We are living in a time in which more than ever, as James Baldwin presciently wrote in his beautifully moving open letter to then imprisoned black radical Angela Y. Davis, ‘Americans … measure their safety in chains and corpses’ (Baldwin 2011: 255). We are living in a time of ‘chains and corpses’, death, loss and mourning, of outrage and activism in response to mass incarceration, mass detention and deportation, HIV criminalization, AIDS phobia and the ongoing AIDS epidemic, anti-queer and anti-trans police violence. Mass incarceration is the normalized backdrop on which the ideological screen of ‘post-racial’ neoliberalism is projected. The carceral and military industrial complexes are figured as necessary institutions safeguarding the American neoliberal scene and as providing a haven for ‘diversity’ through the enforcement of ‘hate crime’ legislation and DADT. Is this the dream of inclusion?
In this chapter, I explore the ways in which the prison industrial complex and the persisting AIDS epidemic are tied together within a broader history of criminalization of and medical malign neglect towards our communities—of colour, queer, transgender, gender non-conforming, poor and disabled. I make the case that in the face of continued HIV criminalization, the war on drugs and the rendering of the political, along with the just, captive to the carceral, HIV/AIDS prevention and treatment are best addressed in the register of PIC abolitionism. In particular, I highlight how inside/outside organizing against homophobia and for medical services by ACT UP members such as Gregory Smith and Kiyoshi Kuromiya force us to rethink AIDS activist, black and queer liberationist and antiprison activism as interlaced. Thus, queer and/or trans liberationist, AIDS activist and prison abolitionist critiques converge in the struggle for the decriminalization of HIV/AIDS as a crucial component of AIDS and abolitionist activism. The essay adds to queer and/or trans abolitionist critiques of the prison industrial complex as seen in such texts as Queer (In)Justice
(Ritchie, Whitlock and Mogul 2011
), Captive Genders
(Stanley and Smith 2011
) and Against Equality: Prisons Will Not Protect You
). While incarcerated people’s resistance movements during the height of 1970s liberationist struggles have been researched, there remains a need for work that explores how the prison system has been a site of, and struggle against, anti-black, anti-queer and/or anti-trans violence. As will be argued in this
chapter, inside/outside AIDS activism, including by queer and/or trans activists of colour, is one important optic through which to examine this legacy. The inside/outside history of AIDS activism seems especially relevant if we consider past forms of criminalization and securitization—from the HIV prison camp at Guantanamo during Clinton’s presidency to the Jesse Helms-inspired HIV travel ban—and considering the present moment in which segregation of HIV-positive prisoners continues in South Carolina as well as emergent scholarship on the ways in which mass incarceration, criminalization of sex work, drugs have all escalated HIV/AIDS. While scholarship about AIDS activism is often retrospective, there is also a need for scholarship that addresses the (con)temporality of AIDS and ongoing AIDS activism. The essay ends by revisiting and reframing James Baldwin’s writing as an abolitionist call to anti-carceral conscience. Baldwin’s black radical, anti-Zionist (but not anti-Semitic), and critical anti-prison politics cut against the grain of (racial) liberalism and called for democratic awakening—which resonates now in our age of neoliberal anti-blackness and the carceral state of everyday life.
The necropolitics of the prison
In ‘Necropolitics’, Achille Mbembe begins by inquiring whether Foucault’s concept of ‘biopower’ accurately reflects the capacity of the state to regulate the lives and deaths of its subjects:
Is the notion of biopower sufficient to account for the contemporary ways in which the political, under the guise of war, of resistance, or of the fight against terror makes the murder of the enemy its primary and absolute objective? Imagining politics as a form of war, we must ask: What place is given to life, death and the human body (in particular the wounded or slain body)? How are they inscribed in the order of power?
