, who went on to become the FBI director for several decades.  It was also during this time that we had the famous Sacco and Vanzetti case, who were accused of murder and robbery and were eventually tried, convicted and executed in one of the most controversial cases of the 20th century.  Questions surrounding their guilt remain today.[21]

 

Housing the Dangerous Classes: The American Penal System

 

               Although the modern prison formally emerged in the late 18th century in both England and America, similar forms of punishment began to appear as early as the 16th century with the development of “workhouses” or “houses of correction,” terms often used interchangeably with “poorhouses.”[22] As so many scholars have noted, there was a close parallel between the prison system and the factory; in fact, some of the earliest prisons were modeled after the “panopticon” design promoted by Jeremy Bentham, a design originally used for the factory system.[23]  It was not by accident that the vast majority of prisoners within these first institutions were immigrants.  Throughout the 19th century prison populations continued to grow, as did the construction of new prisons, mostly in reaction to the increasing number of arrests made by the police – arrests of mostly immigrants.  Many of these arrests, as already noted, occurred within the context of labor unrest. It would be hard not to conclude that prisons functioned primarily to control immigrant workers – part of the “dangerous classes” of that era.

 

Using the Criminal Law to Control the Dangerous Classes

 

Immigrants were often subjugated by means of criminal law in order to provide capitalists a steady supply of cheap labor during the nineteenth century and well into the twentieth.  The legal system lent support to and made possible capitalist expansion in the nineteenth century.  For instance, Chinese people were recruited to do the back-breaking work of building the railroads to the West, beginning with the Gold Rush in the 1840s.[24]

However, shortly after the railroads were completed and their labor was no longer in great demand, the Chinese began to be looked upon as "dangerous," "criminal," "deceitful and vicious," and "inferior." In 1882 Congress passed the Exclusion Law which prohibited Chinese workers from entering the country and denied them citizenship rights.  Between 1882 and 1902 Congress passed a total of 13 discriminatory laws against the Chinese people.[25] 

Laws were passed that restricted Chinese from owning property, from testifying in court, and from becoming naturalized citizens.[26]  Japanese-Americans suffered a similar fate, especially during World War 11 when many were imprisoned in concentration camps.  As Burns notes: “The barbed wire policy was authorized by the President, implemented by Congress, and ultimately approved by the Supreme Court, on the ground of national security.”[27] (See below for more details.)

European immigrants were also the subjects of selective laws, once American capitalists had made full use of their cheap labor. Corporations (especially railroads) actively recruited European peasants through the benevolence of state legislatures which established the legality of having corporate agents do the recruiting.  Although several groups wanted immigration restricted, it was not until the 1920s that Congress enacted laws to this effect.  The Johnson-Reed Immigration Act of 1924 placed quotas on the number of immigrants allowed to enter the country.[28]

The situation of Mexican-Americans was similar to that of those groups discussed above.  Railroad owners and large southwestern agricultural growers recruited Mexican-Americans in large numbers to do the menial work.  Following the passage of the Johnson-Reed Immigration Act the agricultural growers in the Southwest put pressure on Congress to exempt Mexican-Americans from the quota that this Act established, and Congress acceded to their demands.  It was not until the Depression of the 1930s that the Border Patrol emerged and actively restricted immigration.[29]

Finally, virtually every anti-drug law (including alcohol during Prohibition) has targeted immigrant and other minorities.  Take the case of the Chinese and Opium. The first influx of opium into the United States came with Chinese workers (commonly known as coolies) starting in the 1850s. Opium was used to combat the psychological pain of their work and as relief from physical illnesses.  From the point of view of employers, it was good business (both in a profit sense and in terms of pacifying workers).

Opium came into the United States legally through normal business channels. By the 1880s, however, when mining and railroad building had declined, the United States became concerned with the number of Chinese (and other) immigrants coming into the country.  The United States and China agreed to stop Chinese immigration in return for a reduction in opium going to China via American shipbuilders.  The first anti-opium legislation passed in 1886, making it illegal to trade in opium.[30]

After the civil war, attitudes began to change and there developed strong opposition toward the smoking of opium; an attitude directed mainly toward Chinese immigrants. Opium smoking - in contrast to opium drinking in the form of laudanum and similar legally prescribed products (used by middle and upper class people) - eventually became associated with criminal activity and demand for the control of opium dens grew.   In response, the first recorded drug law in the United States was passed in 1885, an ordinance in San Francisco banning opium dens.[31]  To quote a newspaper at that time, such an ordinance was passed for fear that “many women and young girls, as well as young men of respectable family, were being induced to visit the dens, where they were ruined morally and otherwise.”[32]

