Social Death
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Social Death

Racialized Rightlessness and the Criminalization of the Unprotected

Lisa Marie Cacho

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Social Death

Racialized Rightlessness and the Criminalization of the Unprotected

Lisa Marie Cacho

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About This Book

Winner of the 2013 John Hope Franklin Book Prize presented by the American Studies Association Social Death tackles one of the core paradoxes of social justice struggles and scholarship—that the battle to end oppression shares the moral grammar that structures exploitation and sanctions state violence. Lisa Marie Cacho forcefully argues that the demands for personhood for those who, in the eyes of society, have little value, depend on capitalist and heteropatriarchal measures of worth.
With poignant case studies, Cacho illustrates that our very understanding of personhood is premised upon the unchallenged devaluation of criminalized populations of color. Hence, the reliance of rights-based politics on notions of who is and is not a deserving member of society inadvertently replicates the logic that creates and normalizes states of social and literal death. Her understanding of inalienable rights and personhood provides us the much-needed comparative analytical and ethical tools to understand the racialized and nationalized tensions between racial groups. Driven by a radical, relentless critique, Social Death challenges us to imagine a heretofore “unthinkable” politics and ethics that do not rest on neoliberal arguments about worth, but rather emerge from the insurgent experiences of those negated persons who do not live by the norms that determine the productive, patriotic, law abiding, and family-oriented subject.

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1
White Entitlement and Other People’s Crimes

High school teenagers Morgan Manduley, Bradley Davidofsky, Adam Ketsdever, Nicholas Fileccia, Steven DeBoer, and Kevin Williams (ages 15–17) set out to “hunt” undocumented Mexican migrant workers on July 5, 2000. They cased an area near their homes in Rancho Peñasquitos, an affluent suburb of San Diego, California. They found Andres Roman DĂ­az (age 64) walking back from work, carrying groceries and drinking water. They shot him with BB guns from their Subaru station wagon, then got out of the car to chase him on foot. Roman ran back to the nursery where he worked, and the young men got back in the car to pick up their friends Michael Rose and Jason Beever (ages 15 and 14), as well as more weapons and more ammunition.1 This time they went to the encampment where Roman lived. According to some accounts, they concocted an elaborate plan to pretend to be Immigration and Naturalization Service (INS) agents. They demanded money and documents from migrant workers, and then robbed and beat those who didn’t understand them.2
At the encampment, nursery workers Anastacio Irigoyen Najera, Alfredo Ayala Sanchez, Atanacio Fierros Juarez, and Juan Miguel Ramos (ages 64–69) were assaulted with whatever blunt or sharp objects their assailants could find at hand, which included a pitchfork, rocks, and pipes. The men were shot with pellet guns at point-blank range and robbed—all while listening to their attackers shout racist epithets. The teenagers tormented the workers for three hours. They riddled Ayala’s face and body with BBs and tried to set his home on fire. When 69-year-old Irigoyen tried to help Ayala, the assailants beat him unconscious—and so badly that on the way home to their comfortable suburban lives, the assailants worried that they might have killed him. Their worries did not lead to calling an ambulance because they were not concerned for Irigoyen; they were concerned that they might be caught. They returned to the encampment to drag his body behind the bushes, leaving him for dead. A few of the teenaged assailants later confessed that they had assumed their victims were undocumented and would be too afraid to report them. All five workers, however, were living and working in the country legally.3
The adolescent attackers might have believed they would not be punished for their actions because the encampment where the elderly Mexican workers set up their temporary homes did not discriminate by legal status. Perhaps because mostly Mexican men lived in the camp where little English was spoken, the space seemed to be an “illegal,” un-American place. And for the teenagers, perhaps race and language were more than enough signs of illegality and nonpersonhood to justify their malevolent and sadistic behavior. There even appears to have been a sense of righteousness motivating their violence: By pretending to be immigration officers, these teenagers aligned themselves with the state, planning to act how they imagined INS agents would act (or could act) toward undocumented Latina/o migrant workers.
