Living, Not Just Surviving
Alyssa Battistoni, Jacobin Magazine, August 2017
When Donald Trump announced plans to pull the United States out of the Paris Climate Accord this June, liberals cried doom. Venture capitalist and Tesla CEO Elon Musk finally resigned from Trump’s economic advisory council. Goldman Sachs chief executive Lloyd Blankfein took to Twitter for the first time to express his disappointment, while former ambassador to the UN Samantha Power tweeted that it was “the end of the American Century.” Spotting an opportunity, French president Emmanuel Macron, vying with Justin Trudeau for global leader of The Resistance, vowed to “make our planet great again.”
From their perspective, the decision appeared a radical shift in climate policy undertaken by the mercurial and proudly ignorant Trump — the opposite of the cool-headed wonkery espoused by Barack Obama, who had declared climate change a “genuine existential threat” (at a private fundraiser on Martha’s Vineyard). But the decision marked the outgrowth of Obama’s efforts to address climate change while avoiding politics.
In true technocratic fashion, Obama sought a fix through executive orders, administrative measures, and elite international negotiations. His Clean Power Plan relied on the power of the presidency to reduce emissions by further regulating power plants and raising fuel standards using the Clean Air Act and the Environmental Protection Agency. In his final year in office, he made much of brokering an international agreement at the COP 21 in Paris — the first global climate agreement since Kyoto in 1997.
But his achievement was overstated, and so was liberal panic over its demise. The agreement fell far short of what climate scientists and activists alike agree would be necessary to avoid a dangerous 2˚C or higher warming — not least because Obama himself had pushed for it to be non-binding. Even implementing the set of commitments made in Paris would have required sustained political action, regardless of who controlled the Oval Office.
Paradoxically, Obama also got more blame for regulatory attempts than he probably deserved. Stricter emissions regulations are just one reason the demand for coal has been declining: activists have campaigned for the closing of coal-fired power plants and the prices of both solar power and natural gas have been plummeting. But Obama provided a convenient scapegoat for coal country’s continued decline — after all, he’d done little to alleviate the crisis of unemployment and need in places once dependent on the resource. The path was clear for someone like Donald Trump to run on a platform of bringing mining jobs back — even if he had no actual way of doing so.
The desire to move more quickly than the current state of Congress allows is understandable — we’re rapidly running out of time. But climate change is too major an issue to address with tweaks and nudges. Serious action on climate can’t avoid politics — it has to confront it head on.
Trump isn’t the first to exploit tensions between workers and environmentalists, and he’s unlikely to be the last. In response, the Left needs to offer a program that reveals those tensions as a false choice, one offered on capital’s terms. We can do that by offering a climate plan that improves people’s lives in ways they can understand and that they’re willing to fight for. That doesn’t mean just focusing on workers in the most traditional vestiges of the fossil fuel economy, though, or even on the kinds of green-energy and infrastructure jobs typically offered as replacements. Rather, it means organizing the working class as it exists today — the nurses and teachers, care workers and service workers who are already doing the work that will be foundational to a low-carbon society oriented toward the flourishing of all, and who can lead the way to a future whose glory can last a lot longer than thirty years.
What would that society look like? In general, it will mean less work all around. But the kind of work that we’ll need more of in a climate-stable future is work that’s oriented toward sustaining and improving human life as well as the lives of other species who share our world. That means teaching, gardening, cooking, and nursing: work that makes people’s lives better without consuming vast amounts of resources, generating significant carbon emissions, or producing huge amounts of stuff.
To put it plainly: pink-collar jobs are green jobs.
As it turns out, it is also work that a growing number of people do. “I was elected to represent the citizens of Pittsburgh, not Paris,” Trump famously said in his speech announcing the withdrawal. It was a clear signal to his supporters in the Rust Belt — the only problem is that Pittsburgh hasn’t been a steel town for decades. Most jobs today are not in coal, steel, or manufacturing, but what’s often known as “eds and meds”: health care and education.
Pittsburgh illustrates a broader trend: though the hard-hat vision of the working class retains a surprisingly tight grip on political imagination, the fastest growing sectors of the economy are in industries characterized by “pink collar” labor — nursing, teaching, service work. Green jobs boosters often note that there are more jobs in solar-panel installation than coal mining these days — but there are also more teachers, home health aides, and child-care providers. These jobs are done disproportionately by women, immigrants, and people of color.
Organizing these workers would be the way forward for socialists under any circumstances. Under the dire circumstances we face, insisting that the work they do is crucial not only to a just and decent society but an ecologically viable one is the way to win back our future. Labor movements in the nineteenth and twentieth centuries insisted that workers had built the world in the most literal sense. The labor movement of the twenty-first century needs to foreground the workers who will make it possible for us to live in it.
To put it plainly: pink-collar jobs are green jobs.
Of course, while there are synchronicities between ecological imperatives and feminized labor, they aren’t necessarily aligned. Care work may be low-carbon — but that doesn’t mean the industries which rely on it are. Hotel workers, for example, are highly unionized, but the hotel industry, reliant as it is on frequent flyers, would suffer without fossil fuels.
Las Vegas, for example, is leading the way in service-worker organizing, but it’s hardly a model for an ecologically sustainable world. Organizing fast food and retail workers is likewise critical, but McDonald’s and Forever 21 aren’t much more ecologically defensible than ExxonMobil. Sometimes that will mean transformations in the way work is organized; often it will mean simply doing less of it. That should be the case even for jobs that aren’t as heavily resource-intensive: care work can be rewarding — but it can also be tedious, boring, emotionally taxing, and physically straining.
Meanwhile, transitioning to an economy centered on social reproduction will require a real reckoning with the ways that the work of serving others has been shaped by gender and race. There may be jobs making beds and washing the elderly, but that doesn’t mean that the mostly male workers who have spent decades working in factories, on oil rigs, or in coal mines will be able, or willing, to do them. But they might be more likely to do so if the work of social reproduction were better paid and recognized.
Facing climate change will require the building but also the transformation of working-class movements.
In the 1968 Memphis sanitation workers’ strike, sanitation workers (crucial to any eco-socialist society!) famously declared “I Am a Man,” while demanding better wages and better working conditions. In doing so, they challenged a system of segregated labor that had left them to do the dirtiest work, insisting on both social equality and material gains. Reorganizing social reproduction more broadly would require a similar challenge to the status of work that’s traditionally been done by women, and especially women of color.
That is to say, facing climate change will require the building but also the transformation of working-class movements. Italy’s 1970s autonomist movement provides a helpful perspective: as hikes in the cost of living spiraled above the pace of wage increases, working-class communities recognized that the struggle had to be continued outside the factory. They fought to reduce the cost not only of necessities like rent, transportation, and groceries, but luxuries like the opera; they squatted disused buildings and made them into community centers, imagining libraries, clinics, gyms, and theaters in places where such amenities were nowhere to be found. They insisted that working-class people, too, had the right to a good quality of life.
Yet autonomist projects, though often organized in conjunction with radical wings of labor unions, tended to be sporadic and piecemeal in implementation. By the 1980s, they had mostly disintegrated.
Today, stagnant wages and a rising cost of living are likewise making both necessities and luxuries unaffordable for most. Class struggle in the era of climate change isn’t just in the Ninth Ward after Katrina or the Rockaways after Sandy — it’s in the rhythms of daily life. It’s in nursing homes and schools, on the bus and in the street. The contemporary challenge, then, is to take up autonomist fights over social reproduction — but to carry them forward on a more institutional level while also extending them beyond the factory and the social to a new level: the ecological.
That process is already underway. As Nancy Fraser argues, “if you put together struggles for a shorter workweek, for an unconditional basic income, for public child-care, for the rights of migrant domestic workers and workers who do care work in for-profit nursing homes, hospitals, child-care centers — then add struggles over clean water, housing, and environmental degradation, especially in the global South — what it adds up to . . . is a demand for some new way of organizing social reproduction.”
Organizing reproduction in a new way means making the work of our daily survival less onerous and more pleasurable. It means creating and maintaining spaces of communal luxury and collective leisure — lush public parks and gardens, beautiful spaces for recreation and relaxation, art and culture accessible to all. It means not only building housing in dense urban centers but making sure working-class people can actually afford to live there; it means supporting more public transit not only in cities but in the sprawling suburbs where a growing number of working-class people live and in the rural communities where isolation exacerbates social and economic crises. It means addressing the labor shortages at the heart of the rural crisis of care. It means programs like universal health care and free college that simultaneously expand access to public goods and the scope of the low-carbon economy.
The New Deal had elements of such a future in the Civilian Conservation Corps (CCC), which put young men to work creating and maintaining national parks, and the Federal Art, Music, Theater, and Writers’ Projects, which provided grants to support a wide range of artists. These kinds of programs, combined with the social-welfare programs of the Great Society, would make for a society that provides both the necessities of social provision and an abundance of natural and cultural delights.
A renewed, permanent version of the CCC could extend the caring economy to our planet. In rural areas, it could create new hiking trails, campgrounds, and nature reserves; in cities, it could support the creation and maintenance of city parks and community gardens that can help make dense urban spaces livable and breathable even as temperatures rise. Across the country, it could restore areas that have long been damaged by fossil fuel extraction and other industrial activities. The original CCC employed thousands of Native Americans, often undertaking projects determined by tribal councils; a revived version could be paired with a program for native sovereignty and control over indigenous lands. On a bleaker note, as climate change progresses, we’ll need more people trained to deal with forest fires, floods, and other kinds of extreme weather.
The experience of recent years shows that the Left can grow and win on robust and ambitious platforms that address issues ranging from access to housing and education to medical benefits and elder care. Integrated more closely with an ecological analysis, they represent the building blocks of an eco-socialist platform.
One early vision of what this kind of program might look like is laid out in Canada’s Leap Manifesto, a document produced by a cluster of labor, environmental, and indigenous groups. The Manifesto advocates in plain terms for an economy centered on “caring for one another and caring for the planet.” That would mean working less time for higher wages, and spending the time we saved with our loved ones and communities; orienting the work we do toward ending racial and gender inequality; generating energy without destroying ecosystems; and creating ownership structures that return wealth to people and communities rather than extracting it from them. The Manifesto places the work of social and ecological reproduction at the heart of its vision of the future; its vanguard are those whose work has been feminized and undervalued. It is a program that is politically savvy on the terrain of existing politics, involving existing organizations, while also imagining a future that breaks sharply with the present.
We should follow that example and work to envision both the future we want and the forces that can get us there — and then get organized. We can keep the planet habitable by building a livable world, but we don’t have any time to waste.
Black Mirror Body
Charles Tonderai Mudede, e-flux Journal, March 2017
The night after Donald Trump won a long and ugly US presidential race, Alain Badiou entered a classroom at the University of California, Los Angeles, sat down, placed some notes on the table, and then explained that he had decided not to give his planned lecture, “Concerning Violence.” Instead, the most prominent French philosopher of our day would talk about Trump and what his success revealed about our current political, historical, and economic condition.
The resulting lecture, which ran for just over fifty-five minutes, had this statement at its center:
We can define our moment as the moment of the primitive conviction of liberalism as dominant in the form that private property and the free market compose the unique possible destiny of human beings. And it’s also a definition of a human subject. What is, in this vision, a human subject? A human subject is a beggar, a consumer, an owner, or nothing at all. That is the strict definition today of what is a human being.
Badiou told his students on the day after the US presidential election that to be a human in the Trump era was to be “a beggar, a consumer, an owner, or nothing at all.” Does this mean that, under Obama, we were something else? And under Bush II? Were we something other than what we were under Clinton and Bush I? What was the human under Reagan? Jimmy Carter?