The regulation of opium smoking came to epitomize the widespread fear and hostility of Chinese immigrants.  It also “became the catalyst for the ensuing wave of reform sentiment that began to sweep the country respecting the use of any narcotics.”  These fears put extraordinary pressures upon policy makers, the result of which was the passage of the Pure Food and Drug Act of 1906.  This Act required manufacturers to disclose the amounts of alcohol or “habit forming” drugs (specifically opiates and cocaine) on product labels, although the law did not restrict the sale or use of these substances.[33]

During the past couple of decades, the “war on drugs” has resulted in widespread arrests and incarceration of mostly African-Americans and Latinos – the modern version of the “dangerous classes.”  Distinctions between “crack” and powder cocaine reveal an obvious class and racial bias; the former being used mostly by racial minorities, the latter by middle class whites.  Possession and sales of “crack” results in draconian sentencing compared to the powder version.[34] Since the 1980s the incarceration rate for minorities on drug charges has soared in comparison with whites (blacks are twice as likely as whites to be in prison on a drug charge).[35] 

 

Japanese-Americans: The “terrorists” of World War II?

 

               On February 19, 1942 President Franklin Delano Roosevelt signed “Executive Order 9066,” resulting in the removal and incarceration in “relocation centers” more than 100,000 American citizens of Japanese descent.[36]  David Cole presents a case that could have easily occurred last year.  Masuo Yasui, a respected businessman (director of a bank) in Oregon, was placed on a list of potentially “dangerous” Japanese nationals who were to be considered for “internment” as “enemy aliens.”  Mr. Yasui’s son tried to represent him in court.  Part of the hearing is described by his son Min:

 

They produced some very childish maps of the Panama Canal, and they were saying, “Do you know what these are?”  Dad looked at them and said, “They look like maps of the Panama Canal.”  “How did you get them?” he was asked.  “Well my kids drew these maps in school.”  The maps were illustrations of how the locks worked.  The questioner said, “This shows how you were trying to disguise a nefarious plot to blow up the Panama Canal.”  Dad said, “Of course not, I had no such intention.”  “Well, prove that you didn’t have such an intention,” they replied.

 

Mr. Uasui obviously could not prove a negative and was thus “interned” from 1942 to 1945.[37]

 

Illegal Aliens and “Terrorists”: The New Dangerous Classes?

 

Nineteen-year-old Ahmed Atta made the mistake of having the wrong last name; in this case the same last name as one of the men who hijacked one of the jets that crashed into the World Trade Center on September 11.  Although his last name is a rather common one in the Middle East - sort of like Jackson, Richards, and many other American names - he got caught up in one of the largest police dragnets in the past 100 years.  According to a Los Angeles Times story (November 4), Mr. Atta and his roommate Salman Hyder, were two college students in Southern California attending college on a student visa.  But he made the mistake of taking on a part-time job, to help pay expenses.  It seems that this is against one of the myriad rules applying to student visa recipients.  Not that this would ordinarily draw attention, but these are times of national hysteria.  In the case of Mr. Atta and his roommate, such hysteria resulted in their detention by the Immigration and Naturalization Service (INS).  Finally, on December 11 they were released on bond - Ahmed on a $50,000 bond (while placed on electronic surveillance), Hyder on a $100,000 bond.

In still another case, a 21-year-old college student in San Diego with another common Middle Eastern name - Osama Awadallah - was accused of lying to a grand jury probing the 9/11 attacks.  He testified that he knew one of the hijackers, but was charged with lying about the exact nature of his association with another hijacker.  ABy lying to the grand jury, the defendant=s acts promoted terrorism,@ claimed a U.S. attorney prosecuting the case.  He was finally released on bail (he was being held in a New York jail) after about three months (Los Angeles Times, 12/14/01 and 12/15/01).

Then there are the cases of a 34-year-old Egyptian who was taken from his Southern California home and taken to a detention center in Brooklyn and housed with about 60 other Arab Muslims.  Plus dozens of Mauritanians rounded up in northern Kentucky and detained, based mostly on tips that turned out false (Los Angeles Times, 11/4/01).

