Explorations in Critical Criminology in Honor of William J. Chambliss 9004411674, 9789004411678

Abstract: "This volume is in honor of William J. Chambliss who has influenced and provided a foundation for new dir

971 126 1MB

English Pages [225] Year 2019

Report DMCA / Copyright

DOWNLOAD FILE

Polecaj historie

Explorations in Critical Criminology in Honor of William J. Chambliss
 9004411674, 9789004411678

Citation preview

Explorations in Critical Criminology in Honor of William J. Chambliss

Studies in Critical Social Sciences Series Editor David Fasenfest (soas University of London) Editorial Board Eduardo Bonilla-Silva (Duke University) Chris Chase-Dunn (University of California-Riverside) William Carroll (University of Victoria) Raewyn Connell (University of Sydney) Kimberle W. Crenshaw (University of California, LA, and Columbia University) Raju Das (York University) Heidi Gottfried (Wayne State University) Karin Gottschall (University of Bremen) Alfredo Saad-Filho (soas University of London) Chizuko Ueno (University of Tokyo) Sylvia Walby (Lancaster University)

volume 145

The titles published in this series are listed at brill.com/scss

Cover illustration: Image by cstrsk from Pixabay.com. Public Domain. The Library of Congress Cataloging-in-Publication Data is available online at http://catalog.loc.gov LC record available at http://lccn.loc.gov/2019027712

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill.” See and download: brill.com/brill-typeface. ISSN 1573-4234 ISBN 978-90-04-41166-1 (hardback) ISBN 978-90-04-41167-8 (e-book) Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Preface  vii List of Figures and Tables  ix Notes on Contributors  x 1 Toward a Sociology of Organizational Criminal Conspiracies  1 William J. Chambliss and Christopher J. Moloney 2 Organized Crime and the Sociological Imagination  28 Gary Potter 3 Notes on the Art of Deception: the Crime Ethnography of William J. Chambliss  44 Mark S. Hamm and Jeff Ferrell 4 Kate’s Law: the Social Construction of Crime in the Trump Era  59 Teresa C. Kulig and Francis T. Cullen 5 Old Wine, New Bottles: Contextualizing Trump’s Regulatory Rollback  90 Raymond Michalowski and Meredith Brown 6 ‘Blood for Oil’: Analyzing America’s War for the Greater Middle East as a Climate Crime of Empire  116 Ronald C. Kramer 7 Green State Crimes and Toxic Prisons: Synthesizing Environmental Harms at the Intersection of the Military and Prison Industrial Complexes  139 Elizabeth A. Bradshaw 8 Make Our Enemy—Kill Our Enemy: the Creation of the Islamic State of Iraq and Syria: From Realpolitik to Biopolitics to Necropolitics  156 Sarah Pedigo Kulzer and David O. Friedrichs 9 Whose Law? What Order? Struggles within Juridical Fields  180 Ida Nafstad and Isabel Schoultz Index  201

Preface The importance and impact of Bill’s 50 years of lifework is impossible to convey with words or within this volume. As Ray Michalowski (2016: 161) stated in his introduction of a special issue dedicated to Bill in Critical Criminology, “The breadth and depth of his theoretical and methodological contributions to critical criminology is, arguably, unparalleled among U.S. scholars, and within the pantheon of Anglophone ‘anti-criminologists.”’ Bill has influenced and provided a foundation for new directions and approaches in sociology, criminology, critical criminology in particular, and the sociology of law to name a few of the many inspirational and foundational ways he has changed the course and methods for generations to come. This has inspired not only the editors and contributors of this volume, but those he met throughout his life, as well as those who continue to read, learn and garner inspiration from his work. As a colleague and friend, Bill also inspired us on a personal level, beyond our professional connections. Throughout Bill’s life and career he has challenged the traditional or orthodox definition of crime immensely influencing students, colleagues, and others as is reflected in this volume dedicated to the legacy he has left and his impact on us all. Bill was not one to sit in ‘the tower’ and conduct research; he believed scholarship should include the library and the street. Bill stated, “Going to the streets of the city, rather than the records, may bring the role of corruption and complicity between political, economic, and criminal interests into sharp relief” (Chambliss, 1978: 5–6). It is his going to the streets and ethnographic refocusing that has led so many others to follow, including some of the authors in this volume as will be discussed more fully in Chapters 2 and 3. Each of the chapters detail various ways that Bill’s work has impacted our own perspectives and/or research from the way we understand the value of non-traditional methods, law and power, the very definition of crime, organized crime, to unmasking the power structures and powerful that cause inequality, social ills and pains. Gary Potter’s chapter on organized crime and the sociological imagination, and Mark Hamm and Jeff Ferrell’s chapter on crime ethnography both demonstrate and highlight the significance of Bill’s work broadly and p ­ ersonally for the authors. They highlight through their work the importance of ‘taking to the streets’ to do ethnographic research, as Bill encouraged, as being ­necessary to more fully understanding the reality of crime. Bringing politics to the forefront, Teresa Kulig and Frank Cullen’s ­chapter emphasizes the processes of law-making, carceral logics and hegemony as utilized by ­politicians-Trump in particular-to construct a narrative of

viii

Preface

‘victim’ and ­‘offender’ to further his/their own agenda. Ray Michalowski and Meredith Brown also bring to the fore the regulatory rollbacks of the Trump administration highlighting the weakening of the rules that are intended to minimize corporate wrongdoing. Ron Kramer’s chapter on the crime of empire and climate change is another example of the significance of studying state-organized crime and its impact on not just our everyday lives but on the earth, the populations (all living things) of today and for generations to come. Similarly, in an examination of the intersection between environmental dev­ astation and mass incarceration, Elizabeth Bradshaw calls for a more integrative approach to green state crime. Sarah Pedigo Kulzer and David Friedrichs’ chapter examines the United States role and preoccupation in devastating other countries for ­geopolitical reasons, leaving a void of power for groups such as isis to gain momentum-leading to further invasion and social harms in the name of ‘humanitarian’ response. Ida Nafstad and Isable Schoultz’s chapter draws from Bill’s legacy and research in sociology of law as their title so aptly demonstrates with their examination of the struggles and contradictions within juridical fields. We lead off with Chapter 1, as it not only is by Bill (and Christopher M ­ oloney) but it reflects his efforts to redirect the focus of a field of study, for us, critical criminologists in particular. As Moloney states in the foreword to Bill and his chapter, “Bill was in fact thinking of, and pushing for, the development of a distinct field of study that could unify all of the disparate research, writing, and thinking on the topic of conspiracies and organizational malfeasance.” We hope Bill would be happy to see there has been some movement in this direction by some of us where we have rejected the constructed and often s­ elf-imposed ‘divisions within divisions’ or non-interdisciplinary approach. Most notably in the areas of state-organized crime, state crime, s­ tate-corporate crime, corporate crime, organized crime, crimes of ‘globalization,’ green criminology that all are unified by the issue of power, politics and the elite and should not be studied as a separate type of crime or harm: crimes of the powerful. By paying this tribute to Bill’s legacy, we hope in some small way that each of us can make such a contribution to not only the field, but each other, students and our surrounding communities.

Figures and Tables Figures 1.1 5.1 5.2

The structural contradictions process  18 Effect of Trump’s rollbacks—estimates of increases in mortality and morbidity  93 Origin of rollback actions—as of January 2019  95

Tables 1.1 5.1

Ideal-type typology of organizational conspiracies (selected examples provided)  10 Trump era environmental rollbacks as of December 28, 2018  95

Notes on Contributors Elizabeth A. Bradshaw is an Associate Professor of Sociology at Central Michigan University where she teaches in the social and criminal justice concentration. Much of her research focuses on state-corporate environmental crime, especially within the oil and gas industry, and social movements as forms of resistance. Her research is published in peer-reviewed journals such as Theoretical Criminology, State Crime Journal, and Critical Criminology, as well as numerous edited volumes on crimes of the powerful. Meredith Brown is a graduate student in the Department of Criminology and Criminal Justice at Northern Arizona University. Her research and teaching areas include: punishment and prisons, with a focus on corrections officers; public perceptions of police violence; mental health and the law; and state-corporate crime. William J. Chambliss left this world February 22, 2014. Victoria E. Collins is an Associate Professor in the School of Justice Studies at Eastern Kentucky University, usa. Victoria has published three books including State Crime, Women and Gender (Routledge, 2015); The Violence of Neoliberalism: Crime, Harm and Inequality (Routledge, 2019, co-authored with Dawn L. Rothe) and the present volume, Explorations in Critical Criminology in Honor of William J. Chambliss (Brill, 2019, co-edited with Dawn L. Rothe) in addition to articles in journals such as Social Justice, Crime and Justice, Crime, Media, Culture, Critical Criminology, Critical Sociology and Contemporary Justice Review. Francis T. Cullen is Distinguished Research Professor Emeritus and Senior Research Associate in the School of Criminal Justice at the University of Cincinnati. He is a past president of both the Academy of Criminal Justice Sciences and the American Society of Criminology. His recent works include Communities and Crime: An Enduring American Challenge (Temple University Press, 2017, co-authored with Pamela Wilcox and Ben Feldmeyer) and Criminological Theory: Context and Consequences, Seventh Edition (sage Publications, 2018, co-authored with J. Robert Lilly and Richard A. Ball). He is currently exploring public opinion

Notes on Contributors

xi

about gun safety measures to reduce mass shootings and about correctional policy in an era of mass incarceration. Jeff Ferrell is Professor of Sociology at Texas Christian University, usa, and visiting professor of criminology at the University of Kent, UK. His most recent book is Drift: Illicit Mobility and Uncertain Knowledge (University of California Press, 2018). David O. Friedrichs taught sociology, criminology and criminal justice at cuny-Staten Island and the University of Scranton, 1968–2018. He has published principally on whitecollar crime, crimes of states, and critical criminology. His books include Trusted Criminals: White Collar Crime in Contemporary Society, Fourth Edition (Wadsworth, Cengage Learning, 2010), Crimes of Globalization (Routledge, 2015, co-authored with Dawn L. Rothe), and Edwin H. Sutherland (Routledge, 2018, co-authored with Isabel Schoultz and Aleksandra Jordanoska). Mark S. Hamm is a Professor of Criminology at Indiana State University and a senior research fellow at the Center on Terrorism, John Jay College of Criminal Justice. His most recent book is The Age of Lone Wolf Terrorism (Columbia University Press, 2017, co-authored with Ramón Spaaij). Ronald C. Kramer is Professor of Sociology at Western Michigan University. His books include Carbon Criminals, Climate Crimes (Rutgers University Press, forthcoming, 2020); Crimes of the American Nuclear State: At Home and Abroad (Northeastern University Press, 2010, co-authored with Dave Kauzlarich); State-Corporate Crime: Wrongdoing at the Intersection of Business and Government (Rutgers University Press, 2006, co-edited with Raymond J. Michalowski); and State Crime in the Global Age (Willan Publishing, 2010, co-edited with William J. Chambliss and Raymond J. Michalowski). He is a recipient of the Lifetime Achievement Award from the Division of Critical Criminology of the American Society of Criminology. Teresa C. Kulig is an Assistant Professor in the School of Criminology and Criminal Justice at the University of Nebraska at Omaha. Her research focuses on a range of issues including studying the nature and prevalence of human trafficking, testing theories of victimization, examining rape myth acceptance in India, evaluating

xii

Notes on Contributors

public perceptions on justice-related topics and analyzing laws named after crime victims. Sarah Pedigo Kulzer is a Doctoral Candidate and Instructor of Criminology and Sociology at Old Dominion University. Her work focuses broadly on social inequality with an emphasis on crimes of the state and immigration. Raymond Michalowski is a sociologist and Arizona Regents Professor in the Department of Criminology and Criminal Justice at Northern Arizona University. Over the last halfcentury his works have covered a wide range of topics including vehicular homicide, criminological theory, the political economy of crime and punishment, motorcycle pilgrimage, state-corporate crime, and most recently, a criminology of public health. Christopher J. Moloney is a Senior Consulting Associate with the Association of Governing Boards of Universities and Colleges (agb) and is affiliated with the Center for the Study of Crime and Justice at Colorado State University. His research interests include cyber criminology, green criminology, and state crime studies. He has taught a variety of courses in sociology, criminology, and criminal justice and is the author or co-author of several books, peer-reviewed articles, book chapters, and other works. Ida Nafstad holds a Ph.D. in criminology from the University of Oslo, and works as an assistant professor at the Sociology of Law Department at Lund University, Sweden. Her main research projects concern legal pluralism. Other research interests include social control, post-colonialism and social inclusion and exclusion. Gary Potter is Associate Dean of the College of Justice and Safety, Eastern Kentucky University. He has authored over ten books, including The Mythology of Crime and Criminal Justice (Waveland Press, 2017, co-authored with Victor E. Kappeler); Drugs in Society: Causes, Concepts & Control (Matthew Bender & Co., 2007, coauthored with Michael D. Lyman); Criminal Organizations: Vice, Racketeering, and Politics in an American City (Waveland Press, 1993); Organized Crime (Prentice Hall, 2010, co-authored with Michael D. Lyman); Controversies in WhiteCollar Crime (Routledge, 2014); Constructing Crime: Perspectives on Making

Notes on Contributors

xiii

News and Social Problems (Waveland Press, 2006, co-authored with Victor E. Kappeler); and Wicked Newport: Kentucky’s Sin City (The History Press, 2008, co-authored with Thomas Barker and Jenna Meglen) along with over a hundred book chapters, peer reviewed articles, blogs, essays. Dawn L. Rothe is a Director and Professor at Florida Atlantic University, School of Criminology and Criminal Justice. She is the author or co-author of ten books and over 100 articles and book chapters. Her most recent book is The Violence of Neoliberalism: Crime, Harm, and Inequality (Routledge, 2019, co-authored with Victoria E. Collins). Her overall focus remains on issues of power, inequality, and the harms and violence of the powerful. Isabel Schoultz is Assistant Professor at the Sociology of Law Department, Lund University, Sweden. She has published academic papers on a variety of topics, including denials of corporate crime, state crime in street-level bureaucracy and access to justice in the European Court. She recently co-authored a book on Edwin Sutherland (Routledge, 2017) with David O. Friedrichs and Aleksandra Jordanoska.

Chapter 1

Toward a Sociology of Organizational Criminal Conspiracies William J. Chambliss and Christopher J. Moloney 1 Foreword At the November 2013 meeting of the American Society of Criminology in ­Atlanta, Georgia, Bill Chambliss gave a presentation titled “Toward a Sociology of Organizational Conspiracies” to a small group of colleagues, the outline of which became the foundation for this chapter. I became involved with writing and editing early drafts of this project at the same time Bill and I were developing a four-volume edited collection of empirical and theoretical research about the topic of State Crime (Routledge, 2014). Unfortunately, Bill passed in February 2014, at which point this chapter was still in development. It was his desire that it eventually find an outlet and it was not long after that Ricardo Dello Buono and (the late) Kathryn Stout had the idea of a book featuring a collection of works inspired by Bill’s research legacy. I am glad that this project, now under the leadership of Dawn Rothe and Victoria Collins, is nearing fruition and am certain Bill would be as well. However, it is important the reader understand several things. First, the ideas, and thus the real contributions, are Bill’s. My role involved writing and editing, organization of the thoughts and sections that existed in various stages of completion and development and trying to clarify the purpose of the paper. Second, in preparing this work for publication, I made the decision not to stray far from Bill’s original arguments, or examples; I think we can benefit from seeing the thinking of someone with a research legacy like Bill’s in its early phases, even if that means the finished product is not as polished as it could be. Thus, a reader will find plenty to criticize in what is published here. One could argue that in its current form the chapter lacks a crisp argument or clear contribution, that the examples don’t do enough to support the argument, and that the purpose of the paper feels derivative of contributions already made by others like Kramer and Michalowski. All of these are fair criticisms. Nevertheless, I believe there are at least two significant contributions that flow from the publication of this work, even paused as it is at the mid-point of its evolution.

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004411678_002

2

Chambliss and Moloney

First, this chapter may serve as a source of inspiration and creative propulsion for others, most notably critical sociologists and criminologists whose research occurs at the intersection of power, class, and justice. Second, I believe that Bill was in fact thinking of, and pushing for, the development of a distinct field of study that could unify all of the disparate research, writing, and thinking on the topic of conspiracies and organizational malfeasance. Bill had already done this once with his push for the development of the field of State Crime during his 1988 Presidential Address to the American Society of Criminology. He was aware of the work done under that heading over the past forty years. Clearly, he intended for this project to address what he perceived as a gap or need within the existing scholarship. Consider: research on organizational malfeasance and criminal conspiracies occurs within the fields of law, business, security studies, political science, sociology, criminology, organizational psychology, and others; even within these broad disciplines various sub-disciplines explore pieces of the same problem. Within criminology, for example, you have fields of study on corporate crime, state crime, and white-collar crime. I am convinced that Bill was trying to hone an argument about the need for the unification of research on the criminal behavior of organizations and governments occurring under all these labels into one interdisciplinary field. Bill’s research legacy orbits a deep-seated interest in justice, class, and fairness. One of his earliest published works unpacked the unjust origins of vagrancy laws, for example, and he published numerous other lesser-known works like Boxman, an examination of the life trajectory of a career safe cracker. That work highlights push and pull factors that make it difficult for a people of low socio-economic status to avoid a life of crime, a theme echoed in his better known “The Saints and the Roughnecks,” “Policing the Ghetto Underclass,” and Power, Politics, and Crime to name a few. Bill was attuned to political and cultural changes and saw, as examples in this chapter illustrate, that those most likely to suffer the consequences of the socially and criminally harmful behaviors of powerful organizations, including the state, are those who lack power, especially the poor, the marginalized, and the disenfranchised. The increasing consolidation of power within the hands of a few multi-national corporations and strong state actors is a clearly observable trend in modern society, as is the fact that these organizational actors have, and are, willing to subvert laws and risk lives to advance their individual and collective interests. That they appear willing to assist each other in each’s quest to consolidate still more power and wealth, utilizing criminal means, is extremely troubling for the rest of us.

Toward A Sociology Of Organizational Criminal Conspiracies

3

The role of Facebook and similar social media entities in disseminating false and misleading propaganda disguised as fact during the 2016 U.S. Presidential election is, if not criminal by letter of the law, socially harmful and a clear violation of the principles of trust, justice, and fairness that are supposed to form the bedrock of democracy. Bill Chambliss, himself a veteran of the Korean War, viewed the nefarious symbiotic coalescence of corporate, state, and ngo actor interests as a threat to free societies and peoples around the globe. Tens of millions have been killed by violence, neglect, and disease stemming from the conspiratorial acts of commission and omission perpetrated by these entities. Bill’s purpose was not to rehash the already well-known ideas of commission/omission in relation to state and corporate criminal acts though one might mistakenly distil this chapter down to that. Bill’s goal was not to show that organizational conspiracies occur along a spectrum of collusion from commission to omission; his was to highlight the reality that organizational conspiracies are becoming increasingly commonplace, with dire consequences. Knowledge is power. In focusing on organizational conspiracies late in his career, Bill made a decision to raise awareness about the need to give the harmful acts of organizations, ngos, and governments our full attention. His goals in writing “Toward a Sociology of Organizational Conspiracies” were to call us to action at a time when action is urgently needed; and to rally others to witness injustice and speak truth to power in support of the great tradition of public, critical scholarship. 2 Introduction1 The purposes of this chapter are to encourage cross-disciplinary unification of research, theory, and action with regard to organizational conspiracies and in so doing expand our sociological thinking about this form of criminal behavior which is increasingly prevalent and threating to justice, fairness, and democracy. Our fundamental premise is straightforward: there is an individualistic bias in the wording and application of criminal conspiracy law that impacts the public and scholarly perception of who commits conspiracies, and in turn, obstructs our ability to identify and control them. While conspiracies are often thought of in individualistic terms, we are interested in advancing the academic 1 The authors wish to thank Hunter Scott and Kelli Gulite, formerly of George Washington University, for their assistance in preparing research notes for this manuscript.

4

Chambliss and Moloney

study of organizational conspiracies—those acts committed by organizations on their own, and in collusion with other organizations, that produce grievous criminal and social harms. Certainly, individuals help to perpetrate, and often benefit from, criminal conspiracies. However, organizational conspiracies cannot be reduced to individual motives and must be studied and explained uniquely. In this regard, our intent aligns with that of Braithwaite (1989: 334), Schraeger and Short (1978) and Shover (1978) to study crime or harm, “perpetrated by organizations or by individuals acting on behalf of organizations.” Our goal in this chapter is to systematically advance the sociological study of organizational conspiracies. To that end, we have provided a typology of organizational criminal conspiracies that embraces the Weberian notion of the “ideal-type” and distinguishes between organizational conspiracies involving one organization (intra) and those involving two or more (inter). We further refine that typology by focusing on the primary mechanism of harm causation stemming from the conspiracy itself since organizational conspiracies usually become publicly known only after harms have already resulted. From our view, organizational conspiracies may be inter- or intra-organizational and produce harms primarily via commission or omission (failure to act). Our interest ultimately lies in identifying and explaining those conspiracies— whether defined as crimes by the law or not—where role incumbents within, or between organizations, conspire to commit crimes, through direct action or willful omission, for the ultimate benefit of the organization itself (Schraeger and Short, 1978). These events are becoming increasingly commonplace within modern society, threatening the public’s safety and subverting democratic principles of freedom, justice, fairness, and transparency. 3

Criminal Law and the Crime of Conspiracy

Conspiracy is defined legalistically2 as a crime committed by persons, not organizations. Individualistic bias influences who is prosecuted for committing conspiracies, and how we—as scholars and society—analytically, empirically, and theoretically study and understand the act of conspiracy and respond to it. The following examples demonstrate this individualistic bias in the wording of criminal statutes:

2 American criminal conspiracy law has a contested history and its refinement continues through court decisions today. See: Allen 1910; Sayre 1922; Smith v. United States, 2013.

Toward A Sociology Of Organizational Criminal Conspiracies

5

A conspiracy is a confederation of two or more persons to accomplish by concerted action an unlawful purpose, or a lawful purpose, by unlawful means3 (emphasis added). 2. A criminal conspiracy takes place when one…agrees with one or more other people to commit a crime, and one of them commits an overt act in furtherance of that agreement4 (emphasis added). 3. [A conspiracy results when]…‘two or more persons…conspire to commit an offense…’ (United States Federal Criminal Code, 18 u.s.c., 371, emphasis added).5 Not surprisingly, state and federal prosecutors utilize legal statutes to obtain convictions against individuals, far more often than organizations, for engaging in criminal conspiracies. Mafia don Carlos Marcello was prosecuted in this way (United States v. Marcello, 1981). More importantly, so were the former corporate executives involved in some of the largest organizational frauds in American history, including Enron’s Jeffrey Skilling and WorldCom’s Bernie Ebbers (see: United States v. Skilling, 2009; United States v. Ebbers, 2006). Sociologically and methodologically speaking, the effects of, first, legalistically defining a criminal conspiracy in individualistic terms and, second, applying conspiracy statutes against individuals—even when those individuals were part of a much larger organizational conspiracy—is to bias our understanding of who commits conspiracies and why they commit them. Identifying crimes of conspiracy within the law as crimes of “persons” cements the unit of analysis at the individual level, leading to the perpetuation of a myth that conspiracies are individual level crimes, committed by a few “bad apples” whose motivation is rooted in their own personal gain. The cumulative effect of this individualistic bias is to obscure the fact that many criminal conspiracies occur that cannot be qualified as crimes of individuals motivated strictly by personal gain, but which are, in fact, rooted in the organization6 itself, including its structure, mission, goals, methods of 1.

3 Harno (1941: 628). 4 California Penal Code S. 182. 5 The complete Federal criminal conspiracy statute reads: “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.” 6 We broadly conceptualize “organizations” to encompass corporations, international, national, state and local governments or governing bodies, non-profit organizations and national and international non-governmental organizations.

6

Chambliss and Moloney

o­ peration, and culture, all of which are closely tied in to the modern society within which that organization exists. As sociologists, criminologists, political scientists etc. who study crimes of the powerful, we must appreciate the fact that organizational structure, goals, and culture play key roles in facilitating criminal conspiracies. In other words, it isn’t a few bad apples that corrupt the entire bushel, but sometimes the bushel itself that is rotten (Pinto et al., 2008). The implications of this line of reasoning may be that modern society is perpetuating a criminogenic environment conducive to the rapid proliferation of these socially harmful conspiracies. 4

The Study of Organizational Crime and Deviance

For much of the 20th century, individuals, rather than organizations, were the “units of analysis” in studies of deviant or criminal behavior (Vaughan, 2002: 118). A shift occurred in earnest in the late 1970s and 1980s when “…studies of white collar crime…focused attention on the organization, not just as the context in which white collar crimes are committed…but as a mechanism through which illegal goals are achieved” (Tillman and Pontell, 1995: 1439). Shifting the unit of analysis from the individual to the organizational level, mirrored developments in American law whereby organizations were afforded “rights” like those bestowed upon individuals. This development also paralleled a resurgence of studies on white collar and organizational crimes, as well as the birth of the “state crime” field (Chambliss, 1989). Broadly, the mischief of organizational entities can be, and has been, studied under a diverse array of labels whose distinctions are sometimes not clear. Sutherland (1940, 1949) is, of course, credited with drawing societal and scholarly attention to what he dubbed “white collar crime” or “…crime in relation to business” (Sutherland (1940: 1)). Since Sutherland delineated the field of study, the moniker “white collar crime” and research on the topic have become ubiquitous in both academe and in the public sphere (Coleman, 1998; Croall, 1992; Geis and Jesilow, 1993; Nelken, 1994; Shapiro, 1990). However, research into organizational criminality has been, or still is, conducted under other headings including business crime (Clarke, 1990), corporate crime and corporate fraud (Albanese, 1988; Braithwaite, 1982, 1984; C ­ linard and Yeager, 1980; Comer, 1988; Pearce and Snider, 1995; Slapper and Tombs, 1999; Uzun et al., 2004), corporate and governmental deviance (Ermann and Lundman, 2002), elite deviance (Simon and Eitzen, 1982), organizational crime (­Albanese, 1982; Needleman and Needleman, 1979; Reiss and Tonry, 1993; Schraeger and Short, 1978), and organizational corruption (Pinto et al., 2008; Collins et al., 2009). In addition, the vast fields of state crime, political

Toward A Sociology Of Organizational Criminal Conspiracies

7

crime and green criminology, are closely linked with the study of organizational crime, deviance and corruption (Chambliss, 1989; Hagan, 1997; Lynch, 1990; Moloney and Chambliss, 2014; Rothe and Mullins, 2011). Moreover, other disciplines, including the law, business, psychology, and political sciences may examine aspects of organizational crime/malfeasance. Thus, there is no shortage of conceptual, empirical, substantive or theoretical work being done on the illegal or harmful behaviors of organizational entities. Studying organizational criminal conspiracies does not imply they are distinct from other forms of organizational corruption, since many forms of organizational deviance involve some element of collusion and/or covering up (Barak, 2012). Rather, we are attempting to focus on one major, increasingly threatening aspect of organizational deviance, thus following in the footsteps of Baker and Faulkner (1993: 837) who noted the “organization of conspiracies has remained virtually unexplored.” Baker and Faulkner (1993: 838) write that conspiracies are enduring “feature[s] of capitalist societies” and that the “study of the organization of conspiracy is important for both theory and policy.” In their analysis of the social organization of conspiracies, Baker and Faulkner focused on how conspiracies among organizational entities in the heavy electrical equipment industry were structured and what impacts the organization of network ties and other relations had on criminal outcomes. Our focus remains broader than that of Baker and Faulkner. Our intent is to develop a more general typology of organizational criminal conspiracies that can be utilized as a starting point to understand a wider assortment of cases and integrate with a larger assortment of theoretical explanations. Pinto et al. (2008), who themselves were responding to Ashford and Anand’s (2003) call to specify the types of corruption that occur at the organizational level, identified two forms of organizational corruption: organizations of corrupt individuals (oci) and corrupt organizations (CO). Pinto et al. note that a key distinction between those two forms of corruption has to do with who benefits most, individuals or the organization itself. Our work builds on Pinto et al.’s notion of the corrupt organization (CO), which they describe as a …top-down phenomenon in which a group of organization members undertake, directly or through subordinates, collective and coordinated corrupt actions that primarily benefit the organization … (689, emphasis added). However, in our emphasis on organizational criminal conspiracies involving corrupt organizations, we further specify, using a four-cell typology, the various manifestations that organizational criminal conspiracies involving

8

Chambliss and Moloney

corrupt o­ rganizations can take, ranging from inter-organizational to intra-­ organizational conspiracies of commission (direct action) or omission (failure to act) leading to criminal or socially harmful outcomes. 5

Defining “Organizational Conspiracy”

It makes sense to conceptualize conspiracy more broadly in terms of a “…confederation to do something unlawful or socially harmful either as a means or an end” (Allen, 1910: 533). From our view, an organizational conspiracy occurs when Role incumbents within and between organizations act to advance the interests of the organization, or prevent sanctions from befalling it, and in so doing produce criminal or socially harmful outcomes for others through the commission of illegal or harmful acts, or the willful failure to act to prevent harms from occurring. This definition is useful because it avoids the error of failing to see the forest for the trees (Sherman, 1980). In other words, it opens up the crime of conspiracy, highlighting that individuals may be responsible, but that ultimately their actions occur on behalf of the larger interests, goals, objectives, or mission of the organization. This definition creates opportunities for looking critically at how conspiracies occur within and between organizations of different types, from corporations to government agencies to religious organizations. These diverse conspiracies, which produce physical, social, emotional and psychological harms, are hardly reducible to the singular motivations, needs or desires of individuals, though individuals may certainly benefit from them (Pinto et al., 2008; Wheeler and Rothman, 1982). Rather, these conspiracies occur because the organization itself—and those it represents—stands to win big or lose substantially. Our definition also includes the important concept of social harm. Standard definitions of “crime” often derive from political processes that rarely, if ever, lead to sociologically homogenous—not to mention useful—categories of criminality (Chambliss et al., 2010; Kramer and Michalowski, 2005; Michalowski and Kramer, 2006; Mullins, Kauzlarich and Rothe, 2004; Pemberton, 2007; Rothe and Mullins, 2011; Rothe, Mullins and Sandstorm, 2008). Therefore, we have followed the lead of recent criminological arguments that the study of crime should move beyond strictly legalistic definitions of crime and include acts, events, processes, or policies that are, as Mullins and Kauzlarich (2000: 267) note, “illegal or demonstrably socially injurious,” or harmful, and

Toward A Sociology Of Organizational Criminal Conspiracies

9

which result from the “omissions or commissions” of “individuals or groups of individuals…” It is important to recognize that organizational conspiracies, even when authorities and the public know about them, escape prosecution or labeling as “criminal” acts. It is also rare for the organization itself to be significantly penalized or labeled a “criminal.” Embracing the principle of “­analogous social harm or injury” to define “criminal” conduct (see: Michalowski, 2010) helps overcome this problem. By broadening our focus beyond socio-­legal definitions of “conspiracies” and utilizing principles of social harm we are able to empirically assess a great number of organizational conspiracy cases. 6 Inter-organizational and Intra-organizational Conspiracies There are two general categories of organizational conspiracies (Table  1.1): those  that are inter-organizational (occurring between two or more organi­ zations) and those that are intra-organizational (occurring within one organization). In both categories, the organization benefits immensely from the conspiratorial act. Organizational conspiracies can be characterized by the primary mechanism through which harm is produced. They can be either inter—or intra-­organizational and produce harm primarily via (A) commission (direct ­action) or (B) omission (intentional failure to act) (see also: Ghazi-­ Tehrani, 2018; Kramer et al., 2002). Most conspiracies are likely to include some elements of both commission and omission. Nevertheless, it remains analytically useful to highlight the fact that some organizational conspiracies are more about finding ways to do something harmful, like dumping toxic waste, while others are about finding ways to avoid action in order to produce desirable outcomes, such as suppressing evidence of harm or wrongdoing. The distinction between commission and omission speaks to the nature of the conspiracy, and, more specifically, what appears to be the primary cause of injury or social harm. Was the conspiracy primarily about covering up, suppressing/hiding information, or blatantly ignoring facts or data to protect the organization or promote its best interests? If so, then we would characterize it as one of omission. The key point is that a conspiracy of omission produces criminal or socially harmful outcomes through a failure to act. Conversely, if the primary aspect of the conspiracy was the perpetration of criminal or socially harmful acts, like illegal dumping of toxic waste or intentional “cooking” of the books to defraud investors, we would classify it as a conspiracy of commission—where finding ways to commit harmful acts were primary and covering up evidence was secondary. The important point is that both conspiratorial acts of commission and omission result in the occurrence

10 Table 1.1

Chambliss and Moloney Ideal-type typology of organizational conspiracies (selected examples provided)

(A) Harm primarily via commission

Type i Inter-organizational conspiracies

Type ii Intra-organizational conspiracies

Enron and Arthur ­Anderson, early 2000s Iran-Contra, 1980s

American nsa spying ­scandal, 2000s hsbc drug money laundering scandal, 2012–2014 cia coup and a­ ssassination plans in ­Morocco, Cuba, Iran, Chile, Congo and other countries, 1950s onward

Price-fixing ­conspiracy ­involving Apple ­Computers and Harper Collins, Simon and ­Schuster, MacMillan, Hachette Book Group and Penguin Group, 2012–2014. cia collaboration with ­Vietnamese hill tribes to smuggle opium during ­ Vietnam War, 1960s (B) Harm primarily via omission

Merck and Schering-Plough drug conspiracy, 2008 United Nations, ­Nepalese Army, sanco in the Haitian cholera epidemic, 2010 National Football League and nflpa ­suppression of research and ­medical ­findings about the health risks of repeated ­concussions and head-trauma, 1990s

source: authors.

fbi cointelpro ­Program 1960s-80s

Facebook and election meddling, 2016 The Ford Pinto scandal, 1970s Roman Catholic Church sexual abuse scandal 1960s-2000s U.S. Public Health Service, Tuskegee Syphilis Study, 1930s-70s Police corruption and cover-up scandals, ­including ­Hillsborough stadium ­collapse and police cover-up of evidence in Sheffield, England, 1989, and nypd corruption scandal detailed in the Knapp Commission report, 1990s

Toward A Sociology Of Organizational Criminal Conspiracies

11

of criminally or socially harmful outcomes in furtherance of the goals or interests of the organization. 7

Organizational Conspiracy Type 1A: Inter-organizational Conspiracy of Commission

An inter-organizational conspiracy of commission results when two or more organizations enter into a conspiratorial agreement to commit a crime, or engage in another form of socially injurious behavior. The harm resulting from their conspiratorial arrangement is attributable primarily to the commission of an overt act or numerous such acts. Dumping toxic waste, targeted assassinations, and cooking the books are all examples of commissions that produce harms. Many examples of this type of organizational conspiracy can be found in the white-collar and state-corporate crime fields, as well as the recent pricefixing conspiracy involving Apple Inc. and numerous publishing companies. The 1980s Iran-Contra Affair, for example, involved multiple organizations— the cia, Reagan Administration, and Iranian government and rebel groups in Nicaragua. The most serious harms resulting from the Iran-Contra Affair resulted from overt acts of commission, such as targeted killings, trafficking in narcotics, and the sale of lethal weapons systems. Likewise, the cia’s collusion with Vietnamese hill tribes and organized crime groups to smuggle opium from Southeast Asia during the Vietnam War is another example of this form of conspiracy. Another example of an inter-organizational conspiracy of commission is the criminal conspiracy between Enron Corporation and the Arthur Andersen accounting firm.7 Arthur Andersen and Enron developed a working relationship in the late 1980s and became criminally intertwined around 1993, when Enron first hired Arthur Andersen to conduct internal audits of their finances (Brown and Duggan, 2002). Court documents and investigative exposes indicate that top management at both Enron and Arthur Andersen willingly conspired to commit financial frauds and other financial crimes on a massive scale (Herrick and Barrionuevo, 2002; Mclean and Elkind, 2003). Most notably, numerous court proceedings reveal that in 2001, as Enron’s fraudulent enterprise 7 Arthur Andersen is still in the news more than a decade after collapsing in the wake of the Enron scandal. According to a September 2014 Wall Street Journal article, former partners of the firm are purchasing the rights to the “Andersen” name and will re-brand their new tax agency “Andersen Tax.”

12

Chambliss and Moloney

was unraveling, Arthur Andersen executives told their employees to shred or destroy incriminating documents related to the Enron-Arthur Andersen relationship during an Enron audit (Arthur Andersen llp v. United States, 2004). Those documents would have clearly revealed Enron’s ongoing fraudulent financial schemes and Arthur Andersen’s complicity in enabling them to occur and persist. While authorities later charged individuals, like Enron ceo Jeffrey Skilling, with conspiracy, we would be remiss to argue that the Enron/Arthur Andersen affair was the result of a few bad apples. Indeed, from stockholders, board of directors, to low-level employees, there were few who did not have a motive to witness Enron or Arthur Andersen succeed. It is difficult to measure now how many individuals knew or felt that something was amiss with the Enron/ Arthur Andersen relationship, but what is known is that very few said or did anything to act on those ill-feelings. Thus, the Enron/Arthur Andersen conspiracy highlights how organizational conspiracies are linked to the actions of individual role incumbents, but not entirely reducible to those individuals or their motivations. 8

Organizational Conspiracy Type 1B: Inter-organizational Conspiracy of Omission

An inter-organizational conspiracy of omission occurs when two or more organizations agree to commit a crime or engage in some other socially injurious activity. The harm resulting from their conspiratorial arrangement is ­attributable primarily to omission, or the failure to act when action could save lives, prevent injury, or avert financial harm. The U.N., sanco, Nepalese Army scandal surrounding an outbreak of cholera in Haiti following the devastating 2010 earthquake is one example that fits well under this type of organizational criminal conspiracy. So too are the actions of the National Football League and the union representing its players (nflpa) to hide or suppress evidence and medical findings about the health risks of repeated head trauma (i.e. concussions). The actions of the Merck and Schering-Plough pharmaceutical companies are also illustrative of the basic parameters of this form of organizational conspiracy. In 2008, the pharmaceutical company Merck and its partner ScheringPlough, admitted to intentionally withholding the results of studies about the effectiveness of the duo’s new cholesterol drug Vytorin from investors and the public (Herper, 2013; Thomas, 2013). In the case of the Merck/Schering-Plough conspiracy, the inter-organizational element is satisfied by the collusion of the

Toward A Sociology Of Organizational Criminal Conspiracies

13

two companies with each other. Motive is also not reducible to the individual level, since both organizations stood to benefit immensely from suppression of the drug efficacy studies, and both faced significant negative repercussions should the study results be made public. Benefits accruing to each organization included higher profits and stock prices, both of which were contingent upon continued, and increasing, usage of Vytorin. In terms of negative repercussions, both companies risked losing profits as well as market share within a highly competitive industry, and weakened shareholder and consumer confidence, in addition to negative publicity, if the efficacy studies were released. Finally, the primary mechanism of harm in the case of the Merck/ScheringPlough conspiracy is clearly omission, since their actions in conspiring to withhold the Vytorin study results created the false impression among stockholders, medical practitioners, and patients that Vytorin was both a good investment as well as a useful treatment for high cholesterol. 9

Organizational Conspiracy Type 2A: Intra-organizational Conspiracy of Commission

An intra-organizational conspiracy of commission occurs when a single organization conspires to commit a crime, or to engage in some other socially injurious activity, and the harm resulting from their conspiratorial arrangement is attributable primarily to the commission of an overt act. There are many examples of this sort of organizational conspiracy because, from a criminal mindset, acting alone is often safer and more efficient than acting in concert with others. Numerous authors have detailed the cia’s involvement in planning or aiding government coups or assassinations of leaders from a diverse array of countries including Morocco, Cuba, Iran, Chile and the Belgian Congo (Hamm, 1993; McCoy, 2003). In those examples, and others like the recent drug money laundering scandal involving hsbc Bank, the nsa domestic spying scandal, and the fbi cointelpro program, the intra-organizational element is always satisfied by the nearly unilateral nature of the conspiracy. Moreover, in each of the preceding examples, motive is not reducible to the goals, needs or desires of an individual or even a small group of individuals. The conspiracy to engage in criminal or socially harmful behavior is rooted firmly in the needs of the organization as a whole. The examples listed above produced harms primarily via the commission of some criminal or significantly harmful act. Sponsoring assassinations and coups in foreign countries, as the American cia has done, clearly produces death and widespread social

14

Chambliss and Moloney

disorganization, the effects of which may ripple outward to other countries and reverberate for many decades. Purposefully laundering drug profits, spying on your own citizens, and working to destabilize legitimate domestic social organizations and movements—as the fbi did via the cointel program and the nsa has done in recent years—not only produces a wide range of harms, but serves to weaken public trust in those organizations and the democratic systems of governance they are supposed to protect. 10

Organizational Conspiracy Types 2B: Intra-organizational Conspiracy of Omission

An intra-organizational conspiracy of omission occurs when a single organization conspires to commit a crime, or to engage in some other socially injurious activity, and the harm resulting from their conspiratorial arrangement is attributable primarily to a failure to act (omission). In failing to take action, serious harm occurs, persists and/or may go undetected, resulting in deaths, financial losses, and other emotional, psychological and physical harms. Ford Motor Company’s handling of the Ford Pinto affair is one example, where despite internal corporate knowledge that the Ford Pinto was susceptible to catching fire if involved in rear-end collisions due to a manufacturing design flaw, the company, after conducting a risk-benefit analysis, chose not to intervene and alter the automobile’s design or recall existing vehicles. In withholding information about the threat of death or serious injury from the public and motorists who drove the Ford Pinto, Ford Motor Company made the conscious decision to put profits over human lives (Dowie, 1977). While sexual abuse is not confined to the Roman Catholic Church, numerous recent scandals involving the intentional cover-up of sexual abuses by church clergy and other staff represent another example of an intra-­organizational criminal conspiracy of omission. Between 1950 and 2002 alone, 10,667 people made allegations of childhood sexual abuse at the hands of Catholic Church workers and clergy (D’Antonio, 2013). Over 4,000 Catholic priests in the United States were named as sexual predators, but in a review of actions taken, only 14% were ever reported to the police for their misconduct (D’Antonio, 2013; Terry, 2008, 2011). In effect, for many decades as allegations of sexual abuse or rumors of deviant sexual activity by clergy became known to Catholic Church administrators, a conspiracy to cover-up these allegations and keep the public in the dark occurred. Cardinal Roger Mahoney of the Los Angeles Catholic Diocese covered up sexual abuse among priests in his diocese from the time he was appointed

Toward A Sociology Of Organizational Criminal Conspiracies

15

Bishop in 1985 until he retired as Cardinal in 2011 (Betti, 2013). In 1986, soon after becoming a Bishop, a priest named Michael Baker confessed to him that he molested two boys (Betti 2013; Gorman, 2013). Instead of reporting the abuse to the police, Cardinal Mahoney sent Baker to a Church-run treatment center in New Mexico for much of the year of 1987, though church records officially labeled this trip as “sick leave” (Betti 2013). Cardinal Mahoney’s top advisor, Bishop Thomas Curry, also ordered Baker not to discuss his crimes with his psychotherapist so as to circumvent California state law, which requires therapists to report child abuse (Flaccus, 2013; Gil, 2003). In one memo to Mahoney, Bishop Curry argued against further therapy for Baker in California, writing “if he were to mention his problem with child abuse it would put the therapist in the position of having to report him. I think we have to be very careful about whom he goes to see and what kind of information is released.” At the bottom of that letter, Mahoney hand wrote and signed his response: “Sounds good! Please proceed!” (Curry, 1987). However, the Roman Catholic Church is far from the only organizational entity that has conspired to withhold information about harmful or criminal wrongdoing from authorities or the public. Penn State University conspired to withhold damaging information related to former assistant football coach Jerry Sandusky’s sexual abuse of children that occurred on the Penn State ­campus (Freeh, 2012; Moulton, 2014). The British Broadcasting Corporation (bbc) failed to report the fact that one of their most popular children’s radio program hosts, Jimmy Saville, was also a pedophile and rapist who for decades sexually molested children, adults and even corpses (bbc News, 2014). Most recently the usa Gymnastics scandal involving Dr. Larry Nassar’s sexual abuse and assaults of over one hundred young female athletes over a period of decades highlights the extent to which an organization will go to cover up or deny potentially damaging information—even through leadership changes in top positions. Authorities themselves are sometimes at the center of intra-organizational conspiracies of omission. Police departments, like the nypd and lapd, have been caught multiple times suppressing, ignoring, or destroying evidence of abuses, excessive use of force, and corruption. When authorities engage in conspiracies of omission, their actions may take years or decades to be revealed, as was the case in the UK when criminologist Phil Scraton published a book on the Hillsborough Stadium collapse disaster that detailed attempts by local police to cover-up their role in exacerbating the disaster (Scraton, 2009). Among other things, police officers and administrators lied to independent investigators and altered official police reports to hide the police role (Laville, 2014).

16 11

Chambliss and Moloney

Toward an Explanation of Organizational Conspiracies

Braithwaite (1989) noted that explanations of organizational crimes and deviance draw from both criminological theories and theories on organizations. In many cases, explanations of organizational crimes represent either an integration, or extension, of the ideas of Willem Bonger or Edwin Sutherland: The thrust of the Bonger analysis was that capitalism developed egoism at the expense of altruism…Sutherland’s…approach…believed that many corporations were organized for crime in a structural sense. Crime arises from an excess of definitions favorable to the law over definitions unfavorable to law violation (Braithwaite, 1989: 335). Present in the Bongerian tradition is an emphasis on individual level differentiation, especially the formation of attitudes supportive of criminal and deviant conduct. These attitudes are engendered by, and linked to, the broader culture, for example the culture of the organization, and contribute to the formation of criminal or deviant subcultures; at a more abstract level, the culture itself is shaped and influenced by the structure of capitalism (Braithwaite, 1979, 1989; Coleman, 1987). Meanwhile, emphasis within the Sutherland approach is very much on the structure of the organization and the social organization and dynamics of the organization itself. From this view, the criminality or deviance of an organization is linked with Sutherland’s notion of “differential social organization” and his proposition of differential association—crime or deviance among organizations occurs because of an excess of definitions favorable to law violation over those unfavorable. These two viewpoints, which have influenced so much theory with regard to organizational crime, are complementary rather than oppositional. Over time, attempts to explain crime among organizations have run the gamut, drawing on multiple concepts from the work, or traditions, of Bonger, Sutherland and others: control, dramaturgy, deterrence, learning, opportunity, semiotics, shaming, strain, subcultures, the social organization of organizations. These diverse explanations for the same or similar phenomenon focus varyingly on factors within organizations at the individual and structural levels (see: Collins et al., 2009; Granovetter, 1985; Shadnam and Lawrence, 2011; Manning, 1992; Shover and Hochstetller, 2002; Tillman and Pontell, 1995; Vaughan, 2002). There is, thus, no real need for a general theory of “organizational crime,” which would likely fall short of its goal in the same manner that general theories of interpersonal crimes have. More importantly, the type of organizational conduct studied will influence the type of explanation sought.

Toward A Sociology Of Organizational Criminal Conspiracies

17

In general, the key takeaways from the forgoing discussion are that explanations of organizational crime and malfeasance are wide ranging. Future explanations should focus on specific types of organizational malfeasance and the individual, cultural and structural level forces and processes supporting them. Our focus is to tentatively explain why organizations engage in conspiracies. In order to understand why organizations engage in conspiratorial acts that produce devastating social harms, one must look for answers in both the structure of the organizations and in the social dynamics of interpersonal relations o­ ccurring within them. In the sections below, we offer an explanation for organizational conspiracies that takes into account the fundamental structural contradictions inherent to all organizations as well as a key social process within organizations that influences individual and group behavior toward criminal or deviant conduct. Structural Contradictions and Organizational Criminal Conspiracies Organizations are key features of large societies, whether those societies are characterized as capitalist, socialist, communist, or something else. Whether the specific type of organization is private, for-profit, governmental-regulatory, non-profit, or some other type, all organizations are prone to experience conflicts while carrying out of their missions and in the realization of their organizational goals or objectives. From our view, most, if not all, of these conflicts trace their origins to contradictions inherent in the structure and functioning of organizations: 11.1

A contradiction exists when established economic, ideological, political or social relationships function to maintain the status quo, but simultaneously create the conditions to transform it…that is, when conforming to one set of demands, goals or institutionalized processes creates ­situations fundamentally antagonistic to established social relations (Chambliss, 1993: 9; also 1989: 300). The key issue is that dealing directly with the contradictions is almost impossible on a piecemeal basis and may be difficult to achieve even with a coalition. Organizations confronted with conflicts stemming from contradictions that cannot be easily resolved then face a dilemma about what to do. Unfortunately, the course of action often seen as most beneficent to the organization is one that is criminal or socially harmful. Our starting point for explaining the occurrence of organizational conspiracies is thus the belief that structural contradictions are a key part of the causal chain between the existence of an organization and any resultant organizational criminality or malfeasance.

18

Chambliss and Moloney

The starting point for structural contradictions theory is Marx’s observation that the fundamental contradiction in capitalism is that workers (i.e. producers) do not own the products they produce; rather, ownership belongs to the capitalists, who are not laboring to produce the products at all. As a consequence, a conflict is inherent in the political economy of capitalist societies as groups of workers and owners struggle to enhance their control over, and profits derived from, whatever the workers produce and the capitalist owns. Structural contradictions such as that between workers and capitalists inevitably lead to conflicts that place organizations and the state into a dilemma. The dilemma is how to resolve the conflict(s) without fundamentally altering social, political, and economic relations, or destroying the organization all together? The way society works, from how state governments and corporations function and behave to how law is created can be explained as a process where officials attempt to resolve conflicts generated by fundamental contradictions in the political economy of capitalism (Chambliss, 1979; Chambliss and Zatz, 1993; Chambliss, Michalowski and Kramer, 2010; Hinch, 1991; Rothe and Mullins, 2006b). In responding to conflicts, organizational actors create solutions and resolutions that often produce serious harms and, therefore, additional contradictions and conflicts (See Figure 1.1). Embedded within every political economy, and every organization, are fundamental contradictions that help us to understand why decisions, behaviors, and events take the forms they do. The contradiction between the goals of an

contradictions conflicts

dilemmas resolutions

conflicts

dilemmas contradictions

conflicts

dilemmas resolutions

Figure 1.1 The structural contradictions process Source: Chambliss, William J., Zatz, Marjorie S. 1993. Making Law: The State, Law, and Structural Contradictions. Bloomington, Indiana: Indiana University Press.