Perhaps we should not be surprised that for Badiou, that old Maoist, the state of the human situation is defined by the leader of the dominant society. The function of the leaders of other societies surrounding it, near and far, would then be to receive and impose this state/definition/ideology on their subjects, or to reject it, loudly. In either case, dominance is dominance, from the US to Zimbabwe: you are a beggar, or a consumer, or an owner. Or you can be nothing.
Because before there is the definition of the human as human—the leading subject of Western philosophy—there must also be a human as animal—the leading subject of sociobiology. There is the thing that changes (the human), and the thing that persists (the animal). This distinction is necessary because we know that the animal, whatever it is, is deeper and older and, because of its genetic burden, cannot change so rapidly, certainly not at the furious pace of presidential elections. Yet what we examine, theorize, categorize when we examine, theorize, categorize the human is just this ever shifting definition, and what is left unsaid, and is almost unknown, is the animal, which, by default in this understanding, becomes nothing more than a substance on which this ceaselessly alternating definition of the human is impressed. The animal is the raw matter on which the various historical definitions of the human work. But is this substance just that, a substance? Is the human as animal mere putty? A horse can also be an animal (indeed it is an animal first and a horse second) but a human can only be a human, or different types of humans.
Here is something to consider. The man Trump has picked for secretary of state has a view of the human that is similar to Badiou’s: the malleable animal. In 2012, Rex Tillerson, ExxonMobil’s CEO, admitted to the Council on Foreign Relations that climate change is a real thing (or, to use the language of Timothy Morton, a “hyperobject”1) and caused by human activities—particularly the burning of fossil fuels (Tillerson’s bread and butter). But this situation was not really a problem, according to his way of thinking the thing (the hyperobject), because we, as humans, can easily adapt to changing environments. Humans live in the desert, the Arctic Circle, the jungle, you name it. You can be a San, an Eskimo, a Yanomami. Whatever the earth offers, we can take it. “As human beings, as a—as a—as a species,” Tillerson said, "We have spent our entire existence adapting, okay? So we will adapt to this. Changes to weather patterns that move crop production areas around—we’ll adapt to that. It’s an engineering problem, and it has engineering solutions. And so I don’t—the fear factor that people want to throw out there to say we just have to stop this, I do not accept."
The man Trump has picked for secretary of state has a view of the human that is similar to Badiou’s: the malleable animal.
The human changes not only in accordance with changes in the US presidency, but also with changes in the natural environment. An animal like the horse, however, is, according to this view of life and the world, chained entirely to its genes. It and the body are one. And so, when something dramatically changes around the horse, the horse is doomed to stubbornness, and doomed by its stubbornness. It goes on and on as is, as if nothing is happening. But the human and the body are not chained, and so the human can be many different types of humans in respect to different situations. And somehow the body has no say in this.2 The “plasticity” of the human—to borrow Catherine Malabou’s term—is unlimited by its fleshly extension.
In this view of things, the human as animal is basically putty, and putty is basically nothing. In both Badiou and Tillerson, we find this animal that, despite having organs, is radically empty. Indeed, Marx, the leading social philosopher of the nineteenth century, even describes the human as the animal whose body is instinct-less.3 The dam a beaver makes or a hive a bee helps to build is in (and also is) its body. The body tells the animal what to do. And the animal does exactly as it is told. But the human has a body that is mute. It says nothing, demands nothing, insists on nothing. Like the best slave, the body simply waits and receives and is obedient to the human that passes through it in a form that is consistent with a current natural or social configuration. It provides no instructions for anything. The nineteenth-century American philosopher and psychologist William James proposed that the human is the animal that does not have instincts in its body but puts them there through learning and experience. An example of this is the instinct for riding a bicycle. It is learned. It becomes a part of the body. And so what separates us from, say, a horse is that its instincts are there from beginning to end, whereas ours are accumulated through experience and learning and, as a consequence, can be unlearned by the same process. We can build a house not by listening to and following the commands of the body but from a concept of a house. And because this concept is not locked in the body, it can be not only adjusted but also judged. The bee has no idea if the hive it helps make is ugly or beautiful. It just is. Humans, on the other hand, are the art animal because concepts—or more specifically, culture—is our species-being. We are Homo culturus, that species whose instincts extend outside the limits of what is genetically pre-given in our brains.
But in fact, the human body is not blank or silent. It has lots and lots of things to say. The R&B singer R. Kelly once sang about hearing the body calling (“It’s unbelievable how your body’s calling … I can just hear it callin’ callin’”). He was right. The human body talks. It has a call. But what is it? R. Kelly would have us believe that it is: fuck me. But the human body does not say this all of the time, and to everybody it meets. The human is not the fucking animal. Indeed, all animals are fucking animals. Of the five kingdoms of life on this planet—Monera, Protista, Fungi, Plantae, and Animalia—only Monera and Protista are non-fucking. Even plants fuck, albeit from a distance usually, or with the aid of a companion species. The knowledge that’s gained from learning that a beaver fucks now and then is very small. Birds do it, bees do it, fleas do it, and so on. But to learn that, say, a beaver makes dams is of enormous importance. And a beaver’s body—its flat tail, its big teeth, its slick fur—is a collection of tools that announces the kind of animal it is in every situation: I am a builder of dams. Now, what does the human body say in every situation to all other human bodies?
I propose that the human body always says this: make me equal to you.4 We are the equality-demanding animal. Confronted with our own kind, we insist on being recognized as equal. Resist this demand and instability will follow. Equality is a force. Remove this demand, and it becomes impossible to account for any and all of our definitive characteristics: language, cooperation, and above all, morality.
With morality, we find the root of our form of sociality. For other social animals, this root is very different. Human morality, the cement of human sociality, is not a command from the gods or a god, but from the body. And what the body says is: when I’m not the same as you, make me the same as you. This is where we become as stubborn as a horse.
The human body is built for equality in much the same way a horse is built to run fast or a cow is built to chew grass. For example, there is a sharp and unusual contrast between the human iris (which can be black, or brown, or blue, or what have you) and the sclera (which is always white). This is not an accident. It has an important function, which gamblers are very familiar with. It makes us more transparent. Human eyes provide information to other humans about what a human individual sees. If the eyes of a person who one is looking at move to the left, one becomes aware that something unseen is happening in that direction. The other person’s eyes become our eyes. And similarly, our eyes can become their eyes. With another human, we have eyes behind our head. This is known as the cooperative eye hypothesis.5 The distinction of the iris enables us to communicate with just our eyes. Other apes do not use their eyes in this way. Their eyes are very uncooperative, which makes sense because they are not as social as we are, or at least not social in the same way. This is not lost, by the way, on those professionals of human identification who build our mass entertainments. For example, it is why Caesar, the leader of the rebel apes in the reboot of the Planet of the Apes film series, connects with us so powerfully. His creators made him more human than chimp by making his sclera white. Take the whites of the eyes away, and he looks less intelligent and expressive. Caesar’s eyes are not for the apes in the film, but for us in the dark theater, his human audience. We want to know what he is seeing and thinking and feeling.
The whole history of the human body can be seen as a reduction of physical inequalities. At the level of the individual (Hegel’s particularity), this is a journey toward a more and more helpless condition (the actual universality that Hegel misinterpreted as the unfolding of mind or spirit). This is called “paedomorphosis,” or “gracilization.” It has not made us only smaller and weaker but has also diminished big physical differences between men and women. The physical differences between, for example, a male and female gorilla are enormous. And evidence shows that similarly extreme sexual dimorphism existed between proto-human males and females. But the size of the sexes was equalized through the years by what appears to be the pressures of our form of sociality. Why? Because the weaker humans are, the stronger their social bonds. Gorillas could never obtain our level of sociality because their males are much too strong and independent. All they need is a family (a few females, kids), not a group, a tribe, a community.
The human body is built for equality in much the same way a horse is built to run fast or a cow is built to chew grass.
This has not prevented thinkers—often male—from dreaming of gorilla life. For evolutionary anthropologists like Peter J. Richerson and Robert Boyd, the fact that “modern humans are much less robust than earlier hominid species” is seen as a consequence of the growing human dependency not on other humans, but on technology, which makes us soft. They even believe that hunting with “projectile weapons” had something to do with it.6 Western anthropology confesses its weakness in these moments: it loves hunting and meat too much. Even to this day, the literature is filled with stories about how we became social because we needed to coordinate hunting, or we learned to share because meat is so precious and so rare and everyone loved it, or our brains expanded because of increased access to the protein of big game, and so on. But a new school of anthropologists—often female (Kristen Hawkes, to name one)—have begun telling another story, which is backed by strong evidence. For them, meat played a much smaller role than gathering in the early period of modern humans. In fact, hunting was a huge waste of resources, providing more thrills than calories.
In definitions of the human which emphasize freedom rather than equality—be they anthropological, philosophical or otherwise—one finds more longing than longitude, more fantasy than falsifiability, more desire than description.
The human is helpless without other humans. That is the nature of its body. And if we fail to recognize the depth and extent of this dependency, we will not see the source and function of human social learning. The human body forces us to learn from the experiences of other human bodies because its guiding impulse is to increase and intensify cooperation. Anything that gets in the way of learning (sharp teeth, claws, big muscles) is shed by the body. The human body is not empty, it is radically open for the reception and transmission of experiences that are not its own. The experiences of a rabbit, for example, are mostly locked in its body. A rabbit cannot learn much from another rabbit, especially if it is a stranger. As a consequence, the culture of rabbits is very limited. And this brings us to the question of culture. What is it? The accumulation of human experiences across time and space. And it is only when a culture is not open to all bodies that an ideology appears, is shaped, is transmitted.
The function of culture, as social memory, is to enhance the kind of body we have, the body of equality. Ideology is what happens when the culture that springs from and functions to serve the moral human body is captured by the few, and this capture needs justification. This is politics. This is why an egalitarian society needs little or no politics or ideology. The human, oddly enough, is not the political animal (that honor goes first to the chimpanzee; the human is the moral animal).
If we look at the leading ideology of our day—the one described by Badiou as comprising the figures of beggar, owner, consumer—it stands at a very great distance from the body that demands equality with other bodies. (An ideology can be either close to or far away from the moral body. The ideology of social democracy is, for example, closer to this kind of body than, say, neoclassical economics.) The dominant definition now says: no one is equal at all. You are either a beggar, a consumer, an owner, or nothing. Stranger yet, neoliberalism, the ruling ideology between 1979 and 2008, went so far as to say that there was no society. From the mouth of the late Margaret Thatcher, the UK’s prime minister between 1979 and 1990: “There’s no such thing as society. There are individual men and women and there are families.” Here is an ideology fit for a gorilla!
And so, human ideology not only changes a lot, but it says things that not only fail to assist but also actively attack the thing it is supposed to represent and serve—the human body—which always says: help me, make me equal to you, we must do this thing together. Ideology in this respect is a kind of autoimmune disease, or social cancer, wherein a normal, healthy, and necessary function—the culture function—goes haywire, and threatens the body with extinction.
This is where we find ourselves today: There are two things at work in the human. One is its definition, which changes; and the other is its demand for equality, which was formed over hundreds of thousands of years, and, as far as human time is concerned, is eternal.8 And in Badiou’s statement about the definition of the human in the age of Trump, we find two things. One, the beggar is at the bottom of our ideology, which means that the subject who most represents the body and speaks its language has been dishonored and banished to the streets. The owner is praised, the beggar despised. And yet it is to the beggar that we owe the enormous and even otherworldly powers of the sociality from which the owners (the strong) benefit the most. Without the demand to make me your equal, which is essentially begging, we would be no better, socially speaking, than beavers. The beggars on our streets are indeed princes and princesses in rags. And we, the consumers, have been so transformed by capitalist ideology that we can’t recognize their glory.