All of these men - and thousands more - have been questioned about their knowledge of terrorist activities, with many being locked up with little or no access to a lawyer. As more and more details are uncovered, the government’s “war on terrorism” resembles the round up of Japanese-Americans during World War II.  An analysis of Justice Department figures, done by the Washington Post in 2005, shows that only 39 out of 400 suspects have been convicted of crimes related to terrorism or national security.  Most have been convicted of minor crimes not even remotely connected to 9/11.  The Post story notes that “Among all the people charged as a result of terrorism probes in the three years after the Sept. 11, 2001, attacks,” there was “no demonstrated connection to terrorism or terrorist groups for 180 of them.” The Post story also noted that less than 10% of all the individuals on the list of 400 “had an alleged connection to the al Qaeda terrorist network and only 14 people convicted of terrorism-related crimes.”

The above list of prosecutions does not include suspects held at the Guantanamo Bay military prison or at secret locations around the world, nor about 50 people the Justice Department has labeled as “material witnesses,” or three men held in a military prison in South Carolina, one of whom has been released, the story continues.[38] A story in the Chicago Sun Times reports that “more than half of the terror suspects being held at Guantanamo Bay have not been accused of committing hostile acts against the United States or its allies,” according to a report from lawyers representing two detainees. Of more than 500 detainees, only 8% are listed as “fighters for a terrorist group,” while 30% are considered “members of a terrorist group,” and the rest were just “associated with” terrorists.[39]

Finally, according to a story in USA Today, the FBI has reported that between 2001 and 2005, the number of terrorism-related cases quadrupled from 84 to 336.  Back in December of 2005 the US Attorney General Alberto Gonzales reported that the stepped-up efforts by the FBI had resulted in a “track record of success” which included, in his words, several “significant convictions” in 2005.  However, the average sentence for these kinds of cases in 2005 was 58 months, which was about 50 percent less than for typical drug violators and one-third less than for weapons violators. Further, about half of those convicted of terrorism-related violations received sentences of a year or less. USA Today noted that Gregory Wallance (a former federal prosecutor) “says those figures show that the Justice Department may be padding its numbers by labeling immigration and other low-level violations as terrorism cases.”  The story then notes that according to a GAO study in January, 2003 found that of 174 terrorism convictions, about three-fourths were mislabeled “terrorism.”  The 174 cases included “60 students of Middle Eastern background who cheated on English-language proficiency tests.”[40]

These figures should not be at all surprising, for the criminal justice system has consistently focused its attention mostly on relatively minor offenses, while at the same time publicly stating that their focus is on “serious” crime and “dangerous” criminals.  Like “Three Strikes and You’re Out” and similar “get tough” legislation, the system finds few that fit the “truly dangerous” category and then has to target lesser crimes and offenders, often relabeling them as “dangerous.”  After all, they have to somehow justify all the expenses and all the hype.

In the early years of the 21st century the criminal justice system once again finds itself a useful tool in the control of a new type of “dangerous class” – “illegal aliens” and “terrorists.”  In the case of the former, we have the furor over the huge influx of people from mostly Mexico coming across the border to fill hundreds of thousands of low wage jobs. The exact number of these “illegals” is not known for certain and estimates vary widely, depending upon the source, ranging from 7 million to 20 million.[41]  In many ways, these individuals are being used as scapegoats to a number of social and economic problems, not the least of which is the large number of jobs “outsourced” to Third World nations.  Fear and ignorance abound, as witnessed by the number of news stories in recent years, with titles like “Illegal Immigration Fears Have Spread,”[42] while various groups have taken matters into their own hands using vigilante tactics, such as the “Minuteman Project.”[43] Border Patrol and other law enforcement agencies have been busy making arrests.  There were an estimated 580,000 arrests in Arizona alone in 2004.[44] A recent report by the San Francisco Chronicle noted that the Border Patrol made an estimated 1.2 million arrests in 2005.[45]

Contrary to popular conceptions, “illegals” from Mexico and other countries south of the border have not driven down wages nor contributed to reduced job prospects.  A study in California demonstrates this, showing that the majority (86%) of the estimated 2.4 million immigrants from Mexico and other Latin American counties arrived since 1990.  Yet during this same period unemployment rates have remained virtually the same and job growth has been greater than the national average.  The study also shatters the myths about jobs being taken from American workers, concluding that “The arriving workers are concentrated in a few low-wage sectors — although they comprise 4.3% of the U.S. workforce, in 2004 they held 19% of jobs in farming, 17% in cleaning and 11% to 12% in food preparation and construction.” The study also found that, like immigrants in previous eras, the longer they remain in the country, the greater will be their chances of rising up the socioeconomic scale.[46]

As for the “terrorists,” federal prisons (including those operated by the Naturalization and Immigration Service) are filled to capacity.  The penal system for these suspects has been described as a new form of “Gulag” by some critics.[47] The number detained under the jurisdiction of the Bureau of Immigration and Customs Enforcement (formerly the INS) 21,065 on December 31, 2002 (latest figures available).  This number represented a 46% increase over 1995.  Additionally, there were 2,377 prisoners held under military jurisdiction, plus 16, 206 prisoners held in the custody of correctional authorities in U.S. territories.  These numbers together add up to 39,648.[48]  How many of these are “illegal aliens” from Mexico is not known.