Toward A Sociology Of Organizational Criminal Conspiracies

19

organization and the reality of organizational practices, or facts, leads to conflicts. Different organizations resolve the dilemma generated by the conflict in different ways, although there is a clear tendency in all cases to (1) mislead or lie about the condition of the organization even to the point of committing crimes, and (2) to cover up unpleasant facts to protect the public image and/ or the economic interests of the organization. Indeed, across all types of organizational conspiracies protecting the organization from economic adversity, negative publicity, or both is of primary importance. For many organizations, including Enron, the nfl, Merck, law enforcement agencies, the cia, state governments, and ngos, engaging in criminal or socially harmful conspiracies is a response, and resolution, to conflicts generated by structural contradictions within the structure of the organization itself. For example, the commission of inter-organizational conspiracies between Enron and Arthur Anderson enabled both organizations to continue to profit. A failure to conspire would have the consequence of undermining the profitability of both organizations. Likewise, the cooperation between the cia and opium growers/smugglers in Vietnam was theoretically the same process: to gain the support of the Hill tribes in order to limit the infiltration of men and arms from China into Vietnam the cia faced the contradiction of enforcing antiopium laws, in which case the Hill tribes would cooperate with the Chinese, or support the Warlord opium smugglers, thereby gaining an ally against the Chinese. Obviously, the cia chose the latter course of action, which was illegal, and tried to conceal that decision from the public. Organizational Structure and Interpersonal Relations in Conspiracies For the Church, government agency, University, ngo, or corporation, the dilemma created by contradictions is to admit the problem and risk the consequences or cover up the problem and hope that it can be handled internally and the world will never be the wiser. Corporations can create new ways to earn profits or hide losses, the Church can move pedophile priests to another jurisdiction, banks can hedge their poor investments by purchasing insurance (credit default swaps) against securities that they already know are worth only pennies on the dollar, and government agencies can use their power and influence to suppress evidence or thwart normal legal proceedings. Thus, on the most abstract level of explanation, contradictions, conflicts and dilemmas inherent in the structure of the organization explain the structural forces that lead to conspiracies both within and between organizations. At a lower level of abstraction, the testimony of people involved in organizational conspiracies illustrates what Albert Cohen, in his analysis of w ­ orking 11.2

20

Chambliss and Moloney

class juvenile gangs, referred to as a process of mutual conversion resulting from shared problems of adjustment (Cohen, 1955). In every conspiracy, individual actors within and between organizations share the same problem: how to protect the organization from adverse publicity and/or dire economic consequences. In most cases, some members of the organization with decision-­making power communicate with one another about the problem and then agree upon a solution through a process of mutual conversion where suggestions are made that “we might consider” a “cover-up,” or “cooking the books” or “lying to investors” or some other illegal or harmful actions. Faced with the suggestion, some organizational members may opt out of the conversation or doubt the wisdom of the solution. Others, however, may grasp at the possibility and help develop a criminal or socially injurious solution to the shared problem at which point the conspiracy is hatched and implemented. Faced with a shortfall of millions of dollars the officers of MF Global provided a textbook example of this process. The ceo of MF Global, Jon Corzine (former U.S. Senator and the ex-Governor of New Jersey) called lower level executive, Edith O’Brien, and informed her that “the most important thing” she could do was to find cash to cover the shortfall. Mr. Corzine did not instruct her directly to use customer’s cash (an illegal transfer) but the implication was clear. As John Hannas of Georgetown University observed, when Henry ii asked his underlings, “Will no one rid me of this troublesome priest?” the message was clear. Like Henry ii’s underlings, Ms. O’Brien found an illegal solution, transferring $200 million from an account held by customer deposits into MF Global accounts. In a recorded conversation, Ms. O’Brien told a colleague, “The only place I had the $175 million, O.K., was in [customer deposits]…That’s what we do all the time because we don’t have enough capital.” The following Monday, MF Global declared bankruptcy. By this time, over $900 million had been taken from customers’ accounts to meet the firm’s shortfalls (Stewart, 2013). In another recent example of the mutual conversion phenomenon, the well-known technology company Apple, was found in July 2013 to have facilitated a conspiracy with several large book publishers to force Amazon, another major e-retailer of books, to raise the price of e-books. They accomplished this “­Akido move,” as Apple called it, by backing the publishers to move to an “agency model” in which the publishers set e-book prices, rather than the “wholesale model” that Amazon had used to monopolize the e-book industry, but that also kept prices of e-books low for consumers (Gustin, 2013). After Amazon was forced to change models by the conspiring publishers (backed by Apple’s promises to keep prices high for the publishers, which would make more

Toward A Sociology Of Organizational Criminal Conspiracies

21

money for both parties), prices on e-books rose overnight by 18.6% on average, with bestsellers costing 42.7% more (Gustin, 2013). The mutual conversion in this conspiracy was clear in Apple executive Eddie Cue’s testimony, in which he argued that Apple had “expected” the publishers to force Amazon to move to the agency model with Apple support, but he denied “knowing” that they would. While the judge did not find Cue’s testimony credible, it does speak volumes about the way mutual conversion works to foment conspiracy. In this case, all Apple had to do was suggest to the publishers the opportunity for alleviating their common troubles with Amazon, and “expect” the publishers to take that opportunity (Gustin, 2013). 12 Conclusion While organizational conspiracies may not make much sense when looked at after the fact, in the moment they make perfect sense: they are the most expeditious means for attaining some highly valued goal or for minimizing some abhorrent form of risk to the organization. We have outlined many poignant examples of major crimes and socially injurious acts facilitated and enabled as a result of organizational conspiracies. These examples suggest a typology of conspiracies that highlights the similarities and differences amongst them may be useful for identifying, but also understanding them. They also point to a growing trend within modern society of powerful organizations—from corporations to governments to ngos and religious organizations—becoming more prone to engage in, and reliant upon, conspiracies to solve their problems, regardless of the consequences to the public. Organizational conspiracies can be understood as a response to the ­structural-contradictions that develop within an organization. The contradictions vary (e.g., protecting the organization from adverse publicity, protecting the stock price of the company), but the conspiracies result from decisions to ­resolve the conflicts and dilemmas resulting from the contradictions by committing criminal or harmful acts. On a social psychological-level the process wherein role occupants become involved in criminal conspiracies is best understood as one of “mutual conversion” where people in a group sharing similar problems “mutually convert” one another to a conspiracy as a solution to their shared problems. To be clear, we are not trying to explain what is encompassed by the legal definition of conspiracies. Our focus is on organizational conspiracies. Conspiracies like the recent case of high-level naval officers accepting bribes and favors (e.g., prostitutes and vacations) from defense contractors are not what

22

Chambliss and Moloney

we are analyzing, nor are conspiracies involving a few corrupt cops laundering drug profits along the Texas-Mexico Border (Eells, 2015; Perry, 2015). Our focus is on organizational conspiracies where the protection of the organization is the primary reason for the conspiracy. Whether or not individuals benefit from the conspiracy, and no doubt some usually do, is not our concern. It is the contradictions in the structure of the organization that prompts the conspiracy and it is the protection of organizational interests and goals that are paramount. It has long been recognized by sociologists of crime that the study of conspiracies is a field laden with land mines that it may be best to avoid given the plethora of unfounded claims. We suggest, however, that there is a rich theoretical and empirical harvest to be had by conceptualizing and explaining the area while avoiding the land mines. While it is crucial that we critically evaluate tautological conspiracy theories that cannot be disproven, it is equally important that we recognize the sociological connections between organizational conspiracies that occur at the highest levels among groups as divergent as the United Nations, the Catholic Church, organized crime, law enforcement agencies, financial institutions, and governments. References Albanese, J.S. 1982. Organizational Offenders: Understanding Corporate Crime. Niagara Falls, NY: Apocalypse. Allen, A.M. 1910. “Criminal Conspiracies in Restrain of Trade at Common Law.” Harvard Law Review, 23(7): 531–548. Barak, G. 2012. Theft of a Nation: Wall Street Looting and Federal Regulatory Colluding. Lanham, MD: Rowman and Littlefield. BBC News. 2014. “The Jimmy Saville Scandal.” BBC, June 27. Retrieved January 10, 2015 (http://www.bbc.com/news/uk-20026910). Betti, M.M. 2013. “Behind the Scenes: Church Personnel Files Show how the Los Angeles Archdiocese Covered up Priest Child Sexual Abuse.” Law Offices of Betti and Associates, January 23. Braithwaite, J. 1979. Inequality, Crime and Public Policy. London: Routledge and Kegan Paul. Braithwaite, J. 1982. “Enforced Self-regulation: A New Strategy for Corporate Crime ­Control.” Michigan Law Review, 80(7): 1466–1507. Braithwaite, J. 1984. Corporate Crime in the Pharmaceutical Industry. London: Routledge and Kegan Paul. Braithwaite, J. 1989. “Criminological Theory and Organizational Theory.” Justice Quarterly, 6(3): 333–358.

Toward A Sociology Of Organizational Criminal Conspiracies

23

Brown, K. Duggan, I.J. 2002. “Arthur Andersen’s Fall from Grace is a Sad Tale of Greed and Miscues.” The Wall Street Journal, June 22. Byford, J. 2011. Conspiracy Theories: A Critical Introduction. New York, NY: Palgrave Macmillan. Chambliss, W.J. 1979. “On Lawmaking.” British Journal of Law and Society, 6(2): 149–171. Chambliss, W.J. 1989. “State-Organized Crime.” Criminology, 27(2): 183–208. Chambliss, W.J. 1993. “On Lawmaking.” pp. 3–35 in W.J. Chambliss and M.S. Zatz (Eds.), Making Law: The State, the Law and Structural Contradictions. Bloomington, IN: ­Indiana University. Chambliss, W.J., Michalowski, R. and Kramer, R.C. (Eds.). 2010. State Crime in the Global Age. London: Willan. Chambliss, W.J., and Zatz, M.S. 1993. Making Law: The State, the Law and Structural Contradictions. Bloomington, IN: Indiana University. Clarke, M. 1990. Business Crime: Its Nature and Control. Cambridge, MA: Polity Press. Clinard, M.B. and Yeager, P.C. 1980. Corporate Crime. New York, NY: Macmillan. Cohen, A.K. 1955. Delinquent Boys: The Culture of the Gang. Glencoe, IL: The Free Press. Coleman, J.W. 1987. “Toward an Integrated Theory of White-Collar Crime.” American Journal of Sociology, 93(2): 606–639. Coleman, J.W. 1998. The Criminal Elite: Understanding White-Collar Crime, 4th ed. New York, NY: St. Martin’s Press. Collins, J.D., Uhlenbruck, K. and Rodriguez, P. 2009. “Why Firms Engage in Corruption: A Top Management Perspective.” Journal Business Ethics, 87(1): 89–108. Croall, H. 1992. White Collar Crime. Bristol, PA: Open University Press. Curry, M. 1987. “Memorandum to Archbishop Mahoney concerning Rev. Michael Baker.” June 22. Retrieved August 1, 2013 (http://clergyfiles.laarchdiocese.org/files/ Baker,%20Michael.pdf). D’Antonio, M. 2013. Mortal Sins: Sex, Crime and the Era of Catholic Scandal. New York: St. Martins Press. Dershowitz, A.M. 1994. “Controlling the Cops: Accomplices to Perjury. The New York Times, May 2. Retrieved May 14, 2013 (http://www.nytimes.com/1994/05/02/­ opinion/controlling-the-cops-accomplices-to-perjury.html). Dowie, M. 1997. “Pinto Madness.” Mother Jones, September/October. Eells, J. 2015. “America’s Dirtiest Cops: Cash, Cocaine and Corruption on the Texas Border.” Rolling Stone, January, 1226. Ermann, M.D. and Lundmann, R.J. 2002. Corporate and Governmental Deviance: Problems in Organizational Behavior in Contemporary Society, (6th edn). New York, NY: Oxford University Press. Flaccus, G. 2013. “Files Show retired Cardinal Roger Mahony, LA church leaders worked to shield molester priests.” AP: Huffington Post, January 22. Retrieved July 13, 2013 (http://www.huffingtonpost.com/2013/01/22/la-church-files-roger-mahony_n_ 2527334.html).

24

Chambliss and Moloney

Freeh, L. 2012. “Report of the Special Investigative Counsel Regarding the Actions of The Pennsylvania State University Related to the Child Sexual Abuse Committed by Gerald A. Sandusky.” Independent Investigative Report by the Law Office of Freeh, Sporkin and Sullivan, LLP. Geis, G. and Jesilow, P. 1993. “White Collar Crime.” Annals of the American Academy of Political and Social Science 525. Ghazi-Tehrani, A. 2018. “Corporate Crime and the State.” Oxford Research Encyclopedia on Criminology and Criminal Justice. DOI: 10.1093/acrefore/9780190264079.013.487. Gil, Eliana. 2003. The California Child Abuse and Neglect Reporting Law: Issues and Answers for Mandated Reporters. California Department of Social Services Office of Child Abuse Prevention. Retrieved July 13, 2013 (http://www.cdss.ca.gov/cdssweb/ entres/forms/English/PUB132.pdf.) Gorman, S. 2013. “L.A. Archdiocese, Cardinal Mahoney Settle in Sex Abuse Cases.” Reuters. March 13. Reuters, March 13. Retrieved on July 13, 2013 (http://www.reuters .com/article/2013/03/13/us-usa-church-abuse-idUSBRE92C05I20130313). Granovetter, M. 1985. “Economic Action and Social Structure.” American Journal of Sociology, 91(3): 481–510. Gustin, S. 2013. “Apple Found Guilty in E-Book Price Fixing Conspiracy Trial.” Time Magazine, July 10. Retrieved July 13, 2013 (http://business.time.com/2013/07/10/ apple-found-guilty-in-e-book-price-fixing-conspiracy-trial/). Hagan, F.E. 1997. Political Crime: Ideology and Criminality. Needham, MA: Allyn and Bacon. Hamm, M. 1993. “State-Organized Homicide: A Study of Seven cia Plans to Assassinate Fidel Castro.” pp. 315–343 in W.J. Chambliss and M.S. Zats (Eds.), Making Law: The State, The Law and Structural Contradictions. Bloomington, IN: Indiana University Press. Harno, A.J. 1941. “Intent in Criminal Conspiracy.” University of Pennsylvania Law Review and American Law Register, 89(5): 624–647. Herper, M. 2013. “Merck to Pay $688 Million to Shareholders for Delaying Vytorin Results.” Forbes, February 14. Herrick, T. and Barrionuevo, A. 2002. “Were Enron, Anderson Too Close to Allow Auditor to Do Its Job?” The Wall Street Journal, January 21. Retrieved July 11, 2013 (http:// online.wsj.com/article/0,,SB1011565452932132000,00.html). Hinch, R. (1991). “Contradictions, Conflicts and Dilemmas in Canada’s Sexual Assault Law.” pp. 233–252 in G. Barak (Ed.), Crimes by the Capitalist State. Albany, NY: SUNY. Kramer, R.C., Michalowski, R.J. and Kauzlarich, D. 2002. “The Origins and Development of the Concept and Theory of State-Corporate Crime.” Crime and Delinquency, 48(2), 263–282.

Toward A Sociology Of Organizational Criminal Conspiracies

25

Kramer, R.C. and Michalowski, R.J. 2005. “War, Aggression and State Crime: A Criminological Analysis of the Invasion and Occupation of Iraq.” British Journal of Criminology, 45(4): 446–469. Krishnaswami, C. 2013. The United Nations’ Shameful History in Haiti. Slate, August 9. Retrieved August 29, 2013 (http://www.slate.com/articles/news_and_politics/­ foreigners/2013/08/united_nations_caused_cholera_outbreak_in_haiti_its_­ response_violates_international.html). Laville, S. 2014. “Hillsborough Disaster Police Officers Identified as Suspects in ‘Coverup.’” The Guardian, March 27. Lynch, M.J. 1990. “The Greening of Criminology: A Perspective on the 1990s.” The Critical Criminologist, 7(2): 1–5. Manning, P.K. 1992. Organizational Communication. New York, NY: Aldine. McCoy, A.W. 2003. The Politics of Heroin: CIA Complicity in the Global Drug Trade (pp. 461–531). Chicago, IL: Lawrence Hill Books. McLean, B. and Elkind, P. 2003. The Smartest Guys in the Room: The Amazing Rise and Scandalous Fall of Enron. New York, NY: Portfolio Trade. Michalowski, R.J. 2010. “In Search of State and Crime in State Crime Studies.” pp. 13–30 in W.J. Chambliss, R. Michalowski and R.C. Kramer (Eds.), State Crime in the Global Age. London: Willan. Michalowski, R.J., and Kramer, R.C. 2006. State Corporate Crime. New Brunswick, NJ: Rutgers University Press. Moloney, C.J. and Chambliss, W.J. 2014. “Slaughtering the Bison, Controlling Native Americans: A State Crime and Green Criminology Synthesis.” Critical Criminology, 22(3): 319–338. Moulton, H.G. [Special Deputy Attorney General]. 2014. “Report to the Attorney General on Gerald A. Sandusky.” Commonwealth of Pennsylvania, Office of Attorney General. Mullins, C.W., Kauzlarich, D. and Rothe, D.L. (2004). “The International Criminal Court and the Control of State Crime: Problems and prospects.” Critical Criminology: An International Journal, 12(3): 285–308. Needleman M.L. and Needleman, C. 1979. “Organizational Crime: Two Models of Criminogenesis.” The Sociological Quarterly, 20(4): 517–528. Nelken, D. 1994. White-Collar Crime. Brookfield, VT: Dartmouth Publishing. Pearce, F. and Snider, L. (Eds). 1995. Corporate Crime: Contemporary Debates. Toronto: University of Toronto Press. Pemberton, S. (2007). “Social Harm Future(s): Exploring the Potential of the Social Harm Approach.” Crime, Law and Social Change, 48(1–2): 27–41. Perry, T. 2015. “Navy Officer becomes 5th Person to Plead Guilty in Bribery Case.” Los Angeles Times, January 6.

26

Chambliss and Moloney

Pinto, J.L. and Pil, C.R. 2008. “Corrupt Organizations or Organizations of Corrupt Individuals? Two Types of Organization-level Corruption.” The Academy of Management Review, 33(3): 685–709. Reiss, A.J. and Tonry, M. 1993. “Organizational Crime.” Crime and Justice, 18: 1–10. Rothe, D. and Mullins, C.W. (Eds.). 2011. State Crime: Current Perspectives. New Brunswick, NJ: Rutgers University Press. Rothe, D.L., Mullins, C.W. and Sandstrom, K. 2008. “The Rwandan Genocide: International Finance Policies and Human Rights.” Social Justice, 35(3): 66–86. Sayre, F.B. 1922. “Criminal Conspiracy.” Harvard Law Review, 35(4): 393–427. Schraeger, L.S. and Short, Jr., J.F. 1978. “Toward a Sociology of Organizational Crime.” Social Problems, 25(4): 407–419. Scraton, P. 2009. Hillsborough: The Truth. London, England: Mainstream Publishing. Shadnam, M. and Lawrence, T.B. 2011. “Understanding Widespread Misconduct in Organizations: An Institutional Theory of Moral Collapse.” Business Ethics Quarterly, 21(3): 379–407. Shapiro, S. 1990. “Collaring the Crime, not the Criminal: Reconsidering the Concept of White- Collar Crime.” American Sociological Review, 55(3): 346–365. Sherman, L.W. 1980. “Three Models of Organizational Corruption in Agencies of Social Control.” Social Problems, 27(4): 478–491. Shover, N. and Hochstetller, A. 2002. “Cultural Explanation and Organizational Crime.” Crime, Law and Social Change, 37(1): 1–18. Simon, D.R. and Eitzen, D.S. 1982. Elite Deviance. Needham Heights, MA: Allyn and Bacon. Slapper, G. and Tombs, S. 1999. Corporate Crime. Harlow: Longman. Stewart, J.B. 2013. “Boss’s Remark, Employee’s Deed and Moral Quandary.” The New York Times, July 6. B1; B5. Sutherland, E.H. 1940. “White Collar Criminality.” American Sociological Review, 5(1): 1–12. Sutherland, E.H. 1949. White Collar Crime. New York, NY: Dryden Press. Terry, K.J. 2008. “Stained Glass: The Nature and Scope of Child Sexual Abuse in the Catholic Church.” Criminal Justice and Behavior, 35(5): 549–569. Terry, K.J. 2011. The Causes and Context of Sexual Abuse of Minors by Catholic Priests in the United States, 1950–2010. United States Conference of Catholic Bishops, Washington DC. Thomas, K. 2013. “Merck Settles Suits over Cholesterol Drug.” The New York Times, February 14. Retrieved July 13, 2013 (http://www.rxreform.org/prescription-opioids/ news/). Tillman, R. and Pontell, H. 1995. “Organizations and Fraud in the Savings and Loan Industry.” Social Forces, 73(4): 1439–1463.

Toward A Sociology Of Organizational Criminal Conspiracies

27

Uzun, H., Szewczyk, S.H. and Varma, R. 2004. “Board Composition and Corporate Fraud.” Financial Analysts Journal, 60(3): 33–43. Vaughan, D. 2002. “Criminology and the Sociology of Organizations.” Crime, Law and Social Change, 37(2): 117–136. Wheeler, S. and Rothman, M. 1982. “The Organization as Weapon in White-Collar Crime.” Michigan Law Review, 80: 1403–1426.

Chapter 2

Organized Crime and the Sociological Imagination Gary Potter William Chambliss made a career out of questioning the “realities” of criminal justice and criminology. Early on he changed the question in criminology from “why do people commit crimes?” to “why are there laws against those acts?” (Chambliss and Mankoff, 1976). Chambliss argued that the most productive area of criminological inquiry was to examine law rather than criminogenic qualities of individuals (Chambliss, 1969, 1984). That question, that vital area of inquiry, led to an obvious examination of power in the definition of crime and its subsequent enforcement (Chambliss, 1999). In asking those questions Chambliss challenged the very foundational paradigms of criminology itself. Early on he argued that criminal definitions and criminal justice practices emanated not from social consensus but from conflicts over the distribution of power and scarce social resources (Chambliss, 1973). From that perspective he played a major role in moving criminology in the United States, where theory and thought had always badly lagged behind its European counterparts, to a consideration of Marxian perspectives (Chambliss, 1975). In addition, Chambliss challenged the bedrock assumptions of positivism and the reliance of criminologists on quantitative methods, official produced data sets, and state-produced documentary data (Chambliss, 1988). And it is here, with the positivistic views of crime and the constraints of quantitative, governmentsponsored research that the contributions of Bill Chambliss to the study of organized crime allows for a full understanding of his revolutionary reordering of the criminological imagination. In order to appreciate the immense contributions of William Chambliss to the study of organized and the theoretical understandings of organized crime it is necessary to take a brief detour to the period 1950-1995. During this five-­decade period criminologists played a key role in constructing a false, state-sponsored narrative of this important phenomena. It was a narrative ­constrained by lack of critical examination of government-supplied data; a lack of methodical imagination; and a theoretical surrender to state power. It was a period in which criminology accepted the idea that “bad actors,” mostly of foreign descent, were engaged in a massive conspiracy to pervert the otherwise righteous and virtuous citizens of the United States into vice and ­moral decay. It was a period in which the incorruptibility of politicians and law

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004411678_003

Organized Crime And The Sociological Imagination

29

e­ nforcement officials was uncritically taken as a given. It was a period when criminologists relied upon the charity of the Federal Bureau of Narcotics, the Federal Bureau of Investigation and congressional investigations for their data, which they uncritically accepted as truth. It was a period which criminologists ignored the political economy in a frenzied search for character flaws, inadequate patterns of socialization, and individual pathologies as an explanation for an obviously social, political and economic occurrence. It was this lack of imagination and subservience to state dictated explanations of crime that William Chambliss challenged and obliterated. 1

Sleeping with the Fishes: Criminological Research and Organized Crime

The controversies in criminology over how best to understand crime and evaluate efforts at crime control are both extensive and exhausting. Should the research be theoretical or practical? Should its scope be micro or macro? Should we rely principally on original or secondary data? Shall we rely on inductive or deductive patterns of reasoning? Are quantitative or qualitative methods most likely to lead a semblance of truth? The only things on which there are general agreement is that research must be both valid and reliable. Research on organized crime was neither. In fact, it was worse than that. It was tainted, biased, and servile to state interests. As is often the case with criminological inquiry, researchers from the beginning defaulted to the use of easily obtained data. From the early 1950s on, that research relied on three primary sources of data: (1) official reports and documents from law enforcement agencies; (2) the recitations of governmentsponsored informants; and (3) journalistic accounts. All three of these data sources have serious limitations and carry with them grave problems of reliability and validity. Official government reports are among the easiest sources of data to obtain. Law enforcement agencies, prosecutors, state crime commissions and the like, all produce a significant amount of written material which is designed to demonstrate that they are doing their jobs, that they are being effective, and that the criminal “threat” they face is serious and worthy of public attention. While much of this information is useful, providing descriptions of successful prosecutions, it is also often self-serving (Block, 1978; Potter, 1988). First, obviously government agencies will present their point of view in self-produced documents. That means that evidentiary contradictions, interpretations of events that differ from their own, and conflicting information have been c­ arefully

30

Potter

e­ dited out. When we use these data sources we are not dealing with raw data, but rather with data that has been interpreted for us, not always correctly. ­Second, for a variety of reasons, many of which have to do with budget allocations and legal powers, official agencies tend toward conspiratorial accounts of criminal enterprise. Once again this is quite logical from their point-ofview. Presenting organized crime and drug dealers as a group of disorganized, semi-literate, country bumpkins would scarcely lead to more money, more personnel and greater legal powers. However, well-organized conspiracies are ­another matter entirely. Dwight Smith (1975) has suggested that this conspiracy framework also plays well because it draws on a long-standing American social tradition, which has seen conspiracies as the source of many of America’s problems. Be it a conspiracy of immigrants, a conspiracy of Communists, or a conspiracy of organized criminals, the concept of conspiracy seems to play well in American politics, making it a most useful tool. Similarly, the use of information from government witnesses and informants carries many of the same dangers as the use of official documents. First, the reliability of the sources is very much in doubt. The history of governmentsponsored informants has been one of individuals seeking favors and considerations from the government in return for their cooperation. Either they have been charged with serious crimes and are seeking to mitigate their own precarious legal standing by implicating others, or they have run into trouble with their organized crime peers and have sought protection from the government in return for cooperation. In either event they have tended to try to be cooperative guests in the government’s house. This makes their recollections highly suspect and susceptible to change and adaptation to fit whatever theory the state is pursuing in a specific case. Serious factual problems with informers such as Joe Valachi, Jimmy Fratianno, Jackie Presser, and others have been discussed at length in the scholarly literature (Albanese, 1988; Albini, 1971; Block, 1978; Potter, 1988; Smith, 1975). Finally, journalistic accounts pose many of the same problems cited above. As Galliher and Cain (1974) have pointed out, journalists are not bound by any requirement of scientific rigor. Their accumulation of data and subsequent analysis is freewheeling and not subject to independent validation. In addition, journalists exist primarily to sell newspapers and magazines. Therefore, their coverage tends to focus on the most sensational and exciting cases, ignoring the more mundane cases which may well be the norm in illicit industry. Finally, journalists often are guilty of merely accepting and reprinting or reporting data emanating from official sources, data which is easy to obtain. While journalistic accounts are important data sources, if for no other reason than the fact that they tend to offer the most comprehensive coverage of crime

Organized Crime And The Sociological Imagination

31

in a community, they also must be subjected to verification. The theory resulting from these flawed research methods both served the state well and created a socially constructed picture of organized crime as an “alien conspiracy,” or “Mafia” that was not just wrong, but politically biased to serve the interests of the state. In criminologists the state found ready and willing allies who would take the easy path in studying a complex problem. So, criminologists were confronted with the need to develop additional and better sources of data about criminal organizations in order to develop an accurate picture of those phenomena. Some early critics tried to refine the use of existing data, while mixing in historical accounts and interviews. For example, Peter Reuter (1983) broke important new methodological ground in organized crime research. Reuter went to original sources for “official” depictions of organized crime. He made use of official documents, arrest reports, trial transcripts and the like, but also made heavy use of informants who were participants in the illegal activities he was researching. Much of what he found contradicted the officially held view of organized crime. In a similar vein Joseph Albini (1971), in what has become the pre-eminent work on organized crime in the United States, made use of interviews with both criminal entrepreneurs and police in Detroit. His emerging theory of “patron-client relations” replaced the old “Mafia Myth” as the cornerstone of contemporary research on organized crime. But the most important methodological breakthroughs turned to qualitative methods. One of the first efforts was Francis A.J. Ianni’s (1972) detailed description of an Italian-American organized crime family in New York City. Ianni engaged in three years of participant observation with that family. Ianni’s work provided a much deeper understanding of Italian-American culture and the Italian-American role in organized crime than had been found in the more traditional organized crime literature, and as a result contradicted many of the myths of the “Cosa Nostra.” Specifically, Ianni set out to research claims by federal investigators about the rules and structural arrangements in organized crime, and to test some of the commonly held misconceptions which have come from works based entirely on secondary sources. In his second ­research effort (1974), Ianni selected a team of “native informants” as field researchers. He chose eight black and Puerto-Rican ex-convicts “who had been involved in organized crime activities—running numbers, pushing dope, or hijacking goods—prior to their imprisonment” (1974: 17). While Ianni provided a compelling refutation of the governments Mafia myth it was the field work conducted by Chambliss which not only made clear organized crime was not an alien conspiracy, but that it was also an integral part of the political economy in the United States. In doing so ­Chambliss

32

Potter

inspired other research studies, modeled on his own, that fundamentally changed our understanding of organized crime. Chambliss (1978) provided a highly detailed portrait of the symbiotic relationships among criminal entrepreneurs, the police, politicians and local businessmen in Seattle. Chambliss engaged in interviews, participant observation, the use of informants, and the collection of official documents and newspaper stories to support his study. Other researchers followed Chambliss’ road map including Potter and Jenkins (1985) who made use of official documents, archival searches, historical methods, interviews and participant observation strategies in painting a picture of the development of organized crime in Philadelphia and disputing the official description of organized crime in that city. 2

Seattle: On the Take

It was in his classic book On the Take: From Petty Crooks to Presidents (1978) that Chambliss reimagined both the research tools and the resulting theories related to organized crime. Chambliss did the obvious. He went to the streets, bars, gambling halls, and other outposts of vice and corruption and listened. He used his background in the study of law and sociology to interpret those things he heard and saw. Dressed in inexpensive, worn-out shirts and khakis an unshaven Chambliss entered the Seattle underworld in the guise of an iterant truck driver. He befriended Seattle’s illicit entrepreneurs, bar owners, the operators of illicit card and bingo rooms, prostitutes and drug dealers. Chambliss knew what positivists could never know. Organized crime is entirely reliant on the participation of thousands of customers. As a result, it must be open, public and easily accessible. It takes only a little imagination to know that leaving quantitative datasets behind and going to the streets as a patron of deviant places, whether as a gambler, a truck driver or a simple, casual patron of a bar results in easy entrée to the world of illicit business. Chambliss worked his way up from the bottom rungs of illicit vice and found that trust among illicit entrepreneurs resulted in introductions to politicians, police, journalists and businessmen, who also had a major stake in organized crime. It was there that he discovered the real source of power which controlled, directed and regulated illicit enterprises in American cities. As is the case in all participant observation efforts, establishing a relationship with a key informant early on in the research is vital. In Chambliss’ research that informant was “Bob Williams.” Williams was arrested at the age of 19. As a resident of one of Seattle’s African-American neighborhoods an early arrest came as no surprise. While in police custody Williams was beaten

Organized Crime And The Sociological Imagination

33

to death in jail. Bob Williams was no doubt a victim of the criminal justice system’s middle-class measuring rod. But Chambliss’ relationship with him revealed something very different. Chambliss found Williams to be a highly sophisticated, street-smart drug dealer. He dealt in an area of Seattle which he referred to as “the jungle.” Williams’ business was simple: he bought drugs at discount from wholesaler and sold them at a significant profit to a discrete group of individual users. Williams was not affiliated with any of the highly organized drug networks in Seattle. He referred to himself as a lone wolf. Williams told Chambliss, “I’m an independent. Some of these guys have all kinds of strings on ‘em. Not me, man. I’m my own boss. Ain’t nobody gonna pull me around by the nose” (Chambliss, 1978: 50). At the time of his arrest, Williams had $1500 worth of heroin in his possession. The heroin disappeared while in police custody. The patrol officer who arrested Williams told Chambliss that he had called them names and tried to jump out of the patrol car. Williams was arrested at 8 p.m. and was taken to the emergency room at midnight badly beaten and unconscious. The next day he was released back into police custody a little after noon. Later that afternoon Williams was returned to the hospital with a concussion. He died at 3 a.m. from a brain hemorrhage. “The official police report said he had been beaten by his fellow inmates. The coroner decided that the death was accidental” (Chambliss, 1978: 51). Bob Williams was another victim of the war on drugs. He was turned in by an informant who had previously been arrested and offered the opportunity to “turn a dime” in order to make his arrest go away. The informant, who had told the police where to arrest Williams and that Williams was running dirty, was generously paid with confiscated heroin. The Williams case points to an enduring truth about both law enforcement and the drug market. Small, independent dealers not connected to larger crime networks provide the police with easy arrests. They also disguise the far more profitable and pervasive politically connected drug traffickers who dominate the street market. The logic of this is simple. The profits of the large drug networks are substantial and fuel both corruption and the city’s economy. The small incomes of independent operatives are expendable. It is somewhat ironic that on the night Williams was beaten to death, Chambliss was playing in a high-stakes poker game with a senior vice squad police officer. Of course, drug trafficking was only one of many illicit enterprises being conducted in the open in Seattle. While it may seem an anachronism today, both bingo and pinball were illegal in Seattle unless licensed by the state in the 1960s. In Seattle, eleven bingo parlors were operating. The largest of the bingo parlors was realizing profits of $240,000 a year after paying all its expenses

34

Potter

including bribes to police and politicians. There were 3,500 licensed pinball machines in the state of Washington grossing over $7 million a year. The cost of licensing and maintaining the machines was tiny and the tax burden was almost nonexistent, because in a cash business virtually all profits could be hidden and laundered. In Seattle there was one master license for all the pinball machines. It gave one crime network access to all amusement arcades, restaurants, and bars in the city. That crime network was run by a small group of legitimate businesspeople who were closely tied to the city’s political establishment. And despite the fact that gambling was illegal in Washington by 1968, Seattle had the highest number of federal gambling stamps of any city in the United States outside of Las Vegas. As in most communities, high-stakes poker games occurred every night in dozens of locations throughout the city with total buy-ins that often exceeded $100,000. Every day of the year, except for Christmas, the people who ran those games took 10% of every pot on every table. As in other cities, loan sharks were usually legitimate businessmen—pawn brokers, jewelers, and discount merchants. They made small loans for very high interest rates, typically $6 dollars repaid for every $5 borrowed each week. Larger loans were a little more lenient. Chambliss provided an account of one Seattle jeweler who loaned a customer $220,000 with the understanding that loan would be repaid at $350,000 in thirty days. The total profits from gambling, drugs, usury and the fencing of stolen goods exceeded $100 million a year in Seattle; organized crime was the city’s second largest industry. All businesses, whether they are legal or not, depend on investment capital. But they also require both protection and regulation to control markets and maximize profits. Legal businesses depend on laws to protect property and enforce contracts. Illicit enterprises have no such protection. A bookmaker cannot sue over a gambling debt. A drug dealer cannot seek legal redress if his or her wholesaler supplies inferior merchandise with low levels of purity. But stable markets and regulated transactions are as important for illicit entrepreneurs as they are for banks and retail outlets. Without those protections, the risk to initial capital investments would be too great to attract f­inancing. So how are illicit markets regulated? As Chambliss points out, the answer is really quite simple. Illicit entrepreneurs must seek out partners who would otherwise be charged with enforcing the laws against them. In Seattle, politicians, law-enforcement officials, lawyers, bankers, accountants and legitimate businessmen became willing partners in illicit enterprise (Chambliss, 1978: 53). The police were paid off, and the profits were such a large part of the city’s economy that there was no political pressure for enforcement of the laws. In  Seattle, a bagman collected the pre-arranged payoff from

Organized Crime And The Sociological Imagination

35

e­ very gambling operator. Those who operated illegal card rooms reported paying about $300 a month each to the police. Writing with a sociological sense of humor, Chambliss chose the pseudonym “Fred Lindesmith” for another of his informants. Lindesmith was a former police officer who actively participated in the system of payoffs and retired with substantial financial security. He described who got paid in detail: Everyone. The beat cop, the vice squad captain, the prosecutor. Everyone. It depended on the gig. Narcotics payoffs went through the vice squad and the patrol division. Sooner or later it all went up to the top (Chambliss, 1978: 56). Separate and unique systems of bribery systems operated for the burglary and narcotics squads, and burglary payoffs were as lucrative as gambling payoffs. In narcotics, a combination of rip-offs and the subsequent resale of drugs to dealers and bribes from dealers resulted in thousands of dollars for a single payoff. The arrest and subsequent death of Bob Williams was directly related to one of these rip-offs. Tavern owners were involved in a second line of bribes that enabled them to obtain liquor licenses, illegal alcohol, alcohol stolen from state warehouses, and watered-down alcohol. That money went directly to state officials including the Governor’s office and members of the state legislature, for the bagman for these payoffs was a member of the state legislature. In a way, the payoff system could be viewed as an informal system of taxation that provided order and stability to the illicit market place. But, as Chambliss discovered, the flow of illicit capital was far more complex. In essence it defined and greatly impacted the political economy of Seattle itself. Chambliss calculated that there were well over 1,000 people who directly profited from organized crime in Seattle. Illegal enterprises, which were highly regulated and highly profitable, entailed highly systematized profit-sharing schemes. While the actual purveyors of vice were a diverse group of independent operators, the system which enabled and protected their enterprises was highly structured. Participation in illicit markets was dispersed across all ethnic, racial, and class lines in Seattle. It involved a panoply of individuals which changed constantly, with entrepreneurs coming in, leaving, and often re-entering illegal markets. But beyond this kaleidoscope of dealers, gamblers, fraudsters, and loan sharks was an informal system of control dictated by power. As Chambliss pointed out, issues arise, crises occur, and problems must be resolved. Therefore, some people had greater power to make critical and crucial decisions than others; those who profited most from organized crime were also those who had the power to make those decisions. In Seattle those powerbrokers

36

Potter

included a county prosecutor, the county sheriff, the city council president, an assistant chief of police, police captains, the president of the Amusement Association of Washington, and a high-ranking official of the Teamsters Union. Right below these decision-makers were members of the business and professional communities who influenced the decisions to be made and profited from those decisions. They included a defense attorney for many illicit entrepreneurs, a major realtor, an officer of the city’s largest bank, and a board member of a large financial services company. Chambliss provided many examples of how this system of regulation worked. But the most detailed account involves a dispute over pinball operations in Seattle. In the mid-1960s “Bill Bennett” made a move to enter into pinball ­business. Bennett’s brother, “Frank” was already a major illicit entrepreneur in the sex trade running a large prostitution operation. Initially, Bill Bennett asked for a share of the pinball action. But his initial overture was resisted. Pinball machines were under the control of several individuals already and the master license for the county was held by the Amusement Association. The president of the Amusement Association oversaw operations in the ­county and handled payoffs to politicians and the police department. He collected a monthly fee from all pinball operators to cover the payoffs. A ­political split between the country prosecutor, who was allied with the Amusement Association, and several other politicians gave Bennett an opening. He and several individuals working with him firebombed a number of establishments operating pinball machines and a few restaurant and bar owners were also assaulted. This created an intolerable situation because the local press was beginning to take notice of the violence. In order to calm the situation down, the pinball operators offered to let Bill Bennett into the racket if he paid them a $20,000 entry fee and a $2 a month surcharge on each machine he operated. But the arrangement was not acceptable to the police. The chief of police saw Bill Bennett as a dangerous, violent, and difficult to control individual. The police chief went even further in his opposition to the deal, insisting that Bill Bennett leave the city altogether. Confronting other gangsters was one thing, but animosity from the police was more than Bennett could take, and he left Seattle. Bennett’s story is important because it reveals several things about the organizing of crime. First, there is competition for illicit profits among illicit entrepreneurs. Second, power is not evenly distributed in the underworld, even in the face of violence. And finally, it demonstrates what other research has also found in many other cities; it is the police who often organize crime (Potter, 1994; Potter and Jenkins, 1985). As he concluded his research, Chambliss explored the question of organization in Seattle’s underworld. Was it the tight, ethnically determined ­hierarchy

Organized Crime And The Sociological Imagination

37

popularized by federal law enforcement or something entirely different? He got a direct answer. One professional thief who also had investments in ­gambling, prostitution and drugs told him: “You can forget that Mafia stuff” (Chambliss, 1978: 66). Everyone he talked to expressed a similar view. One informant was particularly direct: Every time you check the Congressional Record and you see the fbi diagramming the Mafia families in San Francisco, you can tell them to shove it up their ass, because you can’t diagram this. If you do diagram it, you can’t read your diagram when you’re done. It’s all squiggly lines: the chain of command and who’s in charge of any operation and who’s entitled to what cut of the graft, it’s all very changeable (Chambliss, 1978: 67). Chambliss was directed by several of his poker-playing acquaintances to go to a particular café on the second Thursday of every month and take note of who met there for lunch. Chambliss made twelve visits to the rendezvous site and noted a regular gathering of the assistant chief of police, an assistant prosecutor, an undersheriff, and a local criminal attorney. On and off, this group was supplemented by a local contractor, the representative of an investment firm, the president of the Amusement Association, a hotel owner, a member of the city council, a member of the country board of supervisors, and a Teamsters Union officer. So, it was not the purveyors of vice who were getting rich from organized crime, it was the businessmen with the investment capital necessary to expand high-profit illicit enterprises and the police and politicians who could sell their power. Seattle had no Godfather and no criminal hierarchy. It had a network of businessmen, politicians, police officials, and illicit entrepreneurs who protected vice, kept the peace, and ensured the safety of their investments. The descriptions of each of the major players in this crime network that Chambliss portrayed were fascinating and can serve as a template for all the other field research done in different cities (Albini, 1971; Potter, 1994; Potter and Jenkins, 1985). 3

Beyond Seattle

On the Take concludes with several chapters relying on historical research which traces the role of corruption in American society from the robber ­barons to Richard Nixon. Chambliss outlines the organized crime connections of national political figures and discusses specific well-known cases of corrupt behavior. One of the more important propositions put forth by Chambliss

38

Potter

was an idea he and Alan Block elaborated on in Organizing Crime (Block and Chambliss, 1981). Chambliss suggests that there were major political differences within organized crime, particularly relating to drug trafficking in the 1960s. He describes Meyer Lansky, a major illicit financier, as being closely aligned with the conservative wing of the Democratic Party, particularly with figures like Mayor Richard Daly of Chicago and Governor John Connelly of Texas. He also alleges that other prominent organized crime figures including Santo Trafficante, Jr. were closely connected to Richard Nixon, primarily through Florida businessman Bebe Rebozo. The importance of this is that according to Chambliss, the Vietnam War’s prosecution under Nixon shifted the United States heroin market from one that was dependent on Lebanese heroin moving through Marseilles, to Southeast Asian heroin moving from the Golden ­Triangle through South Vietnam and Taiwan. Chambliss sees this as an attack on Lansky by Nixon. That theme was elaborated on in great detail a few years later by Dutch journalist Henrik Kruger in his book The Great Heroin Coup (Kruger, 1980). Other researchers have also subsequently developed strong evidence linking Richard Nixon to organized crime and Lansky to big city political machines (Block and Chambliss, 1981; Lyman and Potter, 2014; Simon, 2012). Chambliss makes the case that political corruption is openly peddled in a corruption market in the United States. In his concluding Chapter 8, “The Enemy is Us,” he engages in a detailed discussion of criminal law, its inherent classbias, and its protection of property rights, all of which he links to the massive markets for illicit goods and services in the United States. He goes even further linking a system of bourgeois democracy to organized crime: Crime networks with access to billions of dollars in untaxed, unreported, and unaccountable funds are a valuable source of money to oil capitalism’s political machinery…Through it all the crime network becomes an institutionalized, fixed, and permanent link in the chain of a nation’s political economy. That is what has happened in America. That is why crime networks persist year after year with only the faces and methods of operation changing (Chambliss, 1978: 210).

4

Fixing Theory and Methods: Qualitative Research and Organized Crime Networks

The importance of Chambliss’ field study of organized crime in Seattle cannot be overstated. First, it challenged the state and media view of organized crime.

Organized Crime And The Sociological Imagination

39

Others like Joe Albini (1981), Alan Block (1979) and Dwight Smith (1978) raised major concerns over the historical record, but it was Chambliss who went to the streets to articulate the day-to-day workings of crime networks. The description of organized crime as a social network was criminological heresy. Overwhelmingly, criminologists accepted Donald Cressey’s description of organized crime in The Theft of the Nation (Cressey, 2008) as indisputable. Despite the fact that a tightly organized, bureaucratic hierarchy run only by men of Italian descent seemed illogical on its face, it was the hegemonic doctrine of both state and criminological discourse. The Mafia myth was, in fact essential to both the state and positivist orthodoxy. Organized crime serves hundreds of millions of customers a day in the open in every city in the United States. Organized crime was and is a major sector of the United States economy. This had to be explained, and there were very limited alternatives for those explanations. The first was easy, considering American’s historical fascination with foreign conspiracies. Organized crime was a cleverly constructed, sinister, hierarchical conspiracy that could not be controlled without new draconian laws and additional law enforcement funding. It was a conspiracy of foreign immigrants attacking the very souls of the righteous, God-fearing American people. The alternative to an alien conspiracy requires an acceptance of the idea that law enforcement was totally incompetent and could not see what drug addicts, gamblers, johns, and fraudsters could easily access every day. Or worse, the whole system was thoroughly corrupt and dependent on the very crimes it outlaws for profit and investment capital. Chambliss and the small group of other scholars who challenged this notion were attacked in the journals and in the press. But by the early 1990s, the myth of the Mafia had been replaced in almost every criminology textbook and journal article on organized crime by the reality of crime networks (Williams, 2002; Woodiwiss, 2001). Italian sociologist Letizia Paoli (2002) said it best when she concluded that hierarchical crime structures were extinct dinosaurs if they had ever existed at all. The notion of a crime network implicates the state, politicians, law enforcement and legitimate businessmen in the maintenance of illicit markets. That was a truly revolutionary notion. Second, Chambliss’ work in Seattle demonstrated that qualitative research on the streets could be successfully used to study extremely complex social relations. Prior to On the Take, qualitative methods were predominantly used to look at micro issues in small environments such as nude beaches, the tearoom trade, and employee pilferage. Studying organized crime required that criminologists rely on the state for data. Cressey was given exclusive access to state documents, informants, and wiretaps, but the data had been culled

40

Potter

and selected by federal law enforcement agencies. The dangers of this are ­obvious. First, government agencies will present their point of view in any selfproduced documents. That means that evidentiary contradictions, interpretations of events that differ from their own, and conflicting information have been carefully edited out. Second, for a variety of reasons, many of which have to do with budget allocations and legal powers, official agencies tend toward conspiratorial accounts of criminal enterprise—this is quite logical from their point of view. Presenting organized crime and drug dealers as a group of disorganized entrepreneurs would scarcely lead to more money, more personnel, and greater legal powers. In fairness, Cressey published a research note warning that his research in Theft of the Nation had validity, reliability, and ethical problems (Albini, 1988). Of course, the difficulty is that the research note was read by only handful of academics while the book was read by millions. Third, Chambliss laid out a road map for large-scale qualitative research on extremely complex and intricate issues. He demonstrates that the argument that it was not possible to gain entrée into criminal groups was wrong. Crime networks operate in public places, on regular schedules and serve millions of clients out in the open. Posing as an out-of-work, scruffy, itinerant truck driver was a means of easy entrée, which had no impact on the social setting being observed. Bill Chambliss was an engaging, gregarious, imposing individual and a consummate conversationalist. It is easy to see how he made his research role work in the real world. Others have done similar things. Ianni used neighborhood friendships and acquaintances to access the “Lupollo family” (Ianni and Ianni, 1971). Others have posed as gamblers (Potter, 1994; Potter and Jenkins, 1985). Once researchers understand that every entrepreneur in illicit ­markets goes to bars and taverns and frequent poker games (where the money is), developing useful contacts is easy. Of course, Chambliss’ research also highlights the problems with this kind of large-scale research. The street work for On the Take lasted seven years. Under the restrictive rules of academia, that is a tenure-seeking lifetime. But with our obsession with quick and dirty analyses of extant databases, we have lost the real meaning of crime and the social interaction which underlies it. The problem with contemporary criminology is that our methods of analysis do not allow us to understand the social aspect. Organized crime can only be understood by following the advice of Robert Park and Howard Becker by getting out of the libraries, off our computers, out of spss and back on the streets, getting the seats of our pants dirty (Becker, 1998; Park, 1915). Chambliss also understood the criticisms of qualitative research with regard to validity and reliability. After all, this is one researcher’s interpretation of events he or she sees and experiences. In addition, even if accurate it is a description of a single place or event or time and therefore not generalizable.