Badiou also reveals that the definition of the human is not only changing; with each change it also intensifies its assault on the body and its demands. From Gary Becker, to Margaret Thatcher, to Paul Ryan, we are seeing more and more extreme configurations of the ideology of ownership. In fact, this progression and intensification was the subject of an episode, “Men Against Fire,” of the science fiction TV show Black Mirror. Concerning American soldiers operating in a Northern European country for a military corporation, “Men Against Fire” envisions a future where standard forms of disseminating definitions are not enough. To achieve the best and most efficient results from soldiers—and by implication, from human subjects—the ideology is implanted in the body.
What happens is this: In the process of enlistment, soldiers are required to agree to an implant that alters their reality (it’s called “MASS”). They are also informed that they will have no memory of this implant, which, it turns out, transforms the soldier’s enemies into zombie-like creatures called “roaches.” Because the soldier cannot identify the enemies as humans, he/she can kill them without a thought. One day, the implant of one of the soldiers, Koinange (Malachi Kirby), is damaged by one of the roaches, and he sees the truth (the zombies are actually humans). Then he begins to do what humans, somatically, are made to do: offer help (equalize) other humans. A soldier in his unit, stunned by Koinange’s sudden concern for the roaches, beats the living daylights out of him and takes him back to the base. He is put in a cell and is informed about the implant and made to watch a video of himself agreeing, during enlistment, to the removal of his memory of the implant. When he refuses to have his regained awareness of the implant erased, Koinange is told that his body will have to live with the real rather than altered (video-game-like) memories of the women, men, and children he killed when he thought they were zombies. This is what hell really is. And because the human body cannot live with such pain—the pain of its others, the pain of not helping but hurting that which it recognizes as itself, the human body—he agrees to have the memory of the implant erased.
What “Men Against Fire” wants us to see is that the body of the beggar is still a problem to the leading ideology of the time, which privileges the owner. The human animal is still there. It still has the audacity to make its demands. It’s still as stubborn as a horse. But how did we end up in this twisted situation, one where ideology no longer represents the body but is entirely at war with it?9 The body of cooperation removes and represses the strong. This story constitutes the deep history of the modern human. But the story of the strong, of might makes right, of Rex Tillerson, is very recent. It constructed the world we see around us—a society that polices the beggar and protects the owner.
The Myth of Liberal Policing
Alex S. Vitale, The New Inquiry, April 2017
There has been a great deal of hand wringing about the effect of a Trump White House on the movement for police reform. Many had hoped that a Democratic administration would continue to use the Justice Department to press for reforms such as body cameras, community policing, officer diversity, and implicit bias and use of force training. These reforms represent the hallmarks of a liberal program to reestablishing legitimate policing.
Liberals think the police rightly have a monopoly on using force in the interests of the state, which they believe represents society’s general will. To retain this monopoly, the police must maintain their public legitimacy by acting in a way the public respects and within the rule of law, what is often referred to as procedural justice. For liberals, police reform is always a question of helping police sustain that legitimacy. The alternative would be to allow predators to run amok in society.
Police have always functioned as a force for controlling those on the losing end of economic and political arrangements.
In her book The First Civil Right, political scientist Naomi Murakawa points out that it is this liberal misconception of the nature of policing that has led to the inadequate police reforms of the past and present. Reformers have focused on improving the “professionalism” of police in an effort to reduce bias and unlawful behavior rather than questioning the justness of what police are asked to do. Why are the police waging a War on Drugs, War on Crime, War on Disorder, and War on Terror? Are they really the best, most just way for the state to address these issues? As part of their uncritical understanding of state power, liberals tend to ignore or downplay these questions as well as the profound legacy and continued active production of state-backed racial exploitation and domination. Rather than admit the central role of slavery, Jim Crow, mass incarceration, and over-policing in producing wealth for white people and denying basic life opportunities for black people, they prefer to focus on a few remedial programs backed up by a robust and “legitimate” criminal justice system to transform black attitudes so that they are better able to compete in the labor market. As a result, black people always start from a diminished position that makes them both more likely to come into contact with the criminal justice system and be treated more harshly by it.
The reality is that the police have always been at the root of a system for managing and producing inequality. This is accomplished by suppressing social movements and tightly managing the behaviors of poor and nonwhite people in ways that benefit those already in positions of economic and political power. Police have always functioned as a force for controlling those on the losing end of these economic and political arrangements, quelling social upheavals that could no longer be managed by existing private, communal, and informal processes. This can be seen in the earliest origins of policing, which were tied to three basic social arrangements of inequality in the 18th century: slavery, colonialism, and the control of an industrial working class. This created what Allan Silver called a “policed society,” in which state power was significantly expanded to face down the demands for justice from those subject to these systems of domination and exploitation. As Kristian Williams points out, “the police represent the point of contact between the coercive apparatus of the state and the lives of its citizens.”
Most liberal and conservative academics try to counter this argument by pointing to the image of the politically neutral professionalism of the London Metropolitan Police, which are often held up as the original police. Created in 1829 by Sir Robert Peel (from whom the “Bobbies” get their name), this new force was more effective than the informal and unprofessional “watch” or the excessively violent and often hated militia and army. But even this “noble endeavor” had at its core the mission not of fighting crime but of managing disorder and protecting the propertied classes from the rabble. Peel developed his ideas while managing the British colonial occupation of Ireland, where he struggled to foster new forms of social control that would allow for its continued political and economic domination in the face of growing uprisings. For years, such “outrages” had been managed by the local militia and, if necessary, the British Army. However, British colonial expansion and the Napoleonic Wars dramatically reduced the availability of these forces just as resistance to British occupation increased. Peel was forced to develop a lower cost and more legitimate form of policing. The initial attempt was the Peace Preservation Force, which was made up of professionals who attempted to manage crowds through a more proactive and preventive approach, embedding themselves in rebellious localities to identify troublemakers and neutralize them through threats and arrests.
Out of this experience, Peel created the London Metropolitan Police to replace the city’s existing system of semi-formal night watches backed up by local militia and a few private thief catchers. The main functions of the new police were to protect those with property from those without, and to quell riots. They also played a central role in putting down strikes and other organized actions by workers, despite their claims of political neutrality.
The London model was then imported to the U.S. beginning in Boston in 1838 and continuing through the northern cities over the next few decades. Massive immigration and rapid industrialization created an even more socially and politically chaotic environment than in the U.K.: New York was exploding with new immigrants who were being chewed up by a rapid and immiserating industrialization. Rioting was widespread during this period, occurring on a monthly basis for many years. After the 1828 Christmas riot, when 4,000 workers marched on the wealthy districts, newspapers began calling for a major expansion and professionalization of the night watch, which eventually led to the formation of the police.
In some cases, early police forces were created specifically for purposes of suppressing workers’ movements. Pennsylvania was home to some of the most militant unionism, resulting in numerous strikes and violent confrontations in the late 19th and early 20th centuries. Local police were sometimes sympathetic toward the workers who were often the bulk of local constituents, so mine and factory owners turned to the state to provide them with armed forces to control strikes and intimidate organizers. The state’s initial response was to authorize a completely privatized police force called the Coal and Iron Police. Local employers had only to pay a commission fee of $1 dollar each to deputize anyone of their choosing to be an officer of the law working directly for the employer, often under the supervision of Pinkertons or other private security forces. These police were typically used as strike breakers and were often implicated as agents provocateurs, fomenting violence as a way of justifying their continued paychecks.
The Coal and Iron Police committed numerous atrocities, including the Latimer Massacre of 1897, in which they killed 19 unarmed miners and wounded 32 others. The final straw was the Anthracite Coal Strike of 1902, in which miners and employers waged a pitched battle that lasted five months and created national coal shortages. In the aftermath, political leaders and employers decided that a new, more legitimate-seeming system of labor management was needed, to be paid for out of the public coffers. The result was the creation of the Pennsylvania State Police in 1905.
This was the first state police force, and it represented an important shift of power away from local communities. The state police unambiguously favored the interests of large employers, who had significantly more influence over state-level politicians. While putatively under civilian political control, the reality was that they remained a major force in putting down strikes, though often with less violence and with greater legal and political authority. The consequences, however, were largely the same, as they participated in strike-breaking and the killing of miners, such as in the Westmoreland County Coal Strike of 1910–11. Their frequent attacks lead Slovak miners to give them the nickname Pennsylvania Cossacks.
The Pennsylvania State Police were modeled in part on the U.S. occupation police in the Philippines, where the U.S. faced a large local resistance. According to Alfred McCoy’s Policing Empire, the Philippine Constabulary became a testing ground for new police techniques and technologies, developing close ties to local communities to monitor subversive activities and wiring the country for rapid communication of emerging intelligence. When demonstrations emerged, the police, through a huge network of informants, were able to anticipate them and place spies and agents provocateurs to sow dissension and allow leaders and other agitators to be quickly arrested and neutralized.
The U.S. also had its own domestic version of colonial policing in the Texas Rangers. Initially a loose band of irregulars, the Rangers were hired to protect the interests of newly arriving white colonists, first under the Mexican government, then under an independent Republic of Texas, and finally as part of the State of Texas. Their main work was to hunt down native populations accused of attacking white settlers, as well as investigating crimes like cattle rustling. Mike Cox’s history, The Texas Rangers: Wearing the Cinco Peso, 1821-1900, describes this as nothing short of an extermination campaign.
The Rangers also frequently acted as vigilantes on behalf of white settlers in disputes with the long-standing Spanish and Mexican populations, serving as a major force for white colonial expansion. Local whites had only to make vague accusations to receive help from the Rangers. In some cases, whites would raid cattle from Mexican ranches and then when Mexican vaqueros tried to take them back, the Rangers would be called in to retrieve the whites’ “stolen property.” Any Mexicans or Native Americans who resisted Ranger authority were subjected to killings, beatings, arrest, and intimidation. This includes the horrific 1918 massacre at Porvenir, in which Rangers killed 15 unarmed locals and drove the remaining community into Mexico for fear of further violence. The massacres by the Rangers against Mexicans led to a series of state legislative hearings in 1919 about extrajudicial killings and racially motivated brutality on behalf of white ranchers, but those hearings resulted in no formal changes. The graphic records of abuse were sealed for the next 50 years to avoid staining the Rangers’ “heroic” record.
Slavery was another major force that shaped early American policing. Well before the London Metropolitan Police were formed, cities like New Orleans, Savannah, and Charleston had full-time paid police that wore uniforms, were accountable to local civilian officials, and were connected to a broader criminal justice system. These early police forces were not derived from the informal watch system as in the Northeast but instead from slave patrols. They had the power to ride onto private property to insure that slaves were not harboring weapons or fugitives, conducting meetings, or learning to read or write. They also played a major role in preventing slaves from escaping to the North through regular patrols on rural roads.
While most slave patrols were rural and nonprofessional, the urban patrols became professional as early as the Charleston City Guard and Watch of 1783. By 1831, the Charleston police had a hundred paid city guards, 60 state guards, and foot and mounted patrols that were on duty 24 hours a day. In Charleston and other major cities of the South, slaves often worked away from their owner’s property as part of the region’s growing industrialization. Professional police were deemed essential for managing this mobile urban slave population. The result, according to Richard Wade in his Slavery in the Cities, was “a persistent struggle to minimize Negro fraternizing and, more especially, to prevent the growth of an organized colored community.” This was done through the constant monitoring and inspecting of the black population. The heavily armed police had to regularly inspect the passes of employed slaves and the papers of free Blacks. Police waged a constant battle to close down underground meeting places in the form of bars, study groups, and religious gatherings.
In rural areas, the transition from slave patrols to police was slower, but the basic functional connection was just as strong. In most southern towns the main form of law enforcement was the slave patrol that, in addition to controlling slaves, was also involved in “breaking up nighttime gatherings, hauling in suspicious characters, trying to prevent mischief before it happened, and or capturing the law breakers after the fact.” But despite this occasional enforcement action against whites, the primary focus and purpose remained to manage the slave population.