Although the teenagers’ deplorable exploits might be characterized as senseless, they were not random. The high school students targeted a group they believed to be too vulnerable to fight back physically or legally; they targeted a category of persons who they imagined did not carry enough social and human value to compel others to fight on their behalf. The teenaged assailants grew up in a place and a political climate audaciously and openly hostile to undocumented immigration and the Latina/o populations that signified it (irrespective of their actual legal statuses). Only six years earlier, in 1994, the California populace passed Proposition 187, which tried to deny necessary services and resources, such as education and health care, to undocumented immigrants. Perhaps the adolescents assumed their violence would be more than tacitly condoned because it was directed toward Latina/o workers assumed to be not just vulnerable as “illegal” but deserving punishment as criminal.
Ironically (and yet fittingly), the same racist anxieties and nativist animosities that motivated the San Diego adolescents’ violence also motivated California voters to pass Proposition 21 in March 2000,4 just a few months before the teens’ arrest. Proposition 21’s newly implemented amendments to adult and juvenile criminal law were both extensive and arbitrary. Referred to as California’s “Juvenile Crime and Gang Violence Initiative,” Proposition 21 not only instituted harsher penalties for crimes considered “gang-related,” it also required that more juveniles be tried as adults and increased the penalties for various violent or serious offenses.5 Under these draconian provisions, the suburban adolescents could be tried as adults, and each could have received an adult prison sentence of twelve to fifteen years. In fact, because the crimes were so openly racist, nativist, and violent, they were charged with committing a hate crime, which could have added an additional four years to their sentences. The adolescents’ families led legal challenges against the proposition’s constitutionality. Even though they were not able to overturn Proposition 21 in court, not one of the young men’s “adult” sentences seemed to reflect this legal loss. No one was sent to state prison; two were sent to a county jail; and five were sent to a California Youth Authority facility. (Four of the five were sentenced for terms of less than one year.)
In this chapter, I urge us to think about why certain crimes and criminals cannot be recognized as such. Why are some acts of violence and the people who commit them interpreted as less criminal than others? What makes it difficult for the criminal justice system to recognize young white men as criminals and, for that matter, to recognize racially motivated anti-immigrant violence as a crime deserving of criminal punishment? It is telling that the young assailants impersonated INS agents. They aligned themselves with the state as they attacked the elderly Mexican workers. Their vigilante exploits were essentially illegal demonstrations of state-sanctioned violence. As imitations of violence deemed necessary and legitimate by the state, their actions had the potential to be interpreted as unfortunate and inappropriate—not justifiable but understandable. Thus, this particular case exposes how certain bodies and behaviors are made transparently criminal while privileged bodies and their brutal crimes are rendered unrecognizable as criminal or even as violent. Processes of criminalization regulate and regularize targeted populations, not only disciplining and dehumanizing those ineligible for personhood, but also presenting them as ineligible for sympathy and compassion.
Although race might appear to be the determining factor in the lenient judgments against the youths, it also seems too simple to assert that their whiteness and their victims’ nonwhiteness are evidence enough to make this argument, especially because the brutal attacks could not be condoned or even rationalized. Because these suburban teenagers broke laws intended to criminalize others, their lawbreaking was unintelligible (even to themselves). Along these lines, we see that processes of de-criminalization are just as dependent upon the same racial and spatial norms that render criminality and personhood recognizable on some bodies but irreconcilable with others. In effect, race is not so much a code for criminality (although stereotypes do function in this way); rather, race and racialized spaces are the signifiers that make an unsanctioned action legible as illicit and recognizable as a crime. This means that the interpretation and application of criminal law is never race-neutral, no matter how race-erased individual laws appear to be. Recognizable as rights-bearing subjects and able to access pervasive discourses of white innocence, injury, and entitlement, the eight affluent teenagers were read and represented as explicitly not criminal and even unable to become criminal in a way that effectively rendered their intent and their culpability irrelevant. They would be rendered innocent even if guilty.6