(Mbembe 2003: 12)
Mbembe thus relates the politics of life to the politics of death. ‘I examine those trajectories by which the state of exception and the relation of enmity have become the normative basis of the right to kill’ (Mbembe 2003: 16). One of Mbembe’s prime examples is the settler colonial occupation of Palestine, where areas such as the West Bank are cordoned off via an Israeli carceral-military industrial complex of occupation and apartheid. The necropolitical also indexes various anti-black enterprises and state violence, from lynching, Jim Crow-era racial apartheid and terrorism, to contemporary militarized police violence against black people crystallizing in ‘stop and frisk’ orders and reminiscent of slave patrols, to outright police assassination of black ‘citizens’ such as Amadou Diallo, Oscar Grant and so many others. It was in response to ‘this record of mass slayings on the basis of race, of lives deliberately warped and distorted by the willful creation of conditions making for premature death, poverty and disease’ that the 1951 UN
petition presented by Paul Robeson and William Patterson, ‘We Charge Genocide’, materialized (Patterson: 1970
). The title of the petition is as instructive as it is declarative: ‘We Charge Genocide: The Historic Petition to the United Nations for Relief From a Crime of The United States Government Against the Negro People’. The petition was in response to anti-black racism, through which bio- and necropolitical violence converges in state violence against black ‘citizens’. As James Baldwin so passionately argued in Evidence of Things Not Seen
: ‘Blacks have never been, and are not now, really considered to be citizens here. Blacks exist, in the American imagination, and in relation to American institutions, in reference to the slave codes: the first legal recognition of our presence remains the most compelling’ (Baldwin 1995
: 31). This is echoed in Colin Dayan’s elegant and harrowing account in The Story of Cruel and Unusual
, which traces how ‘the ghost of slavery still haunts our legal language and holds the prison system in thrall’ (Dayan 2007
: 16). The vast landscape of the prison industrial complex (PIC) can thus be described more generally as an example of what Mbembe calls a ‘deathscape’—‘new and unique forms of social existence in which vast populations are subjected to conditions of life conferring upon them the status of living dead’ (Mbembe 2003: 40).
The prison industrial complex is an always already anti-black, violently antiqueer and anti-transgender enterprise that perpetuates what Saidiya Hartman names the ‘afterlife of slavery’ (Hartman 2008: 6). It institutionalizes forms of restricted life: following ‘re-entry’, a formerly incarcerated person loses access to public housing, benefits and federal educational loans and faces chronic joblessness due to stigma. Incarceration has been historically employed as a means of maintaining an anti-black and white supremacist sociopolitical and racial capitalist order—from antebellum ‘black codes’ that criminalized vagrancy (Dru Stanley 125–126) post-‘emancipation’, to more recent attempts to extinguish the spirit and destroy the momentum of black liberationist movements in the United States (ranging from surveillance and sabotage of the Revolutionary Action Movement, to COINTELPRO, to the current renewed targeting of Assata Shakur). Journalist Shane Bauer (2012)
has documented how in California, the mere possession of black radical literature results in being criminalized as gang related and put in solitary housing units (SHU)—a form of torture from which exit is uncertain, whose administration is often based on whether one informs on other incarcerated people (Bauer 2012: 1–4). Prisons thus continue the logic of COINTELPRO, which aimed to neutralize and eliminate black freedom movement(s).
The prison industrial complex is at once a manifestation of a disciplinary and of a control society. The prison is one of the central and proliferating oppressive technologies through which bio- and necropolitical violence and the apparatuses of surveillance that reinforce it are naturalized. The insidious morphology of the carceral is such that even as it is dismantled via lobbying for decriminalization and decarceration, on the one hand, it proliferates via extended modes of surveillance and control—ankle bracelets, probation and parole—on the other.
Carceral violence is maintained in various penal registers and forms. In the post-9/11 age of the Patriot Act, which expanded surveillance and police militarization (implemented during the continuing war on drugs), we are witnessing the violence of what I propose to describe as penal securitocracy. The call for the abolition of the prison industrial complex requires the complete dismantling of spaces of confinement and detention—what Foucault termed the ‘carceral continuum’ (Foucault 1977
: 297, 303)—ranging from the torturous sensory deprivation of solitary confinement that is the signature of the supermax prison, to the coercive containment that characterizes psychiatric institutionalization.