Organized Crime And The Sociological Imagination

41

On the Take helps to put to rest many of these concerns. It inspired a series of qualitative and historical case studies of criminal organization in Seattle, New York, Philadelphia, Detroit, Scranton, the rural counties of Eastern Kentucky and many more places including Sicily itself (Albini, 1971; Block and C ­ hambliss, 1981; Potter, 1985; Potter and Gaines, 1992; Potter and Jenkins, 1985). The dozens of studies of specific places and specific enterprises created a database from which the generalizable emerged. And the conclusion from all of those dozens of studies is that Chambliss got it right. In Seattle, virtually every public figure alluded to in Chambliss’ research was indicted, convicted, and imprisoned. It took years but it happened. Most researchers who have followed in Chambliss’ footsteps have seen their research validated in the same way. 5

Chambliss’ Legacy

Chambliss’ qualitative research in Seattle resulted in the publication of On the Take, which is a criminological classic. It is a masterpiece that shows us how to do qualitative research, how to theorize from that research, and how to tell a compelling story about crime. It is a shining example of why crime needs to be understood not merely described. The research was outstanding and the writing which brought that research to life in On the Take was also exceptional. The book reads less like a scholarly treatise than a crime noir novel in the tradition of Big Jim Thompson or Dashiell Hammett. As such, On the Take it is a classic criminological work. But it is only one of the monumental contributions to the discipline by Bill Chambliss. Chambliss wrote 22 books and countless journal articles during his career. He strengthened qualitative research with his outstanding research on juveniles in “The Saints and the Roughnecks” (1973); professional theft in Boxman: A Professional Thief’s Journey (1972); and policing the drug war in “Policing the Ghetto Underclass: The Politics of Law and Law Enforcement” (1994). Chambliss also undertook the most authoritative and complete analyses of the role of criminal law in the United States and capitalist societies in general when he and Seidman wrote Law, Order and Power (1971); he and Zatz were responsible for Making Law: The State and Structural Contradictions (1994); and Chambliss continued writing on the political scene in Power, Politics and Crime (2001). Bill Chambliss made immense contributions to sociology and criminology. He challenged the dogmas of those disciplines and pioneered new methods of research and academic discourse. Chambliss’ role in redefining our view of the social world is his greatest contribution to both scholarship and academic disciplines. He was a courageous, innovative, and contentious scholar who has earned a place as a vitally important pioneer in both sociology and criminology.

42

Potter

References Albanese, J. 1988. Organized Crime in America. Cincinnati, OH: Anderson Publishing Company. Albini, J. 1971. The American Mafia: Genesis of a Legend. New York, NY: AppletonCentury-Crofts. Albini, J. 1988. “Donald Cressey’s Contributions to the Study of Organized Crime: An Evaluation.” Crime and Delinquency, 34(3): 338-354. Becker, H. 1998. Tricks of the Trade: How to Think about Your Research While You’re Doing It. Chicago, IL: University of Chicago Press. Block, A. 1978. “History and the Study of Organized Crime.” Urban Life, 6(January): 455-474. Block A. 1979. “The Snowman Cometh: Coke in Progressive New York.” Criminology, 17(1): 75-99. Block, A. and Chambliss, W. 1981. Organizing Crime. New York, NY: Elsevier. Blok, A. 1974. The Mafia of a Sicilian Village, 1860-1960: A Study of Violent Peasant Entrepreneurs. New York, NY: Harper and Row. Chambliss, W. 1969. Crime and the Legal Process. New York, NY: McGraw-Hill. Chambliss, W. 1972. Boxman: A Professional Thief’s Journey (with Harry King). New York, NY: Harper and Row. Chambliss, W. (Ed.). 1973. Sociological Readings in the Conflict Perspective. AddisonWesley. Chambliss, W. 1973. “The Saints and the Roughnecks.” Society, 11(1): 24-31. Chambliss, W. 1975. “Toward a Political Economy of Crime.” Theory and Society, 2(2): 149-170. Chambliss, W. 1978. On the Take: From Petty Crooks to Presidents (1st edn). Bloomington, In: Indiana University Press. Chambliss, W. 1984. Criminal Law in Action. John Wiley and Sons. Chambliss, W. 1988. On the Take: From Petty Crooks to Presidents (2nd edn). Bloomington, IN: Indiana University Press. Chambliss, W. 1988. Exploring Criminology. New York, NY: Macmillan. Chambliss, W. 1994. “Policing the Ghetto Underclass: The Politics of Law and Law ­Enforcement.” Social Problems, 41(4): 177-194. Chambliss, W. 2001. Power, Politics, and Crime. Boulder, CO: Westview Chambliss, W. and Mankoff, M. (Eds.). 1976. Whose Law? What Order? New York, NY: Wiley Chambliss, W. and Seidman, R. 1971. Law, Order, and Power. Boston, MA: Addison-­ Wesley Publishing. Chambliss, W. and Zatz, M. (Eds.). 1994. Making Law: The Law, State and Structural Contradictions. Bloomington, IN: Indiana University Press.

Organized Crime And The Sociological Imagination

43

Cressey, D. 2008. Theft of the Nation: The Structure and Operations of Organized Crime in America. New York, NY: Transaction Publishers. Galliher, J. and Cain, J. 1974. “Citation Support for the Mafia Myth in Criminology ­Textbooks.” American Sociologist, 9(May): 68-74. Ianni, F. 1972. A Family Business: Kinship and Social Control in Organized Crime. New York, NY: Russell Sage Foundation. Ianni, F. 1974. Black Mafia: Ethnic Succession in Organized Crime. New York: Simon and Schuster. Kruger, H. 1980. The Great Heroin Coup: Drugs, Intelligence, and International Fascism. Boston, MA: Southend Press. Lyman, M. and Potter, P. 2014. Organized Crime (4th edn). Englewood Cliffs, NJ: Pearson. Paoli, L. 2002. “The Paradoxes of Organized Crime.” Crime, Law and Social Change, 37(1): 51-97. Park, R. 1915. “The City: Suggestions for the Investigation of Behavior in the City Environment.” American Journal of Sociology, 20(5): 579-583. Potter, G. 1988. “Methodological Dilemmas in the Study of Organized Crime.” Ethics and Fairness in Criminal Justice, 1(1): 21-32. Potter, G. 1994. Criminal Organizations: Vice, Racketeering, and Politics in an American City. Prospect Heights, IL: Waveland Press. Potter, G. and Gaines, L. 1992. Country Comfort: Vice and Corruption in Rural Settings. Journal of Contemporary Criminal Justice, 8(1): 36-61. Potter, G. and Jenkins, P. 1985. The City and the Syndicate: Organizing Crime in Philadelphia. Lexington, MA: Ginn Press. Reuter, Peter. 1983. Disorganized Crime. Cambridge, MA: MIT Press. Simon, D. 2012. Elite Deviance (10th edn). Englewood Cliffs, NJ: Pearson. Smith, D. 1975. The Mafia Mystique. New York, NY: Basic Books. Smith, D. 1978. “Organized Crime and Entrepreneurship.” International Journal of Criminology and Penology, 6(2): 161-177. Williams, P. 2002. “Cooperation Among Criminal Organizations.” pp. 67-80 in M. Berdal and M. Serrano (Eds.), Transnational Organized Crime and International Security. Boulder, CO: Lynne Rienner. Woodiwiss, M. 2001. Organized Crime and American Power. Toronto, ON, Canada: University of Toronto Press.

Chapter 3

Notes on the Art of Deception: the Crime Ethnography of William J. Chambliss Mark S. Hamm and Jeff Ferrell She was practiced at the art of deception Well I could tell by her blood-stained hands Mick Jagger and Keith Richards (1969) “You Can’t Always Get What You Want” from Let It Bleed Today we are witnessing an explosion of published research in criminology. A  recent report indicates that there are roughly 150 journals and 85 confer­ ences or workshops dedicated exclusively to criminology. These venues ­produce some 405,000 English-language articles in journals and conference proceedings published each year on current trends in criminology, reaching an estimated audience of over three million readers (omics Group, 2018). Add to these figures several hundred criminology monographs published yearly by academic presses and commercial publishers, along with an untold number of government reports and think tank white papers. The drive to prolifically pub­ lish these works can be attributed to the sociological idea of isomorphism— that most academic institutions seek to resemble top-tiered universities—and thus encourage faculty to become research intensive (Altbach and de Wit, 2018). Isomorphism presents a special challenge to ethnographers. Ethnographers are the intellectual outsiders of criminology, a perception based on the notion that ethnographers abandon traditions of objectivity and detachment in fa­ vor of an approach that is “more impressionistic, humanistic, and artistic than any other social scientific methodology” (Adler and Adler, 1998: xii). And like most outsiders, ethnographers have felt the sting of discrimination. Accord­ ing to one study, less than four percent of all published research in the top 15 criminology journals use ethnographic methods (Copes, et al., 2010). This implies that when an ethnographer submits his or her research to a crimi­ nology journal or book editor, it is likely that the readers of those works will have no appreciable knowledge of the time-consuming requirements of doing

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004411678_004

Notes on the Art of Deception

45

­ethnographic research. Nor will they be aware of the inherent risks of con­ ducting ethnographic studies in perilous places or the myriad of ethical and moral dilemmas involved. At best, they will have only a passing understand­ ing of criminology’s rich ethnographic tradition and its ability to contribute both depth and breadth to our knowledge of dangerous populations. In short, most editors and reviewers are unqualified to make informed decisions about ethnographic research in criminology and are therefore inclined to reject that which they do not understand. And so, ethnographers need a “leg up” if they are to produce novel research that cannot be otherwise produced through quantitative methodologies, thereby facilitating their navigation through the maze of excess and discrimi­ nation that exemplifies modern criminology. Despite all odds, criminological ethnography is undergoing what has been termed “a period of unprecedented creativity and vitality, influenced in part by the emergence of cultural crimi­ nology” (Fleetwood and Potter, 2017: 1), which draws upon the Weberian tra­ dition of criminological verstehen, or “a method of radical engagement with the subjects of study which all but assures the field researcher of physical, moral, and ­professional danger” (Ferrell and Hamm, 1998: 13). A lesser-known but equally radical tradition of criminological fieldwork is deception—or the deliberate act of causing someone to accept as true or valid what is false or invalid. Our goal here is not to weigh the situational ethics of deceptive eth­ nographic ­practices, but to note the utility of deception in a book once her­ alded in criminology as akin to “an action-filled bestselling novel” (Bennett, 1980: 189). 1

On the Take

In the following review, we explain how William Chambliss became “practiced at the art of deception” and how that skill informed what may be Chambliss’ greatest contribution to criminology: His research on organized crime in Se­ attle, conducted between 1962 and 1967, and published as On the Take: From Petty Crooks to Presidents by Indiana University Press in 1978, followed by a re­ vised edition in 1988. Written by Chambliss on a manual typewriter in a moun­ tain cabin without electricity or running water near Oslo, Norway in 1975, On the Take shows Chambliss at the peak of his academic powers. On the Take is certainly the most ambitious and daring ethnographic study ever conducted by Chambliss, if not the most comprehensive and courageous sociological fieldwork investigation of his generation. Chambliss used his ethnographic

46

Hamm and Ferrell

r­esearch to refute Sutherland and Cressey’s (1978) prevailing theory of orga­ nized crime as the provenance of a socially segregated Italian-American Cosa Nostra, and instead demonstrated that the phenomenon is better understood as “a symbiotic relationship between politics, law enforcement, legitimate business, and organized crime” (Chambliss, 1978: 154). It would be a paradigm changer for how criminologists think about the com­ plex relationships between power, conflict, and crime. Coming on the heels of other landmark studies by Chambliss during the 1960s and 1970s, includ­ ing “A Sociological Analysis of the Laws of Vagrancy” (Chambliss, 1964) and “The Saints and the Roughnecks” (Chambliss, 1973), On the Take would secure Chambliss’ reputation as the leading North American voice of the conflict per­ spective for decades to come, carving out space for criminological research on such important problems as embezzlement (Calavita, et al., 1997), war crime (Hagan, 2003), torture (Hamm, 2007) and state-organized crime (Micholow­ ski and Kramer, 2006; Rothe and Kauzlarich, 2016), immigration and border ­security (Michalowski, 2007), white-collar crime (Friedrichs, 1996), and the slaughter of bison on Native American lands (Moloney and Chambliss, 2013), to mention the works of but a few scholars who have built upon Chambliss’ power paradigm. A full retrospective of William Chambliss’ career is provided in a 1996 inter­ view with Chambliss conducted for the American Society of Criminology Oral History Project (Hamm, 1996), available on YouTube, and an article nominat­ ing Chambliss for the asc’s Edwin Sutherland Award (Hamm, 2010), which he won in 2004. We published a subsequent article on how Chambliss’ brand of critical criminology intertwines with progressive social engagement (Ferrell and Hamm, 2016). This essay continues our interest in Chambliss by focusing on the controversial method of deception used by Chambliss in the Seattle study, the secret history of deception in criminology, and how deception was transferred across generations by some of criminology’s key historical figures, and ultimately to Chambliss. 2

The Roots of Deception in Criminology

To understand William Chambliss’ use of deception in criminology fieldwork, we must turn back the hands of time to 1932—a year before Bill’s birth—when a convict variously known as Harry Bennett, Russell P. Joana, Thomas Read, or more commonly, “Broadway Jones,” was paroled from the U.S. Penitentiary at Leavenworth, Kansas, after serving five years for a narcotics violation (Snod­ grass, 1973). Criminology’s historians have not been kind to Jones, portraying

Notes on the Art of Deception

47

him as “a thief, con artist, and drug addict” (Keys and Gallliher, 2000: 48), a “fast-talking, boastful, and articulate Chicago-area grifter” (Wright, 2004), and “a true con artist, and never one to miss an angle” (Snodgrass, 1973: 8). Only days after his release from Leavenworth, Jones became acquainted with a medical doctor in Chicago named Ben Reitman, described as “The King of the Hobos” by the University of Chicago criminologist Nels Anderson (Anderson, 1923). A flamboyant and eccentric bohemian with ties to the Wob­ blies, Reitman offered free medical care to the hobos, prostitutes, migrants, drug addicts, victims of venereal disease, and other outcasts on the streets of the Windy City. He was also Emma Goldman’s lover; in her autobiography, the legendary anarchist would remember Reitman as the “great grand passion” of her life (Goldman, 1931). It was through his contacts with two University of Chicago sociologists—the symbolic interactionist Herbert Blumer and his protégé Alfred Lindesmith—that Reitman came to introduce Broadway Jones to Edwin Sutherland, then an untenured researcher for the University’s Social Science Research Committee but destined to revolutionize the field of crimi­ nology. In an October 8, 1932 letter to Sutherland, Reitman offered an alterna­ tive view of Jones, writing that: I repeat, I regard Broadway Jones as a find. He has something big and fine and highly intelligent within him. He has a smothered social con­ science and a vision, and if we handle him right and don’t let the parole officers bother him too much, we will have occasion to be glad (Reitman, 1932). Toward that end, Reitman and another radical physician offered a grant of $100, matched by $200 from the Social Science Research Committee, for Sutherland to use Jones in any way he chose during his research. With no strings attached to his involvement with the ex-con, Sutherland paid Jones $100 per month for three months, during the Great Depression, for writing his autobiography (or a total of $5,065 in today’s dollars). Jones and Sutherland began their collaboration in November 1932. Jones wrote the body of the manuscript with Sutherland organizing the chapters, writ­ ing brief connecting passages, and adding an introduction and final interpreta­ tion. The collaboration between a professional criminal and a criminologist was a novel idea, yet it was not an easy sell. Over the next few years Sutherland sub­ mitted the manuscript to two publishers, only to be rejected (Snodgrass, 1973). Sutherland left the University of Chicago for Indiana University (iu) in 1935 yet he and Jones remained on friendly terms and continued to ­periodically work on the manuscript at Sutherland’s home in Bloomington where Jones

48

Hamm and Ferrell

gave evening talks to Sutherland’s students in the iu sociology department, before retreating to Sutherland’s home for a party (Gaylord and Galliher, 1988). Finally, in June 1937, the University of Chicago Press agreed to publish the manuscript if Sutherland could procure from Jones a clearance on his life sto­ ry; meaning, essentially, that Jones must sign a statement forfeiting his rights to sue the Press should he not like the finished product. In a June 26 letter to his editor at the Press, Donald Bean, Sutherland wrote that he had already secured Jones’ release, but added: I do not seem to be able to locate his statement just now, but I am sure I can find it in the rather voluminous notes I have from him, and will send you a copy of it, if you desire (Sutherland, 1937a). On the same day, Sutherland wrote to Jones about the release saying that, “the Press asked me whether I have a clear-cut statement of publishing rights from the professional thief who wrote the body of the manuscript” (Sutherland, 1937b). Sutherland was known to be “compulsively thorough” in his record­ keeping (Snodgrass, 1973) and he had apparently been caught in a lie by Don­ ald Bean: Either Sutherland had a release from Jones, as he told Bean, or he did not. From the sum and substance of this June 26 letter to Broadway Jones, it ap­ pears that Edwin Sutherland had not misplaced the release statement; rather, he had yet to obtain one from Jones. But that was not his only problem. In the manuscript’s introduction, Sutherland had written that the thief died in 1933. So, Sutherland asked Jones to go along with the deception about his death. “Since, according to the introduction to the manuscript,” wrote Sutherland, “the professional thief who wrote this document died in 1933, the statement should be dated in 1933 or earlier” (Sutherland, 1937b). Jones returned two ver­ sions of the requested statement. Sutherland forwarded one to his editor and the manuscript went into production. Sutherland is known to criminology for his outstanding personal integrity and for promoting the ideal of intellectual honesty (Geis, 2016). “Contrary to mythology,” answered the noted criminology historian Jon Snodgrass, “Suther­ land was capable of dissimulation, particularly with businesses, when he thought it necessary or expedient” (Snodgrass, 1973: 9). In this way, Broadway Jones was emerging as a sort of ghost figure in the development of North Amer­ ican criminology—and this wouldn’t be his only apparitional appearance. He and unknown others would come to constitute criminology’s secret history, a history of street-level hustlers hidden in the shadows of academic deception.

Notes on the Art of Deception

3

49

The Professional Thief

The University of Chicago Press released The Professional Thief at the Ameri­ can Sociological Association’s annual meeting held at the Chafont-Hadden Hotel in Atlantic City on December 28, 1937 (Sutherland did not appear on the program). The cover stated that the book was written “by a professional thief” and “annotated and interpreted” by Sutherland (Sutherland, 1937c). No mention was made of Broadway Jones, Harry Bennett, or the other aliases. Broadway Jones would be airbrushed out of Sutherland’s authoritative crimi­ nology textbook for the next 40 years. In fact, to this day the true name of the thief is unknown. Yet in the introduction to The Professional Thief, Sutherland gave him a pseudonym: “Chic Conwell,” a name that would become recognized by generations of future criminologists, especially ethnographers. The pseud­ onym is likely Sutherland’s humorous take on Broadway Jones’ reputation to con well. While The Professional Thief provided fascinating glimpses into the under­ world of pickpockets, pimps, shoplifters, and con men, it also become one of criminology’s most misunderstood books, which only served to institutional­ ize a culture of deception in the discipline. Sutherland and Cressey (1978: 277) would cite The Professional Thief as the single-authored work of Edwin Suther­ land; hence, it became known as “Sutherland’s book”—even though the book’s cover clearly states that it was written by the thief. The flyleaf for 44 editions of The Professional Thief published between 1937 and 1992 listed the author as “Conwell, Chic, d. [died] 1933”—yet of course Broadway Jones (Conwell) did not die in 1933 and he would in fact outlive Sutherland by years (Gaylord and Galliher, 1988). Much later, a criminologist would insist that Conwell/Jones was “a student in one of Sutherland’s sociology classes” (Meir, 2013)—rather than the ex-felon and beneficiary of radical social reform that he was. And yet an­ other common misperception about The Professional Thief, as evidenced by a popular text of the 1990s, is that the book was “based on Sutherland’s inter­ views with a professional thief” (Adler, et al., 1991: 26)—when it is nothing of the kind. Nevertheless, The Professional Thief would dominate the criminol­ ogy literature on professional crime for many decades. The book even became the subject of popular culture in 1973 when Hollywood used it as a basis for The Sting (Gaylord and Galliher, 1988), a movie that is itself about layers of deception leading to a big con. Behind the academic scenes, Sutherland’s book would also mark the emergence of deception as a research method in crim­ inology. It would be handed down, as if from father unto son, to William J. Chambliss.

50 4

Hamm and Ferrell

The Ethnographic Contagion

Following publication of The Professional Thief, Sutherland maintained con­ tact with Broadway Jones and in the late 1940s lent him money during Jones’ voluntary stay at the U.S. Public Health Service Hospital in Lexington, Ken­ tucky, where he was treated for his ongoing heroin addiction (Snodgrass, 1973). This aspect of Jones’ biography has long been the subject of debate among criminologists. The Professional Thief does not mention Jones/Conwell’s ad­ diction (but Sutherland’s papers do), leading some scholars to argue that Sutherland deceived his readers by ignoring Jones’ problem. Several explana­ tions have been offered for Sutherland’s possible deception. It may have been that Sutherland feared that his readers might interpret heroin addiction as a mental illness, and Sutherland (1931) was on record arguing that there was no relationship between “mental deficiency” and crime (Wright, 2004). Or, it may have been that Sutherland viewed Jones’ heroin addiction as a contradiction of his theory that professional thieves were inherently organized, intelligent peo­ ple from middle-class backgrounds who followed specific codes of behavior (Snodgrass, 1973). Still again, even if Sutherland did dismiss Jones’ addiction, it might be explained as an act of compassion and empathy for a friend strug­ gling with a difficult burden (Hayward et al., 2010). What is beyond doubt is that the collaboration between Jones and Sutherland was historically unique. “Their work represents a research style that has never been contagious to the rest of the criminological community,” Snodgrass dryly noted (Snodgrass, 1973: 15). Yet thanks to Sutherland, the ethnographic tradition would become conta­ gious among criminologists at Indiana University. During his years as chair of the iu sociology department (1935–1950), Edwin  Sutherland—then becoming known as the “Dean of American ­Criminology”—supervised the work of an illustrious roster of young scholars who carried on the tradition of valuing personal contact, interchange, and argument with those they studied. The tradition can be found in Albert Co­ hen’s classic research on delinquent gangs (Cohen, 1955), Lloyd Ohlin’s work on delinquency which became a prototype for future government anti-poverty programs (Cloward and Ohlin, 1960), and Donald Cressey’s research on em­ bezzlers (Cressey, 1953) and his co-authored text with Sutherland, Principles of Criminology, the most widely used criminology textbook of all time. “Every­ body was at Indiana” recalled Albert Cohen who was accepted into the sociol­ ogy graduate program by Sutherland in 1939 after being denied admission to several universities because he was a Jew (Laub, 1997). Stories like this would move the criminologist Gil Geis to proclaim: “Sutherland’s students loved him” (in Martin et al., 1990: 143).

Notes on the Art of Deception

51

Donald Cressey earned his PhD from iu in 1950, the same year that Suther­ land died while walking to his office, with Cressey then taking a post in sociol­ ogy at ucla. Among his early students was 18-year-old William Chambliss who began his studies in 1951. Chambliss was one of six children raised in a broken home in Buffalo, New York, by a mother who couldn’t make ends meet, prompt­ ing him to leave home at the age of 15 and strike out on his own (Hamm, 1996). Chambliss and a friend hitchhiked across the country, ending up in South­ ern California. Chambliss attended his junior year of high school in East Los Angeles where he joined a street gang called the “Salons” (Moyer, 2001). That summer, Chambliss and another friend hitchhiked north to Alaska, but they ran out of money in Walla Walla, Washington, where they found work pick­ ing strawberries in a migrant labor camp. Chambliss befriended several young men from a convict work crew assigned to the camp by the nearby Washington State Penitentiary. This friendship with the convicts, in turn, sparked his inter­ est in the study of crime (Chambliss, 1987). In a 1983 interview with criminologist John Laub, Cressey remembered Chambliss as one of his “sociological children—people who drifted into my ucla undergraduate classes in the 1950s and got turned on to sociology” (Laub, 1983: 163). Chambliss graduated from ucla in 1955 and hitchhiked back east to visit his father in Virginia. Along the way, he worked in a California migrate labor camp and became acquainted with urban skid rows—their nightlife, poverty, and criminality. “I saw a lot of the mean streets,” he recalled (Hamm, 1996). Chambliss was drafted by the Army later in 1955 and spent a year doing counterintelligence work in Korea. It was a formative experience in his thinking about crime and punishment. “I learned a lot about crime during that period,” he remembered. “American and Korean soldiers raped, stole, as­ saulted, intimidated, and otherwise terrorized the Koreans. Because they had the power, nothing was done about it” (Chambliss, 1987: 5). In 1957, acting on Donald Cressey’s advice, Chambliss enrolled as a graduate student in sociology at Indiana University, hoping to become a prison warden. In his first year at Indiana, Chambliss took a class on the sociology of devi­ ance taught by Alfred Lindesmith. At Sutherland’s invitation, Lindesmith had arrived in Indiana back in 1936; to entice him into joining the sociology de­ partment, Sutherland had loaned Lindesmith the substantial sum of $2,500 ($44,000 in today’s dollars) as a down payment on a new home in Blooming­ ton (Keys and Galliher, 2000). Over time, “Lindy” would become Chambliss’ mentor, dissertation supervisor, and friend. Lindesmith taught his students to think “outside the orbit” of criminology, as he would say, believing that an understanding of adjacent fields can enrich our understanding of criminol­ ogy (Hamm, 2005). Accordingly, Lindesmith guided Chambliss in writing his

52

Hamm and Ferrell

dissertation on the topic that had originally drawn him to the study of crimi­ nology: The Selection of Friends (Chambliss, 1962). In what was a work of cul­ tural criminology long before there was a cultural criminology, The Selection of Friends combined Chambliss’ ethnographic study of student friendships with his interpretation of a Eugene O’Neill play about characters living at the fringes of society. He concluded that people choose as friends those with whom they have self-validating experiences. Chambliss developed a special bond with Lindesmith. “He was a beautiful man,” said Chambliss, “a gentle giant. Lindy was a huge force in my life” (Hamm, 1996). Lindesmith had earned Sutherland’s support on the merits of his pioneering research on heroin addiction completed for his 1937 dissertation at the Uni­ versity of Chicago, which became the basis for his first book, Opiate Addiction (Lindesmith, 1947). Lindesmith worked from the ethnographic perspective of analytical induction, a grounded theory approach that starts with research­ ers immersing themselves in a field site before they engage with the academic literature or official records. In an unpublished 1942 paper, Sutherland wrote that he adopted Lindesmith’s analytical induction method in his development of differential association theory (Cohen, et al., 1956). Central to Lindesmith’s success was, once again, Broadway Jones who had shepherded Lindesmith through the narcotics underworld of Chicago between 1935 and 1936, at the same time of Sutherland’s relationship with Jones, where Lindesmith conduct­ ed interviews with 75 active heroin addicts. “Broadway Jones proved to be an invaluable lead for Lindesmith in gaining the acquaintance and confidence of many subjects for his research on addiction,” wrote Lindesmith’s biogra­ phers. “Professional and personal bonds were formed between the [two] men for years to come” (Keys and Galliher, 2000: 49, 47). “Conwell was a con man,” recalled Chambliss of Broadway Jones. “Very middle class, and not much of a thief at all. He was more like a banker” (Hamm, 1996). It was through this vibrant and supportive intellectual culture—created as it was by such legends of criminology as Sutherland and Cressey, Lindesmith, Cohen, along with the enigmatic Broadway Jones—that Bill Chambliss was familiarized with the applied value of deception in fieldwork. He would al­ lude to this culture in his 1988 textbook when discussing how during periods of paradigm revolution in scientific inquiry, older ideas and conceptualizations are often resurrected. “Much of what was set forth as ‘new criminology’ in the 1960s and 1970s,” he argued, “reflected a criminological perspective advocated by earlier generations of criminologists and social theorists. This tradition may have been forgotten…but that does not negate its earlier existence” (Cham­ bliss, 1988a: 161).

Notes on the Art of Deception

5

53

The Skid Row Research

Chambliss received his PhD from Indiana in 1962 and took a position as an assistant professor in sociology at the University of Washington in Seattle. His early interests concentrated on the dual themes of differential association theory (as taught by Cressey) and symbolic interactionism (taught by Linde­ smith). Yet it was his article in Social Problems, “A Sociological Analysis of the Laws of Vagrancy,” that would establish the 31-year-old sociologist as a leading scholar of the emergent conflict theory approach (Chambliss, 1964). It was also in Seattle that Chambliss undertook a project that would take him far from the cloistered halls of academe, ultimately bringing him face-to-face with dan­ ger and dislocation. Chambliss began making nightly sojourns to Seattle’s skid row bars, gaming parlors, coffee shops, and pool halls where he spoke with vagrants, cab drivers, policemen, dope dealers, prostitutes, pimps, and junkies. “It was easy,” he remembered. “I felt comfortable with skid row. My experiences in the migratory labor camps made me want to do that [the Seattle study]” (Hamm, 1996). His skid row research would provide the material for Cham­ bliss’ definitive book on organized crime, On the Take. It would also deliver some hard-boiled atmospheric writing worthy of lyrics to a Tom Waits song: The Ram and the Turf were scenes of high-class games where lovely women entertained customers with smiles and promises. There were games where contact could be made for sex, drugs, or whatever the cus­ tomer wanted. And in the backrooms, telephones rang often but the ­conversations were short. Bookmaking operations of considerable mag­ nitude were conducted in these high-class amusement centers (Cham­ bliss, 1988b: 31). In addition to his academic talents, Chambliss was also an accomplished poker player with street smarts. His friends would say that you could drop Bill in any American city and within an hour he could find a high-stakes poker game (Ap­ plebaum, 2014). On one of his late-night trips to skid row in 1962, Chambliss walked into an amusement parlor and talked his way into a poker game going on in the backroom, presenting himself to the card room manager as a truck driver with “two days’ growth of a beard, a pair of khaki pants, and an old shirt” (Chambliss, 1988b: 14). This is the first recorded instance of Chambliss’ use of deception in field research, and it was a bust. After failing to gain access to pok­ er players in the higher-echelons of Seattle’s vice operations over the course of several more games, Chambliss outed himself as a sociologist and apologized

54

Hamm and Ferrell

to the card room manager. “As best as I could, [I explained] why I had deceived him earlier,” he wrote (Chambliss, 1988b: 33). Moreover, Chambliss was still practicing his art of deception. Chambliss did not so much drop the deception method from his study as he modified and intensified it. From this point on in the research, Chambliss hon­ estly presented himself to others as “a sociologist interested in a scientifically accurate picture” of vice in Seattle (Chambliss, 1988b: 220). From this point on, he became not a participant observer, but an academic thief. As he continued his involvement in the poker games, no longer posing as a truck driver, Chambliss realized that he was often playing with members of Seattle’s crime syndicate, which included policemen and politicians who were on the take. Seizing this opportunity to explore the modus operandi of those at the center of the syndicate, in 1963 Chambliss started to arrange interviews with the players away from the poker games. Among them was an old safe­ cracker named Harry King who told his life story to Chambliss for their even­ tual book, Boxman: A Professional Thief’s Journey (Chambliss and King, 1972). One interview led to another and soon Chambliss began receiving unsolicited phone calls from police officers, journalists, businessmen, bookies, and other syndicate associates—all willing to meet with Chambliss and provide him with information relevant to his study. It was, in effect, a form of snowball sam­ pling that was made possible by Chambliss’ decision to tell the truth about his professional status as a university professor. “That word ‘professor’ is magic,” he exclaimed. “Being able to say that I was a professor opened a lot of doors” (Hamm, 1996). As the doors swung open, Chambliss began to professionally steal information under false pretenses. Chambliss’ primary interest was in getting the details of his story right. “I was interested in reliable knowledge,” he explained. “That was Lindy’s first rule: Get reliable knowledge” (Hamm, 1996). Therefore, following the war photogra­ pher Robert Capa’s maxim, “If your pictures aren’t good enough, you’re not close enough,” Chambliss upped his deceptions by carrying to the interviews a briefcase concealing a tape recorder. Rather than writing about his subjects, he would let them speak for themselves. “I decided to tape the interviews without the interviewees’ knowledge,” Chambliss confessed about his academic theft. “This was obviously dangerous and ethically offensive” (Chambliss, 1988b: 48). That is true, especially since Chambliss was clandestinely tape-recording mafia members and crooked cops, but it was also a highly effective research method. Later transcribing the secret tape recordings in Norway, Chambliss was able to produce page after page of contemporaneous conversations about il­ legal gambling, campaign fraud, heroin trafficking, white slavery, racketeering,

Notes on the Art of Deception

55

bribery, loan-sharking, and homicide. He found confirming evidence for his findings in official reports and interviews with journalists. Sounding almost amused by the success of his deceptive interviewing technique, Chambliss concluded that, “I found people closely connected to organized crime willing to talk about their work, in spite of the fact that their work was criminal, cor­ rupt, or violent” (Chambliss, 1988b: 155). Essentially, Chambliss had created his own cadre of street-level hustlers in the criminological tradition of Broadway Jones. It was through these imaginative ethnographic methods that Chambliss gathered information for a monumental work of criminology that would show in painstaking detail how organized crime groups came to control $100 billion a year in the drug industry, illegal gambling, weapons smuggling, and interna­ tional prostitution rings. “Going to the streets of the city rather than the re­ cords,” he declared about the value of analytical induction, “[brought] the role of corruption and complicity between political, economic, and criminal inter­ ests into sharp relief” (Chambliss, 1978: 5–6). There was nothing that Chambliss wasn’t willing to do to convince subjects to speak with him and explain their world (he knew something about the selection of friends), a research strategy that led to a blackmail threat against him, an irs audit of his bank account, police bugging of his phone, a libel case waged by a federal prosecutor, and the threat of violence when one of the wise guys complained that Chambliss was asking about things that were “none of his damn business.” 6 Conclusion Chambliss did not “plan” to use the poker games as the field site for his research on organized crime; rather, it presented itself fortuitously, but once it did, Chambliss made it the hub of his study. “It all happened rather unexpectedly,” he said of the poker games. “I was in the middle of doing the skid row research and I was mainly interested in policing and vagrancy. I actually had little inter­ est in organized crime at the time” (Hamm, 1996). It is no surprise, then, that Chambliss would offer this advice: “Sociologists often have to feel their way as they go along, responding to the challenges that arise during research and adapting new methods that are required by the circumstances” (Applebaum and Chambliss, 1997: 49). It is also predictable that Chambliss would leave us with insight into the academic transgression that was the secret to his art of deception. “The professional thief views his or her work with pride and sees theft as a legitimate enterprise,” he professed. “The successful commission of [the] crime depends upon wit and a highly developed intuitive sense that can

56

Hamm and Ferrell

warn him or her of danger” (Chambliss, 1988a: 89–90). The enduring lesson of Chambliss’ organized crime study is that researcher flexibility, intellectual curiosity, creative writing, and pedal-to-the-metal courage are essential for a good crime ethnography. In Seattle, Bill Chambliss let it bleed. References Adler, F., Mueller, G.O. and Laufer, W.S. 1991. Criminology. New York, NY: McGraw-Hill. Adler, P.A. and Adler, P. 1998. “Foreword: Moving Backward.” pp. xii–xvi. in J. Ferrell and M.S. Hamm (Eds.) Ethnography at the Edge: Crime, Deviance, and Field Research. Boston, BA: Northeastern University Press. Altbach, P.G. and Wit, H. de. 2018. “Too Much Academic Research is Being Published.” University World News, September (519): unpaginated. Anderson, N. 1923. The Hobo. Chicago, IL: University of Chicago Press. Applebaum, R.P. 2014. “Never Afraid of Living: William Chambliss, 1933–2014.” Social Science Space, February 27. Retrieved December 12, 2018 (https://www.social sciencespace.com/2014/02/never-afraid-of-living-william-chambliss-1933-2014/). Applebaum, R.P. and Chambliss, W.J. 1997. Sociology. New York, NY: Longman. Bennett, R. 1980. “Review of On the Take: From Petty Crooks to Presidents.” Journal of Criminal Justice, 8: 189–191. Cavalita, K., Pontell, H.N. and Tillman, R.H. 1997. Big Money Crime: Fraud and Politics in the Savings and Loan Crisis. Berkeley, CA: University of California Press. Chambliss, W.J. 1962. The Selection of Friends. Unpublished doctoral dissertation. Indi­ ana University. Chambliss, W.J. 1964. “A Sociological Analysis of the Laws of Vagrancy.” Social Problems, 12(1): 49–64. Chambliss, W.J. 1973. “The Saints and the Roughnecks.” Society, 11(1): 24–31. Chambliss, W.J. 1978. On the Take: From Petty Crooks to Presidents (1st edn). Blooming­ ton, IN: Indiana University Press. Chambliss, W.J. 1987. “I Wish I Didn’t Know Now What I Didn’t Know Then.” The Criminologist, 12: 1–9. Chambliss, W.J. 1988a. Exploring Criminology. New York, NY: Macmillan. Chambliss, W.J. 1988b. On the Take: From Petty Crooks to Presidents (2nd edn). Bloom­ ington, IN: Indiana University Press. Chambliss, W.J. and King, H. 1972. Boxman: A Professional Thief’s Journey. New York, NY: Joanna Cotler Books. Cloward, R.A. and Ohlin, L.E. 1960. Delinquency and Opportunity: A Theory of Delinquent Gangs. New York, NY: Free Press. Cohen, A. 1955. Delinquent Boys: The Culture of the Gang. New York, NY: Free Press.

Notes on the Art of Deception

57

Cohen, A., Lindesmith, A. and Schuessler, K. (Eds.). 1956. The Sutherland Papers. Bloomington, IN: Indiana University Press. Copes, H., Brown, A. and Tewksbury, R. 2010. “A Content Analysis of Ethnographic Research Published in Top Criminology and Criminal Justice Journals from 2000– 2009.” Journal of Criminal Justice Education, 22(3): 341–359. Cressey, D.R. 1953. Other People’s Money: A Study in the Social Psychology of Embezzlement. Glencoe, IL: Free Press. Ferrell, J. and Hamm, M.S. (Eds.) 1998. Ethnography at the Edge: Crime, Deviance and Field Research. Boston, BA: Northeastern University Press. Ferrell, J. and Hamm, M.S. 2016. “Theses on Chambliss: Roughneck and Saint.” Critical Criminology, 24(2): 31–54. Fleetwood, J. and Potter, G.R. 2017. “Ethnographic Research on Crime and Control: Edi­ tor’s Introduction.” Methodological Innovations, 10: 1–4. Friedrichs, D. 1996. Trusted Criminals: White-Collar Crime in Contemporary Society. Bel­ mont, CA: Wadsworth. Gaylord, M.S. and Galliher, J.F. 1988. The Criminology of Edwin Sutherland. New Bruns­ wick, NJ: Rutgers University Press. Geis, G. 2016. White-Collar and Corporate Crime. New York, NY: Oxford University Press. Goldman, E. 1931. Living My Life. New York, NY: Dover Publications. Hagan, J. 2003. Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal. Chicago, IL: University of Chicago Press. Hamm, M.S. 1996. Interview with William J. Chambliss. American Society of Criminol­ ogy Oral History Project. Hamm, M.S. 2005. “Doing Terrorism Research in the Dark Ages: Confessions of a Bot­ tom Dog.” pp. 273–292 in S. Lyng (Ed.) Edgework: The Sociology of Risk-Taking. New York, NY: Routledge. Hamm, M.S. 2007. “‘High Crimes and Misdemeanors’: George W. Bush and the Sins of Abu Ghraib.” Crime, Media, Culture, 3(3): 259–284. Hamm, M.S. 2010. “Chambliss: William J.: Power, Conflict, and Crime.” pp. 141–148. in F.T. Cullen and P. Wilcox (Eds.) Encyclopedia of Criminological Theory, Vol. 1. Los Angeles, CA: Sage. Hayward, K., Maruna, S. and Mooney, J. 2010. Fifty Key Thinkers in Criminology. New York, NY: Routledge. Keys, D.P. and Galliher, J.F. 2000. Confronting the Drug Control Establishment: Alfred Lindesmith as Public Intellectual. Albany, NY: State University of New York Press. Laub, J. 1983. Criminology in the Making: An Oral History. Boston: Northeastern Univer­ sity Press. Laub, J. 1997. Interview with Albert Cohen. American Society of Criminology Oral His­ tory Project. Lindesmith, A. 1947. Opiate Addiction. Bloomington, IN: Principia Press.

58

Hamm and Ferrell

Martin, R., Mutchnick, R.J. and Austin, W. 1990. Criminological Thought: Pioneers Past and Present. New York, NY: Macmillan. Meir, R.F. 2013. “Geis, Sutherland and White-Collar Crime.” Fraud Magazine, April. Retrieved December 12, 2018 (https://www.fraudmagazine.com/article .aspx?id=4294977167). Michalowski, R. 2007. “Border Militarization and Migrant Suffering: A Case of Transna­ tional Social Inquiry.” Social Justice, 34(2): 62–76. Michalowski, R.J. and Kramer, R. 2006. State-Corporate Crime: Wrongdoing at the Intersection of Business and Government. New Brunswick, NJ: Rutgers University Press. Moloney, C. and Chambliss, W.J. 2013. “Slaughtering the Bison, Controlling Native Americans: A State Crime and Green Criminology.” Critical Criminology, 22(3): 319–338. Moyer, I.L. 2001. Criminological Theories: Traditional and Nontraditional Voices. Thou­ sand Oaks, CA: Sage. OMICS Group. 2018. Criminology/Journals/Conferences List. Retrieved September 11, 2018 (https://www.omicsonline.org/criminology-journals-conferences-list.php). Reitman, B.L. 1932. Letter to Edwin H. Sutherland, October 8. Rothe, D. and Kauzlarich, D. 2016. Crimes of the Powerful: An Introduction. Oxford: Routledge. Snodgrass, J. 1973. “The Criminologist and His Criminal: The Case of Edwin H. Suther­ land and Broadway Jones.” Social Justice, 8(1): 1–17. Sutherland, E.H. 1931. “Mental Deficiency and Crime.” pp. 367–375 in K. Young (Ed.) Social Attitudes. New York, NY: Henry Holt. Sutherland, E.H. 1937a. Letter to Donald P. Bean, University of Chicago Press, June 26. Sutherland, E.H. 1937b. Letter to Broadway Jones, June 26. Sutherland, E.H. 1937c. The Professional Thief. Chicago, IL: University of Chicago Press. Sutherland, E.H. and Cressey, D.R. 1978. Criminology (10th edn). Philadelphia, PA: Lippincott. Wright, R.A. 2004. “Edwin Sutherland.” Encyclopedia of Criminology. New York, NY: Routledge. Retrieved December 10, 2018 (http://cw.routledge.com/ref/criminology/ sutherland.html).

Chapter 4

Kate’s Law: the Social Construction of Crime in the Trump Era Teresa C. Kulig and Francis T. Cullen Since the 1960s, all presidents have sought to define the nature of America’s crime problem, usually reflecting the values and vision of the nation they wished to project. For Kennedy and Johnson, crime was due to blocked opportunity and the lack of a Great Society; for Nixon, the problem was law and disorder in the inner cities; for Carter, white-collar crime was his priority; for George H.W. Bush, the focus was on violent crime by career criminals; for Clinton, crack cocaine and violence against women mattered; for George W. Bush, 9–11 riveted his attention on terrorism; for Obama, women’s victimization and then excessive police force against minorities rose to the top of his agenda (e.g., Calder, 1982; Conyers, 1980; Hagan, 2010; Oliver and Barlow, 2005; Simon, 2007). Now for Donald Trump, the threat to public safety looms outside our borders among those who wish to sneak into the United States illegally. The new super-predators are Muslims seeking to blow us up and Mexicans seeking to sell us drugs, rape our women, and murder indiscriminately. In the Stephen Bannon-inspired Trump nativist and nationalist paradigm, our cherished values and real Americans—always implied to be White Americans—are under siege by these outsiders. Common sense demands that they must be stopped at our borders, either by a strict travel ban or by a wall too sturdy to penetrate. Simon (2014) has identified a mindset that rationalized a policy of “total incarceration”—a preference to lock up as many offenders as possible. In this view, criminals could not be reliably differentiated into low-risk and highrisk categories. Instead, it was believed that “most criminals have a high and ­unchanging potential for criminal activity, including violence, even if their present offense is not violent” (2014: 23). The only safe policy was to lock up everyone or, barring this, to crowd prisons far beyond capacity. In a similar way, Trump argues that any Muslim or Mexican entering the country may be the very predator who will commit a terrorist or criminal act. Threat is ubiquitous and unknowable in advance. The only way to eliminate this risk and ensure public safety is “total exclusion.” Reasonable policy analysts will respond that the vast majority of immigrants, legal or otherwise, come to the United States in search of a better life,

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004411678_005

60

Kulig and Cullen

not in search of attractive targets to victimize. Criminologists add the important point that, in general, studies show that immigrants are, if anything, less likely to break the law than those born in America (Kubrin, 2013). Research also indicates that sanctuary cities have crime rates equal to or lower than other cities (Collingwood, Gonzalez-O’Brien and El-Khatib, 2016; Gonzalez, Colling­ wood and El-Khatib, 2017; Ingraham, 2017; Wong, 2017). Another recent report found that undocumented immigration does not increase violence and may even have a crime-reducing effect (Light and Miller, 2018). But these sensible rebuttals miss the point that Trump is making. His goal is not to keep crime rates low but to stop any crime event from ever occurring. The stubborn fact he communicates is this: If illegal immigrants are stopped from entering the United States, then no crime or terrorist act committed by one of their numbers would ever take place. A zero tolerance for risk thus promises zero victimization. Building a wall sealing off Mexicans and instituting a travel ban against Muslims have received the most attention in the media. But recently, Trump and his congressional allies have rolled out a third leg of his anti-immigrant policy stool: laws giving reentering immigrants lengthy prison sentences and withdrawing federal funds from jurisdictions that wish to give sanctuary to those in the country illegally. At the center of this effort is “Kate’s Law,” a statute named after Kathryn (Kate) Steinle, a 32-year-old woman shot to death by an illegal immigrant who had been deported five times and convicted of seven felonies. Our purpose is to examine Kate’s Law as a means of illuminating the social construction of crime by President Trump and his administration. The argument is presented in five sections. First, we show how using laws named after victims is a means of personalizing harm and conveying who valued victims are, including their race and gender. Second, we examine the tragic killing of Kate Steinle and the unfolding legal details of the case, the subsequent effort by Trump to use her death for his political advantage, and the reactions of Kate’s family members in a politicized context. Third, we explore the details of Kate’s Law and how it reflects a punitive approach to illegal “aliens” and immigration control. Fourth, we reveal how efforts are being made to institutionalize Trump’s vision of the crime problem by the creation of a federal office and the organization by families of victims of immigrant crimes. Fifth, we consider the policy implications of Kate’s Law, focusing in particular on how the social construction of crime as an immigrant problem is a choice that diverts attention from and thus devalues other victims. This analysis of Kate’s Law falls within the “law in action” tradition that informed the work of William Chambliss (see Chambliss, 1964, 1969; Chambliss and Seidman, 1971). In his writings, Chambliss challenged the myth that the

Kate’s Law

61

state was value neutral and that the legal system was an unbiased arbiter when citizens were accused of wrongdoing. Along with scholars such as Austin Turk (1969) and Richard Quinney (1970, 1977), he was among the first to illuminate how law and its administration is a socio-historical product and shaped intimately by power. Conflict, not value consensus, is the driving force behind the system’s operation. “The examination of the law in action,” Chambliss and coauthor Robert Seidman (1971: 503) noted, “also puts to rest the comfortable idea that the law represents the ‘public interest.’” In an insight that remains so vividly applicable when assessing Kate’s Law, they added: “The interests of the disenfranchised in a stratified society are not served by a system in which adequate housing, medical care, and legal protection depend on being enfranchised” (1971: 503). Ever the realist, Chambliss nonetheless did not preach surrender. Instead, he counseled that social science analysis—not “pursuing law as a variant of library science”—was essential to deconstruct social realities and open up avenues for opposition: “Manifold changes in the legal order can be made in order to ensure that the government represents all-of-us” (Chambliss and Seidman, 1971: 507). Indeed, looking at law in action is essential “if we are to begin to make social fact conform to the myths of democracy” (Chambliss and Seidman, 1971: 507). Our analysis of Kate’s Law, and the people it ­devalues and targets for oppression, hopefully honors William Chambliss and can be a small part of his enduring legacy. 1

Personalizing Harm

A key rationale for conservatives’ so-called war on crime and ultimately mass incarceration movement was the proclaimed need to protect and accord just deserts to victims. In this narrative, liberals’ embrace of the “penal-welfare” state as a correctional orientation (Garland, 2001: 27) produced an overriding focus on offender well being, including support for rehabilitation, equal justice, and deinstitutionalization. In portraying offenders as victims of state coercion and injustice, conservatives alleged that liberals paid scant attention to victims and thus did not care about them. This argument proved effective. Seeing liberal political vulnerability and opportunity for themselves, conservatives took the side of victims against their transgressors. According to Garland (2001: 180), “the interests of the victims and offender are assumed to be diametrically opposed: the rights of one competing with the other in the form of a zero sum game. Expressions of concern for the offender and his needs signal a disregard for the victim and her suffering.” The link to punitiveness was ­equally clear. “Capital punishment and punishment more broadly,” observes

62

Kulig and Cullen

Gottschalk (2006: 226), were portrayed as “a contest between victims and offenders, in which the state’s power to punish was an incidental issue, as were questions of how the penal system discriminated against the poor and people of color.” In this process, offenders were lumped together and depersonalized, whereas victims were individualized and their harm personalized. The rehabilitative ideal, which was developed in the Progressive era and had been hegemonic within corrections into the 1970s, had emphasized individualized treatment (Cullen and Gilbert, 1982; Rothman, 1980). Starting in the 1980s, a new “mindset” about offenders became dominant, at least in public policy circles (Simon, 2014). Once believed to enter and leave crime for unique reasons, offenders were now seen as constituting an undifferentiated criminal class who shared a single common trait—they all harbored the potential to harm others. The challenge thus was to “prevent them from endangering innocent people,” for “any time a criminal leaves prison for any reason the community becomes less safe” (Simon, 2014: 23). Criminals were portrayed not as varying in their redeemability but as “the dangerous other” (Garland, 2001: 182)—cold-blooded “super-predators” to be feared and caged (DiIulio, 1995). This mind-set was articulated by Garland. “The recurrent image of the offenders,” noted Garland (2001: 102), “ceased to be that of the needy delinquent or reckless misfit and became much more threatening—a matter of career criminals, crackheads, thugs, and predators.” As we will see, President Trump is an expert practitioner of this strategy to socially construct immigrants, including those who violate the law, as an undifferentiated class of the dangerous other. This image of the offender was solidified by its implicit, and often explicit, racialization. Seeing the convicted as universally risky was more palatable when offenders were portrayed not as “us”—fellow White peoples—but as African Americans, who could be walled off either in the ghetto or in prison (Wacquant, 2001). Russell-Brown (2009) has used the term “criminalblackman” to poignantly capture this pervasive tendency to see offenders as young, Black men. Tonry (2011: 79) cautions that these stereotypes reflect “unconscious preferences for whiteness over blackness, and lack of empathy among whites for black offenders and their families.” He notes further that, in recent decades, “insensitivity to the interests of black people became a theory of crime and drug policy” (2011: 80). Again, when commenting on people of color—whether when they protest alt-right marchers or when they are detained by immigration officials—President Trump reflects this capacity to depersonalize them as the “other” and appears unburdened by any sense of empathy. In stark juxtaposition, crime victims in the 1980s were discovered and given a new status—one that would highlight their loss and ensure their memory.