Illegal by Presence

Only six years earlier, in passing Proposition 187, California voters had tried to formally deny undocumented immigrants not only life-bettering resources but also life-sustaining services.7 In California, the ballot initiative process allows citizens to change laws directly by majority vote without going through legislative representatives. Touted as “direct democracy,” California ballot campaigns require large amounts of funding as well as legal counsel. Most propositions on the ballots are drafted primarily by wealthy citizens and politicians, and many are aimed either at expanding state powers in order to police marginalized populations or at decreasing state resources that help these same aggrieved groups. This is a central contradiction of neoliberalism. As social services and health care are cut, more of people’s incomes have to cover the costs of an always-shrinking social safety net, even as hourly wages and employee benefits remain stagnant at best. For impoverished and legally vulnerable populations, these conditions essentially make welfare necessary, but those who need it are denigrated as eschewing their “personal responsibility” to care for themselves and their families.8 The middle and wealthy classes, who can afford to absorb the costs of privatizing public services and resources (a process that promises to make services more “efficient” and of higher “quality”), find themselves with less discretionary income. However, they blame this decrease on people presumed “irresponsible”—welfare recipients, noncitizens, people without health insurance, children of the undocumented—who either don’t make enough money to cover costs or don’t “deserve” to use public services. Easily ratified by the voters but overturned by the courts, Proposition 187 would have instituted and exacerbated these contradictions. Among its provisions, Proposition 187 would have denied undocumented mothers prenatal care; it also would have required doctors and teachers to report undocumented children to the INS for receiving a polio shot or attending fifth grade. Criminalizing not just the act of receiving assistance but also giving it, Proposition 187 would have charged state workers in the health, welfare, and education professions with the policing functions of the state. These professionals would have been required to report their clients’ and students’ immigration status to the INS if they “reasonably suspected” any one of them was not authorized to reside in the United States.
Proposition 187 was promoted as a way to deter immigration, but in actuality, the ballot measure pursued punishment rather than prevention. The institutionalized neglect that the initiative proposed was totalizing, and sadly, the measure was not an anomaly, but a foreshadowing. In subsequent years, California voters proposed, passed, and implemented a series of initiatives that also targeted vulnerable groups either by making it easier to incarcerate people or by eliminating much-needed policies and programs. In 1994, Proposition 184, the “three-strikes-and-you’re-out” initiative, mandated a life sentence upon conviction of a third felony. (Consequently, most of the youth convicted after the passage of Proposition 21 found themselves with felony strikes before they became adults.) In 1996, voters took away affirmative action by passing Proposition 209, ironically titled “The California Civil Rights Initiative.” Proposition 227 eradicated bilingual education in 1998. Two years later, and the same year that Proposition 21 was passed, Proposition 22 denied gays and lesbians the right of state-recognized marriage.
The Rancho Peñasquitos attackers targeted the same population that supporters of Proposition 187 had targeted—those most vulnerable within an already vulnerable community, including not just the elderly but also children, mothers, and those with disabilities, illnesses, and/or chronic conditions requiring medical care. Mistaken for and marked as “illegal,” the teenagers’ Mexican victims occupied a de facto “illegal” status that positioned them outside law, empathy, ethical obligation, legal protection, and justice. If the victims aren’t recognized as deserving of justice, how can the teenagers be seen as deserving of punishment?

(Con)fusing Status and Crime

The young men of Rancho Peñasquitos thought they might not be arrested because they believed their victims were “illegal.” On some level, it seems the teenagers were under the assumption that legal vulnerability excludes migrants completely from legal protection, all but inviting vigilante violence against Latina/o immigrants. And yet the attacks were also much more than opportunistic. They were also hateful, as if the assailants had learned that violence against some people was not just overlooked but legitimate, as if personhood did not actually apply to all people. The boys targeted men they believed were not only vulnerable to ridicule and robbery, but also vulnerable to being intimidated, beaten, dragged behind bushes, and left for dead.
To explain how certain bodies are marked as disposable and violable, as legitimate targets of state and vigilante violence, it is necessary to examine the ways in which law works to affix assumptions about behavior onto bodies. Historically, law has criminalized the recreational activities, survival economies, and intimate relationships of people of color so the status of “being of color” was inseparable from conduct assumed to be “criminal.” Before anti-racist legislation was implemented following the civil rights movement, law criminalized and reified marginalized identities as statuses. Being “colored” was a status that formed the basis for exclusionary, discriminatory, and regulatory laws, such as Jim Crow. What we call “identity categories” in the contemporary era functioned historically as excludable or includable statuses in segregation, naturalization, and immigration law. Today’s laws that criminalize conduct contingent on status have inherited this history.
In immigration and naturalization law, this history was one of restriction and privilege, and it was this history that shaped the political landscape of California in ways that made being an undocumented Mexican immigrant a de facto status crime, not just vulnerable to violence but designated both criminal and disposable. As legal scholar Leti Volpp argues, status has been historically fused to conduct in citizenship and immigration law, in spite of seeming to be distinct.
We conventionally separate identity into realms of status and conduct, and have presumed that status (for example, one’s race) as opposed to conduct (in the form of how one behaves) has constituted the primary barrier to citizenship. But what we remember as status-based exclusions in fact were premised on assumptions about appropriate conduct. Thus, history shows the impossibility of separating the realm of status from that of conduct.9
Volpp argues that ineligibility to citizenship was both premised upon status and justified by (presumptions about) conduct. As she explains, the Page Law excluded Asian women from immigrating to the United States on the basis of both status (Asian, women, unmarried) and conduct (sex, work). Like the Page Law, Volpp reminds us, the 1882 Chinese Exclusion Act was also premised on status and conduct because not all Chinese were barred from immigrating to the United States. Chinese laborers were excluded, but Chinese merchants and diplomats were exempt from these immigration restrictions. The Chinese Exclusion Act was premised on both status (Chinese) and conduct (laborer). The exceptions to the exclusion act were also premised on fusing status (upper class) and conduct (merchant, diplomat).10 Eligibility for U.S. citizenship was also restricted on the basis of status and conduct. Naturalized citizenship was restricted to people of a certain status thought capable of self-governance (conduct). The 1790 Naturalization Law conferred naturalized citizenship on the bas...

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