In the latest twist to this sad story, a prison operated by Corrections Corporation of America has plans to remodel one of their prisons in Taylor, Texas to make room for the temporary housing of illegal immigrant families currently being detained by U.S. Immigration and Customs Enforcement. Presently only one such facility exists in the country (in Berks County, Pa.).  CCA plans to add toys, safety scissors, playground equipment, plus classroom space and instruction for both children and adults.  The prison is called the T. Don Hutto Correctional Center and will have its name changed to the T. Don Hutto Residential Center.  This is typical of the “newspeak” language of the modern penal system.[49]

 

 

Some Concluding Thoughts

 

               Capitalism creates and perpetuates inequality, which has come in many forms, including class, race and gender.  The passage and enforcement of criminal laws has consistently reflected these inequalities.  About 30 years ago Richard Quinney observed that the criminal law serves “to secure the survival of the capitalist system, and, as capitalist society is further threatened by its own contradictions, criminal law will be increasingly used in the attempt to maintain domestic order.”[50]  We have seen the criminal law and its enforcement do just this, time and time again since the 19th century.

               What is perhaps even more interesting is that Quinney linked the use of the criminal justice at home with actions by the military abroad – in his time, the Vietnam War.  He wrote that the criminal justice system and the military apparatus abroad “are two sides of the same phenomenon: both perpetuate American capitalism, the American Way of Life.”[51]  Our military actions abroad have repeatedly been used to export our own brand of capitalism, mostly within the borders of Third World countries, with millions left dead or near starvation, amply documented in many sources.  Many understandably have branded such actions as a form of “terrorism.”[52]

This analysis sounds eerily appropriate to what has happened in recent years.  In many ways the control of crime has taken on many of the characteristics of the military, or what some have called the “militarization of criminal justice.”[53] Echoing Quinney, Peter Kraska makes the point that there is an underlying ideology of militarism that clearly has been borrowed in the “war on crime” (not to mention the “war on drugs”), which he defines as “a set of beliefs and values that stress the use of force and domination as appropriate means to solve problems and gain political power, while glorifying the means to accomplish this – military power, hardware, and technology.”  This also involves a “blurring of external and internal security functions leading to a more subtle targeting of civilian populations,” plus an ideology that places emphasis on the efficient solving of problems that require the use of state force, the latest and most sophisticated technology, various forms of intelligence gathering, the use of “special operations” (e.g., SWAT) in both the police and within the prison system, the use of military discourse and metaphors (e.g., “collateral damage,” “under siege”) and last, but not least, collaboration with “ the highest level of the governmental and corporate worlds, between the defense industry and the crime control industry.”[54] 

How big is this network of social control?  One way to answer this question is to borrow the popular phrase, “follow the money,” for the money involved is truly staggering.  To begin with, expenditures on the criminal justice system came to $147 billion in 1999, the latest year available.[55] One writer estimated that by 2005 annual expenditures will be more than $200 billion.[56]  Taking the average annual percentage increase over the past five years (8.4%), currently (2004) the expenditures would come to around $208 billion; therefore this figure will be used for the estimates given here.  Over 8 million are employed in the criminal justice system (as of March, 2001).[57]  Then there is the truly vast private security industry, which includes more than 15,000 firms with annual revenues totally about $40 billion.[58] How many are employed in this industry is not known, but a USA Today report (2003) noted that there are more than 1 million security guards nationwide, also noting that this is a $12 billion industry.  Also included is the recently formed Department of Homeland Security, with a budget of $41 billion.[59] Homeland Security includes several different departments, including the Border Patrol, Immigration and Naturalization Services, the Coast Guard, Secret Service and many more.[60]  According to one estimate about 165,000 are employed within this department.[61]  Finally, there’s the Pentagon budget, reaching an all-time high of a proposed $439 billion in fiscal 2007.[62] The total expenditures for all of the above come to about $663 billion.  The total number employed in these components is almost impossible to calculate.  As for the military, there were about 1.4 million on active duty in fiscal year 1999.[63]