Kate’s Law

63

“The crime victim,” observes Simon (2007: 108), “became its own idealized political subject.” Garland (2001: 11) similarly notes that the category of crime victim was “dis-aggregated.” Whereas offenders were lumped into a class of potential predators, victims were seen increasingly as unique individuals whose stories warranted both telling and a concerned audience. Again, Garland (2001:11–12) illuminates these developments: Over the last three decades there has been a remarkable return of the victim to centre stage in criminal justice policy. In the penal-welfare framework, individual victims featured hardly at all, other than as members of the public whose complaints triggered state action…All of this is now changed. The interests and feelings of victims—actual victims, victims’ families, potential victims, the projected figure of “the victim”—are now routinely invoked in support of punitive segregation… The new political imperative is that victims must be protected, their voices must be heard, their memory honoured, their anger expressed, their fears addressed… It is no longer sufficient to subsume the individual victim’s experience in the notion of the public good: the public good must be individuated, broken down into individual component parts. Specific victims have to have a voice—making victim impact statements, being consulted about punishment and decision about release, being notified about the offender’s subsequent movements. This effort to individualize victims led, seemingly ineluctably, to a practice that is the subject of our project: the naming of laws after individual victims. Our recent analysis revealed that 51 such laws were passed between 1990 and 2016 (Kulig and Cullen, 2017). Some named laws remain obscure, but others do not, such as Caylee’s Law, the Jeanne Clery Act, Megan’s Law, and the Adam Walsh Act. In a positive way, at least for family members, a named law serves two purposes. First, the law memorializes the victim, most of whom have died a tragic if not heinous death. They are now not forgotten. Second, the law represents a means of ensuring that the victim did not die in vain—that their loss can be transformed into a social good for others. Laws are typically designed to prevent a further victimization, often by mandating—as is the case with Kate’s Law—more enforcement and more stringent criminal penalties. Negatively, although some good can come out of some statutes, law in ­action—as Chambliss warned—involves more than is immediately apparent to one’s eye. Thus, most named laws have symbolic rather than substantive effects; they are more a matter of political theater than a carefully ­calibrated, evidence-based intervention that is likely to work (see, e.g., Filler, 2001; ­Fisher,

64

Kulig and Cullen

Hartman, Cullen and Turner, 2002; Freeman and Sandler, 2010; Socia and Brown, 2016). In particular, they disproportionately celebrate and purport to protect one kind of victim: the White victim, especially if female and/or young. In our study of 51 laws, the vast majority—fully 86.3%—were named after White victims (Kulig and Cullen, 2017). This finding shows the invisibility of Black victimization and the extent to which White lives matter, especially in the political arena. “The rhetoric of penal debate,” notes Garland (2001: 11), “routinely invokes the figure of the victim—typically a child or a woman or a grieving family member—as a righteous figure whose suffering must be expressed and whose security must henceforth be guaranteed.” Needless to say, Kate Steinle’s death presented President Trump with an ideal opportunity to use this incident to further his anti-immigration agenda. 2

The Killing of Kate

2.1 The Killing On the evening of July 1, 2015, 32-year-old Kate Steinle was walking arm-and— arm with her father, James, on a crowded San Francisco pier (Ho, 2017). By all accounts, her future was bright. Attractive and with a vivacious smile, she had a good job as a medical device sales representative, was an avid traveler, and was an active volunteer with an organization that helps athletes with disabilities (Littlefield, 2015). Suddenly, a bullet struck her in the back, and Kate died shortly thereafter. According to her father’s testimony to the Senate Judiciary Committee, her final words were, “Help me, Dad” (C-SPAN, 2015). Her alleged assailant was Jose Ines Garcia Zarate, also known as Juan Francisco Lopez-Sanchez. At the time of the incident, he was a middle-aged (somewhere between 45- and 54-years-old), homeless, undocumented immigrant and a repeat felon who had already been deported five times (Ho, 2015, 2017; Sanchez, 2016; U.S. Department of Justice, 2017). A Mexican national, he was previously convicted of seven nonviolent felonies—several which were narcotics-related charges (Winter and Diebel, 2015). After completing his sentence for re-entering the country after his fifth deportation, Garcia Zarate was not placed in the immigration system to be returned to Mexico. Instead, because of an outstanding warrant on an old drug charge, authorities sent him from the federal prison in Victorville, California to the San Francisco Sheriff’s department on March 26, 2015 (Littlefield, 2015). The prosecutor, however, declined to pursue charges and, on April 15, he was released. This is where the battle between agencies begins. Immigration officials argued that they should have been notified prior to Garcia Zarate’s release from the local jail so they

Kate’s Law

65

could have taken him into custody. San Francisco, a sanctuary city, responded that they only honor an immigration hold if there is a warrant or if the individual has a violent record. In this case, federal officials did not seek a court order, and Garcia Zarate had committed nonviolent offenses (Littlefield, 2015). Therefore, he was released without any notification given to Immigration and Customs Enforcement agents. The timeline of events following his release from the Sheriff’s department until Kate Steinle’s untimely death is less clear (hereafter referred to as “Kate”). What is known is that the gun that killed Kate belonged to a federal agent of the Bureau of Land Management and was stolen from his car several days before the shooting (Fagan, 2017). Garcia Zarate stated that he found the gun ­under a bench wrapped in a shirt (Winter and Diebel, 2015). He also maintains that killing Kate was an accident. On the day of the murder, Kate and her father were walking along Pier 14 in San Francisco when she was struck by a fatal gunshot. Inconsistent accounts make it difficult to determine exactly what transpired during that time. One initial report stated, for example, that Garcia Zarate picked up the weapon and it accidentally fired three times when he touched it (Littlefield, 2015); another report claimed that he was shooting at a seal or a black fish on the pier at the time Kate was struck by a bullet (Fagan, 2017). Garcia Zarate apparently also disclosed that he was high on sleeping pills and marijuana at the pier during the time of the shooting and that he was unaware he had shot anyone (Winter and Diebel, 2015). What is clear is that the gun was thrown into the bay before Garcia Zarate fled the scene of the crime. Once the gun was recovered from the bay, authorities in fact confirmed that only a single shot had been fired from the weapon (Lee, 2015). During the trial, a critical piece of evidence emerged: Expert testimony concluded that the gun that unleashed the lethal bullet was never aimed at Kate. Evidence presented at trial suggested that the gun was likely pointed downward and that the bullet had ricocheted off the ground and traveled approximately 78 feet before striking Kate in the back, inflicting a fatal wound (Gonzales, 2018a; Lee, 2015). These facts undermined the state’s case—and the prevailing public narrative up until that point—that the defendant had purposely and wantonly shot Kate to death. On November 30, 2017, the jury acquitted Garcia Zarate of Kate’s murder (Gonzales, 2017). Having been in police custody for approximately 30 months, Garcia Zarate was sentenced to time served for being a felon in possession of a firearm (Gonzales, 2018a). However, just days after the acquittal, he was indicted on two gun-related federal charges (Park and Allen, 2018). To date, he has pleaded not guilty and his lawyers are filing for either of the federal charges to be dismissed.

66

Kulig and Cullen

2.2 Trump’s Campaign Responds Leading up to the 2016 election, then-Presidential candidate Donald Trump made illegal immigration and border security a focal point of his campaign, with special emphasis on immigrants from Mexico. In what are now considered famous comments at his presidential candidacy announcement on June 16, 2015, Trump stated that “when Mexico sends its people, they’re not sending their best….they’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people” (cbs News, 2015). Later, he went on to call illegal immigrants “bad hombres” who need to be expelled from the country (Rhodan, 2016). The divisive rhetoric quickly gained traction in the media and further cemented Trump’s agenda for immigration reform. Shortly after Trump announced his candidacy for president in 2015, a stray bullet killed Kate Steinle in San Francisco. The Trump campaign wasted no time in highlighting the harm caused by undocumented immigrants by referring to Kate’s death. In a tweet on July 3, 2015, Trump posted: “My heartfelt condolences to the family of Kathryn Steinle. Very, very sad!” (realDonaldTrump, 2015a). Trump later described the event as “senseless,” “totally preventable,” and “yet another example of why we must secure our border immediately” (Schlei­ fer, 2015). He further argued that he was the only person who could fix the immigration problem so these types of crimes never happened again. As will be discussed in more detail later, Kate was also the inspiration for the Trumpbacked legislation that shares her name. On July 13, 2015, Trump tweeted: “I absolutely support Kate’s Law—in honor of the beautiful Kate Steinle who was gunned down in SF by an illegal immigrant” (realDonaldTrump, 2015b). Throughout the rest of his campaign, Trump attended speaking engagements for families who lost loved ones at the hands of undocumented immigrants and repeatedly echoed Kate’s name in the sake of immigration control. For example, at the 2016 Republican National Convention in Cleveland, Trump argued that families who experienced these types of tragedies have been neglected in favor of sanctuary cities’ rights: These families have no special interests to represent them. There are no demonstrators to protect them and certainly none to protest on their behalf. My opponent will never meet with them, or share in their pain, believe me. Instead, my opponent wants sanctuary cities. But where was the sanctuary for Kate Steinle? abc news, 2016

Kate’s Law

67

During another speech on immigration in Arizona on August 31, 2016, Trump again used Kate’s name to illustrate his dedication to reform. Trump stated, “On my first day in office, I am also going to ask Congress to pass ‘Kate’s Law’— named for Kate Steinle—to ensure that criminal aliens convicted of illegal reentry receive strong mandatory minimum sentences” (Politico, 2016). Trump also spoke at The Remembrance Project conference on September 17, 2016, which was established in 2009 for families of victims killed by illegal immigrants (Barkoukis, 2014). The crowd cheered and applauded after he stated that the “most important number of all is the number of American lives that is acceptable to lose in the name of illegal immigration…zero” (C-SPAN, 2016). He further illustrated the real-life cost of undocumented immigration by recounting the stories of several victims. “Just look at what happened in the last few days,” he began, “last week it was reported that authorities detained an illegal immigrant in the Austin area who is responsible for nearly a dozen sexual assaults and had been previously deported five times within a three-year period” (C-SPAN, 2016). Ironically, more than a dozen women have accused Trump of sexual misconduct over the past several decades (see, e.g., Kurtzleben, 2016). Nevertheless, the resounding sentiment in the Trump campaign was that there needed to be stricter immigration policies and harsher sentences for criminally inclined, undocumented immigrants. Once Donald Trump was elected as the 45th President of the United States, his resolve to address and reshape immigration policies endured. Through the power of executive orders, he restricted travelers from several predominately-Muslim countries (Almasy and Simon, 2017; Liptak and Shear, 2018) and created the Victims of Immigration Crime Engagement (voice) Office (U.S. Immigration and Customs Enforcement, 2018a). He also tirelessly pursued the construction of a complete border wall between the United States and Mexico (Alvarez, 2018), embraced a policy to separate undocumented families at the Southern border as a deterrent to illegal immigration (Horsley, 2018), and unsuccessfully tried to pressure sanctuary cities to cooperate with federal immigration enforcement authorities (Domonoske, 2017; Kopan, 2018). But most notably, he continued to highlight the stories of victims—especially Kate Steinle—who were harmed by undocumented immigrants to support his policies. When Jose Ines Garcia Zarate was acquitted of Kate’s murder in 2017, Trump responded through his main method of communication—Twitter—on two separate occasions. First, on November 30, 2017, Trump stated the following: “A disgraceful verdict in the Kate Steinle case! No wonder the people of our Country are so angry with Illegal Immigration” (realDonaldTrump, 2017a). Then, on December 1, 2017, Trump followed up by noting that:

68

Kulig and Cullen

The Kate Steinle killer came back and back over the weakly protected Obama border, always committing crimes and being violent, and yet this info was not used in court. His exoneration is a complete travesty of justice. BUILD THE WALL! realdonaldtrump, 2017b

As an important note of clarification, Garcia Zarate was previously convicted of nonviolent felonies (Gonzalez, 2017; Winter and Diebel, 2015); there is no ­evidence that he was convicted of violent crimes as alluded to by Trump’s Tweet. To further highlight concerns with illegal immigration in support of his political agenda, President Trump invited the “Angel Families”—or families who have lost loved ones to undocumented immigrant crime—to The White House in June 2018 to remind the public that immigrants can be deadly. In Trump’s remarks, he exhibited a “tough on immigration” stance that was reinforced by invoking the experiences of those lost due to the actions of illegal immigrants: These are the stories that Democrats and people that are weak on immigration, they don’t want to discuss, they don’t want to hear, they don’t want to see, they don’t want to talk about…Your loss will not have been in vain. We will secure our borders. And we will make sure that they’re properly taken care of eventually. The word will get out. We’ve got to have a safe country. We’re going to have a safe country. And your loved ones are going to be playing and will continue to play a big part in it. the white house, 2018

Days before the Angel Families were brought to The White House, Trump was managing the public outrage of his administration separating undocumented immigrant children from their families at the Southern border and placing them in separate detention centers (Khalid, Detrow and Liasson, 2018). Under pressure to respond, Trump signed an executive order that allowed undocumented families to be detained together (Gonzales, 2018b). In this context, Trump used the stories from the “Angel Families” as a public reminder—and seemingly in response to his administration’s prior enforcement of the family separation policy—of the lasting damage caused by undocumented immigrants: These are the American citizens permanently separated from their loved ones—the word “permanently” being the word that you have to think about—“permanently.” They’re not separated for a day or two days. These

Kate’s Law

69

are permanently separated, because they were killed by criminal illegal aliens. the white house, 2018

Overall, President Trump’s decision to focus on undocumented immigrants as a crime prevention tactic has elevated these offenses into the ­national spotlight (e.g., Horsley, 2018; Snell and Davis, 2018). One of the major strategies by the Trump administration in furtherance of this movement has been to emphasize the names of illegal immigrant crime victims. Kate Steinle is one of these victims and a central figure in Trump’s campaign to address undocumented immigration. Trump has repeatedly commented on and applied Kate’s name in the same breath as calls for immigration reform (e.g., cbs News/­Associated Press, 2017; Schleifer, 2015). Although the tragedy of Kate’s death cannot be overstated, her name has been used to justify immigration reform rooted in fear. In doing so, undocumented immigrants are collectively described as a source of deadly harm that must be dealt with indiscriminately. This s­ trategy removes any discussion of the varying individual-levels of offender risk or the corresponding response by criminal justice agents to ensure ­public safety (Bonta and Andrews, 2017). If crime prevention and harm reduction are truly at the heart of these reforms, then any immigration changes should emphasize evidence-based strategies that have been effective with offenders over ideology. 2.3 Family Reactions Kate came from a close-knit family made up of her father, James Steinle, her mother, Elizabeth Sullivan, and her brother, Brad Steinle. Through no choice of their own, they have been propelled to the forefront of a national debate and, as noted above, Kate’s name has become synonymous with immigration reform. To ensure that their side was heard, Kate’s family has remained visible to the public through interviews and public hearings since her passing on July 1, 2015. Twelve days after her death, Kate’s parents completed an interview with now-ousted Bill O’Reilly (2015b), previously of Fox News (Dwyer, 2017). Kate’s parents discussed her life, the outpouring of support that they received, and the hope that this would never happen to another family. When asked whether they would support a Kate’s Law, her father said: I support Kate's law because it would be a legacy in her name and her death would not go unnoticed…We are just a little tired of the finger pointing and just want to see some action and if Kate's law saves one person, then it is all for good…If I may add, the family wants to be involved in

70

Kulig and Cullen

the language of the law so we have a sense of Kate within the law. That's very important to us. O’Reilly, 2015c

Her family also started a GoFundMe page on July 4, 2015—Kate Steinle’s Legacy and Family Fund—to collect funds to help the family move forward and to support causes that were important to Kate. On the same day of her parents’ interview, Kate’s brother, Brad Steinle, was interviewed by Megyn Kelly (2015), previously of Fox News. He described Garcia Zarate as “the luckiest criminal that there’s been” given that he was not charged and released in the sanctuary city of San Francisco, California before shooting Kate. As a follow-up, Brad noted that he firmly embraced the American dream and believed that many people come to this country to create a better life for themselves and their families. His concern, however, was an “overreaching policy” that allowed a known criminal to walk the streets of San Francisco freely (Kelly, 2015). Notably, Brad also discussed the talks surrounding a Kate’s Law to address undocumented immigration. Echoing his parents, he said that his family would like to be part of the “verbiage and the content” in this law to ensure that it does not become something that “reaches too far” (Kelly, 2015). In a follow-up interview with Anderson Cooper (2015) on cnn, Brad stated that he and his family were growing increasingly frustrated because politicians were not reaching out to get their views on immigration even though Kate was at the center of the debate. In particular, Brad stated that his family did not align themselves with Trump’s platform on immigration and did not want to be affiliated with someone who would not contact them for input before publicly using her story. Kate’s family was not interested in building a border wall but wanted a “commonsense” and “rational” response to undocumented immigration (Cooper, 2015). Brad further stated that Trump was “sensationalizing” his sister’s death and that it was “disconcerting” that he was talking about Kate like he knew her. Later in the year, and in an effort to influence legislative changes, James spoke in front of the Senate Judiciary Committee regarding immigration enforcement on July 21, 2015 to share Kate’s story (Phillips, 2017; C-SPAN, 2015). James proposed updated legislation to ensure that convicted criminals who are in the country illegally are not allowed to be on the streets. James stated that they would “be proud to see Kate’s name associated to some of this new legislation.” “We feel,” he continued, “if Kate’s Law saves one daughter, one son, a mother, a father, Kate’s death won’t be in vain.” The family later expressed their

Kate’s Law

71

d­ isappointment and frustration in an interview with Bill O’Reilly (2015d) after an initial version of Kate’s Law failed in the Senate (Phillips, 2017). A little more than one year after her death, Kate’s family found themselves again at the center of the immigration debate. As previously noted, Donald Trump mentioned Kate in his speech at the Republican National Convention in 2016 (abc News, 2016). In response to this, Brad remarked, "I don't pay too much attention to it, you know, they're going to say what they're going to say. I really have no say in what's going to be put out there” (Nguyen, 2016). Brad also noted that there had been a lot of talk since Kate’s death but very little action. The message delivered by Kate’s family remained consistent over the past several years: They never wanted this to happen to anyone else. Kate’s family was supportive of legislation bearing her name as long as it was sensible, practical, and effective (C-SPAN, 2015). “I don’t know who coined ‘Kate’s Law,’” her father stated, “It certainly wasn’t us” (Diaz, 2017a). He further stated that he supports Kate’s Law on the chance that it could save one life, but that he would prefer Kate’s name be kept out of it. However, the national debate on undocumented immigration that brought Kate’s story to the forefront has not ceased. Her story has been used by the Trump administration as justification for stricter immigration policies and the punishment of sanctuary cities—a move that was not fully supported by Kate’s family. In response to Kate’s death being used to target sanctuary cities, her family noted that they realized that these cities were created to protect law-abiding immigrants and to afford them rights to report crimes and go to the hospital without fear of deportation (Diaz, 2015). The family’s issue is rooted in the fact that that San Francisco County Sheriff Ross Mirkarimi did not inform Immigration and Customs Enforcement that the department was releasing a convicted criminal. The family has repeatedly expressed their frustration with how authorities handled the case and they have responded by suing Immigration and Customs Enforcement, the city and county of San Francisco, former San Francisco County Sheriff Ross Mirkarimi, and the Bureau of Land Management for the wrongful death of Kate (Sanchez, 2016). Although a judge dismissed the claims against San Francisco, former Sheriff Ross Mirkarimi, and Immigration and Customs Enforcement, the lawsuit against the Bureau of Land Management was allowed to proceed (Shoichet, 2017). The final verdict in the trial against Jose Ines Garcia Zarate has brought an end to the legal debate over his level of responsibility in Kate’s death. It has not, however, brought an end to Kate’s story as a prominent focal point on immigration reform. In response to the high-profile nature of his daughter’s death, Jim Steinle stated, “We just want to get this over with and move on with

72

Kulig and Cullen

our lives, and think about Kate on our terms. Nothing’s been on our terms. It’s been on everyone else’s terms” (Diaz, 2017b). Regardless of the family’s wishes, the national narrative surrounding Kate’s case has remained. Her brother Brad further commented that, “The sequence of events that led up to this—and the fact that nothing has changed—is the most disheartening thing.” In this respect, Trump’s repeated use of Kate’s name in support of his agenda may be popular with his base, but it has resulted in no substantive changes that are important to her family. 3

Kate’s Law

The idea for a Kate’s Law was developed just days after her death. In an effort to influence new legislation, Bill O’Reilly created a petition named after Kate Steinle and posted it to his website for members of the public to sign (O’Reilly, 2015a). The petition was addressed to the Republican majority leaders, Senator Mitch McConnell and Representative John Boehner. Dated July 7, 2015, the petition read, “We, the undersigned, respectfully ask Congress to pass Kate's Law whereby undocumented aliens who are deported and return to the United States would receive a mandatory five year sentence in a federal penitentiary upon conviction.” O’Reilly then completed an interview on Fox News where he advocated for the creation of a Kate’s Law: I’ve designed a law called “Kate’s Law” that would mandate the federal government, take it out of the state and the locals, to incarcerate any person who comes back into the United States after being deported for five years…and that means any person…if you’re deported out of this country and you defy our laws again and come back, five years. Hemmer, 2015

As of July 13, 2015, when O’Reilly interviewed Kate’s parents, he noted that approximately 400,000 individuals had signed the petition (O’Reilly, 2015c). The efforts to create a Kate’s Law did not go unnoticed by legislators. Multiple laws were introduced for consideration in a push to pass a law in Kate’s name (Kelly and Leslie, 2017). However, only one version of Kate’s Law, sponsored by Representative Bob Goodlatte (R-VA), was passed in the House on June 29, 2017 (Abrams, 2017; H.R. 3004, n.d.). In general, Kate’s Law increases penalties for undocumented immigrants who reenter the United States. The consequences are even more severe for

Kate’s Law

73

i­ mmigrants who had previously been convicted of a crime. The House version of Kate’s Law (2017) stipulates the following amendments to the Immigration and Nationality Act: 1. An alien who illegally reenters the United States shall be fined and/or imprisoned for not more than two years; 2. Increase penalties for aliens who have been convicted of a crime prior to their removal or departure: – An alien convicted of three or more misdemeanors or a felony shall be fined and/or imprisoned for not more than 10 years; – An alien convicted of a felony and sentenced to prison for no less than 30 months shall be fined and/or imprisoned for not more than 15 years; – An alien convicted of a felony and sentenced to prison for no less than 60 months shall be fined and/or imprisoned for not more than 20 years; – An alien convicted of murder, rape, kidnapping, other serious felony (e.g., slavery, terrorism), or three or more felonies of any kind shall be fined and/or imprisoned for not more than 25 years; 3. An alien who has been removed three or more time and illegally reenters the United States shall be fined and/or imprisoned for not more than 10 years; 4. An alien may not challenge the validity of any prior removal order concerning the alien; 5. An alien who is removed from the country prior to the completion of his or her imprisonment and who then reenters the United States can be imprisoned for the remainder of the original sentence. In addition to the consequences, there are some provisions in the law that allow affirmative defenses in specific situations (e.g., if the alien had sought and received the express consent of the Secretary of Homeland Security to reapply for admission into the United States). At the same time that the House voted on Kate’s Law, legislators also voted to pass the No Sanctuary for Criminals Act (2017; Sponsor: Rep. Goodlatte, R-VA), which restricts funds to cities that prevent their police from turning over criminal aliens to federal authorities (The White House, 2017). To date, neither of these laws has been voted on in the Senate. As outlined above, the current version of Kate’s Law establishes harsher sentencing guidelines to address undocumented reentry into the United States. The rationale for these maximum sentences, however, is unclear. In addition, the House passage of Kate’s Law in combination with the No Sanctuary for

74

Kulig and Cullen

Criminals Act aligns with Donald Trump’s vision for immigration reform (The White House, 2017). Although these efforts have not been formally signed into law, they do illustrate the continuing agenda to modify and shape how the United States responds to illegal immigration. 4

Institutionalizing the Immigrant Threat

Beyond legislation, Trump has also sought to strengthen his position against undocumented immigration by establishing and supporting groups dedicated to the victims of illegal crime. In this respect, the awareness that immigrants can cause deadly harm is institutionalized through the collection of narratives from victims, families, and loved ones. These narratives are captured by the Victims of Immigration Crime Engagement (voice) Office and other groups that have been founded over the years. Although Trump has not directly facilitated the creation of all groups related to undocumented immigrant crime, his support in addressing this issue has brought some groups into the national spotlight. 4.1 The Creation of voice As previously noted, Trump signed an executive order on January 25, 2017 that called for the creation of the Victims of Immigration Crime Engagement (voice) Office (U.S. Immigration and Customs Enforcement, 2018a). The voice Office was officially launched on April 26, 2017 (U.S. Immigration and Customs Enforcement, 2017). This organization seeks to support victims, witnesses, and individuals acting on behalf of victims of illegal alien crime by providing access to information and resources (U.S. Immigration and Customs Enforcement, 2018a). To facilitate these goals, the Office was structured using a four-pronged approach. The first objective is to use a victim-centered approach to acknowledge and support crime victims and their families. The second objective promotes awareness of rights and services available to immigration crime victims. The third objective works to build collaborative partnerships with community stakeholders that can assist victims. Finally, the fourth objective requires a quarterly report to study the effects of illegal alien crime victimization in the United States. As specified in the June 2018 quarterly report, the voice Office received 4,602 hotline calls between April 26, 2017 and September 30, 2017 (U.S. Immigration and Customs Enforcement, 2018b). Out of the total number of calls, 46 (1.0%) were asking about victim information and notification everyday (vine) assistance, 254 (5.5%) were requesting information about a case, 972 (21.1%) were reporting a crime, 244 (5.3%) were requesting victim services,

Kate’s Law

75

571 (12.4%) were asking general questions, and 2,515 (54.7%) were providing ­general c­ ommentary or were unrelated calls. It is unclear how many of the ­callers in the report, if any, made multiple phone calls to the Office. Additionally, because the voice Office seeks to deliver resources and services to victims, the callers that were attempting to report a crime were provided with the Immigration and Customs Enforcement tip line. 4.2 The Creation of Family Groups In addition to the voice Office, there are other groups that focus on supporting the victims and families of illegal immigrant crime. A group directly supported by Trump is The Remembrance Project. As previously noted, Trump was a guest speaker at The Remembrance Project conference in 2016 and praised the organization for their dedication to assisting victims and their families (C-SPAN, 2016). Other groups such as the Federation for American Immigration Reform (fair) and the California Victims of Illegal Aliens also emphasize the stories of illegal immigrant crime victims and advocate for legislative reform related to undocumented immigration. The groups that Trump has chosen to champion further highlight the victims of undocumented immigrants beyond Kate Steinle. By creating the voice Office and publicizing other family groups (i.e., The Remembrance Project), Trump is able to illustrate the potential cost associated with illegal alien crime. In this context, the only response then is to change policies to ensure that these crimes do not happen again. 5

Policy Implications: Defining the “Other”

It is not much of a secret that U.S. presidents influence public policy (e.g., Canes-Wrone, 2001). Being elected as the president of the United States comes with certain privileges to lead the nation and the public agenda—including which crimes to emphasize (e.g., Hagan, 2010; Simon, 2007). Donald Trump has consistently stated that he would address undocumented immigration and border control issues while he campaigned and during his tenure as president. He has pushed for new legislation, promised a border wall, embraced the separation of undocumented immigrant families, and created a new Office to address victims’ needs, but his main medium has been to echo the real-life stories of victims—especially with regard to Kate Steinle. By focusing on undocumented immigrants and the violent acts that are, at times, committed by this segment of the population, Trump has been an unrelenting advocate for policy reform.

76

Kulig and Cullen

Although it is not surprising that Trump has focused resources to address a specific form of crime (i.e., undocumented immigration), it is telling that he has blatantly ignored other forms of mistreatment and crime that have been prominently discussed in society. For example, even though he promised to protect lesbian, gay, bisexual, transgender, and questioning (lgbtq) citizens, Trump has not announced lgbtq Pride Month and has attempted to ban transgender individuals from serving in the military (Fitzsimons, 2018). Additionally, he has implemented a travel ban from predominantly Muslim countries (Liptak and Shear, 2018) and has remained silent about attacks against American Muslims (Beinart, 2017a). In the highly contentious area of police brutality, Trump called for officers not to be “too nice” to suspects (Rosenthal, 2017). This statement was later described as a likely joke by The White House Press Secretary (Talwar and Shankar, 2017). Further, The White House stated that the nationally discussed police killings—which predominately featured Black males—were a “local matter” instead of a national priority (Scott, 2018). When considering crimes that disproportionately affect females (e.g., Fisher, Daigle and Cullen, 2010), the Trump administration also changed guidelines at universities so that a higher standard of evidence is needed to prove a sexual assault occurred (Smith, 2018). Finally, Trump has been reluctant to condemn the actions of White supremacists who commit violent acts. After violence erupted between protestors and attendees at the White-supremacist rally in Charlottesville, Virginia on August 12, 2017, Trump responded by stating that there was an “egregious display of hatred, bigotry, and violence on many sides” (D.A. Graham, 2018). Trump later noted that there were “very fine people on both sides” (Politico, 2017). By focusing on certain forms of violence and discarding other instances of maltreatment, the Trump administration has set an agenda about who “counts” as a victim and whether they are a national priority. Specifically targeting M ­ exicans and Muslims—while overlooking deadly violence by White ­supremacists—furthers this agenda and the idea that White citizens are supremely i­mportant. In line with Stephen Bannon’s nativist views (Hayward, 2017; Peters, 2017), Donald Trump has collectively referred to Mexicans as “rapists” or “bad hombres” (cbs News, 2015; Rhodan, 2016) and supported anti-Muslim propaganda (Beinart, 2017b). In this respect, Trump is classifying ­certain “outsiders” as “others” who are not worthy to be in the United States or receive equal treatment. These actions, however, have not been free from criticism or resistance (e.g., Bates, 2018; Chmaytelli and Noueihed, 2017; Shesgreen and Collins, 2018). Given Trump’s views, Kate Steinle’s death brought forth a unique opportunity to highlight the need for serious immigration reform. However, Trump’s

Kate’s Law

77

public narrative of Kate’s death was never adjusted to reflect the reality of the case. Despite the evidence that Jose Ines Garcia Zarate did not intentionally murder Kate (Van Stocknum, 2017), Trump still classified the trial as ­resulting in a “­disgraceful verdict” that contributes to national anger towards illegal ­immigration (realDonaldTrump, 2017a). Furthermore, and in response to Garcia Zarate’s acquittal, the federal government swooped in and charged him with additional gun-related crimes (Park and Allen, 2018). In this way, Kate’s story is less about what actually happened—an illegal immigrant with a criminal record seemingly fired an accidental shot that, tragically, struck and killed Kate—and more about how to facilitate legislative changes that target immigrants who enter the country. Kate Steinle’s harm was personalized but in a disingenuous way. The goal was not to show true compassion for a victim and her grieving family but to use Kate to serve a political agenda aimed at defining immigrants as the “other” to be feared and solidifying anti-immigrant sentiments among Trump’s political base. The need to find evidence to support this agenda was again manifested when Trump responded to the horrific death of Mollie Tibbetts. Mollie was a 20-year-old female who, while jogging alone on a rural Iowa road on July 18, 2018, was murdered by Cristhian Rivera, a 24-year-old undocumented immigrant who had been in the United States for years working on a farm owned by Republican Craig Lane (Korecki and Forgey, 2018). Rivera followed Mollie during her run and became angry when she threatened to call the police (Associated Press, 2018). He stated that he panicked, “blocked” his memory, and then realized that he put Mollie in his trunk. Mollie was found on August 21, 2018, and Rivera was charged with first-degree murder. To date, the case is still pending. Shortly after Mollie’s untimely death, Trump used her story as further evidence for stricter immigration laws (Associated Press, 2018). On August 22, 2018, Trump posted a video to Twitter with the following message: Mollie Tibbetts, an incredible young woman, is now permanently separated from her family. A person came in from Mexico, illegally, and killed her. We need the wall. We need our immigration laws changed. We need our border laws changed. We need Republicans to do it because the Democrats aren’t going to do it. This is one instance of many. We have tremendous crime trying to come through the borders. We have the worst laws anywhere in the world. Nobody has laws like the United States. They are strictly pathetic. We need new immigration laws. We need new border laws. The Democrats will never give them and the wall is being built. We’ve started it, but we also need the funding for this year’s building of

78

Kulig and Cullen

the wall. So, to the family of Mollie Tibbetts, all I can say is God bless you. God bless you. realDonaldTrump, 2018

On the same day, The White House Twitter account posted a message that stated: “For 34 days, investigators searched for 20-year-old Mollie Tibbetts. Yesterday, an illegal alien, now charged with first-degree murder, led police to the cornfield where her body was found. The Tibbetts family has been permanently separated. They are not alone” (WhiteHouse, 2018). Along with the message, The White House posted a video of families who recounted crimes against their loved ones by illegal immigrants and emphasized that they were now permanently separated. However, Mollie’s family had no interest in her being used as an example for immigration reform. Mollie’s cousin, Sandi Tibbetts Murphy, made a Facebook post stating that her death would not be used for any “racist, false narrative” (R. Graham, 2018). Mollie’s father, Rob Tibbetts, also made a point during her eulogy to praise the local Hispanic community in Iowa for their generosity (Nozicka and Hardy, 2018). In an interview with the Des Moines Register, he further stated that the politicians who used Mollie’s death to promote their immigration agendas were choosing to “callously distort and corrupt Mollie's tragic death” (Nozicka, 2018). This response fell on deaf ears for Trump and other prominent Republicans who used her story to deflect current events. In particular, Newt Gingrich stated that even though Paul Manafort, Trump’s former campaign chair, was found guilty of financial fraud, the death of Mollie was more significant for midterms (The Five, 2018; Montanaro, 2018). Gingrich stated in one interview that “she was killed by a person who is exactly what Trump has been warning about” (The Five, 2018). Thus, Gingrich was redirecting the narrative to emphasize Mollie’s death rather than a convicted criminal that was directly connected to Trump. If there was any doubt that Kate’s Law and the focus on victims of illegal immigrant crime were serving political functions, those concerns have dissipated when Mollie’s death was used to publicly deflect news that tarnished a member of Trump’s inner circle. When considered as part of the larger narrative, Donald Trump does not seem to care about victims of illegal immigrant crime in any way that is meaningful beyond his own agenda. Trump uses victims’ names even when he does not have support from their families, he created the new voice Office as a way to institutionalize that this is a problem worthy of national concern, and he championed legislation that only focuses on harsher penalties. All of these components combined illustrate his single-minded plan to address

Kate’s Law

79

i­mmigrants  and the crimes that they sometimes commit. And this is what William Chambliss would have predicted: law in action that serves political ­interests rather than the public interest (Chambliss and Seidman, 1971). An essential task, as Chambliss noted, is to deconstruct this misuse of the legal order. The current essay has been devoted to this goal. Thus, we have endeavored to reveal how Kate’s Law has been effectively “Trumpified” and is being used as a mechanism for political gain without any substantive reforms that address the underlying causes of undocumented immigration or the people committing these offenses. Appropriated by Trump, Kate’s name, and those of all of the other victims, have been used not to comfort the victims and their families but as a politically expedient means to focus disproportionately on crime by a single category of people—those labeled “illegal aliens.” Of course, this disquieting fact alone does not mean that illegal immigrants and their crimes should not be addressed. Undocumented immigrants are sometimes dangerous, and a proper immigration process should exist that documents who is in this country and whether they pose a threat. But other realities merit equal consideration, including, for example, that immigrants themselves face an elevated risk of being victimized or mistreated while in the United States (e.g., Davis, Erez and Avitabile, 2001; Meeker and Dombrink, 1988; Raj and Silverman, 2002; Zatz and Smith, 2012). As William Chambliss reminded us so passionately, a socially just nation is possible only if the legal system values not only the advantaged but also the disenfranchised. Thus, any reform that is being implemented should take into account the need to protect both our current and future citizens. Otherwise, we risk isolating individuals as “others” who are not worthy of our attention, guardianship, or humanity. References ABC News. 2016. “Full Text: Donald Trump’s 2016 Republican National Convention Speech.” ABC News, July 22. Retrieved January 5, 2019 (https://abcnews.go.com/ Politics/full-text-donald-trumps-2016-republican-national-convention/story?id= 40786529). Abrams, A. 2017. “House Passes ‘Kate’s Law’ and Bill Cracking Down on Sanctuary Cities.” Time, June 29. Retrieved January 5, 2019 (http://time.com/4840666/ immigration-house-kates-law-sanctuary-cities-trump/). Almasy, S. and Simon, D. 2017. “A Timeline of President Trump’s Travel Bans.” CNN, March 30. Retrieved January 5, 2019 (https://www.cnn.com/2017/02/10/us/trumptravel-ban-timeline/index.html).

80

Kulig and Cullen

Alvarez, P. 2018. “Could Trump Actually Use Military Funding for His Border Wall?” The Atlantic, April 2. Retrieved January 4, 2019 (https://www.theatlantic.com/politics/ archive/2018/04/can-the-us-military-build-trumps-border-wall/556967/). Associated Press. 2018. “The Latest: Suspect Worked at Farm Tied to Republican Farmer.” U.S. News, August 21. Retrieved August 30, 2018 (https://www.usnews.com/news/ best-states/iowa/articles/2018-08-21/the-latest-body-found-in-rural-area-nearstudents-hometown). Barkoukis, L. 2014. “A Voice for the Victims.” Townhall, November 30. Retrieved January 5, 2019 (https://townhall.com/tipsheet/leahbarkoukis/2014/11/30/theremembrance-project-n1924368). Bates, K.G. 2018. “‘Rapists,’ ‘Huts’: Trump’s Racist Dog Whistles Aren’t New.” NPR, January 13. Retrieved January 13, 2018 (https://www.npr.org/sections/codes witch/2018/01/13/577674607/rapists-huts-shitholes-trumps-racist-dog-whistlesarent-new). Beinart, P. 2017a. “Why is Trump Silent on Islamophobic Attacks.” The Atlantic, February 27. Retrieved January 5, 2019 (https://www.theatlantic.com/politics/ archive/2017/02/trump-should-condemn-attacks-on-muslims-too/517893/). Beinart, P. 2017b. “Trump’s Anti-Muslim Political Strategy.” The Atlantic, November 29. Retrieved January 5, 2019 (https://www.theatlantic.com/politics/archive/2017/11/ trumps-anti-muslim-retweets-shouldnt-surprise-you/547031/). Bonta, J. and Andrews, D.A. 2017. The Psychology of Criminal Conduct (6th edn.). New York, NY: Routledge. Calder, J.D. 1982. “Presidents and Crime Control: Kennedy, Johnson and Nixon and the Influences of Ideology.” Presidential Studies Quarterly, 12(4): 574–589. Canes-Wrone, B. 2001. “A Theory of Presidents’ Public Agenda Setting.” Journal of Theoretical Politics, 13(2): 183–208. CBS News. 2015. “Transcript: Donald Trump Announces his Presidential Candidacy.” CBS News, June 15. Retrieved January 5, 2019 (https://www.cbsnews.com/news/ transcript-donald-trump-announces-his-presidential-candidacy/). CBS News/Associated Press. 2017. “Trump Cites Kate Steinle Verdict to Justify Construction of Border Wall.” CBS News, December 1. Retrieved January 5, 2019 (https://www.cbsnews.com/news/kathryn-steinle-shooting-verdict-donald-trumpsan-francisco-sanctuary-city/). Chambliss, W.J. 1964. “A Sociological Analysis of the Law of Vagrancy.” Social Problems, 12(1): 67–77. Chambliss, W.J. 1969. Crime and the Legal Process. New York, NY: McGraw-Hill. Chambliss, W.J. and Seidman, R.T. 1971. Law, Order, and Power. Reading, MA: Addison-Wesley. Chmaytelli, M. and Noueihed, L. 2017. “Global Backlash Grows Against Trump’s Immigration Order.” Reuters, January 29. Retrieved January 5, 2019 (https://

Kate’s Law

81

www.reuters.com/article/us-usa-trump-immigration-reaction/globalbacklash-grows-against-trumps-immigration-order-idUSKBN15D0QM). Collingwood, L., Gonzalez-O’Brien, B. and El-Khatib, S. 2016. “Sanctuary Cities Do Not Experience an Increase in Crime.” The Washington Post, October 3. Retrieved Januaury 5, 2019 (https://www.washingtonpost.com/news/monkey-cage/ wp/2016/10/03/sanctuary-cities-do-not-experience-an-increase-in-crime/?utm_ term=.da0accacf5da). Conyers, J. 1980. “Corporate and White-Collar Crime: A View by the Chairman of the House Subcommittee on Crime.” American Criminal Law Review, 17(3): 287– 300. Cooper, A. 2015. “Brother: Trump ‘Sensationalized’ Kate Steinle’s Death.” CNN, July 15. Retrieved January 5, 2019 (https://www.cnn.com/videos/tv/2015/07/15/bran-steinleon-donald-trump-sot-ac.cnn). C-SPAN. 2015. “Jim Steinle, Father of Kate Steinle, Slain on San Francisco’s Waterfront on July 1, Testifies Before Senate Judiciary Committee on ‘Sanctuary Cities’ and Immigration Policy [Video file].” C-SPAN, July 2. Retrieved January 5, 2019 (https:// www.c-span.org/video/?c4545344/jim-steinle). C-SPAN. 2016. “Presidential Candidate Donald Trump on Illegal Immigration [Video file].” C-SPAN, Sepetmber 17. Retrieved January 5, 2019 (https://www.c-span.org/ video/?415481-1/donald-trump-campaigns-houston-texas). Cullen, F.T. and Gilbert, K.E. 1982. Reaffirming Rehabilitation. Cincinnati, OH: Anderson. Davis, R.C., Erez, E. and Avitabile, N. 2001. “Access to Justice for Immigrants Who Are Victimized: The Perspectives of Police and Prosecutors.” Criminal Justice Policy Review, 12(3): 183–196. Diaz, J. 2015. “Kate Steinle’s Relatives—In Their Own Words.” San Francisco Chronicle, September 11. Retrieved January 5, 2019 (https://www.sfchronicle.com/opinion/ diaz/article/Kate-s-relatives-in-their-own-words-6499189.php). Diaz, J. 2017a. “Leave Kate Steinle Out of The Immigration Debate.” San Francisco Chronicle, July 10. Retrieved July 10, 2017 (https://www.sfchronicle.com/opinion/ diaz/article/Leave-Kate-Steinle-out-of-the-immigration-debate-11273945.php). Diaz, J. 2017b. “Exclusive: Kate Steinle’s Family Talks About the Anguish and Frustration.” San Fransisco Chronicle, November 30. Retrieved November 30, 2017 (https://www.sfchronicle.com/opinion/article/Exclusive-Kate-Steinle-s-familyspeaks-12396710.php). DiIulio, J.J., Jr. 1995. “The Coming of Super-Predators.” Weekly Standard, November 27, 23–28. Domonoske, C. 2017. “Judge Blocks Trump Administration From Punishing ‘Sanctuary Cities.’” NPR, November 21. Retrieved November 28, 2017 (https://www.npr.org/ sections/thetwo-way/2017/11/21/565678707/enter-title).

82

Kulig and Cullen

Dwyer, C. 2017. “Bill O’Reilly Is Out at Fox News.” NPR, April 19. Retrieved January 5, 2019 (https://www.npr.org/sections/thetwo-way/2017/04/19/524736631/bill-oreillyis-out-at-fox-news). Fagan, K. 2017. “Defendant’s Lawyer in Kate Steinle Murder Trial: It Was an Accident.” San Francisco Chronicle, July 8. Retrieved July 8, 2017 (http://www.sfchronicle.com/ crime/article/Defendant-s-lawyer-in-Kate-Steinle-murder-11273994.php). Filler, D.J. 2001. “Making the Case For Megan’s Law: A Study in Legislative Rhetoric.” Indiana Law Journal, 76(2): 315–366. Fisher, B.S., Daigle, L.E. and Cullen, F.T. 2010. Unsafe in The Ivory Tower: The Sexual ­Victimization of College Women. Thousand Oaks, CA: Sage. Fisher, B.S., Hartman, J. Cullen, F.T. and Turner, M.G. 2002. “Making Campuses Safer for Students: The Clery Act as a Symbolic Legal Reform.” Stetson Law Review, 32(Fall): 61–89. Fitzsimons, T. 2018. “President Trump Misses LGBTQ Pride Month—Again.” NBC News, June 1. Retrieved June 2, 2018 (https://www.nbcnews.com/feature/nbc-out/ president-trump-misses-lgbtq-pride-month-again-n879306). Freeman, N.J. and Sandler, J.C. 2010. “The Adam Walsh Act: A False Sense of Security or an Effective Public Policy Initiative?” Criminal Justice Policy Review, 21(1): 31–49. Garland, D. 2001. The Culture of Control: Crime and Social Order in Contemporary Society. Chicago, IL: University of Chicago Press. Gonzales, R. 2017. “Jury Finds Undocumented Immigrant Not Guilty of Murder in Kate Steinle Shooting.” NPR, November 30. Retrieved January 5, 2019 (https://www .npr.org/sections/thetwo-way/2017/11/30/567625700/jury-in-san-franciscofinds-accused-killer-of-kate-steinle-not-guilty-of-murder). Gonzales, R. 2018a. “Immigrant Acquitted of San Francisco Killing Sentenced on Lesser Gun Charge.” NPR, January 5. Retrieved January 5, 2019 (https://www .npr.org/sections/thetwo-way/2018/01/05/576123068/immigrant-acquittedof-san-francisco-killing-sentenced-on-lesser-gun-charge). Gonzales, R. 2018b. “Trump’s Executive Order on Family Separation: What It Does and Doesn’t Do.” NPR, June 20. Retrieved June 21, 2018 (https://www .npr.org/2018/06/20/622095441/trump-executive-order-on-family-separationwhat-it-does-and-doesnt-do). Gonzalez, B., Collingwood, L. and El-Khatib, S.O. 2017. “The Politics of Refuge: Sanctuary Cities, Crime, and Undocumented Immigration.” Urban Affairs Review, 55(1): 3–40. Gonzalez, M. 2017. “A ‘Dangerous Felon’ Who Was Never Convicted of a Violent Crime.” 48Hills, July 18. Retrieved July 17, 2018 (https://48hills.org/2017/07/ media-misleading-crime/). Gottschalk, M. 2006. The Prison and the Gallows: The Politics of Mass Incarceration in America. New York, NY: Cambridge University Press.