The criminalization of HIV is one site in which anti-blackness, AIDS phobia, queer phobia and carceral violence converge. While recent research, particularly in public health, has begun to address the impact of mass incarceration on AIDS treatment and prevention, inside/outside AIDS activism and the struggle for HIV decriminalization in relation to queer and/or trans prison abolition politics have so far been neglected. As I will illustrate next, we have much to learn from this and I will turn to the insightful history of this struggle in the following section.
HIV: the history of a criminalization
Thanks to the powerful media activism and journalism by AIDS activists and advocates we now have a clearer picture of the history of the criminalization of HIV. In June 1988 the Presidential Commission on the HIV epidemic published a report calling for legislation on criminal non-disclosure (not disclosing HIV status before sexual activity) that should contain HIV-specific criminalization laws. In contract to current criminal laws, which are applied blanketly, the commission recommended HIV-specific statutes that would ‘provide clear notice of socially unacceptable standards of behavior specific to the HIV epidemic and tailor punishment to the specific crime of HIV transmission’ (Presidential Commission on HIV Epidemic 1988
: 130). The report recommendations were echoed in the 1990 Ryan White Care Act, which stipulated that states have the ‘affirmative responsibility’ to implement laws around criminal disclosure in order to receive federal money for HIV/AIDS care and education:
Two years later, Congress added its voice to the call for criminalization when it passed the Ryan White Comprehensive AIDS Resources Emergency Act of 1990 (the CARE Act), which mandated that states prove the adequacy of their laws for criminal prosecution of intentional transmission of HIV before they could receive federal funding for HIV/AIDS prevention. By 1993, almost half the states had HIV-specific criminal legislation.
Interestingly, HIV criminalization model (proposed legislation and/or legal frameworks/paradigms for state and jurisdictions) legislation was created by the American Legislative Exchange Council (ALEC) which, in the wake of public outcry following the tragic death of Trayvon Martin, also abandoned efforts to push for voter ID and stand your ground legislation. As investigative journalist Todd Heywood reports, HIV criminalization laws emerged at the nexus of political conservatism, AIDS panic and corporate power:
In the late fall of 1988, state lawmakers and representatives from major insurance and pharmaceutical companies were hard at work addressing the looming AIDS crisis for the American Legislative Exchange Council, a conservative-leaning think tank that produces state-based business-friendly model legislation. The efforts of ALEC’s AIDS policy working group were published that year in a 169-page book containing 13 HIV-specific legislative recommendations. Some of those model laws would, after becoming real state laws, go on to effectively criminalize the behavior of people living with HIV and perpetuate a lasting stigma against HIV-positive people.
The war on drugs—as a moral, racialized, classed and police-militarized enterprise—intensified and escalated the AIDS epidemic through zero-tolerance policies, mandatory minimum sentences, and by creating unsafe and vulnerable conditions for injection drug users. As the recently released report by the Global Commission on Drug Policy attests, the war on drugs effectively led to a situation in which resources are now being used for law enforcement instead of HIV prevention, where syringe sharing has increased, and where resources have been divested from public health interventions (Soros 2012
: 1). It has fuelled the AIDS epidemic and been a central mechanism driving what might be understood as both mass (in terms of sheer volume) and hyper (in terms of concentration) incarceration rates facing poor black communities throughout the United States. As Steve Martinot argues, the war on drugs ‘is a metaphoric war since a war cannot be fought against substances but only against people’ (Martinot 2010
: 76). The United States is not only the world’s leading ‘prison nation’ but also its leader in HIV criminalization. HIV criminalization has also resulted in another harmful phenomenon often referred to as ‘take the test and risk arrest’, which describes how many people are now avoiding HIV testing so as not to be penalized under HIV disclosure laws (Strub 2012
: 1). Revisiting the legacies and genealogies of queer and/or trans resistance and inside/outs...