               The above total leaves out a lot and has been subjected to much criticism. For instance, according to the War Resisters League the real amount for the defense budget should be about $563 billion since the official budget leaves out a great deal of expenditures related to the military (e.g., the military portion from other departments -  $114 billion).[64] For instance, we have no idea how many businesses are involved in providing various kinds of products and services to agencies of the criminal justice system, Homeland Security and the military.  Concerning the military, not counted in the Pentagon budget is the cost of the current war in Iraq.  The latest count comes to around $273 billion as of April, 2006.[65]  It is not possible at this time to provide anything more than crude estimates of the number of people employed in private businesses that provide products and services to the various agencies of social control, nor the extent of the revenues obtained from such services.  It would be safe to assume, however, that revenues come to several billions of dollars.

               The above estimates come to at least $973 billion in expenditures and revenues.  As for estimating the number employed, if we take the estimated 15,000 firms in the private security industry and assume an average of about 100 employees per firm, we have about 1.5 million in the private security industry (more than the above-referenced 1 million security guards).  This would bring the total employed to more than 11 million.[66]  The following table illustrates these estimates.

 

Text Box: The Scope of the Social Control Network (Crime Control & Military)
 
Component                                          Expenditures (in $Billions)
 
Criminal Justice System                         $208
Private Security Guards                              12
Dept. of Homeland Security                                    41
Pentagon (defense budget FY 2007)                      439
 
Total                                                                 $973
 
Component                                          Employment (in millions)
 
Criminal Justice System                         8.0
Private Security Guards                                      1.5
Department of Homeland Security                       0.165
Military (active duty)                                           1.4
 
Total                                                                 11.065

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

There are more than 2 million people locked up in American jails and prisons on any given day.  Adding in the number on probation or parole, we find that almost 7 million are subjected to control within the criminal justice system, a system that processed more than 20 million people last year.[67]

Finally, there is the rather astonishing figure of 47 million American citizens (about one-fourth of the adult population) who have criminal records on file with some state or federal agency!  This is a truly amazing statistic.[68]  That brings the total of current and previous criminal justice “clients” to more than 65 million people, not counting juveniles on probation, parole or under some other form of supervision!  It might be said without much exaggeration that the criminal justice industrial complex reaches into every nook and cranny of American life.

               At a minimum, we have a society that employs over 5 million people (probably more) whose main job is connected in some way with the social control of literally billions of citizens both here and abroad, with expenditures that are at least three-quarters of a trillion dollars.  Given the money and the number employed, it is safe to say that the control of crime and related security concerns is one of the most important industries in the world.

               It may be the ultimate irony that the majority of those living in the richest and most heavily armed country in the world still do not feel safe and put “national security interests” high on their list of concerns.


 

Notes


 

[1] Eastman, M.  (Translator and editor). 1959. Capital, the Communist Manifesto and Other Writings.  New York: the Modern Library, p. 332.

 

[2] Giddens, A. (1971). Capitalism and Modern Social Theory.  New York: Cambridge University Press, p. 38.

 

[3]  Ibid, p. 57.

 

[4] Weiss, R. (1999). “Conclusion: Imprisonment at the Millennium 2000 - Its Variety and Patterns Throughout the World.”  In R. P. Weiss and N. South (eds.), Comparing Prison Systems: Toward a Comparative and International Penology.  Amsterdam: Gordon and Breach.

 

[5] Spitzer, S. (1975).  “Toward a Marxian Theory of Deviance,” Social Problems 22: 638-651.

 

[6]  Irwin, J. (1985). The Jail: Managing the Underclass in American Society.  Berkeley: University of California Press, p. 2; see also Piven, F. F., and R. Cloward (1972).  Regulating the Poor: The Functions of Social Welfare. New York: Vintage Books.

 

[7]  Irwin, J.  (2005). The Warehouse Prison. Los Angeles, CA: Roxbury Press.

 

[8] Simon, J. (1993).  Poor Discipline: Parole and the Social Control of the Underclass, 1890- 1990.  Chicago: University of Chicago Press, p. 258.

 

[9] As of 2004, the total prison population was more than 1.4 million, plus another 600,000 in local jails on any given day.  At the end of 2003, just under 7 million were either in jail, prison, on probation or on parole. Harrison, P. M. and A. Beck (2005). “Prison and Jail Inmates at Mid-Year 2004.”  Washington, DC: Bureau of Justice Statistics, April; Glaze, L. E. and S. Palla (2004). “Probation and Parole in the United States, 2003.”  Washington, DC: Bureau of Justice Statistics, July.