Kate’s Law

83

Graham, D.A. 2018. “Why Can’t Trump Just Condemn Nazis?” The Atlantic, August 11. Retrieved January 5, 2019 (https://www.theatlantic.com/politics/archive/2018/08/ why-cant-trump-just-condemn-nazis/567320/). Graham, R. 2018. “Mollie Tibbetts’s Parents Lost a Daughter. Republicans Found a ­Tragedy to Exploit.” Boston Globe, August 28. Retrieved August 28, 2018 (https:// www.bostonglobe.com/opinion/2018/08/28/mollie-tibbetts-parents-lost-daughterrepublicans-found-tragedy-exploit/arinzGPn3ff72m7BWllrwL/story.html). Hagan, J. 2010. Who Are the Criminals? The Politics of Crime Policy from the Age of Roosevelt to Reagan. Princeton, NJ: Princeton University Press. Hayward, J. 2017. “Bannon: I’d ‘Rather Be Governed by the First Hundred People at a Trump Rally’ Than the ‘Party of Davos.’” Breitbart, November 13. Retrieved January 5, 2019 (https://www.breitbart.com/big-government/2017/11/13/bannon-id-rather-begoverned-by-the-first-hundred-people-at-a-trump-rally-than-the-party-of-davos/). Hemmer, B. 2015. “O’Reilly Introduces ‘Kate’s Law’ Petition After Woman’s Murder by Illegal Immigrant.” Fox News: America’s Newsroom, July 9. Retrieved January 5, 2019 (http://insider.foxnews.com/2015/07/09/kates-law-petition-oreilly-calls-newfederal-law-after-kate-steinles-murder). Ho, V. 2015. “Defendant Pleads Not Guilty in Pier 14 Killing.” SF Gate, July 7. Retrieved January 5, 2019 (https://www.sfgate.com/news/article/Accused-S-F-pier-shooterpleads-not-guilty-6371391.php). Ho, V. 2017. “SF Murder Case Behind Kate’s Law Inching Toward Trial.” San Francisco Chronicle, June 29. Retrieved January 5, 2019 (http://www.sfchronicle.com/crime/ article/The-San-Francico-murder-case-behind-Kate-s-11257653.php). Horsley, S. 2018. “Fact Check: Trump, Illegal Immigration and Crime.” NPR, June 22. Retrieved June 22, 2018 (https://www.npr.org/2018/06/22/622540331/fact-checktrump-illegal-immigration-and-crime). H.R. 3004. (n.d.). Congress.gov. Retrieved January 5, 2019 (https://www.congress.gov/ bill/115th-congress/house-bill/3004/all-actions?overview=closed#tabs). Ingraham, C. 2017. “Trump Says Sanctuary Cities Are Hotbeds of Crime. Data Say the Opposite.” The Washington Post, January 27. Retrieved January 5, 2019 (https://www .washingtonpost.com/news/wonk/wp/2017/01/27/trump-says-sanctuary-cities-arehotbeds-of-crime-data-say-the-opposite/?utm_term=.c7144fd1e6e3 Kate’s Law, H.R. 3004, 115th Congress. 2017. Retrieved January 5, 2019 (https://www .congress.gov/115/bills/hr3004/BILLS-115hr3004rds.pdf). Kelly, C. and Leslie, K. 2017. “House Clears Kate’s Law, Moves to Strip Federal Funds for Sanctuary Cities.” Dallas News, June 29. Retrieved January 5, 2019 (https:// www.dallasnews.com/news/politics/2017/06/29/house-clears-kates-law-movesstrip-federal-funds-sanctuary-cities). Kelly, M. 2015. “‘The System Failed Her’: Kate Steinle’s Brother Slams Sanctuary City Policy.” Fox News: The Kelly File, July 13. Retrieved January 5, 2019 (http://insider .foxnews.com/2015/07/13/megyn-kelly-speaks-kate-steinles-brother-kelly-file).

84

Kulig and Cullen

Khalid, A., Detrow, S. and Liasson, M. 2018. “The Trump Administration’s Family Separation Border Policy Explained.” NPR, June 18. Retrieved January 5, 2019 (https://www.npr.org/2018/06/18/621165566/the-trump-administrations-familyseparation-border-policy-explained). Kopan, T. 2018. “Trump and Sessions Lose Another Sanctuary Cities Case.” CNN, April 19. Retrieved January 5, 2019 (https://www.cnn.com/2018/04/19/politics/court-rulesagainst-trump-sessions-sanctuary-cities-chicago/index.html). Korecki, N. and Forgey, Q. 2018. “Trump’s New Rally Cry: Mollie Tibbetts.” Politico, August 22. Retrieved August 22, 2018 (https://www.politico.com/story/2018/08/22/ mollie-tibbetts-death-donald-trump-791461). Kubrin, C.E. 2013. “Immigration and Crime.” pp. 440–455 in F.T. Cullen and P. Wilcox (Eds.), The Oxford Handbook of Criminological Theory. New York, NY: Oxford University Press. Kulig, T.C. and Cullen, F.T. 2017. “Where is Latisha’s Law: Black Invisibility in the Social Construction of Victimhood.” Justice Quarterly, 34(6): 978–1013. Kurtzleben, D. 2016. “Here’s the List of Women Who Accused Donald Trump of Sexual Misconduct.” NPR, October 20. Retrieved January 5, 2019 (https://www.npr .org/2016/10/13/497799354/a-list-of-donald-trumps-accusers-of-inappropriatesexual-conduct). Lee, V. 2015. “Pier 14 Shooting: Bullet That Killed Kate Steinle at Pier 14 Appears to Have Ricocheted.” ABC7 News, August 26. Retrieved January 5, 2019 (http://abc7news .com/politics/bullet-that-killed-steinle-at-pier-14-appears-to-have-ricocheted/ 958526/). Light, M.T. and Miller, T. 2018. “Does Undocumented Immigration Increase Violent Crime?” Criminology, 56(2): 370–401. Liptak, A. and Shear, M.D. 2018. “Trump’s Travel Ban is Upheld in Court.” The New York Times, June 26. Retrieved June 26, 2018 (https://www.nytimes.com/2018/06/26/us/ politics/supreme-court-trump-travel-ban.html). Littlefield, C. 2015. “Sanctuary Cities: How Kathryn Steinle’s Death Intensified the Immigration Debate.” Los Angeles Times, July 24. Retrieved January 5, 2019 (http:// www.latimes.com/local/california/la-me-immigration-sanctuary-kathryn-steinle20150723-htmlstory.html). Meeker, J.W. and Dombrink, J. 1988. “The Undocumented and Their Legal Needs.” Humboldt Journal of Social Problems, 15(2): 105–132. Montanaro, D. 2018. “Guilty: 6 Takeaways From Manafort’s and Cohen’s Big Day.” NPR, August 22. Retrieved August 23, 2018 (https://www.npr.org/2018/08/22/640745928/ guilty-6-takeaways-from-manaforts-and-cohen-s-big-day). Nguyen, C. 2016. “Kate Steinle’s Family Speaks After Mention by Donald Trump at RNC.” ABC 7 News, July 22. Retrieved January 5, 2019 (https://abc7news.com/news/ exclusive-kate-steinles-family-speaks-after-mention-by-trump-at-rnc/1439363/).

Kate’s Law

85

No Sanctuary for Criminals Act, H.R. 3003, 115th Congress. 2017. Retrieved January 5, 2019 (https://www.congress.gov/115/bills/hr3003/BILLS-115hr3003rds.pdf). Nozicka, L. 2018. “Mollie Tibbetts’ Father Says Daughter Would Not Want to be Face of Immigration Debate.” Des Moines Register, September 1. Retrieved September 2, 2018 (https://www.desmoinesregister.com/story/news/2018/09/01/mollie-tibbettssearch-father-rob-tibbetts-illegal-immigration-cristhian-bahena-rivera-trumpjr/1171714002/). Nozicka, L. and Hardy, K. 2018. “‘Today, We Need to Turn the Page. We’re At the End of a Long Ordeal,’ Rob Tibbetts Tells Crowd at Daughter’s Funeral.” Des Moines Register, August 26. Retrieved January 5, 2019 (https://www.desmoinesregister.com/story/ news/crime-and-courts/2018/08/26/mollie-tibbetts-funeral-missing-iowa-bodyfound-family-update-death-brooklyn-murder-cristhian-rivera/1103580002/). Oliver, W.M. and Barlow, D.E. 2005. “Following the Leader? Presidential Influence Over Congress in the Passage of Federal Crime Control Policy.” Criminal Justice Policy Review, 16(3): 267–286. O’Reilly, B. 2015a. “Pass Kate’s Law ASAP.” Bill O’Reilly: No Spin News, July 7. Retrieved January 5, 2019 https://www.billoreilly.com/petitions/viewpetition?petition ID=410125953243428263 O’Reilly, B. 2015b. “‘Help Me, Dad’: Kate Steinle’s Parents Remember their Daughter and Her Final Moments.” Fox News: The O’Reilly Factor, July 13. Retrieved January 5, 2019 (http://insider.foxnews.com/2015/07/13/bill-oreilly-speaks-kate-steinlesparents-jim-steinle-and-liz-sullivan-oreilly-factor). O’Reilly, B. 2015c. “Supporting Kate’s Law.” Fox News: The O’Reilly Factor, July 14. Retrieved January 5, 2019 (http://www.foxnews.com/transcript/2015/07/14/­supportingkate-law.html). O’Reilly, B. 2015d. “Steinle Family Reacts to Senate Blocking Kate’s Law: ‘Something Needs to Change.’” Fox News: The O’Reilly Factor, October 21. Retrieved January 5, 2019 (http://insider.foxnews.com/2015/10/21/oreilly-factor-kate-steinlesparents-react-failure-senate-pass-kates-law). Park, M. and Allen, K. 2018. “Immigrant Acquitted in Kate Steinle Death Seeks Dismissal of Federal Charge.” CNN, February 13. Retrieved February 14, 2018 https://www .cnn.com/2018/02/13/us/garcia-zarate-kate-steinle-federal-gun-charges/index .html. Peters, J.W. 2017. Steve Bannon. [Audio podcast], November 11. Retrieved January 5, 2019 https://www.nytimes.com/podcasts/new-washington. Phillips, K. 2017. “The Story Behind ‘Kate’s Law’—And How it Could Change Immigration Policies in the U.S.” The Washington Post, June 29. Retrieved January 5, 2019 (https://www.washingtonpost.com/news/post-nation/wp/2017/06/29/the-storybehind-kates-law-and-how-it-could-change-immigration-policies-in-the-us/?noredirect=onandutm_term=.03f751be2ad9).

86

Kulig and Cullen

Politico. 2016. “Full Text: Donald Trump Immigration Speech in Arizona.” Politico, August 31. Retrieved January 5, 2019 (https://www.politico.com/story/2016/08/ donald-trump-immigration-address-transcript-227614). Politico. 2017. “Full Text: Trump’s Comments on White Supremacists, ‘Alt-Left’ in Charlottesville.” Politico, August 15. Retrieved January 5, 2019 (https://www. politico.com/story/2017/08/15/full-text-trump-comments-white-supremacists-altleft-transcript-241662). Quinney, R. 1970. The Social Reality of Crime. Boston, MA: Little, Brown. Quinney, R. 1977. Class, State, and Crime: On the Theory and Practice of Criminal Justice. New York, NY: David McKay. Raj, A. and Silverman, J. 2002. “Violence Against Immigrant Women: The Roles of Culture, Context, and Legal Immigrant Status on Intimate Partner Violence.” Violence Against Women, 8(3): 367–398. realDonaldTrump. 2015a. “My Heartfelt Condolences to the Family of Kathryn Steinle. Very, Very Sad!” [Tweet], July 3. Retrieved January 5, 2019 (https://twitter.com/ realDonaldTrump/status/617100445379633152). realDonaldTrump. 2015b. “I Absolutely Support Kate’s Law—In Honor of the Beautiful Kate Steinle Who Was Gunned Down in SF by an Illegal Immigrant.” [Tweet], July 13. Retrieved January 5, 2019 (https://twitter.com/realdonaldtrump/status/6206729634 99675648?lang=en). realDonaldTrump. 2017a. “A Disgraceful Verdict in the Kate Steinle Case! No Wonder the People of Our Country Are So Angry with Illegal Immigration.” [Tweet], November 30. Retrieved January 5, 2019 (https://twitter.com/realDonaldTrump/ status/936437372706836480). realDonaldTrump. 2017b. “The Kate Steinle Killer Came Back and Back Over the Weakly Protected Obama Border, Always Committing Crimes and Being Violent, and Yet This Info Was Not Used in Court. His Exoneration Is a Complete Travesty of Justice. Build the Wall!” [Tweet], December 1. Retrieved January 5, 2019 (https://twitter .com/realDonaldTrump/status/936551346299338752). realDonaldTrump. 2018. [Video Tweet], August 22. Retrieved August 22, 2018 (https:// twitter.com/realDonaldTrump/status/1032393212126613504). Rhodan, M. 2016. “Donald Trump Raises Eyebrows with ‘Bad Hombres’ Line.” Time, October 20. Retrieved January 5, 2019 (http://time.com/4537847/donald-trump-bad hombres/?xid=time_socialflow_twitter). Rosenthal, B.M. 2017. “Police Criticize Trump for Urging Officers Not to Be ‘Too Nice’ with Suspects.” The New York Times, July 29. Retrieved January 5, 2019 (https://www .nytimes.com/2017/07/29/nyregion/trump-police-too-nice.html). Rothman, D.J. 1980. Conscience and Convenience: The Asylum and Its Alternatives in ­Progressive America. Boston, MA: Little, Brown. Russell-Brown, K. 2009. The Color of Crime: Racial Hoaxes, White Fear, Black Protectionism, Police Harassment, and Other Microaggressions (2nd edn.). New York, NY: New York University Press.

Kate’s Law

87

Sanchez, R. 2016. “San Francisco Death: Kate Steinle’s Family Files Lawsuit.” CNN, May 28. Retrieved January 5, 2019 (http://www.cnn.com/2016/05/27/us/kate-steinlewrongful-death-suit/index.html). Schleifer, T. 2015. “Trump: San Francisco Killing Shows Perils of Illegal Immigration.” CNN Politics, July 8. Retrieved January 5, 2019 (https://www.cnn.com/2015/07/03/ politics/trump-san-francisco-killing/index.html). Scott, E. 2018. “The White House Views the Police Killings of Unarmed Black Men as a Local Issue. They Aren’t.” The Washington Post, March 29. Retrieved January 5, 2019 (https://www.washingtonpost.com/news/the-fix/wp/2018/03/29/the-white-houseviews-the-killings-of-black-men-by-police-across-the-country-as-local-issues-theyarent/?utm_term=.259775bcd83c). Shesgreen, D. and Collins, E. 2018. “Amid Public Outcry, GOP Scrambles to Counter Trump Policy of Separating Children from Parents.” USA Today, June 19. Retrieved January 5, 2019 (https://www.usatoday.com/story/news/politics/2018/06/19/ highest-ranking-gop-official-so-far-calls-end-separating-families/713231002/). Shoichet, C.E. 2017. “Kate Steinle Case: Judge Dismisses Claim Over ‘Sanctuary City’ Policy.” CNN Politics, January 10. Retrieved January 4, 2019 (https://www.cnn .com/2017/01/10/politics/kate-steinle-wrongful-death-suit/index.html). Simon, J. 2007. Governing Through Crime: How the War on Crime Transformed American Democracy. New York, NY: Oxford University Press. Simon, J. 2014. Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America. New York, NY: The New Press. Smith, T. 2018. “Trump Administration Defends Campus Sexual Assault Rules.” NPR, July 20. Retrieved January 5, 2019 (https://www.npr.org/2018/07/20/630742928/ trump-administration-defends-campus-sexual-assault-rules). Snell, K. and Davis, S. 2018. “Trump Injects Chaos into Immigration Debate—­ Opposing, Then Backing GOP Bill.” NPR, June 15. Retrieved January 5, 2019 (https:// www.npr.org/2018/06/15/620356425/president-trump-injects-fresh-chaosinto-immigration-debate). Socia, K.M. and Brown, E.K. 2016. “‘This Isn’t About Casey Anthony Anymore’: Political Rhetoric and Caylee’s Law.” Criminal Justice Policy Review, 27(4): 348–377. Talwar, S. and Shankar, D. 2017. “Sarah Sanders Says Trump Was Joking About Police Brutality Comment.” ABC News, July 31. Retrieved January 4, 2019 (https:// abcnews.go.com/Politics/sarah-sanders-trump-joking-police-brutality-comment/ story?id=48958553. The Five. 2018. “Gingrich: ‘Tibbetts Could be More Important Person than Manafort’ in Fall.” Fox News, August 23. Retrieved August 24, 2018 (http://insider.foxnews .com/2018/08/23/newt-gingrich-mollie-tibbetts-illegal-immigration-and-electionnovember). The White House. 2017. “Statement from President Donald J. Trump on House Passage of Kate’s Law and No Sanctuary for Criminals Act [News Release].” The White House, June 29. Retrieved January 5, 2019 (https://www.whitehouse.gov/

88

Kulig and Cullen

briefings-statements/statement-president-donald-j-trump-house-passage-kateslaw-no-sanctuary-criminals-act/). The White House. 2018. “Remarks by President Trump and Members of the Angel Families on Immigration [Remarks].” The White House, June 22. Retrieved January  5, 2019 (https://www.whitehouse.gov/briefings-statements/remarks-presidenttrump-members-angel-families-immigration/). Tonry, M. 2011. Punishing Race: A Continuing American Dilemma. New York, NY: Oxford University Press. Turk, A.T. 1969. Criminality and Legal Order. Chicago, IL: Rand McNally. U.S. Department of Justice. 2017. “Attorney General Sessions Statement on the Verdict in People of the State of California vs. Jose Ines Garcia Zarate aka Juan Francisco Lopez Sanchez.” [News release], November 30. Retrieved January 5, 2019 (https://www .justice.gov/opa/pr/attorney-general-sessions-statement-verdict-people-statecalifornia-vs-jose-ines-garcia). U.S. Immigration and Customs Enforcement. 2017. DHS Announces Launch of New Office for Victims of Illegal Immigrant Crime. [News Release], April 26. Retrieved January 5, 2019 (https://www.ice.gov/news/releases/dhs-announces-launch-new-office-vict ims-illegal-immigrant-crime). U.S. Immigration and Customs Enforcement. 2018a. Victims of Immigration Crime ­Engagement Office. Washington, DC: U.S. Department of Homeland Security. Retrieved January 5, 2019 (https://www.ice.gov/voice). U.S. Immigration and Customs Enforcement. 2018b. Victims of Immigration Crime Engagement: Quarterly Report June 2018. Washington, DC: U.S. Department of Homeland Security. Retrieved January 5, 2019 (https://www.ice.gov/sites/default/files/ documents/Report/2018/voice-quarterlyreport.pdf). Van Stockum, P. 2017. “I Saw the Kate Steinle Murder Trial Up Close. The Jury Didn’t Botch It.” Politico, December 6. Retrieved January 5, 2019 (https:// www.politico.com/magazine/story/2017/12/06/kate - steinle -murdertrial-jury-didnt-botch-216016). Wacquant, L. 2001. “Deadly Symbiosis: When Ghetto and Prison Meet and Mesh.” Punishment and Society, 3(1): 95–134. WhiteHouse. 2018. “For 34 days, Investigators Searched for 20-year-old Mollie Tibbetts. Yesterday, an Illegal Alien, Now Charged With First-degree Murder, Led Police to the Cornfield Where Her Body Was Found. The Tibbetts Family Has Been Permanently Separated. They Are Not Alone.” [Tweet], August 22. Retrieved January 5, 2019 (https://twitter.com/WhiteHouse/status/1032335050866487296). Winter, M. and Diebel, M. 2015. “Reports: Federal Agent’s Gun Used in S.F. Pier Shooting.” USA Today, July 7. Retrieved January 5, 2019 (https://www.usatoday .com/story/news/2015/07/07/man-charged--san-franciso-waterfront-shooting--arraigned/29811735/).

Kate’s Law

89

Wong, T.K. 2017. The Effects of Sanctuary Policies on Crime and the Economy. Washington, DC: Center for American Progress, National Immigration Law Center. Zatz, M.S. and Smith, H. 2012. “Immigration, Crime, and Victimization: Rhetoric and Reality.” Annual Review of Law and Social Science, 8: 141–15.

Chapter 5

Old Wine, New Bottles: Contextualizing Trump’s Regulatory Rollback Raymond Michalowski and Meredith Brown 1

Prologue: Remembering Bill and Kate, by Ray Michalowski

I no longer think about Bill Chambliss and Kate Stout every day. As mortal beings, Bill has been gone for five years and Kate for nearly four. In the normal way of these things, they have taken up residence in a community of memory where I visit lost loved ones whenever I need the warmth and support their memory brings. I hesitated before I wrote “loved ones” because that term is typically reserved for those who are kin by birth or marriage. But if friendship, caring, and tutelage are what make people kin, I was as close, indeed closer, to Bill and Kate than many blood relatives. From the day in 1971 when Paul Friday threw Bill’s newly published Law, Order and Power on my desk saying, “A radical like you would probably like this,” Law, Order and Power pointed me toward an intellectual clearing where law, and most importantly the power behind it, could and should be problematized. I had been searching for this path, but in the early 1970s, criminology in The Ohio State University Department of Sociology where I was a doctoral student, approached law as an uncaused cause, a given whose effects could be studied, but whose existence was unquestioned. As the years rolled and Bill and I became professional colleagues, collaborators and friends, he continued to be a mentor, and not just in matters of intellect. Bill modeled how laughing, loving, drinking good wine, making music with friends, and telling tall tales were a good way to keep academic life from turning into a colorless slog. For this, as well as his intellectual guidance, I am forever grateful. I am also grateful to Bill for ushering Kate Stout into my life. As a favor to Bill, I offered his graduate student, Kate, and her partner, Richard Dello Buono, a place to stay in my home in Charlotte, North Carolina during their crosscountry research journey to interview Sanctuary Movement participants for Kate’s dissertation. From the moment Kate stepped into my house, I realized that this flamboyant, politically committed sociologist, ever the champion of the oppressed, was a new friend. I also soon learned she was an uncompromising critic whenever she spotted the residual patriarchy of my working-class,

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004411678_006

Old Wine, New Bottles

91

ethnic background. Kate played an important part in making me the feminist I am today. For decades after that first visit, Kate and I were comrades in all manner of intellectual, organizational, musical, and social escapades. Kate shared, indeed exceeded, my disrespect for formal rules. More than a few times we conspired to color outside the lines to advance critical inquiry, effect organizational change, or smuggle booze into hotels that were, in those days, a lot more controlling than they are today. From beginning to end, Kate offered unsparing critiques of both my intellectual efforts and my personal conduct, whether I wanted them or not. Someone who knows you that well, and cares about you that much, is a treasure, one that I will always miss forever. Bill and Kate are no longer with us as mortals. Yet their energy and spirit live on through all those they touched. This volume is, in no small measure, a testimony to the breadth of their impact. 2

Let the Rollbacks Begin

This chapter documents efforts undertaken by the Trump administration to roll back a broad range of regulations and explores the political-economic context underlying these efforts, which are ultimately designed to weaken rules intended to minimize the myriad harms resulting from corporate miscalculations, mistakes and malfeasance. Our goals are to foreground the efforts, both large and small, by the Trump administration and its Congressional and corporate allies to undermine the current framework of corporate regulation, and to show how these efforts coincide with the need to shore up a weakening neo-liberal social structure of accumulation. Four days after his inauguration Donald Trump made clear how far he hoped to go in deregulating u.s. capitalism when he told a meeting of businessmen “we can cut regulations by 75 percent. Maybe more, but by 75 percent” (Trump, 2017). During his second week as president, Trump followed up this promise by issuing Executive Order (EO) 13771. This order specified that, “Unless prohibited by law, whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed” (Federal Register, 2016). It also mandates that agencies keep overall regulatory costs below an annualized increment cap. For fiscal year 2017, this cap was set at zero for all agencies—in effect, mandating that the cost of any new regulation be offset on a dollar-for-dollar basis by eliminating or scaling back enforcement of existing regulations. For 2019, the cost caps range from a high of zero, to billions of

92

Michalowski and Brown

dollars of m ­ andated reductions required before any new regulation could be promulgated (omb, 2017). Executive Order 13771 is based on the presumption that regulation of ­corporate behavior is inherently bad. In this, it accords well with the marketabove-all-else model espoused by neo-liberal ideologues like Hayek (1944) and Friedman (1992), a point to which we will return further on. From the perspective of EO 13771, it appears not to matter which regulations are removed. ­Deregulation is simply an unquestioned good in the Trump universe. EO 13771 gives no guidance and demonstrates no forethought regarding the probability that the eliminations of regulations will increase the harms and injuries they were created to minimize. However, by requiring the removal of two regulations for every new one proposed, and setting forth a framework of mandatory cost reductions, EO 13771 created the framework for a coherent rollback regime, rather than just an amalgam of unrelated changes in regulatory rules. While the Trump rollback regime portends a major shift in the political oversight of corporate behavior, the specific actions currently underway to effect this hollowing out of the regulatory system are often overshadowed by the seeming urgency of addressing the latest presidential tweet. As Jeffrey Engle (2018), Director of the Center for Presidential History said of these regulatory rollbacks: There is so much hue and cry and rending of cloth over the truly outlandish statements that no previous president would ever make publicly… that we are missing the fact that the tweets are the ripples on top of the water. The big, impactful currents are well below. Identifying and documenting the currents “under the ripples” is an important counterbalance to Trump’s attention-grabbing headlines, which can easily obscure less closely examined, but more dangerous, deregulatory actions by his administration. Regulations governing corporate behavior are typically the product of multiyear processes in which the harmful effects of particular corporate practices are established, and possible routes to minimizing those hams are explored, often with a view toward identifying a regulatory scheme that will inflict the least harm on capital accumulation, while still protecting the public or the social order in general from the harm in question (nepa, 1969). Given this, weakening or removing regulatory controls will lead to an increase in the very harms those regulations were designed to curb. The current wave of regulatory rollbacks will increase the likelihood of “analogous social injuries” (Michalowski, 1985) resulting from “morally blameworthy” actions by capitalist elites (Agnew, 2011).

93

Old Wine, New Bottles

Wherever Trumpian de-regulatory actions survive legal challenges, in the coming years we can expect to see an increase in the frequency of social harms whose proximate and upstream causes can be traced back to the triggering effects of these regulatory rollbacks. It is estimated that the rollback of environmental regulations alone will lead to 80,000 additional deaths per decade and leave over a million others suffering from respiratory effects (See Figure 5.1). Proposed changes in environmental protections and possible effects Area Air quality

Actions Repeal of Clean Power Plan

Rollback of cafea standards for automobiles

Repeal of emission requirements for glider vehicles Loosening of other air pollution rules (eg, power plants, solar power tariffs) Water quality

Repeal of Waters of the United States rule

Chemicals

Scale back of lead-risk reduction program Delay or reduction of chemical bans

Weakening of rules on coal ash waste

Projected effects · Increases exposure to small atmospheric particulate matter · An estimated 36 000 deaths over a decade · An estimated 630 000 cases of respiratory ailments in children over a decade · Increases exposure to small atmospheric particulate matter and ozone · An estimated 5 500 deaths over a decade · An estimated 140 000 cases of respiratory ailments in children over a decade · Allows noncompliant diesel trucks on the roads · An estimated 41 000 premature deaths over a decade · An estimated 900 000 cases of respiratory ailments in children over a decade · Potential for industrial plants to increase emissions by 4 times · Endangering those living near power plants (areas of high poverty) · Exposes water sources for approximately 117 million US residents · At least 1 million people in each of 21 different states depend on small stream for their drinking water · Leaves an estimated 4 million households with children at risk of exposure to high levels of lead · Approximately 500 000 children currently have elevated blood lead levels · Exposes toddlers and older children to 11 to 15 times the recommended levels of chlorpyrifos (because of denial of ban on use in agriculture) · Exposes public to 3 carcinogens (methylene chloride, trichloroethylene, and N-Methylpyrrolidone) used in furniture stripping, grease removal, and dry cleaning (action delayed) · More than 100 million tons of coal ash are produced annually, resulting in more than 100 documented cases of coal ash poison contamination in the drinking water, wetlands, creeks, and rivers between 1948 and 2008

a There is substantial uncertainly with respect to the extent of the rollback of the Corporate Average Fuel Economy (cafe) rules. Projected health effects are calculated based on the assumption of full achievement of cafe standards vs rollback of those standards.

Figure 5.1 Effect of Trump’s rollbacks—estimates of increases in mortality and morbidity Source: Cutler, 2018. jama Forum: A Breath of Bad Air: Trump Environmental Agenda May Lead to 80 000 Extra Deaths per Decade.

94

Michalowski and Brown

These estimates focus only on increases in mortality and morbidity due to environmental rollbacks. They do not include the likely rise in workplace injuries due to cutbacks in workplace rules, increased financial distress resulting from scaling back controls on finance capital, and the widespread anticipated harms to human and non-human life due to scaling back attempts to address climate change (White, 2018). While it is important to document the regulatory changes undertaken by the Trump Administration, there is a danger of getting lost in the weeds of the many, many deregulatory efforts occurring in the many areas regulated by the  federal government—from the slashing of environmental guidelines, to the gutting of labor regulations, to the evisceration of financial and other consumer protections. Thus, in addition to enumerating rollbacks, it is important to analyze how Trumpian rollback efforts are embedded in both the recent and more distant political-economic frameworks that shape the current moment. This requires avoiding the tendency of criminology, and mainstream social science in general, to view the present as non-history, particularly where the fundamental forms of capitalist productive relations are concerned (Foster, Clark and York, 2010: 24). An ahistorical approach relegates fundamental social “to the category of background factors, which are assumed to remain constant over time” (Block, 1987: 44). As a result, important historical forces appear to be so far in the past that they need not be part of analyzing contemporary problems. Regulatory rollbacks are happening now, but they are only part of a long story of the tensions between capital, labor and the state that reach back to the latter part of the 19th century. With this in mind, our central argument is that the Trump administration has begun a project to help a struggling neo-liberal political economy regain vigor, but it is doing so in a way that will increase harms to the economic, physical, and emotional well-being of large segments of the population in the United States. We recognize that many deregulatory harms will have global consequences. However, given the breadth of the task we have already set for ourselves, we will not address the global impacts here. Instead, our goal is to provide a snapshot of the Trumpian rollback project to date, informed by a ­historicized consideration of this moment in the life of neoliberal capitalism. 3

Payback and the Current Rollback Regime

The Trump administration rollback regime utilizes four principal strategies for change: executive actions, agency decisions, Congressional Review Acts, and new legislation. While Executive Orders are the most high-profile changes, as

95

Old Wine, New Bottles Executive actions Congressional Review Acts

Cabinet-level agency decision New legislation

70

Environment Labor and finance

29 19

Health care Civil rights

18

Worker and consumer safety

17

Government reform

16 13

Immigration Education

7

Figure 5.2 Origin of rollback actions—as of January 2019 Source: Eilperin and Cameron, 2018. “How Trump is rolling back Obama’s legacy.” Table 5.1

Trump era environmental rollbacks as of December 28, 2018

Air pollution and emissions Drilling and extraction Infrastructure and planning Animals Toxic substances Water pollution Other

Completed

In process

Total

41 9 10 11 7 3 4 3

31 12 6 1 2 3 2 5

78 21 16 12 9 6 6 8

Source: Popovich, Albeck-Ripka and Pierre-Louis, 2018. 78 Environmental Rules on the Way Out Under Trump.

Figure 5.2 shows, regulatory agencies, largely staffed by leaders sympathetic to corporate de-regulation, are the most prolific source of changes. Among the many different types of rollbacks initiated by the Trump administration environmental deregulation has received more media and academic attention than other areas. There are several reasons for this. First, as Figure 5.2 and Table 5.1 show, more environmental regulations have been

96

Michalowski and Brown

targeted for rollback than any other area of regulation. Second, Trump’s efforts to withdraw the U.S. from the Paris Climate Accord and to roll back the Obama-era Clean Power Plan were seen by many as a refusal to address the most significant environmental threat of the era. Third, beyond climate change deregulation, the Trump administration initiated the most extensive and arguably the most socially injurious assault on environmental regulations since the National Environmental Protection Act was passed in 1970. Taken together, these actions mobilized the not insubstantial forces of the environmental movement. Various environmental groups have been pushing back vigorously against the Trump agenda through protest, publication, and legal challenges. Together, these actions contribute to the comparatively high level of attention given to Trump’s environmental rollbacks. While environmental rollbacks, particularly those related to climate change, have received the greatest amount of attention, the Trump administration has also pursued significant rollbacks in the areas of labor, finance, health care, civil rights, worker and consumer safety, immigration and education. By 2019, the Trump administration had sought to rollback 70 regulations governing environmental practices, 29 in the areas of labor and finance, 19 dealing with health care, and an additional 71 regulatory changes in other areas (Eilperin and Cameron, 2018). While Trump’s Executive Orders receive the most media coverage, it is important to note that the majority of the changes during the first two years of the Trump administration occurred through actions within regulatory agencies led by Trump appointees (See Figure 5.1). As a governance strategy designed to weaken the regulation of corporations operating in nearly every sector of the American society these rollbacks pose fundamental threats to public health, equality and justice, as well as creating fertile ground for pervasive state-corporate crime. 4

Reacting to Obama Rules

The earliest deregulatory efforts of the Trump administration focused on rescinding or delaying implementation of Obama era regulations and laws (Lipton, Eder and Branch, 2018). To some extent this was Republican payback for having been defeated in the 2008 and 2012 presidential elections, as well as a political strategy to keep the ire of Trump’s political base focused on the hated Obama/Clinton regime. An incoming administration has multiple pathways for rolling back actions of previous administrations. A president can rescind Executive Orders of prior

Old Wine, New Bottles

97

presidents through new executive orders. A new administration can work with Congress for a limited time to obtain a “joint resolution of disapproval” under the Congressional Review Act, which allows Congress to nullify an existing rule and prohibit the establishment of any “substantially similar” rule in the future. This authority is time-dated, and ended for the Trump administration, on May 11, 2018. An administration can also delay or slow the rule making process for regulations that have been proposed under a prior administration, but which have not yet received final approval and publication in the Code of Federal Regulations (cfr), or direct regulatory agencies to begin the process of revising or eliminating regulations that are currently part of the cfr (Dudley, 2016). The most far-reaching way an administration has of affecting regulatory change is exercised through the appointment of cabinet secretaries who are tasked with pursuing a particular regulatory agenda (Heritage Foundation, 2017). By appointing agency heads with demonstrated histories of animosity toward the agencies they were asked to lead, Trump ensured that subsequent decisions would be consistent with his claimed goal of eliminating 75 percent of all existing regulations (Devaney, 2017). One of the first acts of the Trump administration was to call a wholesale halt to any Obama administration regulations that had not yet been finalized. The Trump administration used this power to, among other things, rescind Executive Order 13547, which established the first national ocean protection policy; to revoke 2014 Fair Pay and Safe Workplaces Executive Order, designed to ensure that federal contractors abide by laws regarding equal pay for women; and to overturn an Executive Order from 2015 that mandated “infrastructure projects, like roads and bridges, be designed to survive rising sea levels and other consequences of climate change” (Domonoske, 2017). The major accomplishments of the Obama administration—the passage of the Affordable Care Act, Dodd-Frank Wall Street Reform Act, a number of fair labor laws, and of a broad array of environmental protection legislation—have been major targets of Trump’s anti-Obama/anti-liberal campaign. In its first 15 months the Trump administration worked (and continues to work) vigorously to eviscerate all of these rules. Where regulations cannot be easily overturned, implementation is delayed by the leadership of various governmental agencies. As Lewis (2018) details, from Cabinet level secretaries on down, political appointees to regulatory agencies have been selected solely for their support for Trump and his deregulatory agenda. Even worst, most know little about the agencies they are supposed to direct and have little interest in learning. The result has been disorganization, inefficiency, and the flight of many highly

98

Michalowski and Brown

skilled, experienced agency employees, representing a loss of collective skill and institutional memory that will be difficult to reverse even if there is an eventual change in national leadership. Major steps in Trump’s environmental rollback schema include the cancelation of The Clean Power Plan to limit greenhouse gas emissions from power plants, withdrawing u.s. participation in the Paris Climate Agreement to reduce carbon emissions and increase carbon trading, reversing the decision to block the Keystone xl oil pipeline from Canada, and demanding a reconsideration and revision (downward) of the 2012 auto efficiency rule aimed at curbing carbon emissions from vehicles, which are the biggest source of planet-warming gases. The Environmental Protection Agency (epa), under the leadership of Scott Pruitt, also attempted to delay implementation of the Obama-era Clean Water Act, a rule designed to ensure strict regulation of corporate pollution of waterways—though this attempt was struck down by a district court in August 2018. The epa has been more successful in its continued delay in implementation of the Methane Waste Prevention Rule, which “will increase the amount of natural gas lost through venting, flaring, and leaks…result[ing] in increased emissions of methane, which is the primary component of natural gas and a highly potent greenhouse gas” (Webb, 2018). These examples do not cover the full breadth of environmental deregulatory actions taken by the current administration. However, they demonstrate the multiple ways Trump’s environmental rollbacks threaten public health. In the area of financial (de)regulation, the Trump’s legislative allies passed the Financial choice Act in the House, and a version of a similar bill through the Senate. This law undermines protections for whistleblowers who report corporate fraud, and cancels the Volcker rule (amongst other rules) of the Dodd-Frank Wall Street Reform Act. The Volker rule prohibited financial ­institutions from engaging in proprietary trading, that is from, “making risky investments solely for their own profit,” actions that were key to creating the financial house of cards that collapsed in 2008 (Bain and Hamilton, 2018). In the area of labor, rules requiring employers to maintain records of workrelated injuries, and which promoted compliance with fair labor laws have been cancelled. Law established to protect construction and shipyard workers from toxic beryllium exposure and other such risks were likewise cancelled. Farm workers have also been subject to increased health risks by the Administration’s overturning of a ban on chlorpyrifos, a pesticide empirically demonstrated to be dangerous (Lipton, 2017). In the area of healthcare, the Trump Administration has delayed a rule that would penalize pharmaceutical companies for overcharging, and lowered access to birth control by permitting employers to refuse coverage of the medications.

Old Wine, New Bottles

99

These rule changes occur inside regulatory agencies, often through complex processes of rulemaking. Consequently, they often are not obvious to ordinary citizens. It is only through investigation and reporting done by an increasingly shrinking independent press that citizens become aware of these threats to their wellbeing as consumers, workers and citizens. 5

De-Prioritizing Obama-Era Initiatives

An additional, subtler strategy of Trump’s rollback regime is de-prioritizating Obama era initiatives, including those designed to address climate change. The array of environmental deregulatory actions outlined above, in combination with the slashing to personnel and budget of the Environmental Protection Agency and the withdrawal from the Paris Climate Accords, are the strongest examples of this approach, as is the removal of climate change from the list of top national security threats. This is illustrated as well by the 60% drop in civil penalties collected by the epa in Trump’s first year in office, and the notable drop in environmental enforcement lawsuits, in comparison to the past three Administrations (Environmental Integrity Project, 2017). Additionally, while not likely to draw much media attention or public outcry, the Department of the Interior has relaxed protections for certain species of birds (such as the greater sage grouse) in order to “re-prioritize oil development”—a potent example of an easily ignored regulatory rollback designed to serve specific economic and political interests (Greshko et al., 2019). 6

Future-forcing De-regulation

While the rescissions of Executive Orders, resolutions of disapproval and new laws will have significant deregulatory impacts, one of the most far-reaching components of the Trump rollback regime are what we term future-forcing rollbacks. These are actions designed to shape the overall climate within which regulatory rules are made. Two examples of this type of rollback concern weakening the role of research in the regulatory rule-making process and redesigning the evaluation of costs and benefits. 6.1 Halting and Limiting Research In March 2018, epa Administrator, Scott Pruitt launched his campaign against so-called “secret science” saying “We need to make sure their data and methodology are published as part of the record. Otherwise, it’s not transparent.

100

Michalowski and Brown

It’s not objectively measured, and that’s important” (Pruitt, 2018). This move is part of an ongoing campaign to end what corporate shills like Republican Representative Lamar Smith have cleverly named “secret science.” In 2017 Smith sponsored H.R.1430 the Honest and Open New epa Science Treatment Act of 2017, named the honest Act. This bill would prohibit the epa “from proposing, finalizing, or disseminating a covered action unless all scientific and technical information relied on to support such action is the best available science, specifically identified, and publicly available in a manner sufficient for independent analysis and substantial reproduction of research results. A covered action includes a risk, exposure, or hazard assessment, criteria document, standard, limitation, regulation, regulatory impact analysis, or guidance” (U.S. Congress, 2017). According to people like Pruitt and Smith, when epa studies are released for review by scientific journals “we don’t publish the methodology and data that went into those findings because the third party who did the study won’t give it to us” (Pruitt, 2018). This language cleverly conflates disclosure of environmental research methodology with revealing the names of those whose medical histories make up the database. The effect is to leave the impression that research in which private identities are not revealed is a “secret” box whose conclusion cannot be re-examined or questioned by affected parties. Anyone who has ever submitted a research article for publication recognizes both the falsity and the cynicism behind that claim. Explaining your ­methodology and providing access to the substantive data to which this methodology is applied, in no way depends on revealing the individuals from which the data were derived. The claim that the epa has operated according to “secret science” is simply a bald lie, in this case one made by an administrator who was part of an administration in which bald lies are a prime tool of public manipulation. Smith and Pruitt understand, as Yogin Kothari (2018) of the Union of Concerned Scientists notes, “a lot of the data that epa uses to protect public health and ensure that we have clean air and clean water relies on data that cannot be publicly released.” That data is derived from patient records protected by The Health Insurance Portability and Accountability Act of 1996 (hipaa), and cannot be made public. People like Smith and Pruitt know this, but have cleverly used the hipaa restriction to promote a policy designed to “hamstring the ability of the epa to do anything to fulfill its mission” (Kotharin, 2018). If Pruitt’s directive stands, or if Smith’s bill is approved in the Senate, it would do more than make future research increasingly difficult. It would provide legal grounds to re-open many now-settled disputes that surrounded the passage of health-related regulations. Once the idea that regulations cannot be based on so-called “secret-science” is established as a governing principle for the creation of environmental regulation, we anticipate that it will not

Old Wine, New Bottles

101

take long for corporations to sue for reconsideration of the science that led to ­environmental and other regulations based on health data that they find economically disadvantageous. The attempt to muzzle scientific inquiry into the health effects of environmental toxins is consistent with other epa rules such as eliminating the words “climate change” and “science” from epa websites and documents. Indeed, a report by the Environmental Data and Governance Initiative (2018) found that the websites of the Department of Energy and epa are being systematically altered to remove information about climate change. All this is part of the larger agenda to make political power, not research-informed data the basis of public policy. As Scott Pruitt (2018) said, “Science is not just something that should be thrown about to dictate policy in Washington.” Pruitt’s claims about secret science are similar to Trump’s constant reiteration that everything in the mainstream media is “fake news.” If the claim that the best environmental science we have is “secret science” is repeated often enough from high enough platforms it will become another “big lie,” a falsehood that is so preposterous that people cannot believe someone would have invented it, and so it becomes part of the dominant consciousness. 6.2 Weakening the Benefits of Cost-benefit Analysis In June of 2018, the epa announced that it had issued an Advance Notice of Proposed Rulemaking (anprm) to solicit public comments on the way it considers costs and benefits in making regulatory decisions (epa, 2018). Three months later, on September 7th, the epa made good on its promise to end what the Wall Street Journal (2018) called “epa’s numerical shenanigans” by giving notice that it planned to propose a new rule governing mercury emissions from power plants that would exclude indirect human health and safety benefits from the cost-benefit analysis for the Mercury and Air Toxic Standards (mats). On December 27, 2018, the epa issued a proposed rule that would permit coal-fired power plants to emit higher levels of mercury into the air (Friedman, 2018). This rule ignores the high human costs of mercury exposure. Mercury is a neurotoxin that poses threats no only as part of the atmosphere, but also because as it precipitates out of the atmosphere it becomes part of our water. Exposure to mercury damages the brain, lungs and fetal development, with long-term effects as was made all-too-apparent by the mercury poisoning of Flint, Michigan water (Laylin, 2016). While existing regulations to limit mercury emissions are costly, they are also among the most effective cleanair policies, having reduced mercury emissions by 80 percent over the last decade (Van Atten et al., 2018). However, removing collateral benefits from the calculation of the benefit side of the equation, serves two goals of the Trump administration.

102

Michalowski and Brown

The first goal of this rule change is to satisfy the interests of key figures in the coal industry, a major source of Trump support, who have lobbied for this change. These interests include a personal request for this rule change from Robert Murray, chief executive of Murray Energy Corporation and a $300,000 donor to Trump’s inauguration events. Murray sent a personal communication to Andrew Wheeler, then-deputy director of the epa, and now the epa’s director requesting this specific regulatory change. Murray, however, was not only a major Trump donor; he was also a former client of Andrew Wheeler when Wheeler was a Washington lobbyist representing energy industries (Friedman, 2018a). This is just one example of the close linkage between private sector, profit-making interests and the Trump administration’s regulatory rollback agenda. The second, and more far-reaching goal of the mercury rule is to establish a precedent for a downward revision of other existing regulations. By excluding collateral benefits from cost-benefit analyses, this new metric will have the effect of establishing a new standard across the regulatory spectrum, one that devalues human life and health (Davenport and Freidman, 2018). Joseph Goffman (2018), Executive Director of Harvard Law School’s Environmental and Energy Law Program, views the proposed mercury rule as part of a “war that current management at epa is waging against benefits. In a similar vein, Alan Krupnick (2018), an economist at Resources for the Future, characterized the new mercury proposal as “part of a change that would give the Trump administration a way to more easily justify loosening many other pollution regulations, such as rules on smog, and rules on climate-change pollution.” Whether the mercury and “secret science” rules being proposed by Trump’s epa will survive the rule-making process and the inevitable court challenges remains to be seen. However, they evidence a strategy occurring throughout the federal regulatory apparatus to facilitate capital accumulation by rolling back regulations. There is, as we will show, nothing new in this intention. The method and style of rolling back regulations may be different, but the intention of facilitating capital accumulation remains the same as it has been since the emergence of federal regulation of corporate activity. 7

The Political Economy of Re-regulation

The Trump Administration is an American creation, not some alien species of political animal. It is an expression of both near-term political-economic ­conflicts, and longer-term historic forces. There is a small and growing library of publications seeking to explain the outcome of the 2016 Presidential ­election.