At the end of slavery, the slave patrol system was abolished and small towns and rural areas had to develop new more professional forms of policing that dealt with newly freed blacks. The main concern of this period was not so much preventing rebellion as forcing newly freed blacks into subservient economic and political roles. New laws outlawing vagrancy were used extensively to force black people to accept employment, mostly in the new sharecropping system. New poll taxes and other voter-suppression efforts were enforced by local police to ensure white control of the political system.
Anyone on the roads without proof of employment was quickly subjected to police action. Local police were the essential front door to the twin evils of convict leasing and prison farms. Local sheriffs made wholesale arrests of free Blacks on flimsy to nonexistent evidence and then drove them into a criminal justice system that subjected them to cruel and inhuman punishments that often resulted in death. These same sheriffs and judges also received kickbacks and fees for carrying out this work, and in some cases, they generated lists of fit and hard-working black people to be incarcerated on behalf of employers who would then lease them out to perform forced labor. In Slavery by Another Name, Douglas Blackmon chronicles the appalling conditions that black people were subjected to in mines and lumber camps, resulting in the deaths of tens of thousands and windfall profits for southern industrialists. By the Jim Crow era, policing had become a central tool for maintaining racial inequality throughout the South, supplemented by ad hoc vigilantes such as the Ku Klux Klan, which often worked closely with and was populated by local police.
Any efforts at police reform that fail to take this history into account run the risk of further empowering police by building their public legitimacy without questioning their basic mission. Superficial reforms in training, enhanced diversity, and body cameras don’t address the ways in which ongoing wars against crime, disorder, and drugs serve to reproduce class and race inequalities. Instead, they provide the police with more resources and give them political cover to continue their discriminatory actions. Movements for police accountability and reform must look not to “reform” police, but to reduce their scope and power; at the same time, they should also be working toward restorative justice practices as well as jobs, education and health care for our youth.
When "Not Guilty" Is A Life Sentence
Mac McClelland, New York Times Magazine, September 2017
Despite Ann’s determination to betray no emotion, a drop of sweat rolled down her temple as a guard painstakingly examined her lunch items. That Sunday morning, she had taken two buses, two trains and a shuttle to get from her home to the New York state psychiatric facility where her son is confined. Frustrated, she pushed back a little, but just a little, when the guard took away two sealed bottles of fruit-flavored water, a special treat that Ann had made an extra stop to buy. She watched as he held them up to examine them and concluded that they must contain caffeine — which is not allowed — because they did not read, “Does not contain caffeine.”
“They’re testing you,” she said to her son, James, after she was finally cleared, metal-detected and led upstairs to the visiting room, a spare, linoleum-floored space inside the hospital’s high-security building. Ann, who asked that her nickname and her son’s middle name be used to protect their privacy, usually comes to see James three times a week. Obstacles like these are routine. James, a middle-aged white man with thinning hair and a thickening waistline, listened to her complaints in a routine way, too, glancing up from the newspaper his mother had brought, the two of them sitting at a table, the same arch in their brown eyebrows, eating homemade coleslaw and sandwiches. They’ve been doing this a long time.
At some point in the next five hours — while the three of us ate lunch, and dessert, and later snacks between rounds of Bananagrams and Kings in the Corner — James said to me, “I shouldn’t have taken the plea.”
By the time of the arrest that would lead to James’s confinement here, he had already been hospitalized multiple times for threatening to kill himself. His problems stemmed, he said, from being sexually abused by his stepfather. But he had held down jobs — at a pizza shop, banquet setup in hotels — and after an intellectual disability was diagnosed, he and his mother say, he ran track and field in the Special Olympics, competing in Minnesota, Colorado, Germany and London. When I asked what charge, exactly, led to his arrest, he lowered his voice and said: “rape.” His mother added that a kidnapping count was “tacked on.”
In 1996, when James was 20, the police responded to a frantic 911 call near the house where he lived with his mother. At the scene, the officers found a woman bloodied and in distress. She said that James had lured her inside for a housekeeping interview — and that he’d been screaming when he started ripping her clothes off and beating her. The cops later picked him up at his grandmother’s house, a few miles away. At the police station, James signed a statement saying he understood his rights. He waived the right to representation. He signed a confession. (He and his mother now claim that the confession was coerced and that he is innocent.) When doctors subsequently evaluated him, they found him so unstable that they ruled him incompetent to stand trial. He was remanded to a hospital for several months, then sent back to jail, where he regressed again, then sent back to the hospital for several more months, stabilized once again, then sent back to jail, where in preparation for his trial, he was returned to the hospital to be evaluated for mental illness. Doctors diagnosed borderline-personality disorder, his mother says — which enabled him to plead “not responsible by reason of insanity.”
"You can’t just punish someone for having mental illness. But that’s happening."
James says that he understood the plea he took. In the abstract sense, he did. But the specifics of it were as mysterious to him and his family as they are to most people. Before he was arrested, James and his mother were set to move to Georgia, where they had relatives, and where Ann had friends and a job lined up. After his plea deal, Ann says, she “put everything on hold,” for what she thought would be a few years.
Instead, James, now in his 40s, has been in the hospital for almost two decades. This isn’t because he was sentenced to 20 years, or to 25. He was not sentenced at all; he is technically, legally, not responsible. The court believes beyond a reasonable doubt that he committed the act he was accused of, a prerequisite for the state to accept an insanity plea. The plea does not, however, prescribe or limit the duration of his stay. The laws that govern the practice of committing people who are acquitted because of mental illness dictate that they be hospitalized until they’re deemed safe to release to the public, no matter how long that takes.
James’s insanity acquittal placed him in an obscure, multibillion-dollar segment of domestic detention. According to a 2017 study conducted by the National Association of State Mental Health Program Directors, more than 10,000 mentally ill Americans who haven’t been convicted of a crime — people who have been found not guilty by reason of insanity or who have been arrested but found incompetent to stand trial — are involuntarily confined to psychiatric hospitals. Even a contributor to the study concedes that no one knows the exact number. While seemingly every conceivable data point in America’s prison system is meticulously compiled, not much is known about the confinement of “forensic” patients, people committed to psychiatric hospitals by the criminal-justice system. No federal agency is charged with monitoring them. No national registry or organization tracks how long they have been incarcerated or why.
In 1992, the Supreme Court ruled, in Foucha v. Louisiana, that a forensic patient must be both mentally ill and dangerous in order to be hospitalized against his will. But in practice, “states have ignored Foucha to a pretty substantial degree,” says W. Lawrence Fitch, a consultant to the National Association of State Mental Health Program Directors and former director of forensic services for Maryland’s Mental Hygiene Administration. “People are kept not because their dangerousness is because of mental illness. People stay in too long, and for the wrong reasons.”
Michael Bien, a lawyer who helped bring a successful lawsuit against the California prison system on behalf of prisoners with psychiatric illnesses, concurs. “Under constitutional law, they’re supposed to be incarcerated only if they’re getting treatment, and only if the treatment is likely to restore sanity,” he says. “You can’t just punish someone for having mental illness. But that’s happening.”
In the visiting room in New York that Sunday, as the hours went by, families came and went. Ann settled in. On James’s birthday, she brings a party: relatives, presents, a cake. And almost every week, on every visiting day, she and James try to make a life here together at the hospital — because it now seems possible that he could die there.
The insanity defense has been part of the American judicial system from its founding, carried over from our English forebears. British law has long reflected the moral sense that society has a duty not to punish people who can’t comprehend or control their crimes. But the insanity defense has always sat uneasily with the public, which tends to regard it as a means to escape justice. In the United States, such sentiments reached fever pitch in 1981, when a 25-year-old named John Hinckley Jr., hoping to win Jodie Foster’s heart, tried to assassinate President Reagan, wounding the president and three others, including James Brady, the White House press secretary, who was left permanently disabled. Hinckley was found not guilty by reason of insanity (N.G.R.I., as it is frequently abbreviated) and sent to St. Elizabeths Hospital in Washington. The country was outraged. Dan Quayle, then a senator from Indiana, called the verdict “decadent” and said the insanity defense “pampered criminals.” His Senate colleague Strom Thurmond equated it to a free ride.
In fact, despite its reputation as a “get out of jail free” card, the insanity defense has never been an easy way out — or easy to get. After a defendant is charged, the defendant, her lawyer or a judge can request evaluation by a psychiatrist. A defendant may be found incompetent to stand trial and committed for rehabilitation if she isn’t stable enough or intellectually capable of participating in the proceedings. If she is rehabilitated, she may be tried; if she cannot be, she may languish in a psychiatric hospital for years or decades. But mental illness is not exculpatory in itself: A defendant may be found mentally ill and still competent enough to stand trial. At that point, the district attorney may offer an insanity plea — some 90 percent of N.G.R.I. verdicts are plea deals. If the district attorney doesn’t offer a plea, or the defendant doesn’t take it, the case goes to trial. The defendant may still choose insanity as a defense, but then her case will be decided by a jury.
If N.G.R.I. was always difficult to get, it became even harder after Hinckley. With the Insanity Defense Reform Act of 1984, Congress restricted the judicial definition of “insanity” to only the most severe cases. Some states — Idaho, Utah, Kansas and Montana — have eliminated the defense altogether. In trials in which it is attempted, doctors may disagree, and jurors are often influenced by emotional considerations. Today, only an estimated one-120th of 1 percent of contested felony cases end in a successful N.G.R.I. defense — that is, the prosecutor disputes the insanity defense, the case goes to trial and the jury finds the defendant not guilty by reason of insanity. In addition, the legal standards for “insanity” vary among states; some define it as a defendant’s inability to know the crime was wrong or the inability to act in accordance with the law, but most define it, post-Hinckley, as only the first of these. At the trial of James Holmes, who killed 12 people and injured 70 in a movie theater in Aurora, Colo., one psychiatrist testified that he was mentally ill but that he knew right from wrong and should be considered “sane.” Another testified that he was mentally ill and incapable of reason (and, by extension, guilt). All four who examined him agreed that he had some form of schizophrenia. Jurors rejected his insanity plea.
And when an N.G.R.I. defense does succeed, it tends to resemble a conviction more than an acquittal. N.G.R.I. patients can wind up with longer, not shorter, periods of incarceration, as they are pulled into a mental-health system that can be harder to leave than prison. In 1983, the Supreme Court ruled, in Jones v. the United States, that it wasn’t a violation of due process to commit N.G.R.I. defendants automatically and indefinitely, for the safety of the public. (Michael Jones, who was a paranoid schizophrenic, had been hospitalized since 1975, after pleading N.G.R.I. to petty larceny for trying to steal a jacket.) In almost all states, N.G.R.I. means automatic commitment to a psychiatric facility. In most states, like New York, there is no limit to the duration of that commitment. In the states that do have limits, like California, the limits are based on the maximum prison sentence for the offense, a model that belies the idea of hospitalization as treatment rather than punishment. As Suzanna Gee, an attorney with Disability Rights California (a protection and advocacy agency with counterparts in every state), points out, the law allows two-year extensions as patients approach a “top date,” the limit set on their confinement. And so, she says, “it can be extended in perpetuity.”
James’s mother, Ann, now knows the predicament of forensic confinement well. At some point during James’s stay at the state hospital, she became an advocate for mentally ill offenders. “It’s like a roach motel,” she says. “At least in prison, inmates know they’re leaving. Once you check into the hospital, it’s hard to check out.”
Though forensic detentions get little attention, they can range from ethically questionable to flagrantly unconstitutional and illegal. In 1983, a national study found that N.G.R.I. patients often lost their freedom for twice as long as those actually convicted of the same offense. A study of N.G.R.I. patients in seven states between 1976 and 1985 found that in four of those states, they were confined for less time than people who were found guilty, and that in three, they were confined for longer. Scant research, conducted decades ago, seems to constitute the most recent survey of the fate of the country’s forensic commitments.