 

[10]  Shelden, R. G. (2001). Controlling the Dangerous Classes: A Critical Introduction to the History of Criminal Justice. Boston: Allyn and Bacon. 

 

[11] Reinarman, C. and H. G. Levine (eds.), Crack in America: Demon Drugs and Social Justice. Berkeley, CA: University of California Press, pp. 5-6.

 

[12] Beecher, J. (1997).  Strike.  Boston: South End Press.  

[13] This section is adapted from chapter 5 in Shelden, Controlling the Dangerous Classes.  References can be found in this chapter.

 

[14]  Pickett, 1969.  House of Refuge.  Syracuse: Syracuse University Press, p. 15.

 

[15] A check of occupations of those whose parents held jobs (and most did not hold jobs) shows that the most common was listed as “common laborer,” “washerwoman” ranked second, and “masons, plasterers and bricklayers” ranked third. The fact that so many parents were “washerwomen” is indicative of the common phenomenon of the period among many urban dwellers that men were forced to leave their families in order to find work elsewhere, leaving children and their mothers to fend for themselves.  It should also be noted that women and children were the primary work force in many factories in the Northeast (Pickett, House of Refuge, Appendix).

 

[16] Rothman, D. (1971).  The Discovery of the Asylum. Boston:  Little, Brown, p. 58.

 

[17]  Ibid, p. 210.

 

[18] Silver, A.  (1967). “The Demand for Order in Civil Society.” In D. Bordua (ed.), The Police: Six Sociological Essays.  New York: John Wiley, pp. 11-12.

 

[19] Harring, S. and L. McMullen (1975).  “The Buffalo Police: Labor Un­rest, Political Power and the Creation of the Police Institution,” Crime and Social Justice 4: 5-14;

Harring, S. 1976. “The Development of the Police Institution in the U.S.,” Crime and Social Justice 5: 54-59.

 

[20] Zinn, H. (1995). A People's History of the United States (2nd ed.).  New York: Harper Collins, pp. 265-276.

[21] Zinn, H. and G. San  Roman (2006). “Reexamining the Sacco-Vanzetti Case.” http://www.zmag.org/content/showarticle.cfm?SectionID=43&ItemID=9551, January 19; a good study of this case is Joughin, L. and E. M. Morgan (1978). The Legacy of Sacco and Vanzetti.  Princeton, NJ: Princeton University Press (originally published in 1948).


[22] The first house of correction was known as the Rasphaus, which opened in 1596 in Amsterdam (Sellin, J. T. 1944.  Pioneering in Penology: The Amsterdam Houses of Correction in the Sixteenth and Seventeenth Centuries. Philadelphia: University of Pennsylvania Press).  In this and similar institutions that sprang up throughout Europe and later in America we find the beginnings of the shift toward punishment of the mind in the form of the inculcation of “habits of industry.”  The intention of the Rasphaus “was to discipline the inmates into accepting a regimen analogous to an ‘ideal factory’, in which the norms required for capitalist accumulation were ingrained in the code of discipline” (Shank, G.  1978. Review of “Pioneering in Penology” and “Slavery and the Penal System” by J. T. Sellin, Crime and Social Justice 10­, p. 40).  Furthermore, the organization of these workhouses “anticipated the compulsive regimens of isolation and hard labor to be pursued far more thoroughly in the penitentiary (Ignatieff, M. 1978.  A Just Measure of Pain.  New York: Pantheon, pp. 13-14. 

 

[23] Foucault, M. (1979). Discipline and Punish: The Birth of the Prison. New York: Vintage Books; Ignatieff, A Just Measure of Pain; Sellin, J. T. (1976). Slavery and the Penal System. New York: Elsevier.

 

[24] Dinnerstein, L. and D. M. Reimers (1975).  Ethnic Americans: A History of Immigration and Assimilation. New York: Harper & Row, p. 57.

 

[25] Examples of these laws included a San Francisco ordinance that made it against the law to operate a laundry except if the building was made of brick or stone.  Since no buildings were made of such materials at this time, this meant that Chinese owners were in violation of the law.  If white person owned the building, the law was waived (Friedman, L. M. (1993). Crime and Punishment in American History.  New York: Basic Books, p. 99).