Old Wine, New Bottles

103

We will not enter deeply into this debate here, except to briefly consider how the rise of ethno-nationalist populism that fueled the Trump revolution in the United States is part of a broader trend in developed Euro-American nations that bears the inflection of political-economic changes to the neo-liberal social structure of accumulation. The anti-government ethno-populism that propelled Donald Trump into the White House is a seemingly contradictory response to the economic contraction known as the Great Recession. Why were large number of citizens in the United States and the EU drawn to anti-government ideologies that blame government in response to a clear failure by private enterprise? Certainly ­forces other than economic distress also play a role. These include fear and hostility toward increasing numbers of non-white immigrants, effective mobilization of anti-government sentiments by right-wing media outlets, new possibilities for mass mobilizations through online platforms, and cultural anxieties generated by the increased entrance of women, racial and ethnic minorities, and non-heterosexuals into mainstream society and under the umbrella of civil and human rights (Kruse and Zelizer, 2019; McAdam and Kloos, 2014). However, these currents in American society predate the ethno-populist explosion that began with the election of Obama and the collateral rise of the Tea Party. Immigration, gender politics, and racial tensions may have been the tinder for the current American wave of ethno-national populism. However, it was the 2008 market collapse and subsequent credit freeze that ignited the blaze. So why blame government when business was at fault? This question lies at the heart of Trump’s ability to gather working and lower middle class support by promising to overthrow the political establishment and “drain the swamp” of government. The answer we suggest lies in the dialectics of the state’s struggle to preserve the legitimacy of both capitalism and its own operations. An effective capitalist state must facilitate the accumulation of private capital, and preserve the cultural legitimacy of both capitalism and the capitalist state (Althusser, 1971; O’Connor, 1973). Bill Chambliss and Robert Seidman (1982) built on this characteristic of the capitalist state by elaborating a “dialectic theory” of law making. Specifically, they theorized that structural contradictions (e.g. between capital and labor) create conflicts (e.g. worker demands for higher wages and better benefit versus the desires of owners and managers of capital to keep worker compensation in check) that result in dilemmas for the state (e.g. facilitate or restrain the power of worker unions). Faced with these dilemmas, the state attempts a degree of resolution through law-making (e.g. legalize unions but limit their scope of action). The laws designed to resolve these dilemmas may reduce the intensity of an immediate conflict, but they do not bring it to

104

Michalowski and Brown

a complete end because they cannot reconcile the underlying contradictions from which they arose, and because activists’ demands for social change are typically mediated through political processes that often fall short of fulfilling activist goals (Piven and Cloward, 1978). Unmet expectations mean that demands for social change from forces outside the capitalist class will reemerge. At the same time, while capital may accept the necessity for new ways of regulating capital (e.g. new rules about the rights of workers), owners and managers of capital engage in continual rear-guard actions or frontal assaults to weaken rules regulating the freedom of capital, undermine their enforcement, or escape them altogether by fleeing to more hospitable regulatory climates (Michalowski and Kramer, 1987). As a response to the Great Depression and then World War ii, developed capitalist states began to play increasingly larger rolls in managing and regulating the erratic, boom and bust cycles of capitalist markets (Polanyi, 2001), Alongside this growing role of the state in managing market irregularities, the state faced other pressures to intervene in the organization of social life. ­Increasingly mobilized groups of second-class and disenfranchised citizens including women, people of color, and lgbtq citizens petitioned the government and eventually won broader legal rights than they previously held, even if these often fell well short of delivering the substantive equality many groups sought (Buechler, 1999; Jobin-Leeds and AgitArte, 2016; Tarrow, 2011). Alongside these changes, the government faced a growing environmental movement that pressured for greater controls over corporate threats to natural resources and basic life necessities such as clean air and water (Apostolopoulou and Cortes-Vazquez, 2018). While these changes represent a degree of success by liberal and progressive movements, it might also be said that nothing fails like success. The capitalist state‘s need for legitimacy in the face of multiple, progressive social movements compelled it to play an increasingly activist role in managing the economy, promoting equality, and protecting the environment. By stepping forward in the management of the social order, in the minds of many citizens, the state began to overshadow the owners and managers of capital as the primary explainers for what was right and what was wrong in the society. The resolutions to a number of conflicts through increased regulation rendered the state increasingly vulnerable to public blame and hostility, including condemnation by right-wing ethno-populists. As state regulation became more widespread, it became an easy target for capitalists and their fellow-travelers to blame it for economic and other ills. Thus, President Ronald Reagan found a receptive audience for his claim that “…government is not the solution to our problem; government is the problem” (Reagan, 1981). This became the mantra

Old Wine, New Bottles

105

of a ­neo-liberal movement designed to return America, and indeed world capitalism to a new era of supposedly deregulated capitalism, but what was really capitalism re-regulated to favor owners and managers of capital. 8

Capitalism is Always Regulated / Regulation is Always Contentious

Efforts by the Trump administration to effect widespread rollbacks are nothing new. They may be more wide-reaching, more ham-fisted, and more often communicated with petulance than statecraft than those of previous anti-­ regulatory administrations. They are, nevertheless, one more moment in a long struggle by U.S. political leaders to manage the contradiction of capitalist society. To understand the struggle over regulation it is important to first note that, despite popular images of some laissez faire past where capital was free to do whatever it wanted, capital has never operated free of regulation (Tombs, 2012). As a social form, capitalism is always embedded in a set of rules, some informal, many juridical, but always mattering. These rules define who has the right to own property, what prerogatives and obligations accompany those rights, who has the authority and the responsibility to protect property rights, and what limits can be placed on those rights. Indeed, capitalism was regulated by a network of informal rules and structure even before there was a capitalist state to do the regulating (Bossenga, 1988). While many business and political leaders in the United States and most other capitalist nations have for decades promoted the idea of “deregulation,” what they really mean is re-regulating capitalism in ways more conducive to the accumulation of capital and the expansion of private wealth (Toombs and Whyte, 2015). Capitalist have long supported profit-advancing forms of regulation. In the waning decades of the 19th century, many business and political elites had begun to recognize the need for regulations that could reign in the profitkilling consequences of “ruinous competition” (Dalton, 2002: 204). This recognition led eventually to the 1890 passage of the first major regulation over corporate behavior, the Sherman Anti-Trust Act, as well as the recognition by heads of large corporations that regulations had the advantage of weakening smaller competitors who could less easily absorb regulatory costs (Pearce, 1978). By the first decade of the 20th century, key capitalist leaders accepted the need for government management of the money supply through a Federal Reserve banking system (Livingston, 1989). By the mid-twentieth century many major corporations realized that minimal recognition of worker rights

106

Michalowski and Brown

was necessary to avoid the graver threats of labor radicalism, possibly even socialism (Boyer and Morias, 1955). In the 1970s, high profile disasters such as an oil well blow out that polluted Santa Barbara and the burning of the Cuyahoga River in Ohio created rising public concern over environmental pollution. In the face of this pressure the pro-business Nixon administration signed the Environmental Policy Act, which authorized the Environmental Protection ­Agency (epa) to provide mechanisms for enforcement of that act (Flippen, 2012). While corporate leaders have frequently made accommodations to regulations, and sometimes benefited from them, efforts to regulate capital are typically met with both overt challenges and subtle efforts to weaken the scope or enforcement of these regulations. In this sense, u.s. regulatory history has been an ongoing tug-of-war between forces seeking to expand governmental ability to control free market actions and those seeking to limit that expansion. The opportunities for conflict over regulation are almost unlimited. The capitalist marketplace touches nearly every part of everyday life. When we work, or are unable to work, when we breath air or drink water, when we buy food, buy or rent somewhere to live, take out a school loan, take a vacation, or bury a loved one, the market and the regulations governing it shape what we can do. Public vulnerability to corporate actions is the basis for citizen support for regulatory protection from unsafe, careless, dishonest, or predatory market activities. On the other side, owners and managers of capital are most interested in regulatory environments hospitable to maximizing profits, often working through politicians to convince consumers and workers that their futures are better protected by a climate high corporate profitability resulting from limited regulation. 9

Social Structures of Accumulation Matter

Although candidate Trump claimed to be running as a representative of working people, his deregulatory promises were fully aligned with the longstanding, neo-liberal agenda to expand private profit by shrinking government oversight. In effect, he promised to advance the same neo-liberal policies that contributed to the elimination of the kinds of well-paying, benefit eligible, blue and white collar jobs that Trump was promising to recreate by further deregulation (Chomsky and McChesney, 1998; Krugman, 2009). To the extent that people accepted the premise, as noted above, that government determines the economy, this promise rang true. Unfortunately, the deregulatory narrative offers false hopes. Whether the labor market will be filled with good jobs or not is

Old Wine, New Bottles

107

much more dependent, in the current social order, on the broader conditions of global capitalism and the choices capitalists make about what to do with their capital than it is on u.s. regulations (Harvey, 2017; Sassan, 1999). Nevertheless, the deregulatory promise was an effective political ploy that helped bolster Trump’s appeal. Once elected, Trump appointed cabinet heads who would make good his pro-capitalist deregulatory promises. In order to appreciate the role Trump is playing in serving the interests of corporate capital it is useful to place the current moment in the broader history of capitalism. Beginning in the early 20th century, some economists observed extended business cycle patterns lasting from forty-to-sixty years from peak-to-peak. The Russian economist Nikolai Kondratieff (1935) theorized that these cycles contained three distinct phases of economic activity—expansion, stagnation and recession. These long waves proved to be observable throughout the 20th century, although what caused them was under-theorized. In the 1980s, David Gordon, Richard Edwards and Michael Reich (1982) began to build a theoretical framework to explain what was animating Kondratieff’s long waves. They proposed that each wave contains within it a particular configuration of social institutions that, for a time, is able to facilitate robust accumulation of capital, but that eventually loses its vitality to do so. This results in a period of economic decline (decay), followed by a period of exploration characterized by attempts to find a new institutional structure that will stimulate a return to strong economic growth. Eventually, a new, more effective configuration emerges and is consolidated into another period of economic growth. Although refined over time, particularly by Kotz, McDonough and Reich (1994), ssa theory retained this basic formulation for some time. By the early 2000s, it was becoming apparent that the neoliberal ssa was not generating much stronger economic growth than the decay phase of the ssa it replaced. Martin Wolfson and David Kotz (2010: 211) addressed this apparent anomaly by theorizing that ssas “are best understood as institutional structures that (temporarily) stabilize class contradictions,” and that although the increased power of capital over labor in the neoliberal ssa “should translate into a higher share of profit in total income, it does not follow that growth will be faster.” From this perspective, increased reduction of the return to labor, primitive accumulation, and debt-fueled extraction of wealth from the working class may increase ceo salaries and boost returns on stock investment, but they do little to grow the “real economy” (Boyer, 2010; Soederberg, 2014). While ssa theory is grounded in analyses of business cycles, it is a sociological theory, not an economic one. Its primary goal is to identify the overall constellation of institutional institutions that serve to facilitate accumulation

108

Michalowski and Brown

and/or stabilized class relations during periods of consolidation, and do so less effectively during periods of decay and exploration. As David Gordon’s (1980: 17) proposed: The interdependencies among the individual institutions [that constitute an ssa] create a combined social structure with a unified internal structure of its own—a composite whole, in effect, whose intrinsic structure amounts to more than the sum of the individual institutional relationships. Since the end of the Federal Period, the United States has been characterized by four distinct ssas: an era of laissez faire capitalism from the 1830s to the 1890s, an era of monopoly capitalism from then until the 1930s, an era of ­regulated capitalism from the 1930s until the 1980s, and the present era of neoliberal capitalism whose full-blown emergence is often associated with the Conservative turn signaled by the rise to power of Ronald Reagan in the United States and Margaret Thatcher in Britain. The essential characteristics of the most recent stage of capitalism, the neoliberal ssa, are reductions in government oversight of economic practices ­(deregulation), a shift of the economic center of gravity from the goods production sector to the banking sector facilitated by weakening the rules governing money and banking (financialization), increased conversion of public services into for profit companies (privatization), and increased disaggregation of material and media consumption (individualization). Neo-liberalism’s operative strategy is linked to globalization, that is, an effort to implement these strategies on a world-wide basis through reduction or elimination of tariffs and other trade barriers, by subjecting national development strategies to international financial discipline, supporting governments willing to collaborate in the project of reducing laws and practices designed to protect workers, markets and environments, and by marketizing and monetizing much of what had once been the commons. The project of neo-liberal globalization forged a new world order in which the accommodations between corporate capital accumulation, labor, and the 20th century welfare state characteristic of regulated capitalism were scuttled in favor of a Schumpeterian global order based on weakening regulatory controls at all levels, and defunding the Keynesian-era commitments to social ­welfare in order to facilitate capital accumulation through intensified exploitation of people, land and the biosphere (Jessop, 1993; Kotz, 2015). From 1980 to 2008, the neoliberal ssa increased the rate of growth in corporate profit as

Old Wine, New Bottles

109

compared to the economic stagnation of the 1970s, although this growth was substantially less than the boom years of the post-wwii ssa (Roberts, 2017). From the perspective of individual consumption, the neo-liberal ssa also created the appearance of a robust economy. Homes and cars were bigger, more people traveled by air, the sale of luxury goods boomed. Much of this, however, was fueled by rising debt, two-income households, and increasing inequality (Picketty, 2014). And it all came crashing down in 2008 with the onset of the Great Recession. 10

Conclusion: Rollbacks and the Neo-liberal ssa

The neoliberal ssa is nearing its sell-by date. If we take the 1980s as an approximate starting point, we are now almost 40 years into a cycle that lasts typically from 40 to 60 years. The present ssa peaked in 2008, just before the onset of the Great Recession, and has since been characterized by decay of efficacy, as indicated by the tepid recovery and the rising class conflict. This means, as David Kotz (2015) notes, “The crisis of neoliberal capitalism has made it vulnerable to replacement by something else.” The recent rise of nationalist and/or populist political trends in many of the nations of the Global North that led the charge to create a world-wide neoliberal ssa may signal the beginning of what ssa theorists term a “period of exploration.” Global capitalism integrated large portions of the world economy. In doing so, it increased internal inequality within both developed and developing states that embraced the neo-liberal model, it angered many residents of the Global North by increasing flows of immigrants, and it created cultural and economic changes that led to a climate of doubt and insecurity for many. Under the neo-liberal ssa, many in the Global North saw their economic options eroding, while growing internal inequality in the Global South meant increasing misery. We stand at a moment of multiple, possible future trajectories. The rise of racist nationalism and anti-globalization populism may signal a return to a world constructed around competing national spheres of influence—the arrangement that sparked World War ii. Or neo-nationalism may prove to be a temporary and unsuccessful attempt to find the “something else” that Kotz refers to. We may see a return to regulated capitalism. Or we may see an increase in vicious, predatory capitalist practices that intensify the enclosures and expulsions that facilitated primitive accumulation in the now-decaying neoliberal ssa. Whatever pathways eventually emerge, however, they will

110

Michalowski and Brown

i­ nvolve a reconfiguration of the networks of power that characterize the existing, increasingly troubled ssa. Donald Trump’s accession to the presidency has been a boon for the owners and managers of corporate capital, even where he was not their first choice for president. Pre-election choices aside, Trump has moved the neo-liberal agenda of regulatory rollbacks further than any president since Ronald Reagan. From the perspective of a capitalist system in the throes of a decaying ssa, Trump may prove to be the right person at the right time. Reregulating capitalism to better facilitate the accumulation of capital may help stabilize an eroding system. It will do so, however, at the cost of significant harm to the health and wellbeing of people, non-human animals, and possibly the planet itself. Whether capitalism’s inherent tendencies toward self-destruction will once again be halted by sensible regulation of the type that Polanyi (2001) accurately predicted for the latter half of the twentieth century, or will this time initiate a long period of entropy will depend on the ability of progressive social movements to change the political climate. We can only hope and work for a future when the role of capital in society is reconfigured to serve all living things. References Agnew, R. 2011. Toward a Unified Criminology: Integrating Assumptions about Crime, People and Society. New York, NY: NYU Press. Althusser, L. 1971. “Ideology and Ideological State Apparatuses.” in Lenin and Philosophy and Other Essays. New York: Monthly Review Press. Retrieved January 30, 2019 (https://www.marxists.org/reference/archive/althusser/1970/ideology.htm). Apostolopoulou, E. and Cortes-Vazquez, J. 2018. The Right to Nature: Social Movements, Environmental Justice and Neoliberal Natures. London: Routledge. Arnold, C. 2017. “President Trump to Cut Regulations by ‘75 Percent’—How Real is That?” NPR Morning Edition, January 24. Retrieved January 26, 2019 (https://www.npr .org/2017/01/24/511341779/president-trump-to-cut-regulations-by-75-percent-howreal-is-that). Bain, B., and Hamilton, J. 2018. “The Volcker Rule is About to Lose Some of its Bite.” Business Insider, May 30. Retrieved June 1, 2018 (https://www.bloomberg.com/ news/articles/2018-05-30/volcker-rule-to-lose-some-of-its-bite-as-fed-proposesoverhaul). Block, F. 1987. Revising State Theory. Philadelphia, PA: Temple University Press. Bossenga, G. 1988. “Protecting Merchants: Guilds and Commercial Capitalism in ­Eighteenth-Century France.” French Historical Studies, 15(4): 693-703.

Old Wine, New Bottles

111

Boyer, R. 2010. “The Rise of CEO Pay and the Contemporary Social Structure of Accumulation.” Pp 215-238 in T. McDonough, M. Reich and D.M. Kotz (Eds.), Contemporary Capitalism and its Crises. New York, NY: Cambridge University Press. Boyer, R. and Morias, H. 1955. Labor’s Untold Story. New York, NY: Cameron Associates. Brookings Institute. 2019. Tracking Deregulation in the Trump Era. Brookings, February 8. Retrieved January 22, 2019 (https://www.brookings.edu/interactives/ tracking-deregulation-in-the-trump-era/). Buechler, S. 1999. Social Movements in Advanced Capitalism. Oxford: Oxford University Press. Buntane, D. 1974. “Judicial Review of Cost-Benefit Analysis under NEPA.” Nebraska Law Review, 53 (4): 540-580. Retrieved December 30, 2018 (https://digitalcommons.unl. edu/nlr/vol53/iss4/4). Chambliss, W. and Seidman, R. 1971. Law, Order and Power. Boston, MA: Addison Wesley. Chambliss, W. and Seidman, R. 1982. Law, Order and Power. (2nd edn). Boston, MA: Addison Wesley. Chomsky, N. and McChesney, R. 1998. Profit Over People: Neoliberalism & Global Order. New York, NY: Seven Stories Press. Dalton, K. 2002. Theodore Roosevelt: A Strenuous Life. New York, NY: Knopf. Davenport, C. 2018. “Trump Administration Prepares a Major Weakening of Mercury Emissions Rules.” New York Times, September 30. Retrieved December 10, 2018 (https://www.nytimes.com/2018/09/30/climate/epa-trump-mercury-rule.html). Davenport, C. and Friedman, L. 2018. “The E.P.A.’s Review of Mercury Rules Could Remake its Methods for Valuing Human Life and Health.” New York Times, September 7. Retrieved January 22, 2019 (https://www.nytimes.com/2018/09/07/climate/epamercury-life-cost-benefit.html). Devaney, T. 2017. “Trump Wants to Cut Regs by 75 Percent.” The Hill, January 23. Retrieved January 18, 2019 (https://thehill.com/regulation/administration/315688trump-cut-75-percent-of-regs). Domonoske, C. 2017. “Trump Rolls Back Obama-era Flood Standards for Infrastructure Projects.” NPR, August 16. Retrieved January 28, 2019 (https://www.npr.org/sections/ thetwo-way/2017/08/16/543712263/trump-rolls-back-obama-era-flood-standardsfor-infrastructure-projects). Dudley, S. 2016. “Regulatory Reset: How Easy is it to Undo Regulation.” Regulatory Studies Center, Washington: Georgetown University, November 30. Retrieved January 20, 2019 (https://regulatorystudies.columbian.gwu.edu/regulatory-reset-how-easyit-undo-regulation). Elperin, J. and Camon, D. 2018. “How Trump is Rolling Back Obama’s Legacy.” Washington Post, March 24. Retrieved January 21, 2019 (https://www.washingtonpost.com/ graphics/politics/trump-rolling-back-obama-rules/?utm_term=.cb0a6aa928a8).

112

Michalowski and Brown

Engle, J. 2018. Quoted in Susan Page, “A Consequential President: Trump’s Tweets have Overshadowed the Impact of his Policies at One Year in.” USA Today, January 18. Retrieved January 20, 2019 (https://www.usatoday.com/story/news/2018/01/18/­ consequential-president-trumps-tweets-have-overshadowed-impact-his-policiesone-year/1033731001/). Environmental Data and Governance Initiative (EDGI). 2018. AAR-9 EPA Discontinues Updates to Climate Change Websites. EDGI, November 1. Retrieved January 26, 2019 (https://envirodatagov.org/aar-9-epa-discontinues-updates-to-climatechange-websites/). Environmental Integrity Project. 2017. “Civil Penalties Against Polluters Drop 60 Percent So Far Under Trump.” Environmental Integrity Project News, August 10. Retrieved January 28, 2019 (http://www.environmentalintegrity.org/news/ penalties-drop-under-trump/). Federal Register. 2017. Executive Order No. 13771, 82 FR 9339. Flippen, B.J. 2012. Nixon and the Environment. Albuquerque, NM: University of New Mexico Press. Foster, J.B., Clark, R. and York, B. 2010. The Ecological Rift: Capitalism’s War on the Earth. New York: Monthly Review Press. Friedman, L. 2018a. “How a Coal Baron’s Wish List Became President Trump’s To-Do List.” The New York Times, January 9. Retrieved January 5, 2019 (https://www.nytimes. com/2018/01/09/climate/coal-murray-trump-memo.html?module=inline). Friedman, L. 2018b. New E.P.A. Plan Could Free Coal Plants to Release More Mercury Into the Air. The New York Times, December 28. Retrieved January 10, 2019 (https:// www.nytimes.com/2018/12/28/climate/mercury-coal-pollution-regulations.html). Friedman, Milton. 1992. Capitalism and Freedom. Chicago, IL: University of Chicago Press. Goffman, J. 2018. Quoted in Claire Beutter, “EPA Reviews Mercury Regulations.” IR Society at NYU. IR Insider, September 10. Retrieved January 24, 2019 (https://www .irinsider.org/environment-1/2018/9/10/epa-reviews-mercury-regulations). Gordon, D., Edwards, R. and Reich, M. 1982. Segmented Work, Divided Workers: The Historical Transformation of Labor in the United States. Cambridge: Cambridge University Press. Gordon, D. 1980. “Stages of Accumulation and Long Economic Cycles.” Pp. 9-45 in T.K. Hopkins and I. Wallerstein (Eds.). Processes of the World System. Beverly Hills, CA: Sage. Greshko, M., Parker, L., Howard, B., Stone, D., Borunda, A. and Gibbons, S. 2019. A Running List of how President Trump is Changing Environmental Policy. National Geographic, January 17. Retrieved January 28, 2019 (https://news.nationalgeographic. com/2017/03/how-trump-is-changing-science-environment/).

Old Wine, New Bottles

113

Harvey, D. 2017. Marx, Capital and the Madness of Economic Reason. Oxford: Oxford University Press. Hayek, F. 1944. The Road to Serfdom. London: Routledge. Heritage Foundation. 2017. Executive Orders. Retrieved December 20, 2018 (https:// www.heritage.org/political-process/heritage-explains/executive-orders). Jessop, B. 1993. “Towards a Schumpeterian Workfare State? Preliminary Remarks on post-Fordist Political Economy.” Studies in Political Economy, 40(1): 7–39. Jobin-Leeds, G. and Agit A. 2016. When We Fight, We Win: Twenty-First-Century Social Movements and the Activists that are Transforming Our World. New York, NY: The New Press. Kondratieff, N. 1935. “The Long-Waves in Economic Life.” Review of Economic Statistics, 17(6): 105-115. Kothari, Y. 2018. Quoted in By Scott Waldman and Robin Bravender, “Pruitt Expected to Limit Science Used to Make EPA Pollution Rules.” Scientific American, March 16. Retrieved December 18, 2018 (https://www.scientificamerican.com/article/pruittexpected-to-limit-science-used-to-make-epa-pollution-rules/#googDisableSync). Kotz, D., McDonough, T. and Reich, M. 1994. Social Structures of Accumulation: The ­Political Economy of Growth and Crisis. Cambridge: Cambridge University Press. Kotz, D. 2015. “A Great Fall: The Origins and Crisis of Neoliberalism.” Dollars and Sense (November/December). Retrieved May 10, 2017 (http://dollarsandsense. org/archives/2015/1115kotz.html). Krugman, P. 2009. The Return of Depression Economics and the Crisis of 2008. New York, NY: W.W Norton and Company. Krupnick, A. 2018. Quoted in Claire Beutter, “EPA Reviews Mercury Regulations.” IR Society at NYU, September 10. Retrieved January 24, 2019 (https://www.irinsider.org/ environment-1/2018/9/10/epa-reviews-mercury-regulations). Kruse, K. and Zelizer, J. 2019. Fault Lines: A History of the United States Since 1974. New York, NY: WW Norton. Laylin, T. 2016. “How Michigan’s Flint River came to Poison a City.” The Guardian, January 18. Retrieved December 08, 2018 (https://www.theguardian.com/­ environment/2016/jan/18/michigan-flint-river-epa-lead-contamination-mdeq-­ pollutants-water-safety-health). Lipton, E., Eder, S. and Branch, J. 2018. The Real-Life Effects of Trump’s Environmental Rollbacks: 5 Takeaways from Our Investigation. The New York Times, December 26. Retrieved January 18, 2019 (https://www.nytimes.com/2018/12/26/us/trump-­ environment-regulation-rollbacks.html). Lipton, E. 2017. “E.P.A. Chief, rejecting agency’s science, chooses not to ban insecticide.” The New York Times, March 29. Retrieved April 5, 2017 (https://www.nytimes. com/2017/03/29/us/politics/epa-insecticide-chlorpyrifos.html).

114

Michalowski and Brown

Livingston, J. 1989. Origins of the Federal Reserve System: Money, Class, and Corporate Capitalism, 1890–1913. Ithaca, NY: Cornell University Press. McAdam, D. and Kloos, K. 2014. Deeply Divided: Racial Politics and Social Movements in Postwar America. New York, NY: Oxford University Press. Michalowski, R. 1985. Order, Law and Crime. New York, NY: Random House. Michalowski, R. and Kramer, R. 1987. “The Space between Laws: The Problem of Corporate Crime in a Transnational Context.” Social Problems, 34(1): 34–53. NEPA (National Environmental Policy Act). 1969. 42 U.S.C. §4321 et seq. O’ Connor, J. 1973. The Fiscal Crisis of the State. New Brunswick, NJ: Transaction. Office of Management and Budget (OMB). 2017. “Guidance Implementing Executive Order 13771.” Retrieved January 6, 2019 (https://www.whitehouse.gov/sites/white house.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf). Pearce, F. 1978. Crimes of the Powerful: Marxism, Crime and Deviance. London: Pluto Press. Picketty, T. 2014. Capital in the 21st Century. Cambridge, MA: Harvard University Press. Piven, F.F. and Cloward, R. 1978. Poor Peoples Movements: How they Succeed and Why they Fail. New York, NY: Vintage. Polanyi, K. 2001. The Great Transformation. The Political and Economic Origin of Our Times. Boston, BA: Beacon Press. Originally published, 1944. Popovich, N., Albeck-Ripka, L. and Pierre-Louis, K. 2017/2018. “78 Environmental Rules on the Way Out Under Trump.” The New York Times, October 5. Retrieved January 10, 2019 (https://www.nytimes.com/interactive/2017/10/05/climate/trump-environment-rules-reversed.html). Pruitt, S. 2018a. Quoted in Envirodata. “Changing the digital climate: How climate change web content is being changed under the Trump Administration.” Retrieved January 29, 2019 (https://envirodatagov.org/wp-content/uploads/2018/01/Part-3-Changing -the-Digital-Climate.pdf). Pruitt, S. 2018b. Quoted in Tevor Nance, “EPA Chief Scott Pruitt: Delete Decades Of Science In The Name Of ‘Transparency.’” Forbes, April 24. Retrieved January 25, 2019 (https://www.forbes.com/sites/trevornace/2018/04/24/epa-chief-scott-pruittdelete-decades-of-science-in-the-name-of-transparency/#1612d387afac). Reagan, R. 1981. “First Inaugural Address.” Reagan Foundation. Retrieved November 8, 2018 (https://www.reaganfoundation.org/ronald-reagan/reagan-quotes-speeches/ inaugural-address-2/). Roberts, M. 2017. “The US Rate-of-Profit-1948-2015.” The Next Recession (blog). ­Retrieved January 12, 2019 (https://thenextrecession.wordpress.com/2016/10/04/the-us-rate-of -profit-1948-2015/). Sassan, S. 1999. Globalization and its Discontents. New York, NY: New Press. Soederberg, S. 2014. The Debtfare States and the Poverty Industry: Money, Discipline and the Surplus Population. London: Routledge.

Old Wine, New Bottles

115

Tarrow, S. 2011. Power in Movement: Social Movements and Contentious Politics. New York, NY: Cambridge. Tombs, S. 2012. “State-Corporate Symbiosis in the Production of Crime and Harm.” State Crime Journal, 1(2): 170–195. Tombs, S. and Whyte, D. 2015. The Corporate Criminal: Why Corporations Must be Abolished. London: Routledge. Trump, D. 2016. Quoted in Chris Arnold, “President Trump to Cut Regulations by ‘75 Percent’—How Real is That?” NPR Morning Edition, January 27th, 2017. Retrieved January 30, 2019 (https://www.npr.org/2017/01/24/511341779/presidenttrump-to-cut-regulations-by-75-percent-how-real-is-that). U.S. Congress. 2017. H.R. 1420—Honest Act. Retrieved January 22, 2019 (https://www .congress.gov/bill/115th-congress/house-bill/1430). Van Atten, C., Saha, A., Slawsky, L., Russell, C. and Hellgren, L. 2018. “Benchmarking Air Emissions of the 100 Largest Electric Power Producers in the United States.” MA: M.J. Bradley & Associates LLC. Retrieved January 27, 2019 (https://www.nrdc.org/ sites/default/files/benchmarking-air-emissions-of-the-100-largest-electric-­powerproducers-in-the-united-states-june-2018_2018-06-15.pdf). Wall Street Journal. 2018. “Editorial: Cost-Benefit Reform at the EPA: Under Obama, the EPA juked the numbers to justify costly regulation.” Wall Street Journal, June 6. Retrieved December 12, 2018 (https://www.wsj.com/articles/ cost-benefit-reform-at-the-epa-1528326402). Webb, R. 2018. “Six important points about BLM’s revised methane waste prevention rule.” Columbia University Climate Law Blog, September 18. Retrieved January 28, 2019 (http://blogs.law.columbia.edu/climatechange/2018/09/18/ six-important-points-about-blms-revised-methane-waste-prevention-rule/). White, R. 2018. Climate Change Criminology. Bristol: University of Bristol Press. Wolfson, M. and Kotz, D. 2010. “A Reconceptualization of Social Structure of Accumulation Theory.” Pp. 72-92 in T. McDonough, M. Reich and D. Kotz (Eds.), Contemporary Capitalism and its Crises. New York: Cambridge University Press.

Chapter 6

‘Blood for Oil’: Analyzing America’s War for the Greater Middle East as a Climate Crime of Empire Ronald C. Kramer On November 11, 1988, at the 40th Annual Meeting of the American Society of Criminology (asc) in Chicago, William J. Chambliss stepped to the podium to deliver the Presidential Address. The title of his address was “State-Organized Crime,” and it would later be compared favorably to the famous Presidential Address that Edwin H. Sutherland gave to the American Sociological Society in 1939 on “White Collar Crime.” Chambliss (1989: 183) started his presentation by stating: “There is a form of crime that has heretofore escaped criminological inquiry, yet its persistence and omnipresence raise theoretical and methodological issues crucial to the development of criminology as a science. I am referring to what I call state-organized crime.” Chambliss (1989: 184) defined state-organized crime as “acts defined by law as criminal and committed by state officials in the pursuit of their job as representatives of the state.” Then he transported the audience back to the sixteenth and seventeenth centuries with vivid descriptions of state complicity in piracy. The audience was mesmerized by Bill’s colorful accounts of pirates like Borgnefesse and Sir Francis Drake, who looted Spanish and Portuguese ships of gold and silver in service to the British and French governments, and in direct violation of their laws. Following the tales of long ago pirates, Chambliss abruptly brought the audience back to the 20th century. Now the accounts were of smuggling: of narcotics by the cia during the Vietnam War and of arms by the National Security Council, the Defense Department and the cia during the Reagan administration’s Iran-Contra affair, all in violation of US laws. With his brilliant analysis Bill helped the audience to understand, as he had come to realize, that these were accounts of the same thing in different time periods: “Some of the piracy of the sixteenth and seventeenth centuries was sociologically the same as some of the organized criminal relations of [the twentieth century]—both are examples of state-organized crime” (Chambliss 1989: 183). Both were also crimes of empire (Boggs, 2010; Iadicola, 2010; Kramer, 2018). In this chapter, perched on the shoulder of William J. Chambliss, I will analyze “America’s War for the Greater Middle East” (Bacevich, 2016) as a form

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004411678_007

‘Blood for Oil’

117

of state-organized crime. More specifically, I will examine this war as a climate crime of empire. 1

Climate Crimes of Empire

In Carbon Criminals, Climate Crimes (forthcoming, 2020—from which parts of this chapter are adopted) I identify and analyze four specific forms of statecorporate climate crime: Crimes of continued extraction of fossil fuels and rising greenhouse gas emissions; crimes of political omission related to the mitigation of carbon emissions; crimes of socially organized climate change denial; and climate crimes of empire. Climate crimes of empire, the focus this chapter, were shaped by two major political-economic transformations that took place in the mid-twentieth century: The “Great Acceleration” of economic growth and environmental destruction that marked the beginning of the epoch of the Anthropocene (Angus, 2016); and the full emergence of the “global American empire,” along with an influential “culture of militarism” in US society (Boggs, 2017; Freeman, 2012). Among the myriad social, politicaleconomic, and ecological consequences of these two great transformative processes are three specific, interrelated, and often “unrecognized” blameworthy harms (crimes) that are connected to climate change: a large-scale pattern of illegal imperial interventions and wars, many undertaken to secure access to and control over oil by the US “warfare state” (Boggs, 2017; Dower, 2017; McCoy, 2017), which in turn, facilitated the greater extraction of fossil fuels and ensured rising carbon emissions during the Great Acceleration; the deployment and operation of the American military during these imperial actions and wars, coupled with a supporting domestic and foreign military base structure (Johnson, 2004), that results in the release of huge quantities of greenhouse gases by the largest organizational polluter in the world, the US Department of Defense (Sanders, 2009); and the planning for and beginning execution of a “militarized” form of adaptation to climate disruption, that specifically targets climate refugees from the Global South (Parenti, 2011: 11). These state-corporate harms (Michalowski and Kramer, 2006) are climate crimes that can best be understood within the context of the development of the post–World War ii global US empire and the normalization of a culture of militarism within American society. From this perspective, the interrelated climate crimes of US military interventions to control oil, Pentagon greenhouse gas emissions that result from these wars and other operations, and the choice of a militarized form of adaptation to climate disruption can also be described

118

Kramer

as “crimes of empire” (Boggs, 2010). This chapter will focus on the first of these climate crimes of empire which Bacevich terms, “America’s War for the Greater Middle East.” 2

The American Empire and Its Crimes

Historian Alfred McCoy (2017: 40) reminds us that “empire is not an epithet but a form of global governance in which a dominant power exercises control over the destiny of others, either through direct territorial rule (colonies) or indirect influence (military, economic, and cultural).” According to various scholars, the US has been an imperial project from its earliest years (Anderson and Cayton, 2005; Bacevich, 2002; Ferguson, 2004; Hahn, 2016; Immerman, 2010; Lens, 1971; Nugent, 2008), and “empire as a way of life” (Williams, 1980) is a strong determining structural and cultural factor in the US propensity to commit state crimes (Boggs, 2010; Iadicola, 2010; Kramer, 2018). One important dimension of empire as a way of life is that efforts at imperial domination (crimes of empire) are almost always rationalized within a broad historical and cultural narrative often referred to as “American exceptionalism” (Appy, 2015; Dower, 2017; Fiala, 2008; Hodgson, 2009; Koh, 2003; Swanson, 2018). As Lens (1971: 1) noted, empires always seek to cover themselves in “the myth of morality” and the American empire in particular has formulated such myths “to assuage its conscience and sustain its image.” Boggs (2010: 6) argues that in the US, various myths of morality “permeate a political culture that gives policy-makers a relatively free hand to pursue geopolitical ambitions” and commit “crimes of empire.” Increasingly these state crimes, and the deaths and destruction they cause, are also “normalized” by the development of a post–World War ii American culture of militarism. As Michael Mann (2003: 16–17) defines the term, militarism is “a set of attitudes and social practices which regards war and the preparation of war as a normal and desirable social activity.” It involves an extreme emphasis on the value of military institutions in society and the predominate use of military power to solve complex social and economic problems. Bacevich (2005: 2) argues that, “To a degree without precedent in U.S. history, Americans have come to define the nation’s strength and well-being in terms of military preparedness, military action, and the fostering of (or nostalgia for) military ideals.” Militarism operates in both the larger political system and national culture, as well as within specific government organizations such as the Department of Defense (Pentagon) and the Central Intelligence Agency (cia). As Boggs (2010: 249) observes, state actions that may be “viewed from outside this paradigm [culture] as criminal or barbaric may seem rather normal,

‘Blood for Oil’

119

a­ cceptable, even praiseworthy within it, part of a taken-for-granted universe of meanings.” In Habits of Empire: A History of American Expansion (2008), Nugent argues that the US has actually created three empires during its history. The first form of empire-building involved continental expansion from 1782 to 1853, and the foundational crimes of the country were the violent imposition of chattel slavery on kidnapped Africans and the genocide of Native Americans. Next came the offshore empire-building from the 1850s to 1917 that resulted in territorial acquisitions and formal colonies. During this second form of empire, an imperial war against Spain (1898) and other foreign interventions led to the territory and people of the Philippines, Cuba, Puerto Rico, Samoa, Guam, and Hawaii being annexed and colonized. The third form of empire did not involve the acquisition of territory per se, but the extension of American political, economic, and military power around the world. Williams (1959) described it as “open door” imperialism. According to Nugent (2008: 306), this “new, virtual-global empire,” which was “only embryonically evident during the interwar years of 1918–1939,” emerged most dramatically after World War ii, particularly during the Cold War, and it continues in strong form today through what has been called the “warfare state” (Boggs, 2017). America’s War for the Greater Middle East took place in the context of this third form of empire. 3

World War ii and the Emergence of the “Warfare State”

World War ii would provide the US with new and unique opportunities for various forms of empire building (Freeman, 2012). As the war progressed and it became clear that the US would be able to exercise hegemonic power in the post-war era, American leaders began to plan for the construction of new global institutions that would greatly advance the country’s political and economic dominance (Zinn, 1980). The war, and this new international economic order, would finally lift the US completely out of the Great Depression and establish it as both the world’s dominant military power and the economic hegemon in charge of the key institutions of global capitalism such as the International Monetary Fund, the World Bank, and the General Agreement on Trade and Tariffs (gatt). A larger and stronger global American empire was emerging. World War ii also provided the US with an opportunity to create a new political and legal order under international law. With the signing of the Atlantic Charter in 1941 by Franklin Roosevelt and Winston Churchill, the establishment of the United Nations (UN) and the adoption of its Charter in 1945, the prosecution of Nazi “war criminals” at Nuremberg that same year, and the

120

Kramer

passage of the Geneva Conventions in 1949, the US and Great Britain “led efforts to replace a world of chaos and conflict with a new, rules based system” (Sands, 2005: xi). This new set of international political and legal norms was indeed a significant accomplishment, although always selectively applied. As Dower (2017: 21) observes, “As it transpired, none of the victor nations sitting in judgement in these early postwar years ever seriously regarded the laws they were inventing and applying to defeated enemies as being applicable to their own countries.” In the US, these new international institutions and laws were actively opposed at the time by many on the far right. Indeed, by the beginning of the twenty-first century some American political leaders, particularly hardcore nationalists and neoconservatives, came to believe that the existence of such an international legal framework for judging state aggression, war crimes, and human rights violations was illegitimate if used to judge US actions, such as the clearly illegal invasion of Iraq in 2003 (Dower, 2017; Kramer and Michalowski, 2005, 2011). One of the most consequential results of World War ii was the emergence of the phenomenon of “perpetual war” and a “warfare state” that has become the most significant feature of contemporary American politics. According to Boggs (2017: 3), the “warfare state” in the US refers to “a broad ensemble of structures, policies, and ideologies: permanent war economy, national security state, global expansion of military bases, merger of state, corporate, and military power, an imperial presidency, the nuclear establishment, superpower ambitions.” This ensemble led to massive “defense” spending and huge annual Pentagon budgets, a form of militarized state capitalism or military Keynesianism that would prop up the US economy. This gargantuan warfare state has been “sustained and legitimated” not only by the myth of American exceptionalism but also by a deeply entrenched “culture of militarism” that is itself a product of World War ii (Boggs, 2017). This warfare state has not only transformed American politics and culture, it has also resulted in a wide variety of state-corporate crimes, many of which can be described as crimes of empire. There were three great, interrelated challenges to the American imperial project in the post–World War ii era: the threat of independent nationalism in the so-called Third World (Global South), the continuing Cold War struggle with the Soviet Union, and the establishment and maintenance of access to and control of oil, particularly in the Greater Middle East. All three would fuel state criminality on the part of the US and its client states. Nations on the periphery and semi-periphery of the world system, many of them former colonies of the world’s wealthy capitalist nations, were to be limited to service roles in the postwar global capitalist economy, providing resources, cheap labor, and retail markets for consumer products and finance capital (Frank, 1969;

‘Blood for Oil’

121

Wallerstein, 1989). US planners were concerned that “radical and nationalistic regimes,” more responsive to popular pressures for immediate improvement in the living standards of their people than in advancing the economic interests of foreign capital, could become a “virus” infecting other countries and threatening the “overall framework of order” that the leaders of the corporate state in Washington had constructed (Chomsky, 2003). The Soviet Union, with its rival ideology and its own imperial ambitions, was accused of frequently provoking or providing assistance to these nationalistic movements. Thus, the US military and the newly created cia, often in direct violation of international law, engaged in dozens of foreign interventions (state-organized crimes) around the world to overthrow such “threatening” governments or prop up friendly repressive client states that would serve American economic and geopolitical interests (Blum, 2004; Kinzer, 2006; Boggs, 2010, 2017; Dower, 2017; McCoy, 2017). Following the Korean War, the US created a worldwide system of more than 800 military bases and installations to facilitate these illegal interventions, “roll back” the Soviet Union, and maintain the overall global political system (Johnson, 2004). This far-flung system of military bases was justified as a necessary tool in the fight against global communism, thereby linking US imperialism to the mythic ideal of liberation rather than one of geopolitical expansion (Johnson, 2004). Or, as historian Niall Ferguson notes (2004: 78), “For an empire in denial, there is really only one way to act imperially with a clear conscience, and that is to combat someone else’s imperialism.” 4

Empire, Military Power, and Cheap Energy

In addition to thwarting independent nationalism in the Third World and fighting the Cold War against the Soviet Union, the other key geopolitical concern for leaders of the US empire in the post–World War ii period was access to and control over the vast supplies of petroleum and natural gas in the Greater Middle East. Not only was the global capitalist system “fueled and lubricated by oil” (Everest, 2004: 32), it was “a resource so vital to American prosperity that access to it must be protected at any cost, including the use of military force” (Klare, 2004: xiv). The availability of cheap petroleum became a critical national security issue and would eventually lead to direct military intervention in the Middle East, what Bacevich (2005) refers to as “blood for oil.” At one time, the Persian Gulf region contained 65 percent of the world’s known oil reserves and 34 percent of its natural gas reserves (Everest, 2004). US efforts to secure access to these fossil fuels started even before World War ii ended. In February 1945, on his way home from the Yalta Conference with

122

Kramer

Churchill and Joseph Stalin, Roosevelt held a now-famous meeting with King Ibn Saud of Saudi Arabia on an American warship in the Great Bitter Lake (the southern portal of the Suez Canal). According to Bacevich (2005: 180), Out of this meeting came an understanding: henceforth, Saudi Arabia could count on the United States to guarantee its security; and the United States could count on Saudi Arabia to provide it preferential treatment when it came to exploiting the kingdom’s vast, untapped reserves of oil. From 1945 to 1979, this agreement allowed American leaders an opportunity to achieve their two major foreign policy goals in the Greater Middle East, political stability in the region and access to the vital resource of oil. Furthermore, with this arrangement they could accomplish these aims “in a way that minimized overt U.S. military involvement” (Bacevich, 2005: 180). Similar geopolitical objectives were at stake in August 1953 when the cia sponsored a military coup in Iran to overthrow the democratically elected government of Mohammad Mossadegh and return the shah, Mohammad Reza Pahlavi, to the Peacock Throne. Prime Minister Mossadegh had angered London and Washington by nationalizing the Anglo-Persian Oil Company (later known as the Anglo-Iranian Oil company and then as British Petroleum, BP). After the US-engineered coup, the nationalization of Iran’s oil industry was annulled and the US was able to muscle in on Iranian oil as “40 percent of the share of oil in the new consortium was given to five big American oil companies, and BP’s share was reduced” (Dreyfuss, 2005: 109). The return of the shah and his extremely repressive rule provided the desired political “stability” for the region but also sowed the seeds of the 1979 Islamic Revolution in Iran, one of the key catalysts of the looming American war for the Greater Middle East that would be initiated in the 1980s. As the social and political conflicts of the “long sixties” roiled American society (Hayden, 2009), particularly the struggle over civil rights and the ordeal of Vietnam, it may have seemed that the issue of access to cheap foreign oil had declined in importance. Klare (2004: 37) asserts, however, that “anxiety over the depletion of U.S. petroleum reserves and a new appreciation of the link between oil and war … were just as compelling to Washington in the postwar era” as they had been in 1945 when fdr met with King Saud. “If anything,” Klare argues, “petroleum took on even more strategic significance as the United States and other major powers came to rely on cheap and abundant oil to fuel their booming economies.” The spectacular economic growth during the Great Acceleration would not have been possible without Persian Gulf oil. Likewise, the Pentagon would not have been capable of maintaining its protective empire of

‘Blood for Oil’

123

bases and a strong military machine capable of “containing” the Soviet Union during the Cold War without this petroleum. From 1946 to 1971, the annual consumption of petroleum products in the US tripled, from 1.8 billion barrels to 5.4 billion barrels (Klare, 2004). This massive consumption of oil was accompanied, of course, by ongoing efforts to e­ xtract and market fossil fuels, rising carbon emissions, and global warming. But American consumers knew little or nothing about the serious problem of climate change at the time. Their major concerns were increased choices in the market, jobs and greater economic opportunity, and continued material abundance, which required “assured access to cheap oil and plenty of it” (Bacevich, 2005: 182). In 1970, however, domestic oil production hit its peak, and thereafter the US had to depend more and more on foreign sources (Juhasz, 2006; Klare, 2004). As American dependence on Persian Gulf oil grew after 1970, US political and military leaders would face new and complex challenges to maintain access and control of this critical resource. As Everest (2004: 32) noted: “Since the end of World War ii, dominating the Middle East and controlling these vast oil supplies have been crucial to U.S. foreign policy under 11 [now 13] different presidents.” In pursuit of these imperial goals, direct military intervention in the Persian Gulf region would eventually occur, particularly in Iraq in 1991 and 2003. Blood for oil, a climate crime of empire, would result. Two different “oil crises” in the 1970s set the stage for a stronger and more direct American involvement in the Greater Middle East. The first oil crisis occurred after the start of the Arab-Israeli War in October 1973. After President Richard Nixon threw his support behind Israel, Iraq responded by nationalizing Exxon and Mobil’s shares in the Basra Oil Company. More importantly, the Arab nations of the Organization of the Petroleum Exporting Countries (opec) imposed a full oil embargo against the US. American consumers suffered as the giant oil companies, rather than accept lower profits, chose instead to “raise oil prices and force all of the sacrifices onto the American public” (Juhasz, 2006: 153). From October 1973 to February 1975, the price of gasoline increased 30 percent and the price for home-heating oil went up by more than 40 percent. The opec oil embargo shocked and concerned Americans as it revealed the growing US dependence on foreign petroleum and the way that oil could be used as a political weapon. The public demanded answers from the giant energy companies and the government about the cost and availability of oil. Few were provided at the time, and the concerns would increase and the demands would grow louder in 1979 during the presidency of Jimmy Carter. The second oil crisis of the 1970s began in January 1979 with the Islamic Revolution in Iran, as a broad-based popular movement organized by militant ­Shiite clerics overthrew the US-installed government of Shah Mohammad

124

Kramer

Reza Pahlavi. A virulently anti-American government led by the Ayatollah Ruhollah Khomeini replaced the shah and his support for US oil policies in the Middle East. The new Islamic Republic of Iran canceled all of its contracts with the major US oil companies. Once again, American consumers would suffer as the price per barrel of oil more than doubled from 1979 to 1981, and gas ­prices at the pump increased 150 percent (Juhasz, 2006). This economic shock was just beginning to set in when a major political earthquake also shook the country on November 5, 1979, when Islamic militants took over the US embassy in Tehran and held fifty-two Americans hostage. The humiliating Iran hostage crisis would drag on for 444 days amid intense media coverage and inflict severe political damage on Carter. To have any hope of winning re-election, Carter had to rebut the impression that he was weak, ineffectual, and lacking a strong foreign policy. He had to show that he grasped the seriousness of the situation in the Middle East and could take effective action. On January 23, 1980, Carter seized the opportunity presented by the State of the Union Address to unveil a new forceful military policy that would eventually put the country on the path to blood for oil in the Persian Gulf. As Bacevich (2016: 280) points out, Carter, “who just months before had earnestly sought to persuade Americans to shake their addiction to oil now decried … the possibility of outsiders preventing Americans from getting their daily fix.” In what came to be known as the “Carter Doctrine,” the president proclaimed: “Let our position be absolutely clear. An attempt by any outside force to gain control of the Persian Gulf region will be regarded as an assault on the vital interests of the United States of America, and such an assault will be repelled by any means necessary, including military force [emphasis added].” This was a major change in policy with enormous implications. From 1945 on, the US had relied on other countries like Saudi Arabia, Iran under the shah, and its client state in Israel to provide the political stability (and military might) in the region that would guarantee its “vital interests” (the free flow of oil foremost among them). In fact, this position had become enshrined more generally in the so-called “Nixon Doctrine.” First announced in July 1969, this policy was aimed primarily at Southeast Asia where the US was attempting to extricate itself from Vietnam, but it had broader application. The Nixon Doctrine sought to shift the major burden of the fighting in various conflict situations to allied nations, supported with American economic and military assistance (Klare, 2012). But now Carter declared that the US would be taking on the military burden itself, at least as far as access to oil in the Middle East was concerned. As Bacevich (2016: 29) notes, “implementing the Carter Doctrine implied the conversion of the Persian Gulf into an informal A ­ merican

‘Blood for Oil’

125

protectorate. Defending the region meant policing it.” Carter then took a concrete step toward implementation of this policy by ordering the creation of the Rapid Deployment Joint Task Force (rdjtf), a military command center that was capable of quickly injecting US troops into the Greater Middle East during a crisis situation (Klare, 2004). The stage was set for more direct military intervention in the Persian Gulf region to protect American access to and control of oil. Although Bacevich (2016: 245) convincingly argues that the Carter Doctrine “initiated the War For the Greater Middle East by tying the American way of life to control of the Persian Gulf” and its oil, the declaration itself had little immediate impact. Despite the stronger foreign policy stance and the creation of the rdjtf, Carter still lost the 1980 election to Ronald Reagan, and the full military implications of the Carter Doctrine would not be realized until the 1990s. During the 1980s, Reagan’s foreign policy did not prioritize the Greater Middle East, and his occasional forays into the region seemed “almost as an afterthought” (Bacevich, 2005: 186). But Klare (2004: 36) argues that Reagan “fully endorsed the basic premise of the Carter Doctrine,” and in 1983 he elevated the rdjtf from an ad-hoc organization into a “full-scale regional headquarters, the Central Command.” centcom, as it is known, would be the military command structure with the enduring responsibility for waging America’s war for the Greater Middle East. Reagan’s sporadic and varied interventions in the Persian Gulf region in the 1980s did not amount to a coherent strategy to enforce the Carter Doctrine. But Reagan did attempt to overcome the Vietnam syndrome, resurrect American exceptionalism, rebuild the Pentagon, and reorient it on the Islamic world, and his “inconclusive forays in and around the Persian Gulf … paved the way for still larger if equally inconclusive interventions to come” (Bacevich, 2005: 193). Still, through the first decade of America’s war for the Greater Middle East, Bacevich (2016: 109) concludes that “the very nature of the problem that the U.S. military was expected to solve remained ill-defined,” therefore “commitments tended to be both modest in scope and revocable.” That would change in the 1990s and the American army would be assigned a larger, more central role in the Middle East after the surprising end of the turbulent Cold War. The fall of the Berlin Wall in 1989 and the unexpected collapse of the Soviet Union in 1991 brought the Cold War to an end, presenting the US with a new set of opportunities and challenges. With the Soviet Union out of the way and American military supremacy unrivaled, the “unipolar moment,” as some called it (Krauthammer, 1991), had arrived. The goals of global market fundamentalism and US imperial domination never seemed more realizable. American military power, already normalized as a primary tool to achieve global