“There’s not been a lot done,” Fitch says. The federal government doesn’t collect data on forensic patients’ lengths of stay, crimes or treatment. In some cases, neither do the state or local departments in charge of their custody. In 2015, I began collecting, via request or the Freedom of Information Act, all individual length-of-stay data by legal status that existed in each state and Washington. Colorado, Wyoming, Arkansas, Missouri, California, Maine, New Hampshire, Kentucky, Wisconsin, Delaware, New Jersey, Ohio and South Carolina said they simply didn’t have that information. Alabama may or may not: In response to repeated queries, it “decided not to release forensic data,” and hospital reports are excluded from its public-records law.
Many of the above states have reported legal status and average lengths of stay. In 2014, Fitch, on behalf of the National Association of State Mental Health Program Directors, estimated, based on states’ self-reported average lengths of stay, that the national average for all N.G.R.I.s was around five to seven years. He says he finds that “horrendous,” given that civil commitments with the same diagnoses as forensic commitments can get out in under 30 days. There is no accepted body of research to suggest that lengthy institutionalization leads to better treatment outcomes. On the contrary, says Marthagem Whitlock, an assistant commissioner in Tennessee’s Department of Mental Health and Substance Abuse Services, “The deeper penetration into the system usually means more complications for the individual.” There are, as Fitch acknowledges, “people who don’t respond to treatment or who refuse treatment.” But, he argues, “it should almost never be necessary to hospitalize people that long.”
According to the state records collected for this article, in 2015, Florida had 24 N.G.R.I. patients who had been hospitalized for longer than 15 years. Texas had 27. Connecticut had 40, and Georgia had 43. New York and Washington had around 60 apiece. That’s six of the 28 states from which such data can be extrapolated, along with the District of Columbia. In those states — which exclude thousands of N.G.R.I. patients — a significant portion of N.G.R.I. patients had been hospitalized more than two years. Nearly 1,000 had been hospitalized for five to 15 years. More than 400 had been in for longer than 15. Of these, more than 100 had been in longer than 25 years and at least 60 for more than 30. And those numbers don’t present the whole picture, either: Many factors, like hospital transfers or conversion to civil commitment, can start the clock over or obscure patients’ histories. In many cases, Gee says, when patients reach out to Disability Rights California to advocate on their behalf, “if they’d not pled N.G.R.I. and just gone to prison, they might have gotten out earlier.”
Which is not to say there aren’t protocols for release. Most states do have a formal review process to judge whether N.G.R.I.s no longer fit commitment criteria: They are no longer mentally ill or are no longer dangerous as a result of their mental illness. Some states review cases on a schedule — every year, say, or in the case of New Hampshire, every five years. In others, patients (or their lawyers) have to request the review. Doctors can recommend patients for discharge at any time. Patients’ lawyers can also file writs of habeas corpus or petitions for restoration of sanity to have their cases heard in court.
At the psychiatric facility where James is a patient, as at every New York state hospital, cases are reviewed every two years or so, in a joint process by the hospital and the Office of Mental Health (O.M.H.) in Albany. In 2002, when the hospital and O.M.H. review declared James unfit for release, James requested that the court appoint him an independent evaluator and grant him a hearing.
That doctor found that he wasn’t dangerous and was ready to be transferred. The judge agreed and ordered it.
But James didn’t leave.
“Even the mechanisms for getting out,” says Pat McConahay, communications director for Disability Rights California, “are not really mechanisms for getting out.”
James’s almost-transfer 15 years ago fell under the jurisdiction of Guy Arcidiacono, now 61, the district attorney in charge of the Suffolk County Forensic Psychiatric Litigation Unit, who has handled 130 N.G.R.I. cases over 25 years. After the judge approved James for transfer, Arcidiacono and the Suffolk County district attorney’s office, joined by the New York State attorney general’s office, which represents the hospital, appealed to have the transfer order overturned. Under another judge, it was.
James’s police files are terrible to read. There was never a trial, but the allegations are disturbing. They include a statement by the woman whom the police responded to near his house saying that James sexually assaulted her, beat her unconscious, then threw her down the basement stairs. She told the police that when she came to, naked, she realized she was locked in. This, you might presume, was the basis for the rape and kidnapping charges that James said put him in the state hospital.
“Well,” Arcidiacono clarified when I contacted him, “there were two cases, actually.”
Two months earlier, James had been arrested based on another woman’s statement, taken at the emergency room, that she was pinned by her throat and raped in an empty field. (In his statement, James said she had agreed to have sex with him in exchange for crack, and that he didn’t actually intend to make good on his promise.) Charges were filed, and James was released to his mother’s custody — Arcidiacono says there’s no record of why, but it could have been because James hadn’t been indicted yet. When James pleaded N.G.R.I. to the subsequent attack, the charges from the first incident were lumped together with the new ones: in total, second-degree kidnapping, second-degree assault, second-degree aggravated sexual abuse, first-degree sexual abuse, first-degree rape and third-degree robbery.
“You can see in his case,” Arcidiacono said, “that they were serious charges.”
Like most district attorneys, Arcidiacono has substantial discretion when an N.G.R.I. patient comes up for review. Any time a hospital wants to release or transfer an N.G.R.I. patient, his office can demand a hearing. In contesting transfer or release, Arcidiacono can compel the patient to be examined by a doctor he selects. Even if that doctor agrees that the patient is ready to leave, the district attorney can still contest the release. Arcidiacono has done this and won. If a patient does win release or transfer (in New York, a forensic patient is almost always transferred to a civil, less secure facility for another unspecified amount of time before release), the district attorney can appeal, as in James’s case. When you’re dealing not with facts but with opinions, Arcidiacono told me, “reasonable people can differ.”
He went on to explain: “There are two considerations here. What is good for the defendant, and also, the safety of the public. And that’s the difficult part of these cases, balancing those two interests.”
"Everybody except for people who take the Constitution seriously and people who are in the hospital are happy the patients are there."
All this adds up to a difficult path to freedom for some N.G.R.I.s. In most states, as in New York, the courts have final review over forensic releases and transfers, and judges have the prerogative to side with the prosecution regardless of what doctors advise. Cas Shearin, director of investigations and monitoring at Disability Rights North Carolina, recalls a 1988 case in which, during an alcohol-related psychotic break, a man shot four strangers he thought were demons. “Year after year after year, his treating doctors went to the judge and said, ‘He’s ready to be released.’ ” The hospital where he was committed gave him increasing leave privileges, including reporting to a full-time job and visiting a girlfriend with whom he had children. After 21 years of incarceration and seven psychologists and psychiatrists testifying that he was no longer mentally ill and posed no threat to the public, he was released — though the judge still ordered that he submit to random drug tests for a year.
Politics, says Joel Dvoskin, a former New York State Office of Mental Health forensic director, can determine if “you’re going to stay locked up for a really long time, regardless of whether it’s safe to let you go.” Elected judges, fearing bad publicity, may be loath to release an offender into the community. As Ira Burnim, legal director of the Bazelon Center for Mental Health Law, a national advocacy organization based in Washington, explains the situation: “You have a mechanism to confine, for the protection of the public, these individuals when they’re mentally ill and dangerous, and the further you stray from that, the less it’s legally justified.”
John Hinckley Jr. became a famous example. Last September, Hinckley was released from St. Elizabeths Hospital in Washington, 35 years after being found not guilty. It had been two decades since his doctors declared his mental illnesses in full remission, which should have provided the basis for his release. “That anyone can justify keeping him in the hospital” for so long, Fitch says, “is just nuts.”
The question, according to Dvoskin, “becomes one of risk tolerance. America has become — to an extreme level that’s almost impossible to exaggerate — a risk-intolerant society.” Fears of people with mental illness persist, even though, according to the best estimates, only 4 percent of violent acts in the United States are uniquely attributable to serious mental illness. One study has found that those with mental illness are actually less likely to be seriously violent than the general population. (In addition, some N.G.R.I.s have been acquitted of nonviolent crimes, like public-order offenses, traffic offenses and prostitution.) Even if a mentally ill person has committed a crime, says Chris Slobogin, director of the criminal-justice program at Vanderbilt University Law School, “it doesn’t mean they’re going to do it again,” especially because their encounter with the forensic psychiatric system means they’ve received treatment. “This is a group of people that are incredibly stigmatized and misunderstood in terms of how dangerous they are.”
Recidivism for N.G.R.I.s is relatively low. Whereas, nationally, recidivism for released prisoners is above 60 percent, “people who are found N.G.R.I. tend to go back out into the community, and they tend to do really, really well,” Fitch says. The arrest rate for people in Maryland on conditional release, a kind of mental-health parole from the hospital, is less than half the arrest rate of the general population in the state. “If you provide treatment of illness and provide the supports they need, then they don’t reoffend,” Fitch says. As a 2016 study of N.G.R.I. recidivism in Connecticut — which has a post-release supervision program, too — also concluded: “The vast majority of individuals are not rearrested.”
It is not sober data analysis, however, that sticks in the public’s mind — or influences judges’ rulings. Hearing that a man in Nebraska whose most recent diagnosis was “cannabis abuse, unspecified” had been in the hospital for 37 years may evoke less sympathy or outrage when you learn that he killed six people, three of them children. Two of his victims he raped. One of them was dead when he did it. The other one, who was alive for the assault, was 10.
“It’s not an easy population to represent,” Bien says. “No one likes these people.”
On Nov. 21, 2011, after months of having delusions about aliens, conspiracies and poison, Houston Herczog, then 21, partly decapitated his father, Mark. Six days earlier, Mark Herczog had written a letter to God (“God — Help!”) asking him to save his newly unrecognizable son. After Houston was arrested in the bloodied family kitchen, he told the police: “The look in his eyes! I had to!”
I heard about the murder from my mother. Houston is my distant cousin, though I had never met him or his immediate family. During his trial, as psychiatrists testified about a psychotic break related to an onset of schizophrenia, his family — my family — prayed that he would be found not guilty by reason of insanity and sent somewhere for treatment. Charged with first-degree murder, Houston was facing 25 years to life. When he was found N.G.R.I. and sent to nearby Napa State Hospital, it was a relief.
It wasn’t until he was inside that any of us realized, from the mounting anxiety in his phone calls, the rules and restrictions that governed the possibility of his getting out.
Houston has now been in the hospital for four years. In 2015, I visited him there for the first time. After passing through a prison fence and four locked doors, I sat with him in an all-beige room. Schizoaffective disorder is the current diagnosis, and he is stable on medication, though he has periods of deep hopelessness. He struggles with what he has done; at the beginning of his incarceration, when, pharmacologically stabilized for the first time, he was suddenly lucid, he couldn’t do anything but lie in bed and cry. But he also struggles with the uncertainty of how long his confinement will last. Had he been convicted and received the minimum sentence, he would be out before his 50th birthday. His “top date,” according to his hospital paperwork, is Dec. 31, 2600 — 587 years after he was admitted.
Houston doesn’t dispute that he did what he did, but he does dispute the basis for his continued detention. “What are they rehabilitating?” he asked me that day, shaking his legs up and down when the caffeine from a Mountain Dew Code Red kicked in, his blue eyes wide behind wire glasses. He held his hand up, ticking the points off on his fingers. “Not a pattern of violent behavior, since I have no record of violent behavior before my crime. Is it my insanity? Because the treatment for my disease is medication, and I’m medicated and stable now.” And he is — high-functioning as you please. Before we began talking about his incarceration, he kept trying to engage me in a debate about feminist theory.