 

[26]  The following is a statement from a Congressional Senate Report, dated 1876 (ironically on the first anniversary of the Declaration of Independence, which declared that “all men are created equal”):  “The burden of our accusation against them [the Chinese] is that they come in conflict with our labor interests; that they can never assimilate with us; that they are a perpetual, unchanging, and unchangeable alien element that can never become homogeneous; that their civilization is demoralizing and degrading to our people...”  Quoted in Leong, A.  (1998). “From Bruce Lee to Vincent Chin: Stereotyping in Anti-Asian Violence.”  Paper presented at the Northeastern Association of Criminal Justice, Newport, Rhode Island, June.

 

[27] “Racism and American Law,” in R. Quinney (ed.), Criminal Justice in America. Boston: Little, Brown, p. 267.

 

[28] Dinnerstein and Reimers, Ethnic Americans, p. 71.

 

[29]  Ibid, pp. 71 and 97.

[30]  Chambliss, W. (1977).  “Markets, Profits, Labor and Smack.” Contemporary Crises 1­, p. 65.

 

[31] Levinthal, C. 1996.  Drugs, Behavior, and Modern Society. Boston: Allyn & Bacon, pp. 49, 154-155; United States Sentencing Commission (1995). Cocaine and Federal Sentencing Policy, Special Report to Congress. Washington, D.C.: U. S. Government Printing Office, p. 112.

 

[32]  Levinthal, p. 155.

 

[33] Ibid, p. 50; when the United States became involved in the Vietnam War, they too took advantage of the trade.  The CIA became a major trafficker in this huge industry.  The profits from the opium trade resulted in huge financial savings on the part of the Southeast Asian leaders.  American planes helped ship the opium to Saigon where it was processed into heroin and either sold to American GIs or shipped to the United States, often in the coffins of American soldiers (McCoy, A. W. 1973.  The Politics of Heroin in Southeast Asia. New York: Harper & Row). For a similar account, focusing on the connection between the CIA and the Contras, see Webb, G.  (1998). Dark Alliance.  New York: Seven Stories Press. 

 

[34] Belenko, S. R. (1993).  Crack and the Evolution of the Anti-Drug Policy. Gulfport, CT: Greenwood Press; Reinarman, C. and H. G. Levine (1997). “Crack in Context.” In Reinarman and Levine (eds.). Crack in America: Demon Drugs and Social Justice. Berkeley, CA: University of California Press.

 

[35]  Donziger, S. R. (1996).  The Real War On Crime: The Report of the National Criminal Justice Commission. New York: Harper Perennial, p. 115; Tonry, M. (1995). Malign Neglect: Race, Crime, and Punishment in America.  New York: Oxford University Press; Mauer, Race to Incarcerate; Cole, D. 1999.  No Equal Justice: Race and Class in the American Criminal Justice System.  New York: The New Press; Shelden, R. G. (2005), “Slavery in the Third Millennium.”  http://www.sheldensays.com/Res_thirteen.htm.

 

[36]  Robinson, G. (2001).  By Order of the President: FDR and the Internment of Japanese Americans. Cambridge: Harvard University Press.

 

[37]  Cole, D. (2003).  Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism. New York: New Press, pp. 88-89.

 

[38]  Eggen, D. and J. Tate (2005). “U.S. Campaign Produces Few Convictions on Terrorism Charges,” Washington Post, June 12; see also Greenberg, K. (2005). “The Courts and the War on Terror,” http://www.commondreams.org/views05/0314-23.htm (March 14).

[39]  Baldor, L. C. (2006). “Terror suspects not accused of hostile acts.” Chicago Sun Times, February 8. 

[40]  Willing, R. (2006). “ FBI cases drop as it focuses on terror.” USA Today, April 13.

[41] Pandey, S. (2005). “Pick a Number.” Los Angeles Times, May 29.

[42] Kelly, D. (2005). Los Angeles Times, April 25.

[43] Kelly, D. (2005). “Border Watchers Capture Their Prey -- the Media,” Los Angeles Times, April 5; “Taking Border Patrol Into Their Own Hands,” Los Angeles Times, February 2.  

[44] Taking Border Patrol Into Their Own Hands.” See also Ehrenreich, B. (2005). “The Guerrilla War Against Cheap Lettuce,” http://www.alternet.org/story/29655/, December 16.

 

[45]N.C. jobs a prime attraction for illegal immigrants from Mexico,” The Charlotte Observer, Feb. 27, 2006; Hendricks, T. (2006). “Border security or boondoggle?” San Francisco Chronicle, February 26.

 

[46]  Hiltzik, M. (2005). “The Truth About Illegal Immigrants,” Los Angeles Times, December 15.