126

Kramer

­ egemony, could now be used with even more political impunity, whether it h was punishing small neighbors such as Panama and Grenada for their failure to fall in line with US interests, or war in the oil-rich Persian Gulf region. At first, the end of the Cold War produced a sharp struggle between rival factions of the ruling elite in the US over how to capitalize on the opportunities afforded by the fall of the Soviet Union while deflecting political “threats” presented by the possibility of a “peace dividend” (a reduced Pentagon budget) or a new American isolationism. One group supported a globalist and internationalist approach, often referred to as “open door imperialism” (Bacevich, 2002; Williams, 1959), which was typical of the administrations of George H.W. Bush and Bill Clinton. The other faction, that included hard-core nationalists and neoconservatives, argued for a more nationalist, unilateralist, and militarist revision of American imperialism, in some ways a return to earlier models of neo-colonialism. Both the elder Bush and Clinton viewed the US as a global leader that should use its economic and military power to ensure openness and integration in the global capitalist system (Bacevich, 2002). Their foreign policy remained consistent with the form of informal imperialism practiced by the US since the beginning of the twentieth century, stressing global economic integration through free trade and “democracy” (Dorrien, 2004; Williams, 1959). But neither of these two presidents shied away from the use of military violence (in violation of international law) when deemed necessary to accomplish American imperial designs, as the Gulf War of 1991 (under Bush) and the bombing campaigns in Iraq (and the former Yugoslavia) in the mid-1990s (under Clinton) demonstrate (Bacevich, 2005; Chomsky, 2000). The Persian Gulf War in 1991, known as Operation Desert Storm, represented the first major implementation of the Carter Doctrine and dramatically escalated America’s war for the Greater Middle East. This military operation against Saddam Hussein’s Iraq would ratchet up American imperial involvement in the region and set in motion social and political forces that would produce devastating long-term consequences. After the 1979 Islamic Revolution in Iran, the US viewed Hussein as a regional strongman who might provide a geopolitical bulwark against the Iranian mullahs, and Reagan provided support for Iraq during its bloody and expensive war with Iran in the 1980s. That war left Baghdad deeply in debt to its small neighbor Kuwait, and when the ­Kuwaiti government refused to forgive the debt, Hussein began to eye the country’s rich oil fields as a way to solve his financial problems. Reagan’s successor, the elder Bush, and his administration struggled at first to develop a coherent policy toward Iraq, but when Hussein’s army invaded Kuwait on ­August 2, 1990, the White House quickly concluded that, “Iraq posed an indisputable threat to America’s interests in the Gulf” (Klare, 2004: 49). Bush was

‘Blood for Oil’

127

­ articularly ­concerned about the threat Iraq posed to the oil fields and safety p of Saudi ­Arabia, and he cited America’s energy needs and dependence on ­Saudi oil as major justifications for his decision to use military force to drive Hussein from Kuwait. As Operation Desert Storm got underway in early 1991, the G.H.W. Bush administration offered additional rationales for military intervention such as the need to liberate Kuwait, deter international aggression, and eliminate Iraq’s weapons of mass destruction. But as Klare (2004: 50) points out, “The record makes it clear, though, that the president and his senior associates initially viewed the invasion of Kuwait through the lens of the Carter Doctrine; as a threat to Saudi Arabia and the free flow of oil from the Gulf.” Operation Desert Storm appeared to be a complete and decisive victory. US forces quickly ejected the Iraqi invaders from Kuwait and restored the emir to his throne. Bush, however, decided not to pursue the Iraqi army all the way to Baghdad and, despite losing the war, Hussein would survive in power. When, in the aftermath of the war, Hussein began to brutally suppress the Iraqi Shiites and Kurds who rose up in opposition to his dictatorial rule (at American instigation), the US responded by sending troops to Northern Iraq, imposing harsh economic sanctions, and creating the existence of “no-fly zones” across much of the country (all of which did little to actually protect the resisting Iraqis). In a very significant development, American troops that had been “temporarily” placed in Saudi Arabia (despite the great reluctance of King Fahd) during the war to protect the oil fields there from invasion, now were to remain in the ­Islamic holy land, a situation that was deeply offensive to many Muslims. The “blowback” from this perceived defiling of holy lands by “infidels” eventually manifest as terrorist attacks against US “interests” abroad, the rise of Osama bin Laden and Al-Qaeda, and ultimately terrorist attacks on US soil (Dreyfuss, 2005; Johnson, 2000). The much-touted victorious outcome of the Persian Gulf War now devolved unsteadily into a policy of containment, the “containment” of the still “dangerous” Hussein. As Bacevich (2016: 133) concludes: “Viewed as ‘a war for oil,’ which indeed it was, Desert Storm produced a satisfactory yet imperfect outcome.” Kuwait had been liberated, the Saudis no longer faced the prospect of an invasion, and the US had enforced the Carter Doctrine (also overcoming the Vietnam Syndrome along the way). But the menacing Hussein remained in power, and the political stability of the Persian Gulf region remained precarious. The war for the Greater Middle East was just getting started. Clinton inherited and then continued the Bush policy of containment in Iraq and, during the Clinton presidency, the US was still effectively “at war” with Hussein. Some administration officials referred to the containment approach as “keeping Saddam in his box” (Rieff, 2003). Clinton enforced the

128

Kramer

“­no-fly zones” in Iraq, maintained the devastating economic sanctions, supported the UN-imposed inspection program seeking to find and dismantle Iraq’s weapons of mass destruction, and did not shy away from the use of violence to enforce the overall policy of containment. In December 1998, after another in a series of minor confrontations with Hussein, Clinton ordered a major four-day bombing campaign known as Operation Desert Fox. Despite the intensity of this particular attack, it was not an isolated occurrence. During the final two years of the Clinton presidency, the US “bombed Iraq on almost a daily basis, a campaign largely ignored by the media and thus aptly dubbed by one observer Operation Desert Yawn” (Bacevich, 2005: 196). The two rival factions of the US ruling elite continued to struggle over how to best capitalize on the opportunities offered by the fall of the Soviet Union. Clinton, like the elder Bush, supported the globalist and internationalist approach, often referred to as “open door imperialism.” The other faction, the hard-core nationalists and neoconservatives argued for a more nationalist, unilateralist, and militarist revision of American imperialism. And they were now poised to take power. A number of neoconservatives held positions in the Reagan administration, often providing intellectual justification under the banner of American exceptionalism for that administration’s policies of military growth and the rollback of, rather than coexistence with, the Soviet Union (Chernus, 2006). As the Cold War ended, the “neocons” now in positions of power within the G.H.W. Bush administration began to forcefully promote an aggressive post-Soviet neo-imperialism. The neocons first concern, shared by many within the military-industrial complex, was to stave off cuts in the Pentagon budget in response to the end of the Soviet threat and popular expectations for a peace dividend. In 1992, aides to Secretary of Defense Dick Cheney, supervised by neocons Paul Wolfowitz and I. Lewis (Scooter) Libby, prepared a draft document titled Defense Planning Guidance (dpg), a classified, internal Pentagon policy statement used to guide military officials in the planning process. The dpg provided a first look at the emerging neoconservative imperialist agenda. As Armstrong (2001: 78) notes, the dpg “depicted a world dominated by the United States, which would maintain its superpower status through a combination of positive guidance and overwhelming military might. The dpg stated that the first objective of US defense policy should be to prevent the re-emergence of a new rival. It also endorsed the use of preemptive (preventive) military force to achieve its goal and called for the US to maintain a substantial arsenal of nuclear weapons and to develop a missile defense shield. The dpg was a clear statement of the neoconservative vision of the unilateral use of military supremacy to defend US interests anywhere in the world,

‘Blood for Oil’

129

including protecting US access to vital raw materials such as Persian Gulf oil (Armstrong, 2002; Bacevich, 2005; Halper and Clarke, 2004; Klare, 2004; Mahajan, 2003; Mann, 2004). The unvarnished aggressive and imperialistic tone of the dpg generated a firestorm of criticism when a draft was leaked to the press. The elder Bush and secretary Cheney quickly distanced themselves from the dpg, and ordered that a less obviously imperialist version be prepared. Clinton’s election in 1992 removed the neocons from positions within the US government but not from policy debates. From the sidelines they generated a steady stream of books, articles, reports, and op-ed pieces in an effort to influence the direction of US foreign policy. Throughout the Clinton years, the neocons continued to warn about new threats to American security, repeatedly calling for greater use of US military power to address them (Bacevich, 2005; Chernus, 2006; Mann, 2004). One persistent theme in these writings was the need to eliminate Hussein’s government from Iraq, consolidate American power in the Greater Middle East, and change the political culture of the region (Dorrien, 2004). Once again, American exceptionalism was key to the public justification of this approach. As British journalist Godfrey Hodgson (2009: 171) observes: “By the 1990s the background to the growing obsession with Iraq among neoconservatives was exceptionalist sentiment. Neither Saddam Hussein nor any other foreign leader must stand against the high historic mission of the United States to bring democracy to the Middle East.” Such sentiments, of course, had often served as a cover for more critical economic and geopolitical interests such as access to cheap oil. Neoconservatives subjected the Clinton administration to a barrage of foreign policy criticism, particularly with respect to Clinton’s handling of the Middle East and Iraq. In early 1998, the Project for the New American Century (pnac), a key neoconservative think tank, released an open letter to Clinton urging him to forcefully remove Hussein from power (Halper and Clarke, 2004; Mann, 2004). In September 2000, pnac issued a report titled Rebuilding America’s Defenses: Strategy, Forces and Resources for a New Century. This report resurrected core ideas in the controversial 1992 dpg draft, calling for massive increases in military spending, the expansion of US military bases, and the establishment of client states supportive of American economic and political interests. The imperial goals of the neocons were clear. What they lacked was the political opportunity to implement these goals. Two unanticipated events would give them that opportunity. In December 2000, the US Supreme Court awarded the presidency to George W. Bush, despite losing the popular vote by over a half-million ballots. This odd political turnabout would restore the neocons to power, with more than twenty neoconservatives and hardline nationalists being awarded

130

Kramer

high-ranking p ­ ositions in the new administration (Dorrien, 2004). The Pentagon and the Vice President’s office became unipolarist strongholds reflecting the longstanding working relationship between neoconservatives and hard-core nationalists like Cheney and the new Secretary of Defense, Donald Rumsfeld (Mann, 2004). Even though a stroke of good luck had placed them near the center of power, the neocons found that the new president remained more persuaded by “pragmatic realists” in his administration, such as Secretary of State Colin Powell, than by their aggressive foreign policy agenda (Dorrien, 2004). In their view, this was to be expected. The pnac (2000) report had predicted that, “the process of transformation is likely to be a long one, absent some catastrophic or catalyzing event—like a new Pearl Harbor.” The unipolarists needed another stroke of good luck to implement their imperial agenda, which included war to control oil in the Middle East. The September 11 terrorist attacks on the World Trade Center in New York and the Pentagon in Washington, DC (a form of “blowback”) presented the neocons and the hard-core nationalists with the “catalyzing event” they needed to transform their agenda into actual policy. The attacks were a “political godsend” that created a climate of fear and anxiety, which the unipolarists mobilized to promote their geopolitical strategy and mythic ideals to a president who lacked a coherent foreign policy, as well as to the nation as a whole (Chernus, 2006). As former Treasury Secretary Paul O’Neill revealed, the first goal of the neocons in the second Bush administration had always been to attack Iraq and oust Hussein (Susskind, 2004) to resume America’s war for the Greater Middle East. Again, they believed this would allow the US to consolidate its imperial power in the strategically significant, oil-rich Middle East and, consistent with American exceptionalism, change the political culture of the region and spread “freedom” and “democracy” (Dorrien, 2004; Hodgson, 2009). And now they had their chance to accomplish these imperial goals. On the evening of September 11, 2001, and in the days following the terrorist attacks, the neocons and hard-core nationalists in the Bush administration advocated invading Iraq immediately, even though there was no evidence linking Hussein to the events (Clarke, 2004; Woodward, 2004). After an internal struggle between the “pragmatic realists” led by Powell and the unipolarists led by Cheney and Rumsfeld, the decision was eventually made to first launch a general “war on terrorism” by attacking the terrorist group Al-Qaeda’s home base in Afghanistan and removing that country’s Islamic fundamentalist Taliban government (Mann, 2004; Risen, 2006; Suskind, 2006). America’s War for the Greater Middle East was about to dramatically escalate. The unipolarists in the Bush administration were only temporarily delayed insofar as they had

‘Blood for Oil’

131

achieved agreement with the realists that as soon as the Afghanistan war was underway, the US would begin planning an invasion of Iraq (Clarke, 2004; Fallows, 2004). By November, barely one month after the invasion of Afghanistan, Bush and Rumsfeld ordered the Department of Defense to formulate a war plan for Iraq (Woodward, 2004). Throughout 2002, as plans for the war on Iraq were being formulated, the Bush administration made a number of formal pronouncements that demonstrated that the goals of the unipolarists were now the official goals of the US government. In the January 29th State of the Union Address, George W. Bush honed the focus of the “war on terrorism” by associating terrorism with specific rogue states such as Iran, Iraq, and North Korea (the “axis of evil”) who were presented as legitimate targets for military action (Callinicos, 2003). In a speech to the graduating cadets at West Point on June 1, the president unveiled a doctrine of preventive war, a policy that many judged as “the most open statement yet made of imperial globalization” (Falk, 2004: 189). This was followed by a new National Security Strategy, which claimed not only the right to wage preventive war but also, again in the spirit of American exceptionalism, that the US would use its military power to spread “democracy” and American-style laissez-faire capitalism around the world as the “single sustainable model for national success” (Callinicos, 2003: 29). As Arundhati Roy (2004: 56) noted at the time: “Democracy has become Empire’s euphemism for neoliberal capitalism.” In the marketing campaign to build public support for the invasion of Iraq, the Bush administration skillfully exploited the political opportunities provided by the fear and anger over the September 11 attacks. By linking Hussein and Iraq to the wider war on terrorism, the government was able to establish the idea that security required the ability to attack any nation believed to be supporting terror, no matter how weak the evidence. This strategy cynically obscured the real geopolitical and economic motives for going to war, specifically the control of oil. As Schwartz (2008: 5) argues: The control of oil was a prime goal of the invasion, and this control could only be assured if three intermediate outcomes were achieved: a thoroughgoing revision of the way Iraq managed its economy (so that oil could be quickly and efficiently extracted), willing participation by the Iraqi people in this transformation (no matter how much it disrupted or degraded their lives), and an ongoing, dominant military presence (to protect against domestic and foreign resistance to these and other changes that Washington hoped to implement). At the same time, control of Iraq and its oil was itself an intermediate goal in a more comprehensive

132

Kramer

foreign policy: the establishment of the United States as the preeminent power in the Middle East. These were the real, imperial goals of the unipolarists in the Bush administration as they made their plans for war against Saddam Hussein, which would become the centerpiece of the larger War for the Greater Middle East. On March 19, 2003, the US and Great Britain finally launched their longplanned, unprovoked, illegal invasion of Iraq and subsequently inaugurated a formal military occupation of that once-sovereign nation (Anderson, 2011; Kramer and Michalowski, 2005, 2011; Welch, 2009). In public, the Bush administration’s legal and political justifications for this attack continued to migrate from the eradication of weapons of mass destruction to the advancement of democracy in the region to fighting back terrorism. But economic and geopolitical motives, such as controlling Iraqi oil, reconstructing Iraq’s economy into a radical free market system, or establishing permanent military bases in the heart of the Middle East, were publicly disavowed by the administration as objectives of the invasion, despite overwhelming evidence that these imperial goals actually drove the war. As Federal Reserve Chairman Alan Greenspan observed in 2007, “I’m saddened that it is politically inconvenient to acknowledge what everyone knows, the Iraq war is largely about oil” (Anderson, 2011: 231). Despite Bush’s claim of “mission accomplished” in Iraq on the aircraft carrier uss Abraham Lincoln on May 1, 2003, the US became bogged down in a belligerent and deadly military occupation. Efforts to remake the Iraqi government and policy-making structure were often frustrated by the Sunni-Shia civil war that resulted from the invasion. US oil companies would gain access to the world’s second largest supply of petroleum, but the extremely onerous political and security conditions in the country made it very difficult for them to benefit from this control. Other private corporations, like Halliburton (Dick Cheney’s former employer), however, would reap enormous profits as contractors supporting the US occupation (Rothe, 2006). The initial war of aggression, followed by years of conflicted military occupation, subjected the Iraqi people to a “tidal wave” of death, destruction, and misery (Schwartz, 2008). By the time Bush left office in January 2009, more than four thousand American military personnel had also been killed in the war and, according to economists Stiglitz and Bilmes (2008), the total cost of the invasion and occupation to American taxpayers was expected to eventually exceed 3 trillion dollars. Some have argued that the responsible US officials should stand trial for war crimes in Iraq (Gordon, 2016). The situation in Iraq would improve only slightly as President Barack Obama attempted to withdraw combat forces in August 2010, wind down the

‘Blood for Oil’

133

occupation, and transfer greater power and control back to the Iraqis. While Obama sought to end America’s War for the Greater Middle East, in the final analysis “ending the conflict eluded his grasp, in no small part due to actions on his part that actually expanded and thereby perpetuated it” (Bacevich, 2016: 295). The “permanent” American war in the region drags on to this day, with terrible repercussions for many, especially for Iraqis (Englehardt, 2018), but to the great benefit of the American military-industrial complex and the transnational oil corporations. Even though America’s War for the Greater Middle East became more complicated over time and expanded to include other geopolitical goals, the centrality of oil to the initiation of this war cannot be doubted. And even though American dependence on foreign oil has recently declined, and the era of ­readily accessible oil and gas is ending, the historic role of the US military in securing energy resources remains critically important. From the cia-­ engineered coup in Iran in 1953, to the promulgation of the Carter Doctrine in 1980, to Operation Desert Storm in 1991, to Operation Desert Fox in 1998, to the invasion and occupation of Iraq in 2003, the US has used military intervention as a primary tool to secure petroleum in the Greater Middle East. I argue that these resource wars, shedding “blood for oil” as Bacevich (2005) puts it, are not only state-organized crimes, crimes of empire, they are also climate crimes (Kramer, forthcoming, 2020). Using military force to access and control oil helped fuel the Great Acceleration. It resulted in greater economic growth, consumer consumption, and environmental destruction. It locked in the relentless search for and extraction of fossil fuels. It ensured that cheap but dirty forms of energy would be marketed and burned, resulting in the release of greenhouse gases and the heating of the planet. Even if we exempt US government officials from blame for climate-harming acts that occurred before the pivotal year of 1988 when Dr. James Hansen gave his famous testimony to Congress (Kramer, forthcoming, 2020), the most significant and destructive events of America’s War for the Greater Middle East took place in the 1990s, continuing on into the first decade of the twenty-first century. These imperial interventions and resource wars during the second half of the twentieth century and beyond, including America’s critical War for the Greater Middle East, shaped two additional climate crimes of empire. These large-scale military operations and activities involved the burning of huge quantities of petroleum and the generation of enormous greenhouse gas emissions. “Fueling the engines of empire,” as Sanders (2017: 199) puts it, consumes copious amounts of gas and oil, and the resulting carbon emissions contribute significantly to global warming. It also contributes to an expansion of militarism that some sociologists analyze as a “treadmill of d­ estruction” that

134

Kramer

o­ perates alongside the treadmill of capitalist production (Clark and Jorgenson, 2012; Hooks and Smith, 2005). Furthermore, US imperialism, American exceptionalism, and a domestic culture of militarism influences the government’s response to climate disruption and climate refugees, and produces a “politics of the armed lifeboat” (Parenti, 2011), a militarized form of adaptation to climate change. These state-organized crimes are precisely the kind of blame-worthy harms that Bill Chambliss directed our attention to in 1988. Analyzing these crimes is one of the best ways to honor this great criminologist. References Anderson, F. and Cayton, A. (2005). The Dominion of War: Empire and Liberty in North America, 1500–2000. New York, NY: Penguin Books. Anderson, T.H. 2011. Bush’s Wars. New York, NY: Oxford University Press. Angus, I. 2016. Facing the Anthropocene: Fossil Capitalism and the Crisis of the Earth System. New York, NY: Monthly Review Press. Appy, C.G. 2015. American Reckoning: The Vietnam War and Our National Identity. New York, NY: Viking. Armstrong, D. 2002. “Dick Cheney’s Song of America: Drafting a Plan for Global Dominance.” Harper’s Magazine, (October): 76–83. Bacevich, A.J. 2002. American Empire: The Realities and Consequences of U.S. Diplomacy. Cambridge: Harvard University Press. Bacevich, A.J. 2005. The New American Militarism: How Americans Are Seduced by War. New York, NY: Oxford University Press. Bacevich, A.J. 2016. America’s War for The Greater Middle East: A Military History. New York, NY: Random House. Blum, W. 2004. Killing Hope: U.S. Military and C.I.A. Interventions since World War ii. Monroe, ME: Common Courage Press. Boggs, C. 2010. The Crimes of Empire: Rogue Superpower and World Domination. London: Pluto Press. Boggs, C. 2017. Origins of the Warfare State: World War ii and the Transformation of American Politics. New York, NY: Routledge. Callinicos, A. 2003. The New Mandarins of American Power: The Bush Administration’s Plans for the World. Cambridge, U.K.: Polity Press. Chambliss, W. 1989. “State-Organized Crime-The American Society of Criminology, 1988 Presidential Address.” Criminology, 27(2): 183–208. Chernus, I. 2006. Monsters to Destroy: The Neoconservative War on Terror and Sin. Boulder, CO: Paradigm Publishers.

‘Blood for Oil’

135

Chomsky, N. 2000. Rogue States: The Rule of Force in World Affairs. Boston, BA: South End Press. Chomsky, N. 2003. Hegemony or Survival: America’s Quest for Global Dominance. New York, NY: Metropolitan Books. Clark, B. and Jorgenson, A.K. 2012. “The Treadmill of Destruction and the Environ­ mental Impacts of Militaries.” Sociology Compass, 6(7): 557–569. Clarke, R.A. 2004. Against All Enemies: Inside America’s War on Terror. New York, NY: Free Press. Dorrien, G. 2004. Imperial Designs: Neo-Conservatism and the New Pax Americana. New York, NY: Routledge. Dower, J.W. 2017. The Violent American Century: War and Terror Since World War ii. ­Chicago, IL: Haymarket Books. Dreyfuss, R. 2005. Devil’s Game: How the United States Helped Unleash Fundamentalist Islam. New York, NY: Metropolitan Books. Engelhardt, T. 2018. A Nation Unmade by War. Chicago: Haymarket Books. Everest, L. 2004. Oil, Power and Empire: Iraq and the U.S. Global Agenda. Monroe, ME: Common Courage Press. Falk, R. 2004. The Declining World Order: America’s Imperial Geopolitics. New York, NY: Routledge. Fallows, J. 2004. “Bush’s Lost Year.” Atlantic Monthly, (October): 68–84. Ferguson, N. 2004. Colossus: The Price of America’s Empire. New York, NY: The Penguin Press. Fiala, A.G. 2008. The Just War Myth: The Moral Illusions of War. Lanham, MD: Rowman & Littlefield. Frank, A.G. 1969. Capitalism and the Underdevelopment of Latin America. New York, NY: Monthly Review Press. Freeman, J.B. 2012. American Empire: The Rise of a Global Power, the Democratic Revolution at Home 1945–2000. New York, NY: Viking. Gordon, R. 2016. American Nuremberg: The U.S. Officials Who Should Stand Trial for Post-9/11 War Crimes. New York, NY: Hot Books (Skyhorse Publishing). Hahn, S. 2016. A Nation Without Borders: The United States and Its World in an Age of Civil Wars, 1830–1910. New York, NY: Viking. Halper, S. and Clarke, J. 2004. America Alone: The Neoconservatives and the Global ­Order. Cambridge, U.K: Cambridge University Press. Hartung, W.D. 2011. Prophets of War: Lockheed Martin and the Making of the MilitaryIndustrial Complex. New York, NY: Nation Books. Hayden, T. 2009. The Long Sixties: From 1960 to Barack Obama. Boulder, Co: Paradigm Publishers. Hodgson, G. 2009. The Myth of American Exceptionalism. New Haven, CT: Yale University Press.

136

Kramer

Hooks, G. and Smith, C.L. 2004. “The Treadmill of Destruction: National Sacrifice Areas and Native Americans.” American Sociological Review, 69(4): 558–575. Iadicola, P. 2010. “The Centrality of Empire in the Study of State Crime and Violence.” pp. 31–44 in W. Chambliss, R. Michalowski and R. Kramer (Eds.), State Crime in the Global Age. Cullompton, UK: Willan Publishing. Immerman, R.H. 2010. Empire for Liberty: A History of American Imperialism from Benjamin Franklin to Paul Wolfowitz. Princeton, NJ: Princeton University Press. Johnson, C. 2000. Blowback: The Costs and Consequences of American Empire. New York, NY: Henry Holt and Company. Johnson, C. 2004. The Sorrows of Empire: Militarism, Secrecy, and the End of the Republic. New York, NY: Metropolitan Books. Juhasz, A. 2006. The Bu$h Agenda: Invading the World One Economy at a Time. New York, NY: Regan Books (HarperCollins Publishers). Juhasz, A. 2008. The Tyranny of Oil. New York, NY: HarperCollins Publishers. Kinzer, S. 2006. Overthrow: America’s Century of Regime Change from Hawaii to Iraq. New York, NY: Times Books/Henry Holt and Company. Klare, M. 2004. Blood and Oil: The Dangers and Consequences of America’s Growing Dependency on Imported Petroleum. New York, NY: Metropolitan Books. Klare, M. 2012. The Race for What’s Left: The Global Scramble for the World’s Last Resources. New York, NY: Metropolitan Books. Koh, H. 2003. “Foreword: On American Exceptionalism.” Stanford Law Review, 55(5): 1479–1527. Kramer, R.C. 2018. “Curbing State Crime by Challenging the U.S. Empire.” pp. 431–443 in W.S. DeKeseredy, and M. Dragiewicz (Eds.), Routledge Handbook of Critical ­Criminology Second Edition. Abingdon, Oxon, U.K.: Routledge. Kramer, R.C. Forthcoming, 2020. Carbon Criminals, Climate Crimes. New Brunswick, N.J.: Rutgers U ­ niversity Press. Kramer, R.C. and Michalowski, R.J. 2005. “War, Aggression, and State Crime: A ­Criminological Analysis of the Invasion and Occupation of Iraq.” British Journal of Criminology, 45(1): 446–469. Kramer R.C. and Michalowski, R.J. 2011. “Empire and Exceptionalism: The Bush Administration’s Criminal War against Iraq.” pp. 94–121 in D. Rothe and C. Mullins (Eds), State Crime: Current Perspectives. New Brunswick, NJ: Rutgers University Press. Krauthammer, C. 1991. “The Unipolar Moment.” Foreign Affairs, 70: 23–33. Lens, S. 1971. The Forging of the American Empire: From the Revolution to Vietnam: A History of Imperialism. New York: Thomas Y. Crowell Company (2003 edition published by Pluto Press [London] and Haymarket Books [Chicago]). Mahajan, R. 2003. Full Spectrum Dominance: U.S. Power in Iraq and Beyond. New York, NY: Seven Stories Press.

‘Blood for Oil’

137

Mann, J. 2004. Rise of the Vulcans: The History of Bush’s War Cabinet. New York, NY: Viking Publishers. Mann, M. 2003. Incoherent Empire. London, UK: Verso. McCoy, A.W. 2017. In the Shadows of the American Century: The Rise and Decline of US Global Power. Chicago, IL: Haymarket Books. Michalowksi, R.J. and Kramer, R.C. 2006. State-Corporate Crime: Wrongdoing at the Intersection of Business and Government. New Brunswick, N.J.: Rutgers University Press. Nugent, W. 2008. Habits of Empire: A History of American Expansion. New York, NY: Vintage Books. Parenti, C. 2011. Tropic of Chaos: Climate Change and the New Geography of Violence. New York, NY: Nation Books. Project for the New American Century (PNAC). 2000. Rebuilding America’s Defenses: Strategy, Forces and Resources for a New Century. Washington, D.C.: Project for the New American Century. Rieff, D. 2003. “Were Sanctions Right?” New York Times Magazine, July 23. Retrieved August 2, 2018 (https://www.nytimes.com/2003/07/27/magazine/were-sanctionsright.html). Risen, J. 2006. State of War: The Secret History of the CIA and the Bush Administration. New York, NY: Free Press. Rothe, D. 2006. “Iraq and Halliburton.” pp. 215–238 in R. Michalowski and R.C. Kramer (Eds.), State-Corporate Crime: Wrongdoing at the Intersection of Business and Government. New Brunswick, N.J.: Rutgers University Press. Roy, A. 2004. Public Power in the Age of Empire. New York, NY: Seven Stories Press. Sanders, B. 2009. The Green Zone: The Environmental Costs of Militarism. Oakland, CA: AK Press. Sanders, B. 2017. “Fueling the Engines of Empire.” pp. 199–205 in G. Smith (Ed.), The War and Environment Reader. Charlottesville, Virginia: Just World Books. Sands, P. 2005. Lawless World. New York, NY: Penguin Books. Schwartz, M. 2008. War Without End: The Iraq War in Context. Chicago, IL: Haymarket Books. Stiglitz, J. and Bilmes, L. 2008. The Three Trillion Dollar War: The True Cost of the Iraq Conflict. New York, NY: W.W. Norton. Suskind, R. 2004. The Price of Loyalty: George W. Bush, the White House, and the Education of Paul O’Neill. New York, NY: Simon and Schuster. Suskind, R. 2006. The One Percent Doctrine: Deep Inside America’s Pursuit of Its Enemies Since 9/11. New York, NY: Simon and Schuster. Swanson, D. 2018. Curing Exceptionalism: What’s Wrong with How We Think About the United States. Charlottesville, VA: David Swanson Publisher. Wallerstein, I. 1989. The Modern World System. New York, NY: Academic Press.

138

Kramer

Welch, M. 2009. Crimes of Power and States of Impunity: The U.S. Response to Terror. New Brunswick, NJ: Rutgers University Press. Williams, W. 1959. The Tragedy of American Diplomacy. New York, NY: Norton. Williams, W. 1980. Empire as a Way of Life. New York, NY: Oxford University Press. Woodward, B. 2004. Plan of Attack. New York, NY: Simon and Shuster. Zinn, H. 1980. A People’s History of the United States: 1492-Present. New York, NY: HarperCollins.

Chapter 7

Green State Crimes and Toxic Prisons: Synthesizing Environmental Harms at the Intersection of the Military and Prison Industrial Complexes Elizabeth A. Bradshaw Bill Chambliss pioneered the concept of state crime and paved the way for a diverse body of research to develop on power and corruption of governmental entities. Recognizing the synthesis between state crime and green criminology, Chambliss’s later work began to explore the significance of studying the role of the state in perpetuating environmental harm. This intersection of government power and environmental degradation provides ample research opportunities for criminologists. One area left under studied by state crime theorists and green criminologists is environmental injustice at the intersection of the ­military-industrial and prison-industrial complexes. As investigative reports have demonstrated there is a nationwide pattern of correctional facilities located on toxic land; quite frequently built on former military sites. Forced exposure to environmental toxins resulting from the operations of the military industrial complex constitutes a form of green state crime. The Trump administration’s recent zero tolerance immigration policy, itself a form of state crime, has increased the number of undocumented immigrants detained within the U.S. Correspondingly, immigrant detainees are increasingly forcibly exposed to environmental injustices at the hands of the state, which constitutes a form of green state crime. This chapter will begin by reviewing the limited literature on green state crimes. Then, it will explore the relationship between mass incarceration, environmental justice and toxic prisons. Next, it will consider the literature within state crime on the military industrial complex and environmental harm. The chapter will then provide a case study of immigrant detainees incarcerated unconstitutionally at the Victorville Federal Correctional Institution located on the former George Air Force Base, a toxic epa Superfund site. Finally, the chapter will discuss the importance of studying toxic prisons as green state crimes. 1

Green State Crimes

William Chambliss’s foundational 1988 Presidential Address to the American Society of Criminology introduced the concept of state crimes, identifying © koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004411678_008

140

Bradshaw

them as “acts defined by law as criminal and committed by state officials in the pursuit of their job as representatives of the state” (Chambliss, 1989: 184). His introduction of the concept of state organized crime paved the way for a diverse body of research to thrive. Among the avenues that have developed, the field of green state crime has focused on the environmental harms facilitated by government. In his later work, Chambliss began to study the role of the state in perpetuating environmental harm. Moloney and Chambliss (2014) demonstrated the importance of achieving descriptive and explanatory synthesis between state crime and green criminology through a case study of the North American bison slaughter (1865–1890). The authors make the case that the slaughter of bison is both a state crime of omission as well as a green crime of species destruction, doubly harmful to the bison themselves as well as the bison-dependent American Indian tribes. Expanding Mullins and Kauzlarich’s (2000: 267) definition of state crime as “…an illegal or demonstrably socially injurious act, process, or policy of omission or commission by an individual or group of individuals in an institution of legitimate governance,” Moloney and Chambliss (2014) stress the need to also include non-human animals in this conception. Emphasizing the importance of scholars in both state crime and green criminology working together to analyze, respond to and mitigate ecological and social harm, Moloney and Chambliss (2014: 320) argue encouraging green criminologists and state crime scholars to combine their resources and ­perspectives when analyzing and explaining certain environmental harms stemming from state actions or inactions is not only timely, but beneficial in a substantive sense for each discipline, and in a practical sense for the societies we are embedded within. Just as South (1998) has called for a “greening” of criminology as a whole, so too is a green perspective needed within the field of state crime. This green unifying theme provides ample research and activist opportunities for state crime and green criminology. Responding to Moloney and Chambliss’s (2014) call to integrate state crime and green criminology, Lynch (2016) explores the concept of community advantage and disadvantage produced by the political economic structure of capitalism and the inability of the state to address those inequalities. Examples of differentially distributed disadvantages include exposure to toxic waste and pollution, adverse health consequences resulting from toxic exposure, and differences in state responses to toxic exposure. Relatedly, Lynch, Stretesky and Long (2017) further analyze the role of the state in water pollution by looking at the emissions of U.S. publicly owned treatment works (potw) facilities as green state crimes. Green state crimes occur when potw facilities promote

Green State Crimes and Toxic Prisons

141

weaker water pollution and treatment standards than recommended scientifically, which would better protect the environment and public health. One unidentified form of green state crime involves the environmental injustices experienced by incarcerated individuals. Prisoners differentially ­experience environmental disadvantage and forced exposure to toxic environments. 1.1 Mass Incarceration, Environmental Justice and Toxic Prisons Within the fields of both state crime and green criminology, there is an absence of research on mass incarceration. Jewkes and Moran (2015: 465) comment “… it is still somewhat puzzling to us that, for the most part, green criminologists have sidestepped prisons and imprisonment as subjects worth investigating.” Likewise, researchers of state crime have also largely ignored the essential role of the state in the injustices of mass incarceration. An approach embraced by green criminology, the study of environmental justice draws attention to the role of the government in mitigating environmental harms. However, until recently, little research has explored the environmental injustices plaguing correctional facilities. The disparate racial composition of the prison population coupled with persistent environmental injustices at correctional facilities amounts to a nationwide epidemic of toxic prisons. According to the Prison Policy Institute (2018), there are roughly 2.3 million people incarcerated in 1,719 state prisons, 102 federal prisons, 1,852 juvenile correctional facilities, 3,163 local jails, and 80 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories (Wagner and Sawyer, 2018). Not including those involved in non-immigration related criminal convictions, in total there are 60,000 people behind bars for immigration related issue: …13,000 people are in federal prison for criminal convictions of violating federal immigration laws, and 13,000 more are held pretrial by U.S. Marshals. Another 34,000 are civilly detained by U.S. Immigration and Customs Enforcement (ice) separate from any criminal proceedings and are physically confined in federally-run or privately-run immigration detention facilities or in local jails under contract with ice (Wagner and Sawyer, 2018). Moreover, racial disparities exist throughout the U.S. prison system with 40% of the entire correctional population being Black (compared to 13% nationwide), 19% Latino (compared to 16% nationwide) and 39% White (compared

142

Bradshaw

to 64% nationwide) (Wagner and Sawyer, 2018). As Michelle Alexander’s (2010) The New Jim Crow demonstrates, the state has played a critical role in enacting mass incarceration as the most recent form of racialized social control. According to the Environmental Protection Agency (epa), environmental justice is the fair treatment and meaningful inclusion of all groups of people, particularly minority, low income and indigenous populations, in the environmental decision-making process. According to the National Environmental Policy Act (nepa), federal agencies must evaluate the environmental impact of their proposed action on impacted groups. Passed in 1994 due to pressure from environmental activists, Executive Order (EO) 12898 required that all federal agencies consider the environmental and human health impacts of their policies on poor and minority communities (U.S. Environmental Protection Agency, 2016). Even though prisoners across all 50 states are disproportionately people of color and almost entirely from low-income backgrounds, prisoners are not currently considered in the epa’s environmental justice policies. Moreover, the Bureau of Prisons has never considered prisoner populations in accordance with nepa’s environmental justice guidelines. Although advocacy groups like the Human Rights Defense Center and the Campaign to Fight Toxic Prisons have lobbied the federal government to include prisoners in its environmental justice assessments, so far their efforts have been unsuccessful. As a result of this neglect by the state, incarcerated persons are left unprotected from environmental hazards stemming from the correctional facility and surrounding area. Prison ecology draws attention to the unique characteristics commonly shared by correctional facilities. Summarizing the complex interrelationship of prison ecology, the Environmental Protection Agency’s Region iii makes clear that: [C]orrectional institutions have many environmental matters to consider in order to protect the health of the inmates, employees and the community where the prison is located. Some prisons resemble small towns or cities with their attendant industries, population and infrastructure. Supporting these populations, including their buildings and grounds, requires heating and cooling, wastewater treatment, hazardous waste and trash disposal, asbestos management, drinking water supply, pesticide use, vehicle maintenance and power production, to name a few potential environmental hazards. And the inmate training programs offered at most institutions also have their own unique environmental challenges… the US Environmental Protection Agency has been inspecting correctional facilities to see how they are faring. From the inspections, it is clear many prisons have room for improvement (epa, as cited in Tsolkas, 2016).

Green State Crimes and Toxic Prisons

143

Not only do prisons create environmental hazards for the surrounding communities, but the environmental conditions of the local area also pose health problems for prisoners confined on or near toxic land. Investigative journalism by non-profit advocacy groups has created a growing body of evidence demonstrating how prisoners in both public and private facilities across the United States are subjected to environmental injustices resulting from their proximity to epa Superfund sites and other contaminated land. According to a 2010 independent gis analysis by Paige Williams, at least 589 federal and state prisons are located within three miles of a Superfund cleanup site on the National Priorities List. Of those, 134 are located within only one mile of a Superfund site (Bernd et al., 2017). This designation means that they are some of the most toxic sites in the U.S. requiring cleanup. N ­ ationwide, drinking water contamination at jails, prisons and detention facilities is a common phenomenon. In 2007, Prison Legal News first brought attention to the widespread problem of prison drinking water contamination and wastewater pollution based on data collected over several years across 17 states (Dannenberg, 2007). Furthermore, the 2017 investigative report America’s Toxic Prisons discovered that violations of drinking water contamination, including by arsenic and lead, are widespread. The report found that In fact, according to the epa’s enforcement database, federal and state agencies brought 1149 informal actions and 78 formal actions against regulated prisons, jails, and detention centers during the past 5 years under the Safe Drinking Water Act, more than under any other federal environmental law (Bernd et al., 2017). With the increasing attack on immigrants by the Trump administration, Waters (2018) highlights how not only are U.S. prisons poisoning their inmates, but ice detention facilities are also built on top of toxic sites, impacting criminals and noncriminal immigrant detainees alike. Stressing the necessity of building coalitions between environmental justice and prison abolition activists in fighting toxic prisons, Bradshaw (2018) provides a case study of water contamination at the Central Michigan and St. Louis Correctional Facilities in St. Louis, MI. The epa confirmed the presence of pcbsa (parachlorobenzene sulfonic acid) in the city drinking water in 2005. This chemical is a byproduct of producing ddt. Nonetheless, inmates at the facilities were forced to consume the contaminated water for a decade ­before the problem was remedied. Despite numerous class action and civil suits against local and state officials as well as corporate entities, inmates effected by the contaminated water in St. Louis, MI have not been successful in seeking redress through the court system. Because of the failure of g­ overnmental

144

Bradshaw

remedies, it is essential to build an anti-prison environmental movement to address intersectional problems such as toxic prisons. State Crime, the Military Industrial Complex and Environmental Harm Within the literature on state crime, a great deal of research has focused on crimes surrounding war, yet less attention has been paid to the environmental consequences of the military industrial complex. For example, state crime researchers have studied: the illegal invasion and occupation of Iraq by the U.S. (Kramer and Michalowski, 2005; Kramer, Michalowski and Rothe, 2005); the connection between illegal campaign contributions and post-war reconstruction contracts (Hogan, Long, Stretesky and Lynch, 2006); the use of depleted uranium as a weapon of war (White 2008); the abuse of Iraqi prisoners at Abu Ghraib and the War on Terror as state crime (Smeulers and van Niekerk, 2009); the normalization of the terror bombing of civilians (Kramer, 2010); and the unaccountability of private military contractors in war zones (Rothe and Ross, 2010). While all address the criminality of these practices, the works lack a specific connection to green criminology. Furthermore, there is also an important body of criminological research on the production, possession, threat and use of nuclear weapons as state crime (Friedrichs 1985, 2010; Kauzlarich and Kramer, 1998; Kramer and Kauzlarich, 1999, 2011; Kramer and Bradshaw, 2011). While Kauzlarich and Kramer’s (1998) Crimes of the American Nuclear State significantly highlights the criminal environmental contamination resulting from nuclear weapons, much more research is needed on the environmental legacy of nuclear weapons production, storage, maintenance and use. The U.S. Department of Defense is one of the world’s largest polluters. Of the roughly 1,200 Superfund sites in the U.S., about 900 of them are abandoned military facilities or sites that support military needs (President’s Cancer Panel, 2010). Specifically, 149 current and former military bases are designated Superfund sites by the epa. 1.2

The sites include chemical warfare and research facilities; plane, ship and tank manufacture and repair facilities; training and maneuver bases; and abandoned disposal pits. Common contaminants include metal cleaning solvents, pesticides, machining oils, metals, metalworking fluids and chemical ingredients used in explosives. Dumped into pits, leaking from corroding containers, buried in unlined landfills, and left on test ranges, military toxics have leached into groundwater and polluted drinking ­water (Hynes, 2011).

Green State Crimes and Toxic Prisons

145

Furthermore, according to the advocacy group Environment America, the dod is the third largest polluter of the U.S. waterways (Urry, 2016). As Pro ­Publica’s reporting series “Bombs in Your Backyard” highlights, the military spends more than a billion dollars a year to clean up sites contaminated with toxic waste and explosives. Contaminated military sites exist in every state, some near ­residential neighborhoods, schools, hospitals and correctional facilities (Groger, Jones and Lustgarten, 2017). The federal government has a long history of constructing prisons on abandoned mines, toxic waste sites and abandoned military bases. As Human Rights Defense Center (hrdc) director Paul Wright explains, prisons …are often built on land that no one wants. Landowners see deals with the bop as a last-ditch attempt to redevelop their property, and members of Congress see them as an opportunity to funnel federal money into their home states. “The thinking is, the only people we can get to live here are the ones we are bringing here at gun point and keeping here at gun point” (as cited in Ludwig, 2015). In support of this policy, a report by the President’s Economic Adjustment Committee (1990) titled Using Former Military Installations as Correctional Facilities summarizes the ways in which Federal, State and local governments acquired 14 former military properties and converted them into 19 separate correctional facilities. Touting the job and income generating effects of converting military facilities, the report also contends that local communities are more accepting of governmental ‘industry’ in their area compared to construction of a new facility. The report, however, neglects to mention the military’s long history of environmental degradation across many of its bases at home and abroad and the health risks that come with repurposing this toxic land. Nonetheless, multiple state and federal correctional and immigration detention facilities are located on former military bases with varying degrees of ­environmental contamination. 2

Case Study: The Toxic Legacy of George Air Force Base, Victorville, CA

Located in Victorville, CA, George Air Force Base was involved in active military engagement from 1941 to 1992 and played a key role in wwii, the Korean War, and the Vietnam War and was the primary base for the Western Air Defense Force. Reports surfaced in 1977 of contaminated soil, including pesticide

146

Bradshaw

c­ ontamination around base housing, but the Air Force failed to acknowledge the problem until 1979. The Air Force did not initially publicly admit that weapons grade materials, both conventional and atomic, were disposed of at the South East Disposal Area (seda) as well as another site near the base’s alert hangar (Gutgluek, 2015). Remediation efforts by the state and federal government have been ongoing at the site since 1990, when it was first designated a Superfund site by the epa. It was later discovered by former service member, Frank Vera, through a Freedom of Information Act (foia) request that a nuclear weapons testing decontamination center once existed at the base. When planes were flown through radioactive areas, such as mushroom clouds produced by thermonuclear explosions, to collect samples or take photos, they were then brought back to the base to “hot washdown” areas to be decontaminated. The number of decontamination centers or their precise location on the base is unknown, nor is there any official record of remediation for radiological contaminants. In 1985, a partially buried low-level radioactive dump was discovered at the South East Disposal Area, which included small quantities of radionuclides like cesium 137, uranium 238 and thorium 232. An earlier 1979 investigation by former Air Force chief of environmental and contract programming located 18 to 20, 55—gallon drums of radioactive waste in the Southeast Disposal Area (seda). Moreover, the investigator hypothesized that more radioactive waste was dumped in the disposal area than was officially documented. Additionally, located less than a quarter mile from municipal water supply wells, groundwater beneath the seda is suspected to contain levels of gross alpha and gross beta radiological activity that surpasses federal standards. However, regulators are not currently analyzing any of the cleanup sites for radiological contaminants (Ross, 2016). According to the data from the Department of Defense, there are 219 hazardous sites associated with George Air Force Base, 196 of which are inactive since cleanup actions are complete though many of them continue to undergo longterm monitoring and other restrictions (Groger, Jones and Lustgarten, 2017). Although the risk was not evaluated, contaminated soil from a radioactive disposal landfill was on one of the sites that required long-term monitoring. Military cleanup actions are ongoing at 23 sites with varying levels of risk to safety, human health and the environment. So far, more than $172 million has been spent on the evaluation and cleanup of these sites, with an expected additional $62.2 million more needed. The expected completion date for all cleanup ­operations at the site is not until 2077 (Groeger, Jones and Lustgarten,2017). As found at many other decommissioned Air Force bases, an array of chemicals exist at George that have serious implications for human health.