When he calls, Houston sometimes apologizes for not having much to say about his life — what would he have to say? — in limbo as it is. He would love to have a girlfriend, his first, but it seems unlikely to happen at the hospital. (“You know, I came here for the women,” he joked once.) He spends a portion of his unnumbered, many-numbered days arguing with staff about how many packets of sweetener he’s allowed to use at a time. (Patients are restricted to two at lunch; he likes his tea quite sweet.) His schedule consists of shuffling from group activity to group activity in a beige uniform, between feedings of institutional food three times a day, mind-numbing TV in the background, no internet or cellphones.
Houston’s plan is to wait until he has been hospitalized for at least five years before he bothers to file any writs or petitions for release. That number has nothing to do with what he thinks of his mental state but with comments his first social worker at Napa made: that because of what he did, he can’t possibly be let go for a long time. (When reached for comment about whether this was a plausible conversation, a spokesman for the hospital said, “A patient with a determinate sentence length of life for a high-profile crime might end up staying in the hospital for many years. It is reasonable and therapeutic for a treatment team to discuss these realities with patients.”)
Houston’s sister Savannah says that she gets it — the urge to confine forever someone who did something horrific. Savannah was home the night her brother killed their father. Only 17 at the time, she “had to walk past them to get the phone” to call 911. When she ran to her room to dial, Houston followed her, still holding a knife, but stopped when she shut the door on him. “Part of me thinks he should still have to pay in some way, whether he was in his right mind or not,” she says. “It’s hard though, too, because it is ‘not guilty.’ I have to remind myself of that a lot. I think that’s because I was there. I saw it happen.” But, she went on, “it’s my brother, and obviously I don’t want him to spend his whole life there, because even seeing what he has to eat makes me want to cry. Being there just deteriorates him more and breaks his spirit. He realizes what he did and where he is, and he’s depressed.”
Not everyone in the family is so sympathetic, says Houston’s half sister, Cameron McDowell, 43. “We have some family members who just hate him and will never forgive him. It was just such an awful thing. And I wish Dad were here every day. I can’t even imagine what he went through that night — oh, God, it was so awful.” But, she says, “he’s gone. And we have Houston now. We have to support him. This is going to sound strange, but I’ve not once been mad at him. I really, truly, passionately believe that it’s not the person that commits the crime. It’s the illness.”
At the same time, she understands why people are afraid. Cameron’s own husband isn’t yet comfortable with the idea of Houston’s hanging around their two young kids; though he loves Houston, he’s “a little bit freaked.” “I hope my husband will change his mind when Houston gets out,” she says. She, too, worries about what will happen after his release, though for entirely different reasons. “Is he going to be so institutionalized that he won’t know how to live? That’s what breaks my heart for him.”
Like Houston’s sisters, the judicial and medical systems struggle to find a balance between the blamelessness of N.G.R.I. patients and the gravity of many of their crimes. The rights of the patient are always weighed against the public good, a standard that may include a more or less explicit desire for retribution. Those who provide treatment for forensic patients, says Michael Norko, professor of psychiatry at Yale and director of forensic services for the Connecticut Department of Mental Health and Addiction Services, “still have to answer to a court, or to the board, or to the court of public opinion. Every facility has people in it who have so violated a community, a community that is so angry, so hurt, that they’re basically pariahs.” He recalls one patient who shot a police officer; at hearings for his release, a crowd of uniformed cops repeatedly showed up and stood silently, facing the review panel. The question of a patient’s hospitalization can be “reduced to people’s grief, people’s anger, people’s fear — and the complexity of the patient’s rights and their recovery, all of those complexities get overshadowed very quickly.” When I asked Norko what happened to the patient who shot the officer, he said, “Well — well, eventually, he died.”
Because diagnoses and treatment assessments cannot predict future behavior, the standards for involuntary confinement — degree of mental illness and dangerousness — are necessarily subjective. Emotions and prejudice easily come into play, even from experts. A 2003 study in The American Journal of Forensic Psychology, for example, showed that doctors are more likely to find minorities incompetent to stand trial and more likely to diagnose psychotic disorders in African-Americans. At Napa, I spoke with a patient, a friend of Houston’s, who pleaded N.G.R.I. to a murder charge and had been hospitalized for nearly 20 years. When he was granted a hearing in which, according to court transcripts, multiple clinicians recommended his release, one doctor dissented — a doctor with whom he had had an ugly dispute and who, another doctor testified, wasn’t objective. The patient’s release was denied.
Stephen Seager, a 67-year-old psychiatrist who was at Napa for five years, writes openly about his own reactions to his patients in his 2014 memoir, “Behind the Gates of Gomorrah: A Year With the Criminally Insane.” He describes being in the hallway with a group of them heading to lunch as being “engulfed in a wave of hungry psychopaths.” When one of his patients tells him a story about his childhood, he writes, “I didn’t like thinking that some of the men even had childhoods.” Asked in court about a patient’s diagnosis, he gave the admitting diagnosis — bipolar disorder, manic with psychotic features — though he writes that he knew he wasn’t currently mentally ill. But he did think he was dangerous. When I asked him about this, he said: “The point is they’re supposed to be dangerous because they’re mentally ill, but if they get better and they’re still dangerous, what do you do?” He is well aware of the import of expert testimony in retention decisions. “Most of the time,” he said, “judges take our opinion on it.
“I look for the safety of the community,” he went on. “I live here. Sometimes you just have to say something for everybody’s best interest, regardless of whether they’re mentally ill or not.”
Of patients who “just never quite get better,” in doctors’ estimations, Seager said: “Oh, they’ll be here till they die.”
Napa State hospital’s vast, drought-dry campus is roamed by a pack of screeching peacocks. At 1,255 beds, it is one of the largest state psychiatric hospitals in the country. For most of his time there, Houston has been on what’s called a discharge unit, with one to three roommates, where it’s possible to get privileges like walking to the visitors’ center alone. After a bout of suicidal thoughts, he was moved, indefinitely, to a locked unit where all activities and access to the courtyard are supervised.
Houston’s treatment consists of up to 20 hours of group classes a week. His schedule at one point included Emotional Management, Substance Recovery, Current Issues in Mental Health, Self-Esteem, Fitness/Easy Exercise, Leisure Skills/Computer, Fitness/Weight Lifting, Discharge Planning, Wellness Recovery Action Plan, Coping Skills/Fitness, Leisure Skills/Journal and Conditional Release Prep. He says they watch a lot of videos. I once talked to a fellow patient of Houston’s on the phone who said he was heading to a class where the day’s lesson was learning to make cheesecake.
“Cheesecake!” he said. “Imagine that.”
State forensic hospitals vary widely in size — anywhere from just one ward to 1,500 beds — and they also vary in the activities and treatments they offer. Public psychiatric hospitals across the country may be accredited by an independent nonprofit called the Joint Commission. But it doesn’t require, for a start, the use of evidence-based therapies. One-on-one psychotherapy can be hard to get. (Houston began receiving such therapy only after his mother spent two years asking for it, his family says. Napa declined to comment, citing privacy laws.) State mental-health agencies may not be required to report what kind of care hospitals are giving, unless something goes so wrong that it attracts the attention of federal authorities. (Many do, however, voluntarily participate in national data-collection systems.)
The American archetype of bad mental-health practices is the movie “One Flew Over the Cuckoo’s Nest”: doped-up patients locked away from society to suffer and, ultimately, to perish. Some advocates argue that the conditions at psychiatric institutions aren’t always much better. Until recently, Oregon State Hospital, where “Cuckoo’s Nest” was filmed, may in ways have been worse.
In 2006, The Oregonian won a Pulitzer Prize for its exposé of the institution. It reported that there was a male staff member who worked on one ward for only a year in the late ’80s but still managed to sexually abuse six female patients; there was a wrongful-death suit in 2003; a rape lawsuit in 1995 that accused the hospital of what The Oregonian described as a “longstanding pattern of sex abuse,” some of it by a staff member who, the paper reported, had nearly been fired the year before, “after he and several other staff asphyxiated a patient while restraining him for refusing to take off his shoe.”
The problems weren’t unique to Oregon: Nebraska state psychiatric hospitals settled two major lawsuits, one in 1996 and another in 2006, which claimed that staff members and patients raped and sexually assaulted female patients; two lawsuits have been brought against Massachusetts in the last 10 years by families of forensic patients who were subjected to illegal restraining methods, one whose condition declined and another who died. Napa had more than 4,000 reported patient-on-patient or patient-on-staff assaults in 2014; in 2010, a staff member was killed.
Today Oregon State Hospital still has the towering 1883 brick face of the “Cuckoo” era, but inside, it’s all sparkling new facilities, yoga props and a physical-therapy pool — thanks, in part, to a state senator, Peter Courtney. On a 2004 tour of the hospital, Courtney was astonished to learn of 3,600 badly corroded cans of cremains in an outbuilding, still unclaimed. Around the same time, after the death of yet another patient, the Justice Department became involved. Oregon State is now the first state psychiatric hospital in the nation to use “collaborative problem solving,” instead of, say, automatic “seclusion and restraint” of patients who start to become difficult. Courtney pushed funding for the reforms through Oregon’s State Legislature and brought in a new superintendent, Greg Roberts.
“Very often when you find serious problems, the problem is one of three things: leadership, leadership or leadership,” Roberts says. (A notable problem of leadership was found at Napa: The man who was its executive director between 2007 and 2010, Claude Edward Foulk, is now serving 248 years in prison for sexually molesting children.) Before Roberts came to Oregon, he was the person New Jersey sent to take over “problematic” hospitals that had “a serious negative incident or series of negative incidents.” He revamped three there, one of them twice.
More than 10 years into its transformation, Oregon State has come a long way. But, Roberts acknowledges, it still has a long way to go. Among the hospital’s 937 forensic patients, there were 1,908 incidents of seclusion and restraint in 2014. And while Roberts’s reforms included securing timely releases for patients — between 2012 and 2015, the hospital discharged 90 percent of its “guilty except insanity” (Oregon’s N.G.R.I.) patients with “top dates” early — it still has several patients who’ve been in for more than 15 years, who it acknowledges long ago ceased to be dangerous. Staff recently discharged one patient who had been in for more than 30.
Unfortunately, there aren’t a lot of other places for forensic patients to go. When the push to deinstitutionalize psychiatric patients began in the 1970s, many inpatient facilities were shut down or downsized in favor of community integration and outpatient services, which never adequately materialized because of a lack of funding. But institutions have remained the preferred repository for forensic patients, who fill an increasing share of the remaining 42,000 state psychiatric hospital beds. In Pennsylvania, the proportion of forensic patients increased by 379 percent between 1988 and 2008. In California, some 90 percent of approximately 7,000 state-hospital patients are now forensic. Nationwide, nearly one-third of “consumers” in state hospitals in 2007 were forensic, and that number is “rapidly expanding,” according to the federal Substance Abuse and Mental Health Services Administration (Samhsa). In the last 10 years, forensic patients’ costs jumped to $4.25 billion from $2.5 billion; forensic patients now account for 43.9 percent of total state psychiatric hospital expenditures. This means less room for others who might be seeking psychiatric care, while at the same time, states have cut billions from mental health, leaving even scantier outpatient systems. In Hawaii, as a 2015 Samhsa report notes, “There is no voluntary admission to the [state psychiatric] facility because of the volume of admissions from the court system.” The same lack of services that contributes to people’s reaching a mental-health crisis that ends in arrest also keeps people institutionalized longer afterward.