 

[47]  Rall, T. (2005). “American Gulags Become Permanent.” Z Magazine  http://www.zmag.org/content/showarticle.cfm?ItemID=7028; Dow, M. (2004). American Gulag: Inside U.S. Immigration Prisons. Berkeley: University of California Press.

 

[48] Harrison, P. M. and A. Beck. (2003). “Prisoners in 2002.” Washington, DC: Bureau of Justice Statistics, July.

 

[49]  Humphrey, K. (2006). “Taylor facility to house detained immigrant families?” American Statesman, April 24. http://www.statesman.com/news/content/news/stories/local/04/24detention.html.

[50] Quinney, R. (2002). Critique of Legal Order: Crime control in Capitalist Society.  New Brunswick, NJ: Transaction Books, p. 16 (originally published in 1974).

 

[51] Ibid, p. xxvi.

 

[52] The documentation is extensive.  See the following: Johnson, C. (2004).  The Sorrows of Empire: Militarism, Secrecy, and the End of the Republic.  New York: Metropolitan Books; Blum, W. (2000).  Rogue State.  Monroe, ME: Common Courage Press; Pilger, J. (2002).  The New Rulers of the World.  New York: Verso; Chomsky, N. (1993). Year 501: The Conquest Continues.  Boston: South End Press.

 

[53]  Kraska, P. B. (1999).  “Militarizing Criminal Justice: Exploring the Possibilities.” Journal of Political and Military Sociology 27: 205-216; Arrigo, B. A. (1999).  “Marital Metaphors and Medical Justice: Implications for Law, Crime, and Deviance.”  Journal of Political and Military Sociology 27: 307-322; Caufield, S. (1999). “Transforming the Criminological Dialogue: A Feminist Perspective on the Impact of Militarism.” Journal of Political and Military Sociology 27: 291-306; Haggerty, K. D. and R. V. Ericson (1999). “The Militarization of Policing in the Information Age.” Journal of Political and Military Sociology 27: 233-256; Simon, J.  (1993). Poor Discipline: Parole and the Social Control of the Underclass, 1890-1990.  Chicago: University of Chicago Press.

 

[54]  Kraska, “Militarizing Criminal Justice, p. 208.

 

[55] The source cited here is the best I could find on an Internet search.  It seems incredible to find that the latest figures are five years old, given the technology available today. 

 

[56] Chambliss, W. J. 1999.  Power, Politics, and Crime.  Boulder, CO: Westview, p. 5.

 

[57]  Sourcebook of Criminal Justice Statistics, 2003: http://www.albany.edu/sourcebook/pdf/t117.pdf

 

[58]  www.freedoniagroup.com

 

[59] Government Security (2003). “Bush releases Homeland Security budget.” (Online: http://govtsecurity.security solutions.com).

 

[60]  www.dhs.gov

 

[61] Fox News.com, Jan. 23, 2003.

 

[62] This is taken from the White House Budget. http://www.whitehouse.gov/omb/budget/fy2007/pdf/budget/defense.pdf

 

[63] Johnson, C. 2004.  The Sorrows of Empire: Militarism, Secrecy, and the End of the Republic.  New York: Metropolitan Books, p. 102.

 

[64] http://www.warresisters.org/piechart.htm.  See also Cox, S. (2006). “The Real Death Tax.” http://www.counterpunch.org/cox04142006.html,  April 14.

 

[65] http://nationalpriorities.org/index.php?option=com_wrapper&Itemid=182

 

[66]  Also missing from these estimates are the public school security police officers, for which there are no national data available.  See Wallace, L. H. and W. Pullman (2004).  “Socialization or Prisonization: Examining Deprivations in the School setting.”  Paper presented at the Academy of Criminal Justice Sciences annual meeting, Las Vegas, NV, March 10.

 

[67] A web site describing careers as “correctional officers” notes the large number of jobs found in local jails that number around 3,300 in the country.  Then it notes that “Correctional officers in the American jail system hold and process more than 22 million people a year, with about half a million offenders in jail at any given time.” Bureau of Labor Statistics, Occupational Outlook Handbook, 1998-99.

http://www.umsl.edu/services/govdocs/ooh9899/153.htm.

 

[68] Travis, J. (2002). “Invisible Punishment: An Instrument of Social Exclusion.” M. Mauer and M. Chesney-Lind (eds.), Invisible Punishment: the Collateral Consequences of Mass Imprisonment.  New York: New Press, p. 18.

 

 

 

© 2006, Randall G. Shelden. All rights reserved. No part of this may be reproduced without permission from the author.