The carceral state is everywhere. Legal and social science scholars are increasingly using the carceral state concept to criticize various aspects, or even the entirety, of the United States. But despite how popular and common this term has become in writings about mass incarceration, criminal processes and punishments, and other forms of social control, the definition, conceptualization, and theorization of the carceral state are far from settled. This Article analyzes and contributes to this discussion by highlighting the diversity and fluidity of ideas surrounding the carceral state. Although the term often appears without an express definition, the limited ones that do exist vary in their construction. There are also multiple perspectives on the carceral state’s characteristics, including its composition, relationship with the prison-industrial complex, its age, size, and form. Also, while many prominent scholars agree that its discriminatory actions and effects are defining features of the carceral state, notable differences remain in how this discrimination is framed. This decentralized and varied understanding impacts both the theoretical development and practical applications of the carceral state concept. Rather than converging into a single, cohesive theory, multiple interpretations of the carceral state persist and will likely continue to do so. While this diversity of perspectives offers advantages, it also presents challenges in achieving the necessary consensus to dismantle the carceral state and build a noncarceral one.
Belonging is a fundamental need, like food or water. Hundreds of social psychology studies find that people who are ostracized (excluded, rejected, or ignored) experience severe pain and suffering. Ostracism threatens basic needs, triggers the same neurocognitive processing system as physical pain, and impairs functioning. Furthermore, ostracized people may cope in ways that beget “deviant” labeling and further ostracism. Belonging and ostracism are prevalent themes in social psychology research, but these constructs have received relatively little attention in law. This Article begins to explore the implications of this research for law. I make three contributions: First, I name and describe the phenomenon of “institutionalized ostracism”: When government institutions ostracize people in ways that threaten their sense of belonging. This institutionalized ostracism is mostly lawful under current anti- discrimination law. Second, I draw from social psychology literature to explain why institutionalized ostracism is so harmful—in some ways comparable to physical violence. Third, I identify and critique several ways in which current jurisprudence supports and facilitates institutionalized ostracism. In discussing these, I make some preliminary suggestions as to how our jurisprudence ought to attend to the harm of ostracism.
This Article uses archival research and social movement theory to recover a critical but untold story about how John P. Davis innovated novel modes of organizational mobilization and multidimensional advocacy to build power and movement at the intersection of race and the economy in the Jim Crow and New Deal era. It examines Davis’s mobilization of the Joint Committee on National Recovery (JCNR), recovers the mobilization and advocacy models Davis engineered, and tells of the fight Davis and the JCNR waged to achieve racial and economic justice and effect a new— and truly emancipatory—New Deal.
The role of policing in American society is more pervasive (and less visible) than many acknowledge. Police do not just patrol, arrest, and keep peace – they also gatekeep. Many and varied ostensibly non-criminal processes rely on police fact-finding to adjudicate claims, establish eligibility for resources, and take adverse action against individuals. This Article examines the phenomenon of police gatekeeping, both as a practical barrier to resources and remedies and as a hegemonic mechanism to construct the social conception of truth. Recognizing the ways in which civil society relies upon police as gatekeepers of both practical resources and the social conception of truth is a first step toward reducing the role of the carceral state. The influence of police is hidden in the background of our daily lives. Shining a light on this influence – and questioning it – can allow us to rethink our ways of knowing and reimagine structures that promote autonomy, reduce hegemonic state control, and begin to take practical steps toward diminishing the supremacy of the carceral state in American civil society.