Whitlock, of Tennessee’s mental-health department, says that there are N.G.R.I. patients whom her state’s hospitals are trying to discharge but for whom they “just can’t find a provider.” Under her lead, Tennessee, more than any other state, has been trying not to commit forensic patients to begin with. Since 1974, it has done its pretrial competency evaluations on an outpatient basis, no insignificant matter given that elsewhere these can take six months or longer. In 2009, the state also started doing post-N.G.R.I. evaluations to see if N.G.R.I.s even needed hospitalization, also on an outpatient basis. “We did not think there was a need to spend 60 or 90 days in the hospital to determine if N.G.R.I.s fit the involuntary-commitment standard,” Whitlock says. “Once you get someone into the hospital, it’s hard to get the court to take them back out. We could probably determine it in a day.” Now only 55 percent of Tennessee’s N.G.R.I.s are committed. Their typical length of stay ranges between seven months and 4.5 years, and they get out, on average, in about two. The state’s new initiative adds to the body of evidence that less hospitalization doesn’t lead to higher crime rates. Since Tennessee stopped automatically committing N.G.R.I.s, says Jeff Feix, the state’s director of forensic services, “the recidivism rate we have is no different than it was before.”
Despite the clinical benefits and cost savings — in 2015, according to a Samhsa report, the average annual cost of one forensic patient, nationwide, was $341,614 — Tennessee’s model is still unusual. There is no outcry, from the public or politicians, for alternatives to indefinitely institutionalizing N.G.R.I.s. After 45 years of studying the issue and filing lawsuits on behalf of patients, Michael Perlin, an emeritus professor at New York Law School and an expert on mental-disability law, thinks he knows why: “Everybody except for people who take the Constitution seriously and people who are in the hospital are happy the patients are there. Prosecutors, police, they’re glad they’re not going anywhere. I believe that the disability rights community has never gotten substantially involved in the issue because some of the people have been charged with very horrific crimes.”
As he put it: “This is an area that everybody kind of wishes would go away.”
Nearly two decades into James’s confinement, it remains unclear if he will ever be considered fit for release. He says that currently his entire medication regimen consists of “fish oil twice a day, calcium, vitamin D and two Kool-Aids and prune juice and Metamucil.” In the 2004 appellate court overturning of his transfer, the hospital doctor testifying in favor of his continued retention pointed out that there was no medication for his diagnosis of antisocial personality disorder — just therapy, to which he was resistant. The hospital forensic committee said that they believed James was insufficiently willing to take responsibility for his actions. One of his doctors called him “sexually preoccupied”; the appellate court concluded that “the disorder will continue to cause him to be dangerous at least until such time as he decides he wants to change and begins working seriously with his treatment providers.”
The court-appointed psychiatrist at the hearing two years earlier, when James was ordered for transfer, said quite the opposite. In his opinion, James “acknowledged the wrongfulness of his actions, and although he does not show much remorse or regret for his actions as a result of limited insight, he certainly realizes that what he did was wrong and against the law.” He said that James “has benefited from [the state psychiatric facility] as much as he will benefit, and at this point he could be transferred to a civil hospital, where he will continue to benefit from the structured environment and continue to receive individual treatment, hoping that he will eventually gain further insight.” But in its appeal at that time, as in every review since, the hospital successfully petitioned to retain him.
How much James’s perceived dangerousness is due to his illness and how much to his extended hospitalization can be difficult to untangle. During a phone call last year, he confessed that lately he’d been “going through a lot of crap.” He was referring to recent fights on the ward. The 2004 appeal notes that he was assaulted twice in 2002 and “got into an altercation with another patient” that year; all of the incidents read as demerits against him. Such disputes are not uncommon for patients with personality disorders, says Norko, the Yale professor and clinician. A hospital is generally “not a good place for them,” he says. “Clinically you try very hard not to hospitalize people who have personality disorders. They can’t quite seem to ever get it right. To them it looks like: ‘The staff want me to do this, they want me to do that, they keep changing the rules,’ and they don’t understand the rules, and they get into arguments, they get into fights. It’s all part of their personality disorder, which in itself isn’t necessarily all that dangerous, but it’s kind of hard to move somebody along when their record is dotted with all of these altercations.”
Perhaps the most cleareyed view of the compromises inherent in N.G.R.I. commitments comes from Paul Appelbaum, professor and director of the division of law, ethics and psychiatry at Columbia University. Appelbaum acknowledges that some N.G.R.I.s are “unnecessarily detained for a longer period than what seems to be warranted by their mental disorder and its impact on their likelihood of being violent in the future.” But, he says, such exaggerated concerns about public safety may be necessary to the survival of the insanity defense. “There are injustices that are imposed on individuals,” Appelbaum says. “But I also see at a 30,000-foot level why the system works that way, and recognize perhaps the paradox that if it didn’t work that way, we might lose the insanity defense altogether, or at the very least have an even more restrictive system that we have to deal with.”
For many, Appelbaum says, an N.G.R.I. verdict is still superior to a conviction. “It exempts them from a formal finding of guilt, which can be important later in their lives. It enables them to serve their time of confinement in what is generally a much better and safer environment than an overcrowded state prison.” While one way to look at indefinite confinement is as an unbearable uncertainty, another is that it offers hope: “Compared to a life without the possibility of parole, you know, maybe that’s better.”
Yet for the insanity defense to live up to the moral imperative it was designed to embody — exculpating those with diminished responsibility for their acts — better mechanisms for evaluating release will need to be adopted, Slobogin says. In an attempt, in part, to protect N.G.R.I.s’ constitutional rights to be released when they don’t fit commitment criteria, the American Bar Association recently revised its criminal-justice mental-health standards, which were adopted in 1986. The association recommended that forensic patients be detained only if there is clear and convincing evidence — a standard that, if it had to be quantified, means about 75 percent certainty — that they’re mentally ill and dangerous; the current legal burden of proof in most jurisdictions is a “preponderance of the evidence,” or 51 percent certainty.
“It’s immoral to deprive someone of liberty because you’re mad at them for being found N.G.R.I.,” says Slobogin, who was on the task force. “Under our new standards, after a year you have to have very strong proof of dangerousness, or you can’t detain them.” But the standards are just recommendations, and some states didn’t even follow the ones from the ’80s. Slobogin concedes that in many jurisdictions, they may have no impact at all.
The Spirit of Late Capitalism
Hettie O'Brien, Jacobin Magazine, October 2017
“Misery, poverty, unemployment. You know — everything is dreadful! But these problems aren’t caused by things out there. They’re caused by spirits.”
So says Bishop Formigioni. He has come far, flying from São Paulo to minister a service of four thousand followers at a Pentecostal church in North London. His ecstatic sermon rises from didactic preaching to hands-on healing. Then he brings the congregation to a climax.
Silence, he tells them. Someone begins to wail, and the crowd soon becomes a writhing sea of bodies. The “possessed” have begun to “manifest.” Slickly uniformed church assistants pace the aisles and deliver people from evil spirits, laying hands on their heads and wrestling their bodies to the floor.
Pentecostalism is one of the world’s fastest growing religious movements. In 2011 an estimated 279 million people counted themselves among the Pentecostal faithful; by the end of the decade, the Center for the Study of Global Christianity projects that number will rise to 800 million.
Where northern missionaries once transported Christianity south and east, modern-day Pentecostals reverse this trajectory. Newcomers from Latin America and West Africa bring their faith to western cities, confronting new demons in the storefront churches and run-down urban landscapes where the spirits flow.
Formigioni’s congregation belongs to the Universal Church of the Kingdom of God (UCKG), a Brazilian church that boasts millions of followers across 134 countries. Some have likened this global ministry to a spiritual scam or pyramid scheme that collects financial tithes from its congregations in exchange for ecumenical promises of prosperity.
But there is more to Pentecostalism than profit-seeking. After folding banknotes into tithing envelopes, congregants at Formigioni’s service give testimonials detailing their financial hardships. Their prosperity seems perpetually deferred. So what keeps them coming back?
The answer lies in the religion’s “spiritual warfare,” which casts material problems in the language of religious combat. It tells people their faith is a panacea to injustice — an alluring message for those tired of the empty promises of politics.
The Congregation Wears Camouflage
Like an airport lounge or a shopping mall, Formigioni’s North London church isn’t designed to reflect its surroundings. Each UCKG location looks the same: a seven-stemmed menorah, an altar, and illuminated words above the stage proclaiming “Jesus Christo e o Senhor.” All follow a homogenous schedule of services designed to address practical concerns — money, health, family, career — with spiritual healing.
When Formigioni joined the church as a recovering drug addict, he enlisted in a war with the Manichean spirits that both cause and cure such maladies. Now that he’s a pastor, he teaches his congregants how to wage their own battles.
“We always call Formigioni a man of challenge because he’s so strong at fighting demons,” Daniela, a church assistant, tells me while we sit in the stalls after a service. “But really, some of the other pastors are just as strong,” she adds. “You should see them at the Friday meetings.”
On Fridays, the congregation wears camouflage. Glossy church pamphlets advertise the services: Front line: roll up your sleeves and learn how to fight.
One Friday morning, I took a thirty-minute subway ride to the church for the 10 o’clock service (one of four each Friday). The entrance was quiet, and the only sound came from the fountain, an elaborate hexagon at the center of the dark, polished foyer. Before long I found one of the many church assistants, who directed me to the thickly carpeted stairs that lead to a chapel normally reserved for Portuguese- and Spanish-language services.
Upstairs, assistants held congregants’ foreheads and cursed the spirits at the root of their worldly problems. As Daniela promised, the pastor here prayed “strong,” bracing a man’s body so it bent forward like a tabletop and demanding that the spirit inside him leave.
Spiritual warfare projects a biblical battle between demonic and divine forces onto human experience, giving believers a militarized vocabulary to explain complex issues. Often, these issues are deeply political. Yet the ritual does not distinguish between religious practice and structural problems. It sees societal change as an outgrowth of faithfulness rather than political action.
The attractiveness of this cosmology lies in its seductive promise: that demons — not politics — are to blame for the world’s troubles. And that they can be vanquished through prayer.
Redemption City
On the outskirts of Lagos, Nigeria, a one-kilometer-long aircraft hangar houses Redemption Camp, the flagship of the Redeemed Christian Church of God, a global Pentecostal ministry that started in Nigeria and now has branches across the world. Some call it Redemption City; pilgrims flock here in droves.
Adedamola Osinulu, a professor at New York University and an expert on global Pentecostalism, explains the significance of Redemption Camp: it offers, he says, a spiritual alternative — a place where the politically disenfranchised can make their voices heard.
Pentecostalism in Nigeria took off in the mid-nineties, when the brutal dictatorship of Sani Abacha meant “there was no political space in which to be active.” In that repressive environment, followers embraced religious ritual to express opposition without risking suppression or death.
In many other developing countries, Pentecostalism revived in the 1980s against the backdrop of structural adjustment policies and deepening privatization. Scholars affixed the prefix “neo” to it, creating an apt connection between the religious movement and neoliberal economics.
Of course, the depoliticization that marks Pentecostalism is just one religious response to political dispossession and economic marginalization. At its height in the 1960s and ’70s, followers of liberation theology insisted that the Catholic Church had to do more than just welcome the poor or offer faith as a personal balm. Describing the world in terms of “structural sin,” they saw religion as an instrument for tackling inequality and other social injustices. In countries across Latin America, liberation theology turned churches into a vital bulwark against dictatorship and oppression.
In contrast, in the few instances where contemporary Pentecostalism has ventured into the political arena, it’s done so for conservative purposes. In the 1990s, the UCKG denounced Workers Party leader (and eventual president) Luiz Inácio Lula da Silva, calling him a “demon” and encouraging congregants to vote for his rival. (The church later softened its approach to Lula and his successor, Dilma Rousseff, who publicly worshipped alongside UCKG founder Edir Macedo in 2014.)
The sermons highlighted the institutional power that Pentecostal churches can wield. But Brazil is the outlier, and the UCKG’s forays into electoral politics are more a reflection of the ambitions of its leadership than anything else.
The vast majority of the time, there’s politics, and there’s Pentecostalism — and never the twain shall meet. As the scholar Martin Lindhardt notes, the theological separation between “this” world and the Pentecostal world of religious ritual means political events are seen as irrelevant to what really matters: spiritual action.
Worshipers at Redemption Camp, Osinulu says, are “not trying to change society or create an alternative.” Likewise for the clergy at UCKG in London. Pastor Fernando, one of the younger pastors, tells congregants that “justice” is not “out there,” where people are striking or “holding up signs,” but in their hearts, where they solidify their relationship with God.
In places where rudimentary political action can carry enormous risk and economic forces batter workers and the poor, changing the world by changing yourself can be a compelling alternative. After all, why would you waste your time fighting hostile structures of power when you can attain the rewards of the spirit in the here and now?
Big Society
Pentecostalism grows in the fault lines of late capitalism, where structural injustices are psychologized and individualized.
To hear Daniela tell it, people are poor because they’re “letting in the devil.” The path to prosperity is through enlisting in God’s army of spiritual warriors, who are faithful enough to resist these demonic forces.
Like similar apologias — the myth of meritocracy comes to mind — spiritual warfare obscures the root of the problem: people are poor in the advanced capitalist world because money has been redistributed upward. Concentrated wealth, not insufficient faith, explains the dire economic straits in which many Pentecostal congregants find themselves.
As anthropologist Kevin O’Neill puts it, spiritual warfare allows “complex problems with deep historical roots to be moralized — to be defined as matters of character, individual failing, or sin.” In doing so, it misdirects congregants, channeling their energy toward individual struggles for recognition and redemption and away from collective struggles for redistribution and emancipation.
This isn’t to say Pentecostalism doesn’t benefit some of its congregants. People at the UCKG eagerly insist on their faith’s transformative power, and many maintain that it’s allowed them to climb from the lowest rungs of the social ladder to wealth and civic engagement. They tell stories of tackling drugs, truancy, and poverty. For women dealing with domestic violence and machismo culture, the churches can cultivate important leadership and social skills. At the very least, Pentecostalism can make crushing problems — poverty, political marginalization — seem more manageable.
Yet the belief that individual empowerment can remedy structural issues inevitably redounds to the benefit of capital — the very force responsible for their marginalization.
Scholars have long pointed out that the neoliberal state pathologizes the most marginalized — castigating them as “welfare queens” (in the US) or benefit scroungers (in the UK) — and cuts state services while speaking the language of empowerment. David Cameron’s Big Society exemplified this combination: he argued that if society could take charge of its own issues, the state would become less cumbersome, no longer weighed down by unnecessary interventions. In reality, the “Big Society” was Thatcherism by a different name: austerity and privatization policies simply shifted responsibility for providing vital benefits from the state to the individual and civil society.
Christian organizations once had soup kitchens; in Britain they now ran food banks. Pentecostal churches were among those that stepped in as the state pulled back. At the UCKG, congregants jostle to have their CVs blessed by pastors and get help navigating the bureaucratic frustrations of Home Office paperwork. Cameron himself seemed to see the connection: on the campaign trail in 2015, he visited the Redeemed Christian Church of God, where he evangelized visions of his Big Society and preached the importance of aspiration.
In countries such as Nigeria, where governments implemented neoliberal policies under pressure from international institutions, Pentecostal churches played a similar role.
Citizens had to cope with a state that couldn’t be relied upon provide basic goods. Pentecostalism swooped in, with its seductive roadmap for social and spiritual mobility. At best, it offered a way for followers to side-step the state’s inadequacies, enabling them to “do more with less.”
But whether in Nigeria or Britain, genuine empowerment was nowhere to be found. This was nothing more than a faith-inflected shell game.
What Kind of Religion?
Capitalism and religion have long been intertwined. In 1905, Max Weber argued that the “spirit of capitalism” was grounded in a “Protestant ethic” — a Calvinist proclivity for reaping the benefits of hard labor. Perhaps Pentecostalism has flourished because it jives with the spirit of late capitalism, a system that justifies deep structural injustices with the rhetoric of empowerment, innovation, and individual responsibility.
Regardless, the massive growth of Pentecostalism shows that capitalism and urbanization do not automatically breed secularity.
In his 1965 book The Secular City, Harvard theologian Harvey Cox predicted a “post-religious” age. After studying the Pentecostal movement, he retracted his claim. “Today it is secularity, not spirituality, that may be headed for extinction,” Cox later wrote.
That claim is likely overblown. But contrary to the expectations of previous generations, who saw modernity as religion’s death knell, faith is here to stay. The only question is in what form.
Testo Junkie: Sex, Drugs, and Biopolitics
Beatriz Preciado, e-flux Journal, April 2013
I live in a world where many things I thought impossible are possible. —Guillaume Dustan, Dans ma chambre (1996)
The day of your death I put a 50-mg dose of Testogel on my skin, so that I can begin to write this book. The carbon chains, O-H3, C-H3, C-OH, gradually penetrate my epidermis and travel through the deep layers of my skin until they reach the blood vessels, nerve endings, glands. I’m not taking testosterone to change myself into a man, nor as a physical strategy of transsexualism; I take it to foil what society wanted to make of me, so that I can write, fuck, feel a form of pleasure that is post-pornographic, add a molecular prostheses to my low-tech transgendered identity composed of dildos, texts, and moving images; I do it to avenge your death.
I spread the gel over my shoulders. First instant: the feeling of a light slap on the skin. The feeling changes into one of coldness before it disappears. Then nothing for a day or two. Nothing. Waiting. Then an extraordinary lucidity settles in gradually, accompanied by an explosion of the desire to fuck, walk, go out everywhere in the city. This is the climax in which the spiritual force of the testosterone mixing with my blood takes the fore. Absolutely all the unpleasant sensations disappear. Unlike speed, the movement going on inside has nothing to do with agitation, noise. It’s simply the feeling of being in perfect harmony with the rhythm of the city. Unlike coke, there is no distortion in the perception of self, no logorrhea nor any feeling of superiority. Nothing but the feeling of strength reflecting the increased capacity of my muscles, my brain. My body is present to itself. Unlike speed and coke, there is no immediate come down. A few days go by, and the movement inside calms, but the feeling of strength, like a pyramid revealed by a sandstorm, remains.
How can I explain what is happening to me? What can I do about my desire for transformation? What can I do about all the years I defined myself as a feminist? What kind of feminist am I today? A feminist hooked on testosterone, or a transgendered body hooked on feminism? I have no other alternative but to revise my classics, to subject those theories to the shock that was provoked in me by the practice of taking testosterone. To accept the fact that the change happening in me is the metamorphosis of an era.
The changes within neoliberalism that we are witnessing are characterized not only by the transformation of “gender,” “sex,” “sexuality,” “sexual identity,” and “pleasure” into objects of the political management of living, but also by the fact that this management itself is carried out through the new dynamics of advanced techno-capitalism, global media, and biotechnologies. We are being confronted with a new type of hot, psychotropic punk capitalism. These recent transformations are imposing an ensemble of new micro-prosthetic mechanisms of control of subjectivity by means of biomolecular and multimedia technical protocols. Our world economy is dependent upon the production and circulation of hundreds of tons of synthetic steroids, on the global diffusion of a flood of pornographic images, on the elaboration and distribution of new varieties of synthetic legal and illegal psychotropic drugs (e.g., enaltestovis, Special K., Viagra, speed, crystal, Prozac, ecstasy, poppers, heroin, Prilosec), on the flood of signs and circuits of the digital transmission of information, on the extension of a form of diffuse urban architecture to the entire planet in which megacities of misery are knotted into high concentrations of sex-capital.
In order to distinguish this new capitalism from the nineteenth century disciplinary regime, I shall call “pharmacopornographic capitalism” this new regime of the production of sex and sexual subjectivity.
After World War II, the somatopolitical context of the production of subjectivity seems dominated by a series of new technologies of the body (which include biotechnology, surgery, endocrinology, and so forth) and representation (photography, cinema, television, cybernetics, videogames, and so forth) that infiltrate and penetrate daily life like never before. These are biomolecular, digital, and broadband data transmission technologies. The invention of the notion of gender in the 1950s as a clinical technique of sexual reassignment, and the commercialization of the Pill as a contraceptive technique, characterized the shift from discipline to pharmacopornographic control. This is the age of soft, feather-weight, viscous, gelatinous technologies that can be injected, inhaled—“incorporated.” The testosterone that I use belongs to these new gelatinous biopolitical technologies.
We are being confronted with a new type of hot, psychotropic punk capitalism.
When I take a dose of testosterone in gel form or inject it in liquid form, what I’m actually giving myself is a chain of political signifiers that have been materialized in order to acquire the form of a molecule that can be absorbed by my body. I’m not only taking the hormone, the molecule, but also the concept of a hormone, a series of signs, texts, and discourses, the process through which the hormone came to be synthesized, the technical sequences that produce it in the laboratory. I inject a crystalline, oil-soluble steroid carbon chain of molecules, and with it a fragment of the history of modernity. I administer to myself a series of economic transactions, a collection of pharmaceutical decisions, clinical tests, focus groups, and business management techniques. I connect to a baroque network of exchange and to economic and political flow-chains for the patenting of the living. I am linked by T to electricity, to genetic research projects, to mega-urbanization, to the destruction of forests and the biosphere, to pharmaceutical exploitation of living species, to Dolly the cloned sheep, to the advance of the Ebola virus, to HIV mutation, to antipersonnel mines and the broadband transmission of information. In this way, I become one of the somatic connectives that make possible the circulation of power, desire, release, submission, capital, rubbish, and rebellion.
As a body—and this is the only important thing about being a subject-body, a techno-living system—I’m the platform that makes possible the materialization of political imagination. I am my own guinea pig for an experiment on the effects of intentionally increasing the level of testosterone in the body of a bio-female. Instantly, the testosterone turns me into something radically different than a cis-female. Even when the changes generated by this molecule are socially imperceptible. The lab rat is becoming human. The human being is becoming a rodent. And, as for me: neither testo-girl nor techno-boy. I am just a port of insertion for C19H28O2. I’m both the terminal of one of the apparatuses of neoliberal governmentality and the vanishing point through which escapes the will to control of the system. I’m the molecule and the State, and I’m the laboratory rat and the scientific subject that conducts the research; I’m the residue of a biochemical process. I am the future common artificial ancestor for the elaboration of new species in the perpetually random process of mutation and genetic drift. I am T.
I do not want the female gender that has been assigned to me at birth. Neither do I want the male gender that transsexual medicine can furnish and that the State will award me if I behave in the right way. I don’t want any of it. I am a copyleft biopolitical agent that considers sex hormones free and open biocodes, whose use shouldn’t be regulated by the State commandeered by pharmaceutical companies.
The consumption of testosterone, like that of estrogen and progesterone in the case of the Pill, does not depend upon any ideal constructions of gender that would come to influence the way we act and think. We are confronted directly by the production of the materiality of gender. Everything is a matter of doses, of melting and crystallization points, of the rotary power of the molecule, of regularity, of milligrams, of the form and mode of administration, of habit, of praxis. What is happening to me could be described in terms of a “molecular revolution.” In detailing this concept in order to refer to the revolt of May ’68, Félix Guattari certainly was not thinking of cis-females who self-administer testosterone. On the other hand, he was attentive to structural modifications generated by micropolitical changes such as the consumption of drugs, changes in perception, in sexual conducts, in the invention of new languages. It is a question of becomings, of multiplicities. In such a context, “molecular revolution” could point to a kind of political homeopathy of gender. It’s not a matter of going from woman to man, from man to woman, but of contaminating the molecular bases of the production of sexual difference, with the understanding that these two states of being, male and female, only exist as “biopolitical fictions,” as somatic effects of the technical process of normalization. It’s a matter of intervening intentionally in this process of production in order to end up with viable forms of incorporated gender, to produce a new sexual and affective platform that is neither male nor female in the pharmacopornographic sense of these terms, which would make possible the transformation of the species. T is only a threshold, a molecular door, a becoming between multiplicities.