Green State Crimes and Toxic Prisons

147

Heavy industrial solvents like trichloroethylene (tce), chlorinated pesticides like dieldrin and aldrin, as well as common jet fuel constituents like ethylene dibromide, benzene and naphthalene are among a long list of known contaminants found in the soil and groundwater. All these contaminants can cause an array of chronic human health problems, and many are known carcinogens. ross, 2016

In large amounts, exposure to chlorinated pesticides can cause chronic health problems including Parkinson’s disease, breast cancer, as well as damage to the immune, nervous and reproductive systems. A cancer causing solvent, Trichloroethylene, has contaminated two aquafers beneath the base and is threatening a third aquafer as well as the nearby Mojave River. The Air Force’s approach, however, is to leave the contaminated groundwater untreated in hopes that the chemicals will slowly diminish over time. Known as monitored natural attenuation (or mna), the widespread practice is used at 85 of the U.S. military locations classified as Superfund sites. The local Lahontan Regional Water Quality Control Board, the agency overseeing the cleanup, asserts that the contaminants will not break down to safe levels for up to 500 years unless active treatment is undertaken (Ross, 2017). When the base was active, medical personnel on the base advised Air Force personnel not to become pregnant because of the high infant mortality rate of the area (Gutgluek, 2015). A recent report in Military Times concluded that women stationed at George in the 1990s had disproportionate numbers of miscarriages, babies born with birth defects and hysterectomies (Copp, 2018a). This is part of a larger trend of environmental contamination in and around military bases. George Air Force Base is also one of 126 bases that reports water containing perfluorinated compounds (also known as pfos and pfas) which were used in firefighting foam to extinguish jet fuel fires. The Pentagon confirmed that pfas and pfos have been linked to cancers and developmental delays for fetuses and infants (Copp, 2018b). Even though attention has recently been paid to the military personnel who suffered negative health impacts while stationed at George, less concern has been shown for the inmates and detainees forcibly incarcerated at the Victorville Federal Correctional Complex located on the base. 2.1 ice Detainees at Victorville Federal Correctional Institution Built in 2004 on the site of one of the weapons storage areas of the former Georgia Air Force Base, the Victorville Federal Correctional Institution is

148

Bradshaw

c­ omprised of three facilities: fci Victorville Medium I, fci Victorville Medium ii and US Penitentiary Victorville. The racial and ethnic composition of the people incarcerated at Victorville fci is disproportionately Black and Hispanic. Victorville Medium I houses 1,186 total male offenders, 22.3% of which are Black and nearly 60% who identify as Hispanic (Corrections Information Council, 2016a). Victorville Medium ii houses 791 total inmates, nearly 20% of which are Black and more than 60% who identify as Hispanic (Corrections Information Council, 2016b). Victorville usp houses 1,221 total male offenders, 28.6% of which are Black and 36.4% who identify as Hispanic (Corrections Information Council, 2016c). Inmates at the facility report unsafe and dangerous conditions due to violence and gang activity (Corrections Information Council, 2016a, 2016b, 2016c). As revealed by a recent New York Times report, hazing and humiliation is common for women working inside Victorville fci, as well as other federal prisons (Dickerson, 2018). Beginning on July 8, 2018, the Department of Homeland Security (dhs) and Immigration and Customs Enforcement (ice) unconstitutionally imprisoned 1,000 civil immigration detainees from El Salvador, Honduras, India, Cameroon and other troubled regions at Victorville fci. Rather than punishment, the purpose of detention for non-criminal immigrant detainees is to prepare individuals for removal or to ensure their appearance in immigrant and/or asylum court proceedings. Both the Bureau of Prisons (bop) and Victorville fci were unprepared for the transfer. The addition of 1,000 non-criminal immigrants further strained the facility’s resources, making life difficult for guards and inmates alike and leading to protests on both ends (Gill, 2018; Michaels, 2018). Teachers and other non-prison staff were reassigned to serve as correctional officers due to the shortages. Although bop policy states that ice detainees must be treated accordingly, bop staff were not trained on how to handle civil detainees (American Civil Liberties Union, 2018). Working with the American Civil Liberties Union, six class representatives, on behalf of all civil immigration detainees who are currently or will be imprisoned at Victorville, filed suit against President Donald Trump and other top administration officials. The lawsuit alleges that the Defendants: 1) Failed to provide minimally adequate health care, 2) Failed to provide adequate nutrition, 3) Inhibited detainees’ free exercise of religion, and 4) Confined detainees under conditions that were unnecessarily restrictive and punitive in nature. Noted among those punitive conditions is the environmental hazards stemming from the placement of the facility on top of a radioactive Superfund site including toxic materials in the water supply. Due to the harsh treatment experienced by the immigrant detainees during their time at Victorville, many expressed a desire to be immediately returned to their country of origin and

Green State Crimes and Toxic Prisons

149

forgo their asylum claims entirely (American Civil Liberties Union, 2018). Currently, the lawsuit is still in litigation and convicted criminals and non-criminal immigrant detainees alike continue to endure the toxic conditions at Victorville fci. 3

Discussion and Conclusion

As Michalowski and Hardy (2014) have asserted, U.S. immigration policy and enforcement along the Southern border constitutes state crime, specifically in two ways. One category of state crime includes injuries and other harms suffered by migrants as a result of immigration and border enforcement policies. The second form of harm to the physical health and well-being of Latino immigrants are ‘attrition through enforcement’ policies that seek to restrict access to the necessities of daily life so that unauthorized immigrants will “selfdeport” (2014: 87). Self-deportation, they argue, is a fundamental violation of basic human rights. Similarly, the harms directed against immigrant detainees at Victorville fci are so severe that refugees are coerced into abandoning their asylum claims and self-deporting. As Michalowski and Hardy (2014) make clear, both the U.S. federal government as well as several of its member states should be held accountable for the avoidable injuries that result from immigration policy and border enforcement. The Trump administration’s punitive “zero tolerance” policy towards immigrants has created a manufactured crisis of insufficient bed space within ice detention facilities. As the American Civil Liberties Union (2018) argues, the Trump administration … employed a series of cruel and inhumane tactics—separating families, denying parole, widespread detention of immigrants, including the elderly and long time U.S. residents, blocking asylum seekers from ports of entry, and prosecuting immigrants crossing the border—all with the stated objective to “deter” those fleeing oppressive and life-threatening conditions. This manufactured crisis of insufficient space led the dhs and ice to broker an agreement with the Bureau of Prisons to hastily transfer 1,600 immigrant detainees to five federal prison facilities, including Victorville fci (U.S. ­Department of Homeland Security, 2018). To accommodate the growing number of immigrants detained under zero tolerance policies, the Trump administration has also considered holding immigrant children as well as adult ­migrants on

150

Bradshaw

military bases (Hennigan and Elliott, 2018; Miroff and Sonne, 2018). Given the prevalence of environmental contamination at military bases, it is likely that these undocumented migrants may also experience environmental injustices at the hands of the state while incarcerated. As Trump’s punitive immigration policies show no sign of abating, anticipated growth in migrant detention is fueling rising stock prices for private prison companies (Pauly, 2018). The fundamental role of the government in ­delivering punishment makes the state ultimately accountable for environmental injustice inside correctional institutions. At odds with this responsibility is profit motive and privatization of public institutions. As Paul Wright, the formerly incarcerated executive director of the Human Rights Defense Center, explains: A lot of people, when they think of environment and toxic polluters, they think corporations, and they think that the government is somehow a solution to this problem…The prison ecology issue turns that whole thing on its head because in these cases it’s the government that’s chosen to build these prisons on toxic waste sites or allowed them to become sources of toxic waste. And it is literally holding people at gunpoint at these sites and exposing them (as cited in Bernd et al., 2017). The pivotal role of the state in perpetuating environmental injustices against incarcerated populations cannot be overstated. The study of toxic prisons sheds insight into a unique form of state harm against largely impoverished minorities who themselves have experienced significant victimization. Investigative reports by prisoner advocacy organizations such as the Abolitionist Law Center and Human Rights Defense Center as well as activism by groups such as the Campaign to Fight Toxic Prisons have been essential in raising public awareness of the phenomena of toxic prisons. Green state crime researchers must contribute to this body of evidence and engage in what Kramer, Michalowski and Chambliss (2010) refer to as a ‘public criminology of state crime.’ Working with community members, activists and advocacy organizations can help to shift the public dialogue about environmental injustice behind prison walls to focus on the role of the state in initiating and facilitating environmental harm. The environmental contamination at the former George Air Force Base is not unique, nor are the toxic conditions of confinement for those incarcerated at Victorville fci. Toxic sites resulting from the military industrial ­complex ­exist across the country, in all of our backyards. These environmental hazards

Green State Crimes and Toxic Prisons

151

resulting from repressive state operations can be classified as green state crimes unto themselves. However, the harms resulting from forced ­incarceration on or near toxic sites constitutes another more explicit form of green state crime. Regardless of their citizenship status, individuals convicted of crimes and those held as civil immigrant detainees are both unjustly exposed to environmental hazards during their time in the care of the state. The intersection between green criminology and state crime provides fertile soil for further exploration of topics such as toxic prisons and the environmental legacy of the military industrial complex. As Moloney and Chambliss (2014) made clear, further synthesis between state crime and green criminology will not only benefit our respective disciplines, but will also ideally make substantial changes to the world around us. References Alexander, M. 2010. The New Jim Crow: Mass Incarceration in the Era of Colorblindness. New York, NY: New Press. American Civil Liberties Union. 2018. Stephenson Awah Teneng, MarcelNgwa, Ankush Kumar, Gurjinder Singh, Atinder Paul Singh, Noe Mauricio Granados Aquino, and all others similarly situated v. Donald J. Trump, Kirstjen Nielsen, Ronald D. Vitiello, David Marin, Jefferson Beauregard Sessions, Hugh J. Hurwitz, David Shinn. Unites States District Court, Central District of California, Eastern Division—Riverside. Case 5:18-cv-01609. Filed 8/01/18. Retrieved January 1, 2019 (https://www.aclu.org/sites/ default/files/field_document/18.08.01_doc_1_class_action_complaint.pdf). Bernd, C., Zoe, L.-F., and Maureen, N.M. 2017. “America’s Toxic Prisons: The Environmental Injustices of Mass Incarceration.” Earth Island Journal and Truthout, June 1. Retrieved January 1, 2019 (https://truthout.org/articles/america-s-toxicprisons-the-environmental-injustices-of-mass-incarceration/). Bradshaw, E. 2018. “Tombstone Towns and Toxic Prisons: Prison Ecology and the Necessity of the Anti-Prison Environmental Movement.” Critical Criminology, 26(3): 407–422. Chambliss, W.J. 1995. “Commentary.” Society for the Study of Social Problems (SSSP) Newsletter, 26(1): 9. Chambliss, W.J. 1989. “State-Organized Crime.” Criminology, 27(2): 183–208. Copp, T. 2018a. “Why Women Were Told ‘Don’t get Pregnant at George Air Force Base.’” Military Times, June 19. Retrieved January 1, 2019 (https://www.militarytimes. com/news/your-military/2018/06/20/why-women-were-told-dont-get-pregnantat-george-air-force-base/).

152

Bradshaw

Copp, T. 2018b. “DOD: At Least 126 Bases Report Water Contaminations Linked to ­Cancer, Birth Defects.” Military Times, April 26. Retrieved January 1, 2019 (https:// www.militarytimes.com/news/your-military/2018/04/26/dod-126-bases-reportwater-contaminants-harmful-to-infant-development-tied-to-cancers/). Corrections Information Council. 2016a. Inspection Report, fci Victorville Medium i. January 7. Retrieved January 1, 2019 (https://cic.dc.gov/sites/default/files/dc/sites/ cic/publication/attachments/FCI%20Victorville%20Medium%20I%20FINAL%20 1.7.16.pdf). Corrections Information Council. 2016b. Inspection Report, fci Victorville Medium ii. January 7. Retrieved January 1, 2019 (https://cic.dc.gov/sites/default/files/dc/sites/ cic/publication/attachments/FCI%20Victorville%20Medium%20II%20FINAL%20 1.7.16.pdf). Corrections Information Council. 2016c. Inspection Report, usp Victorville. January 7. Retrieved January 1, 2019 (https://cic.dc.gov/sites/default/files/dc/sites/cic/ publication/attachments/USP%20Victorville%20Report%20FINAL%201.7.16.pdf). Dannenberg, J. 2007. “Prison Drinking Water and Wastewater Pollution Threated Environmental Safety Nationwide.” Prison Legal News, November 15. Retrieved January 1, 2019 (https://www.prisonlegalnews.org/news/2007/nov/15/prison-drinking-waterand-wastewater-pollution-threaten-environmental-safety-nationwide/). Dickerson, C. 2018. “Hazing, Humiliation, Terror: Working While Female in Federal Prison.” New York Times, November 17. Retrieved January 1, 2019 (https://www .nytimes.com/2018/11/17/us/prison-sexual-harassment-women.html). Friedrichs, D. 2010. Trusted Criminals: White Collar Crime in Contemporary Society, (4th edn.). Belmont, CA: Wadsworth. Friedrichs, D. 1985. “The Nuclear Arms Issue and the Field of Criminal Justice.” The Justice Professional, 1(1): 5–9. Gill, L. 2018. “As Immigrant Detainees are Moved to Prisons, What Happens to the Prisoners?” Rolling Stone, July 3. Retrieved January 1, 2019 (https://www.rolling stone.com/culture/culture-features/immigrant-detainees-victorville-californiaprisoners-695215/). Groeger, L., Jones, R. and Lustgarten, A. 2017. “Bombs in Your Backyard.” ProPublica, November 30. Retrieved January 1, 2019 (https://projects.propublica.org/bombs/). Gutglueck, M. 2015. “Air Force Less than Clear on Extent of Nuclear Contamination at GAFB.” San Bernardino Sentinel, May 17. Retrieved January 19, 2019 (http://sbcsentinel.com/2015/05/air-force-less-than-clear-on-extent-of-nuclearcontamination-at-gafb/). Hennigan, W.J. and Elliott, P. 2018. “Two Military Bases in Texas Set to House Thousands of Migrants.” Time, June 25. Retrieved January 1, 2019 (http://time.com/5321083/ military-bases-house-migrants/).

Green State Crimes and Toxic Prisons

153

Hogan, M., Long, M., Stretesky, P. and Lynch, M. 2006. “Campaign Contributions, Postwar Reconstruction Contracts, and State Crime.” Deviant Behavior, 27(3): 269–297. Hynes, P. 2011. “Military Hazardous Waste Sickens Land and People.” Truthout, August 4. Retrieved January 1, 2019 (https://truthout.org/articles/military-hazardouswaste-sickens-land-and-people/). Jewkes, Y. and Moran, D. 2015. “The Paradox of the ‘Green’ Prison: Sustaining the Environment or Sustaining the Penal Complex?” Theoretical Criminology, 19(4): 451–469. Kauzlarich, D. and Kramer, R. 1998. Crimes of the American Nuclear State: At Home and Abroad. Boston, MA: Northeastern University Press. Kramer, R. 2010. “From Guernica to Hiroshima to Baghdad: The Normalization of the Terror Bombing of Civilians.” pp. 118–133 in W.J. Chambliss, R. Michalowski and R. Kramer (Eds.), State Crime in the Global Age. Portland, WA: Willan Publishing. Kramer, R. and Bradshaw, E. 2011. “U.S. State Crimes Related to Nuclear Weapons: Is there Hope for Change in the Obama Administration?” International Journal of Comparative and Applied Criminal Justice, 35(3): 245–261. Kramer, R. and Kauzlarich, D. 2011. “Nuclear Weapons, International Law, and the Normalization of State Crime.” pp. 68–93 in D. Rothe and C. Mullins (Eds.). State Crime: Current Perspectives. New Brunswick, N.J.: Rutgers University Press. Kramer, R. and Kauzlarich, D. 1999. “The Opinion of the International Court of Justice on the Use of Nuclear Weapons: Implications for Criminology.” Contemporary ­Justice Review, 2(4): 395–413. Kramer, R. and Michalowski, R. 2005. “War Aggression and State Crime: A Criminological Analysis of the Invasion and Occupation of Iraq.” The British Journal of Criminology, 45(4): 446–469. Kramer, R., Michalowski, R and Chambliss W.J. 2010. “Epilogue: Toward a Public Criminology of State Crime.” pp. 247–261 in W.J. Chambliss, R. Michalowski and R. Kramer (Eds.), State Crime in the Global Age. Portland, OR: Willan Publishing. Kramer, R., Michalowski, R. and Rothe, D. 2006. “The Supreme International Crime”: How the U.S. War in Iraq Threatens the Rule of Law.” Social Justice, 32(2): 52–81. Ludwig, M. 2014. “Federal Agencies Ignore Environmental Health Risks for Millions of Prisoners.” Truthout, July 15. Retrieved January 15, 2019 (https://truthout.org/articles/ federal-agencies-ignore-environmental-health-risks-for-millions-of-prisoners/). Lynch, M. 1990. “The Greening of Criminology: A Perspective on the 1990s.” The Critical Criminologist, 2: 1–5. Lynch, M. 2016. “The Ecological Distribution of Community Advantage and Disadvantage: Power Structures, Political Economy, Communities, and Green-State Crime and Justice.” Critical Criminology, 24(2): 247–262. Lynch, M., Stretesky, P. and Long, M. 2017. “State and Green Crimes related to water ­pollution and ecological disorganization: water pollution from publicly owned

154

Bradshaw

treatment works (POTW) facilities across the US states.” Palgrave Communications, 3: 17070. Michaels, S. 2018. “Understaffed Federal Prison is Taking in 1,000 Noncriminal Immigrants, and Even the Guards are Protesting.” Mother Jones, June 15. Retrieved January 1, 2019 (https://www.motherjones.com/crime-justice/2018/06/understaffed-­federalprison-is-taking-in-1000-noncriminal-immigrants-and-even-the-guards-areprotesting/). Michalowski, R. and Hardy, L. 2014. “Victimizing the Undocumented: Immigration and Border Enforcement as State Crime.” pp. 87–109 in D. Rothe and D. Kauzlarich (Eds.), Towards a Victimology of State Crime. New York, NY: Routledge. Miroff, N. and Sonne, P. 2018. “Trump Administration Preparing to Hold Immigrant Children on Military Bases.” The Washington Post, May 15. Retrieved J­ anuary 1, 2019 (https://www.washingtonpost.com/world/national-security/trump-­administration -preparing-to-shelter-migrant-children-on-military-bases/2018/05/15/f8103356584e-11e8-b656-a5f8c2a9295d_story.html?utm_term=.344cc087f244). Moloney, C. and Chambliss, W.J. 2014. “Slaughtering the Bison, Controlling Native Americans: A State Crime and Green Criminology Synthesis.” Critical Criminology, 22(3): 319–338. Pauly, M. 2018. “Trump’s Immigration Crackdown is a Boom Time for Private Prisons.” Mother Jones, May/June. Retrieved January 1, 2019 (https://www.motherjones .com/politics/2018/05/trumps-immigration-crackdown-is-a-boom-time-for-pri vate-prisons/). President’s Cancer Panel. 2010. Reducing Environmental Cancer Risk: What We Can Do Now. U.S. Department of Health and Human Services, National Institutes of Health and the National Cancer Institute. Retrieved January 1, 2019 (https://deainfo.nci.nih .gov/advisory/pcp/annualReports/pcp08-09rpt/PCP_Report_08-09_508.pdf). Pro Publica. 2017. Bombs in Our Backyard Series. Retrieved January 20, 2019 (https:// projects.propublica.org/bombs/installation/CA9570024453005700). Ross, D. 2016. ““I’m Mad as Hell”: Air force Members Blame Health Horrors on Toxic ­Exposure.” Truthout, April 17. Retrieved January 1, 2019 (https://truthout.org/ articles/i-m-mad-as-hell-air-force-members-blame-health-horrors-on-toxicexposure/). Ross, D. 2017. “Novel Strategy for Dealing with Toxic Contamination: Do Nothing.” Fair Warning, February 28. Retrieved January 1, 2019 (https://www.fairwarning .org/2017/02/novel-way-dealing-toxic-waste/). Rothe, D. and Ross, J.I. 2010. “Private Military Contractors, Crime and the Terrain of Unaccountability.” Justice Quarterly, 27(4): 593–617. Smeulers, A. and van Niekerk, S. 2009. “Abu Ghraib and the War on Terror—A Case Against Donald Rumsfeld?” Crime Law and Social Change, 51(3–4): 327–349.

Green State Crimes and Toxic Prisons

155

South, N. 1998. “A Green Field for Criminology? A Proposal for a Perspective. Theoretical Criminology, 2(2): 211–233. The Campaign to Fight Toxic Prisons. 2019. Retrieved January 1, 2019 (https://fight toxicprisons.wordpress.com/). Tsolkas, P. 2016. “Incarceration, justice and the planet: How the fight against toxic prisons may shape the future of environmentalism.” Prison Legal News, June 3. Retrieved January 15, 2019 (https://www.prisonlegalnews.org/news/2016/jun/3/ ncarceration-justice-and-planet-how-fight-against-toxic-prisons-may-shapefuture-environmentalism/). Urry, E. 2016. “The Department of Defense is the Third Largest Polluter of US Waterways.” EnviroNews, February 15. Retrieved January 1, 2019 (https://truthout.org/articles/ the-department-of-defense-is-the-third-largest-polluter-of-us-waterways/). U.S. Department of Homeland Security, US Immigration and Customs Enforcement and Federal Bureau of Prisons, Federal Correctional Complex Victorville. InterAgency Agreement, June 8, 2018—June 8, 2019. Retrieved January 1, 2019 (https:// assets.documentcloud.org/documents/4829372/Victorville-CA-FederalCorrectional-Complex-BOP.pdf). U.S. Environmental Protection Agency. 2016. Environmental Justice and the National Environmental Policy Act. Retrieved January 15, 2019 (https://www.epa.gov/­ environmentaljustice/environmental-justice-and-national-environmental-policyact). Wagner, P. and Sawyer, W. 2018. “Mass Incarceration: The Whole Pie 2018.” Prison Policy Institute, March 14. Retrieved January 19, 2019 (https://www.prisonpolicy.org/ reports/pie2018.html). Waters, M. 2018. “How Prisons are Poisoning their Inmates.” The Outline, July 23. Retrieved January 1, 2019 (https://theoutline.com/post/5410/toxic-prisons-fayette-tacomacontaminated?zd=1&zi=2bhujrfp). White, R. 2008. “Depleted Uranium, State Crime and the Politics of Knowing.” Theoretical Criminology, 12(1): 31–54.

Chapter 8

Make Our Enemy—Kill Our Enemy: the Creation of the Islamic State of Iraq and Syria: From Realpolitik to Biopolitics to Necropolitics Sarah Pedigo Kulzer and David O. Friedrichs 1

Preface: William J. Chambliss’s “State-Organized Crime” Presidential Address and the Criminology of Crimes of States

At the end of May 2008, a state crime workshop was held in Onati, Spain. This workshop was organized by William J. Chambliss, Raymond Michalowski, and Ronald C. Kramer. The setting for the workshop was especially memorable, as it was held at the medieval-era University of Onati, under the auspices of the Onati Institute for the Sociology of Law. Onati is in the Basque area of Spain, and Basque nationalists and separatists have long claimed that their region has been victimized by the crimes of the Spanish state. Spain itself continues to this day to contend with the crimes of the state committed during the long reign of the Franco regime. The papers presented (along with several additional papers) were subsequently published (Chambliss, Michalowski and Kramer, 2010). In his contribution to the published anthology, the second author of the present chapter, a participant in the Onati Workshop, suggested that it was appropriate in 2008 to commemorate the twentieth anniversary of Chambliss’s American Society of Criminology Presidential Address (Friedrichs, 2010). This presidential address, “State-organized crime,” was subsequently published in the journal Criminology (Chambliss, 1989). The present chapter has been composed in 2018, so thirty years after Chambliss’s presidential address, and ten years after the Onati Workshop. Bill Chambliss’s presidential address is likely to be regarded historically in a manner parallel to the status of another presidential address almost a half century earlier, Edwin H. Sutherland’s American Sociological Society presidential address on “White Collar Criminality,” in 1939 (published in the American Sociological Review in 1940). Sutherland’s address is widely credited with having played the key role in the establishment of a criminology of white-collar crime, and Chambliss’s address deserves to be credited with having played a key role in the establishment of a criminology of crimes of states. In the case of both Sutherland and Chambliss there were, of course, progenitors: i.e., those who had come before and called for criminological

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004411678_009

Make Our Enemy—Kill Our Enemy

157

a­ ttention to white-collar crime and crimes of states. In the case of Sutherland, Marx and Engels, E.A. Ross, and Willem Bonger are among those who have been identified as progenitors, although there are others as well. In the case of Chambliss, Louis Proal, Austin Turk, and Stanley Cohen are among those who could be identified as progenitors. But for all kinds of reasons—including the high-profile character of their presidential addresses—Edwin H. Sutherland and William J. Chambliss merit the lion’s share of credit for their respective initiatives in relation to two increasingly significant areas of criminological inquiry. And it seems worth noting, as well, that only in the 1970s—more than thirty years after Sutherland’s address—did a significant body of white-collar crime-related scholarship begin to emerge (with, of course, some conspicuous earlier contributions, but these were relatively few and far between). In the case of Chambliss’s address we begin to see the emergence of a significant body of crimes of states-related criminological scholarship from the late 1990s on, a mere ten years after his presidential address. Yes, this shorter lead time undoubtedly owes something to the fact that the size of the field of criminology by the 1990s was significantly larger than it was several decades earlier. But altogether those who believe that a criminology of crimes of states is wholly deserving of support can take some encouragement in these developments, with especially substantial growth since 2007 (Friedrichs, 2015). And there is every good reason to believe that a criminology of crimes of states will be an expanding enterprise in the years ahead. Chambliss (1989) in his presidential address opened with a consideration of state-supported piracy, going back to the sixteenth century and continuing well into the nineteenth century, as a seminal form of state-organized crime. He then addressed various more recent manifestations of state-organized crime. The criminology of crimes of states in the wake of Chambliss’s contribution has expanded the scope of activities considered well beyond those addressed by Chambliss. A basic premise shared by criminologists who have chosen to address crimes of states is that the harm caused is exponentially greater than that caused by conventional crime, crimes of states needs to be understood and addressed specifically as crime, and accordingly such crime needs to be recognized as a significant topic for criminological inquiry. The notion of crimes of states is not limited to intentional harms perpetrated by a state, such as the classic case of the Holocaust and the Nazi state. Harm that is a collateral consequence of state policies and actions, or even the failure of states to act, can be addressed as part of the mission of a criminology of crimes of states. Also, the notion of “crimes of states” need not be limited to internationally recognized states, such as by the United Nations, but can be extended to entities such as militias that seek to govern territories and aspire to

158

Pedigo KULZER and Friedrichs

create a new state. And the analysis of “crimes of states” need not be limited to state policies and practices of the past and the present, but can be extended to anticipation of harm from such state policies and practices, looking to the future. The present chapter addresses harms emanating out of United States policy in the Middle East, specifically in relation to the invasion of Iraq in 2003 and in response to the Syrian “civil war” that began in 2011. The harms involved are past, present—and prospective. This analysis builds on the foundational contributions of both Edwin H. Sutherland and William J. Chambliss insofar as it encompasses the interests of both businesses and states, and how their aligned and interrelated interests are a source of great harm. More broadly, the analysis set forth in this chapter—as developed by the first author—aspires to contribute to the growing literature on “the crimes of the powerful.” Frank Pearce (1976) is commonly credited with having introduced this term to the literature, in a book so entitled. The influence of this book is reflected in Revisiting Crimes of the Powerful: Marxism, Crime and Deviance (Bittle, Snider, Tombs and Whyte, 2018) and the present scope of inquiry in this realm is well elucidated in Dawn Rothe and David Kauzlarich’s (2016) Crimes of the Powerful: An Introduction. There are many good reasons to believe that, going forward, the field of criminology will increasingly have to address crimes of the powerful relative to its traditional, overwhelming privileging of attention to crimes of the powerless. Finally: A basic caveat about the analysis that follows needs to be stated. For all forms of crime control the presumed purpose is to adopt and implement policies and practices that prevent or limit the scope of harm from crime. While for some policies and practices there may be a widely diffused consensus that they do in fact achieve this end, for other policies and practices there are longstanding debates and disagreements. Policies and practices pertaining to the legal status of drugs, gun control, and the death penalty are just three examples of such debates. The “stop and frisk” policy and practice is one recent example along these lines. In relation to crimes of states one can assert that the complexities involved in preventing and responding to them tend to be infinitely greater than for conventional forms of crime. And these complexities are well represented in the cases of crimes of states in Iraq and Syria in the recent era. That Saddam Hussein was committing terrible crimes against the Iraqi people, and others (e.g., the Kurds) and that Bashar Al-Assad has been committing terrible crimes against the Syrian people is incontestable. That well-meaning and well-informed observers were divided over the optimal response to the crimes of Saddam Hussein and have in recent years been divided over the optimal response to the crimes of Bashar Al-Assad is accordingly incontestable as well. It is not the intention of the analysis that follows to suggest that the optimal

Make Our Enemy—Kill Our Enemy

159

policies and practices can be easily and conclusively established. Rather, it is the intention of this analysis to demonstrate the ways in which interventionist policies and practices can and have promoted egregious forms of crimes of states and have amplified the harm arising out of such crimes. 2

United States Policy in the Middle East and a Prospective Criminology of Crimes of States The Islamic State of Iraq and Syria is a direct outgrowth of al-Qaeda in Iraq that grew out of our invasion. Which is an example of unintended consequences. president barack obama (2015)

The United States’ illegal act of aggression against Iraq based on the claim that Saddam Hussein’s regime was developing weapons of mass destruction (wmd) and on the claim that humanitarian intervention was needed resulted in a catastrophic loss of life, the collapse of the Iraqi political and economic systems, and the emergence of a cataclysmic schism between warring political and religious factions situated within the country, among other consequences. While criminological scholars have frequently referenced the United States’ involvement in Iraq, there has been very little criminological research examining the United States’ involvement in Syria or how their policies and interventions in Iraq and elsewhere have created resistance movements and power vacuums that allow for and facilitate the rise of ‘terrorist’ groups vying for power. While the concept of a power vacuum is not new by any means, it has not been applied to criminological research regarding the United States’ alleged war on ‘terrorism,’ nor its impact on the ongoing struggle for power within the region. While the authors do not dispute that both Saddam Hussein during his regime carried out monumental crimes of states, and Bashar al-Assad continues to do so today, it is important to note that such dictators also provide a form of stasis, albeit via grossly reprehensible methods, by representing an unquestionable authority over warring schisms within their prospective countries. Once removed, as with the case of Iraq, the previously absolute imposition of authority was left vacant, ultimately resulting in a struggle for power. Accordingly, the emergence of terrorist groups such as the Islamic State of Iraq and Syria (isis), can be attributed at least to a significant degree to the United States’ illegal war of aggression in Iraq. We suggest that the “unintended consequences” as noted by President Obama are the result of the prioritization of the neoliberalism agenda and state self-interests at all costs.

160

Pedigo KULZER and Friedrichs

We claim that it is useful to address the consequences of United States policy in the Middle East in terms of the criminology of crimes of states. More specifically, this chapter contributes to an understanding of how the United States’ foreign policy in Iraq and Syria, driven by geopolitical interests-realpolitik and neoliberalism, and carried out through the exercise of biopower, has resulted in the rise of violent extremist groups such as the Islamic State of Iraq and Syria. Additionally, we invoke what the second author (Friedrichs, 2010: 1) calls a “prospective” criminology of state crimes. He notes that, “a ‘prospective’ criminology in a complex, globalized world looks ahead toward anticipating key emerging developments and changes in this world.” The primary focus of a “prospective” approach is “the identification of potential sites of prospective crimes of states.” Furthermore, a prospective criminology of state crime not only must be rooted in a retrospective criminology of state crime, but also must adopt a coherent framework of a rapidly evolving world, including the current features of globalization and postmodernity, as well as the significance of a post-9/11 world. friedrichs, 2013: 23

As such, this perspective attempts to identify, in this case, how present policies and practices utilized by the United States can produce hugely harmful consequences, as occurred in Iraq, with the aim of identifying avenues that curb these harms and, ideally, maximize positive outcomes in the future. In this spirit, we propose that if the United States were to remove the Assad regime and dismantle the Alawite ruling class as it did with the Hussein regime and the Ba’ath party in Iraq, it would leave Syria with a similar power vacuum that could easily be filled by Sunni backed extremist groups, including the Islamic State of Iraq and Syria. 3

Literature and Theoretical Frame Overview

While crimes of the state are inherently multidisciplinary in nature, often including elements of political science, international relations, economics, etc., it is important to highlight the benefits of addressing these issues specifically as criminological issues. Critical criminology has a storied history of exposing the underlying agenda of the criminal justice system, one that prioritizes the interests of the powerful, often under the guise of “crime control” and “law and order.” Bill Chambliss’s (1964) analysis of vagrancy laws as being motivated

Make Our Enemy—Kill Our Enemy

161

by the protection of the ownership class to the detriment of the citizenry is a ­classic contribution to the illustration of this proposition. While the concern with the reduction of harm to the citizens of both Iraq and Syria—as well as hypothetical harms to citizens of the United States—are of paramount importance, in keeping with the tradition of critical criminology the current chapter aims to expose the neo-liberal agenda of United States policy initiatives in relation to the respective countries and how they promote, rather than diminish, harm. Some critical criminologists have focused on the Iraq war in relation to the United States’ use of moral panic as a tool to justify the invasion and occupation of Afghanistan and Iraq (Bonn, 2010; Rothe and Muzzatti, 2004), the illegality of the United States’ war on Iraq in relation to international law (Kramer and Michalowski, 2005; Kramer, Michalowski and Rothe, 2005), the use of torture and abuse against Iraqi insurgents (Hamm, 2007; Heurich and Vaughn, 2009; Rothe, Kramer and Mullins, 2009; Smeulers and Niekerk, 2009; deHavenSmith, 2010; Serralvo, 2012; Hagan, 2015), the criminogenic environment following the invasion Iraq (Green and Ward, 2009), and the role of neoliberalism in post-invasion policies set forth by the Coalition Provisional Authority (Whyte, 2007, 2010). As Whyte has argued, the case of Iraq must be viewed as part of a wider strategy of political and economic domination in order to achieve geopolitical goals or realpolitik. We agree with David Whyte that the pursuit of neoliberalist agendas and the practice of realpolitik drive United States’ foreign policy in times of peace and war. However, we here extend the existing analysis to focus on the power vacuum and the subsequent rise of the Islamic State of Iraq and Syria as a result of neoliberalism and realpolitik. The United States’ guiding principle of self-interests embedded in geopolitics or realpolitik in pursuit of enhancing and reifying neoliberalism has been introduced into the critical criminological literature, primarily by Dawn Rothe, sometimes in collaboration with others (Rothe, 2008, 2009a, 2009b; Collins and Rothe, 2013; Rothe and Steinmetz, 2013). Rothe and Friedrichs (2015: 76) define realpolitik as, “a political ideology that prioritizes the economic, military, and political interests of states above moral and ethical obligations.” Rothe has applied the realpolitik framework to the analysis of the Reagan administration’s military intervention in Nicaragua. Specifically, Rothe (2008: 65) has stated that “the acts of aggression and illegalities committed by the Reagan administration were the result of an ideological doctrine based on imperialism: economic, military, and political superiority.” Rothe (2009a) has also applied the framework of realpolitik to the analysis of the use of impunity in the international social control arena. She has stated that the role of realpolitik in international relations “makes it nearly impossible to implement policies aimed at

162

Pedigo KULZER and Friedrichs

reducing its impact on international criminal justice due to the disjuncture ­between what ‘ought’ to be and what ‘is’” (Rothe, 2009a: 116). Victoria Collins and Dawn Rothe (2013) applied the framework of realpolitik in their analysis of the Arab Spring uprising in Egypt and subsequent removal of Mubarak from office. Overall, Collins and Rothe (2013: 18) found that regardless of the United States officials condemning the atrocities committed by the Mubarak regime at the time of the Arab Spring uprising, “geopolitical interests dominated the United States’ policy response and actions.” While Hagan et al. (2015) implies the role a power vacuum can have after United States involvement, overtly and covertly, very little criminological research has focused specifically on the rise of such entities as the Taliban, Al Qaeda and the Islamic State of Iraq and Syria. Given the extant body of literature that has analyzed the United States’ involvement in Iraq in various ways, this chapter will draw from the frameworks of the policies of realpolitik that are undergirded by geopolitical interests and neoliberalism that inform the United States’ exercise of biopower and the subsequent creation of the Islamic State of Iraq and Syria. According to Foucault (1977: 53), the sovereign right to kill (droit de glaive) and the mechanisms of biopower are inscribed in the way all states function and are constitutive elements of state power of modernity. Biopower includes the managing of deaths and the reproduction of a population and it functions by dividing people into those who should live and those who must die. The exercise of biopower—the sovereign right to kill—is unashamedly seen in the United States “war on terror” from the onset of bombs in Afghanistan, to the use of carpet bombing in Iraq, to the more recent bombings and assassinations in Iraq and Syria in the name of the war on terrorism. Biopower is legitimated through the hegemonic discourse of national security and threat. Hegemonic discourse is not new either. It has long undergirded the reification of state power since the modern state. As Neocleous (2000) suggests, a larger ideological frame that normalizes state violence and conceals fundamental intentions is an active constituent in the fabrication and maintenance of state power. Terrorism and the war on terrorism is a convenient and durable symbol that stirs social anxieties that are in many ways analogous to those brought on by the rising inequalities and the precarity of late-capitalism projected as a constant state of risk—even when manufactured (see Cheliotis, 2013). The exercise of biopower is undergirded by neoliberalism. We use the term neoliberalism with a broad understanding beyond economics and ideology. We do not accept that neoliberalism is a new form of liberalism. We see it in terms of symbiotic relationships from hyper-capitalism, hyper-individualism, hyperconsumption and hyper-social control, all within the same ideology that has governed the United States for decades in the policy, political and ­economic

Make Our Enemy—Kill Our Enemy

163

spheres in particular, though more accentuated. We agree with Giroux (2015: 1) that “neoliberalism is not merely an economic system, but also a cultural apparatus and pedagogy that are instrumental in forming a new mass sensibility” (see Rothe and Collins, 2018). The following section, prior to providing a theoretical discussion, provides a brief overview of the onset of the Islamic State of Iraq and Syria. 4

The Rise of the Islamic State of Iraq and Syria

The Islamic State of Iraq and Syria has its roots in the Afghani-based group Jamaat al-Tawhid wal-Jihad (jtj) led by Abu Musab al-Zarqawi (amz) (Hashim, 2014). After the United States’ invasion of Afghanistan jtj moved into Iraq and created a partnership with the Partisans of Islam, Ansar al-Islam. Following the United States’ invasion of Iraq in 2003 and the disbanding of the Hussein regime, the disenfranchised Sunni population launched a five group insurgency campaign. These groups consisted of “Iraqis from the former regime, nationalists, tribal elements, various Islamist fighters” and al-Zarqawi’s jtj. Their main objective was to “force a withdrawal of coalition forces from Iraq” (Hashim, 2014: 70). In October of 2004, al-Zarqawi pledged allegiance to al-Qaeda and Osama bin Laden and merged the jtj, creating Tanzim Qaidate al-Jihad fi Bilad al-Rafidayn, al-Qaeda in Iraq (aqi). In doing so, aqi provided al-Qaeda with a base, which was needed to attack the United States (Hashim, 2014). After attempting to spark a sectarian uprising by uniting the Iraqi Sunnis against the majority Shiites, al-Zarqawi was killed in a United States airstrike on June 7, 2006. Following his death, Abu Ayyub al-Masri was appointed as the aqi representative in Iraq (Hashim, 2014). However, al-Masri’s reign was short lived; in October of 2006 al-Masri announced the creation of the Islamic State of Iraq (isi) and named Abu Omar al-Baghdadi as the leader (cnn, 2016). Following the creation of isi, the Sahwa movement took root. Disgruntled Sunni insurgents allied with the United States in order to defeat isi in return for integration into the Iraqi security forces that had been disbanded. The Iraqi government was unable to keep the promises given to the Sahwa militias, causing deep-seeded discontent (Kavalek, 2015). In the beginning of 2009 the United States began to pull out of Iraq, leaving the task of security enforcement to the Iraqi security forces. By doing so, isi gained significant ground in sabotaging the Iraqi government, and many disgruntled Sahwa fighters defected to isi. However, in April of 2010 Omar al-Baghdadi and Abu Ayyub al-Masri were killed in a joint United States-Iraqi raid in Tikrit, after which Abu Bakr al-Baghdadi became the leader of isi.

164

Pedigo KULZER and Friedrichs

In April of 2013, isi combined with the al-Qaeda backed Syrian group Jabhat al-Nusra. As a result, Al-Baghdadi stated that the group would be known as the Islamic State in Iraq and the Levant (isil). However, Abu Mohammad al-Jawlani, the leader of the Al-Nusra Front, rejected Al-Baghdadi’s attempted absorption of the group (cnn, 2016). On February 3, 2014, al-Qaeda’s General Command renounced their ties to the Islamic State of Iraq and Syria, rebuking the group’s actions and distancing the organization from their own (Sly, 2014). Despite being renounced by al-Qaeda, in June of 2014 the Islamic State of Iraq and Syria took control of Mosul, Tikrit, and Al-Qaim, a town bordering Syria. Within the same month, the United Nations reported that one million Iraqis had been displaced as a result of insurgency activity (cnn, 2016). On June 29, 2014, al-Baghdadi announced the creation of a caliphate to be known as the Islamic State. Acknowledging the region’s long history of conflict and foreign intervention, al-Baghdadi asserted that the time had come for, “those generations that were drowning in oceans of disgrace,” to rise (Vick, 2014: 1). In the same proclamation, al-Baghdadi announced that the Islamic State of Iraq and Syria would be further known as the Islamic State. The following day, the United States authorized the sending of an additional 300 troops to Iraq. In a letter to Congress, President Obama noted that these forces were deployed to protect United States citizens and interests and would remain until the security situation de-escalated (cbs, 2014). The following July, the Islamic State took control of the oil and gas fields in the Homs Province of Syria. In order to thwart the taking of the Kurdish capital of Irbil, the United States authorized targeted airstrikes on Islamic State convoys and artillery units on August 8, 2014. Following the televised executions of United States journalist James Foley and British aid worker David Haines, the United States, along with Saudi Arabia and the United Arab Emirates, ­carried out additional airstrikes against Islamic State-controlled oil refineries. This was done in an attempt to cut off financing for its operations (Carter, Starr and Tuysuz, 2014). By January of 2015, United States officials announced that coalition airstrikes had killed upwards of 6,000 Islamic State fighters, “including half of the top command of the terror group” (Starr, 2015: 1). Despite these figures, it was estimated that the Islamic State still had between 9,000 to 18,000 fighters and sympathizers (cnn, 2016). On February 11, 2015 President Obama formally submitted a draft resolution to Congress to authorize the use of force against the Islamic State. In his remarks to Congress, President Obama stated that the strategy would include systematic and sustained aerial campaigns, support and training for local ground troops, continued tutelage from Islamic State led attacks, and humanitarian aid for those under the rule of the terrorist organization (Office of the Press Secretary, 2015).

Make Our Enemy—Kill Our Enemy

165

On March 7, 2015, Abubakar Shekau, the leader of the Nigerian based Boko Haram, pledged allegiance to the Islamic State via audio message. The following week a spokesperson for the Islamic State accepted Boko Haram’s pledge and claimed that the caliphate had expanded to western Africa (cnn, 2016). Following increasing amounts of violence in Syria, on May 16, 2015, United States special operations forces conducted a raid of al-Amr in eastern Syria, which acted as a stronghold that bridged the Islamic State-controlled territory in Iraq and Syria (Dunham and Perry, 2015). During the raid, a key Islamic State leader, Abu Sayyaf, was killed. Despite the efforts of United States special operations forces, within the same month the Islamic State seized control of both Ramadi and Palmyra, which acted as the last Syria-Iraq border crossing under the control of the Syrian army (cnn, 2016). Soon thereafter, the State Department released the Annual Terrorism Report and declared that the Islamic State of Iraq and Syria had emerged as a greater threat than al-Qaeda (2016). In the months following its release, a string of attacks were executed by the Islamic State militants in Tunisia, Kuwait, Egypt, and Iraq, killing over 250 and injuring hundreds more. On November 12, 2015 the United States launched a drone attack in Raqqa, Syria, targeting and killing Mohammed Emwazi, an Islamic militant also known as “Jihadi John” who was responsible for the beheading of numerous Western citizens. Simultaneously, the United States Coalition offered air support to the Peshmerga in Sinjar. After two days of fighting, the Peshmerga recaptured the city. On the same day, militants affiliated with the terrorist organization executed a coordinated attack on Paris, France. In response, the United States in conjunction with France and Great Britain conducted air raids on Raqqa, targeting the Islamic State command and recruitment centers, munitions depots, and training camps (Wyke and Tomlinson, 2015). On the first of December 2015, United States Defense Secretary Ashton Carter announced that United States special operations forces would be sent to Iraq to aid Iraqi and Kurdish resistance fighters in Syria. Not long after this operation was launched, United States officials announced that isis finance minister, Abu Saleh, and two other senior leaders, were killed by airstrikes in Tal Afar, Iraq (Glenn, 2016). By the end of the year, Iraqi military forces had retaken the key Islamic State stronghold of Ramadi, as well as the capital of the Al-Anbar province in Iraq. On March 25th, it was confirmed by the Pentagon that United States military forces killed the newly appointed isis finance minister, Abd al-Rahman Mustafa al-Qaduli, who was posited to be second in command (cnn, 2016). The following month, Islamic State fighters recaptured the town of Rai, Syria from the Free Syrian Army. On May 5th, 2016, Islamic State militants captured the Shaer gas field, a vital resource in the area. Within the weeks that followed, two pivotal offenses were

166

Pedigo KULZER and Friedrichs

launched against Fallujah and territory north of Raqqa. Iraqi forces in Fallujah were aided by coalition airstrikes while Kurdish forces in Raqqa were backed by United States airstrikes (Glenn, 2016). By the end of August, both Islamic State spokesman Abu Mohammad al-Adani, as well as the terror group’s minister of information, Wael Adel Salman, had been killed by United States led airstrikes (cnn, 2016). On September 28th, 2016, the United States launched a drone attack on the Nangarhar province of Afghanistan, a recent stronghold for Islamic State militants in Afghanistan. The United Nations Assistance Mission in Afghanistan reported that the fifteen casualties recorded were all civilians (Smith, 2016). The United States led air-war against the insurgent group has resulted in a spike in civilian casualties since President Trump took office in January 2017. In March of 2017, a coalition bombing targeting two isis snipers resulted in the reported death of at least 105 civilians. The incident has since been investigated and the actions were deemed as being “in accordance with the applicable Rules of Engagement and the Law of Armed Conflict” (Isler, 2017: 1). The following April, the United States participated in deadly air strikes in both Afghanistan and Syria, the latter of which was precipitated by an alleged chemical weapons attack staged by the Syrian government. By the end of 2017, Iraq had declared itself as being “fully liberated” from “isis terrorist gangs” and President Putin declared, “mission accomplished” in the battle against the Islamic State in Syria (bbc, 2018). In the months that followed, Abu Sated Orakazai, the leader of isis’ Afghani sect, was killed in an air strike in the Nanharhar province, effectively dismantling the remaining leadership and crippling the group’s grasp in the region. To summarize, the United States’ vested geopolitical interests, including the creation of a World Trade Organization friendly economy and oil security, facilitated the invasion and subsequent restructuring of Iraq. This incited widespread opposition from the Iraqi people, creating an environment which allowed extremists groups such as the Islamic State to thrive in Iraq, Syria, and bordering territories. The removal of the Hussein regime and the dismantling of the Iraqi government and military by the United States allowed for the deeply rooted sectarian schism between the ruling Shiites and the disenfranchised Sunnis to boil to the surface. Consequently, the United States’ exercise of realpolitik allowed for a premature withdrawal from the country. Disgruntled Sunnis then turned to radical insurgency groups for support. In turn, these groups were able to take root in Iraq and spread into neighboring Syria. Similarly, any initiatives by the United States to remove Assad from power in Syria create openings for the Islamic State. The massive conundrum here is the identification of the optimal policy that is least likely to foster crimes of states,

Make Our Enemy—Kill Our Enemy

167

going forward. The current prioritization of the neoliberal agenda and the hegemonic discourse of national security has resulted in the widespread use of targeted airstrikes by the United States-led coalition, and ultimately, countless civilian deaths as the only viable response. The following section provides a theoretically framed discussion and analysis. 5

Theoretical Discussion

While there is a significant body of research on the motivation and opportunity catalysts at play, we briefly recap the economic and geopolitical interests of the United States. The United States’ war on terror is embedded in pursuing geopolitical self-interests (Kramer and Michalowski, 2005) and neoliberalism (Ehrenberg, McSherry, Sanchez and Sayej, 2010; Whyte, 2007, 2010) regardless of the consequences. Additionally, the exercise of biopower has served to ensure and protect the geopolitical or realpolitik interests of the United States while simultaneously generating extremist groups that then become targets of death. Moreover, the hegemonic discourse makes state violence difficult to recognize as anything but legitimate and necessary because it is a category of understanding produced and guaranteed by the state. It is disconnected from the fact that state power and its exercise of biopower kills. Consider that over the course of the past decade, the United States’ actions in its “war on terrorism” and pursuit of state interests has led to the deaths of approximately 15,851 United States military personnel in Iraq, 2,356 in Afghanistan, and 1,487 United States contractors in Iraq (Congressional Research Service, 2018; Griffis, 2015). On the other side, estimates of the number of civilians killed in Iraq alone are between 182, 272—204, 575 (Iraq Body Count, 2018) with a grand total of roughly 2.4 million when factoring in all parties to the conflict and civilians impacted by the war on Iraq (Benjamin and Davies, 2018). If we include Afghanistan, Syria, Yemen, and other places where the United States has actively conducted missions and targeted assassinations, we need to add at least an additional 5,000 deaths. The number of deaths attributable to the state’s exercise of biopower and violence is staggering and while done in the name of national security, the reality is it is utilized in the pursuit of long-term planning to obtain self-interests, including the promotion of the United States’ neoliberalist ideology and agenda (Rothe and Collins, 2018). In Falk’s (2004: 195) words: “the Iraq debate was colored by the dogs that didn’t bark: oil, geopolitical goals in the region and beyond, and the security of Israel.” Consider that in late 2000, Saddam Hussein switched from the dollar to the euro and then converted his $10 billion reserve fund at the United Nations from

168

Pedigo KULZER and Friedrichs

dollars to euros, increasing the value to $26 billion. Iraq profited immensely from the switch, further motivating the Bush Administration to ­overthrow ­Saddam and put in place a United States-driven economy (Observer, 2003). The dollar-euro changeover was powerful enough to risk any economic backlash in the short-term to stave off the long-term dollar crash of an opec transaction standard change. This reinforced the broader general motivation to invade Iraq. As Saddam changed to the euro for oil and with talks of the Organization of the Petroleum Exporting Countries (opec) following suit, the Bush Administration became alarmed. Subsequently, they began planning to block opec momentum towards the euro as the currency standard as well as to return the Iraqi reserves back to the United States dollar. In order to pre-empt opec, the Administration needed to control Iraq and its oil reserves. Otherwise United States’ economic supremacy could potentially be challenged, as the situation would have presented an overarching macroeconomic threat to the hegemony of the United States dollar. As Clark (2003: 2) noted, “The real reason the Bush administration wants a puppet government in Iraq—or more importantly, the reason why the corporate-military-industrial network conglomerate wants a puppet government in Iraq—is so that it will revert back to a dollar standard and stay that way.” As Brent Scowcroft (2002: 70) stated, Saddam’s key objectives “clearly poses a real threat to key United States interests.” These fears were further exemplified in Dick Cheney’s speech given at the Veterans of Foreign Wars 103rd National Convention on August 26, 2002. Cheney (2002: 78) emphasized that Hussein is in control of 10 percent of the world’s oil reserves, and that he could “take control of a great portion of the world’s energy supplies and directly threaten America’s friends throughout the region.” Admittedly, oil was not the only reason for the Iraq war. Other economic, political and military interests were key, including pushing the neoliberal agenda (Whyte, 2010), opening up the Iraqi markets for corporate investments, and hopes of a strategic geopolitical partnership with a likeminded new regime, to name a few. As such, the machinery of war began and the full-blown exercise of biopolitics was unleashed onto Iraqis and anyone who the United States determined as not worthy of living, ultimately resulting in a death toll reaching upwards of 251,000. The conditions the population faced along with the devastation served to facilitate the rise of the Islamic State of Iraq and Syria. As in Iraq, there is a significant dialogue regarding regime change in Syria for geopolitical-realpolitik interests. Byman and Miles (2012: 48) predicted some years ago that, “the long and bloody Syrian conflict is likely to generate a failed state requiring the kind of large-scale reconstruction efforts seen in Iraq and Afghanistan.” Similar to Iraq, Syria presents the United States with an opportunity to set conditions for economic recovery, including the rollback of

Make Our Enemy—Kill Our Enemy

169

sanctions and the accommodation of foreign investment. As President Obama (2015: 26) asserted, the United States will “ensure the free flow of energy from the region to the world.” Some 65 percent of the world’s proven oil reserves can be found in the Middle East region, and Syria’s oil fields are part of this essential resource. Further, Syria poses a direct threat to key United States allies throughout the Middle East. Due to its Alawite (a Shiite sect) leadership, Syria acts as one of the last remaining major allies of Iran. Because Syria is under the control of the Alawites, it acts as a threat to Sunni states, including Saudi Arabia, one of the  ­United States’ most important allies in the region. Moreover, the United States’ alliance with Israel is a major factor in its insistence for leadership change in Syria as it poses a direct threat to Israel’s security. Syria provides the Palestinian liberation group, Hamas, with an external base. Under Assad, it also supports an Iranian transit route for financial and military assistance to Hamas and Hezbollah for the purpose of countering Israeli dominance in the Arab region (Simura, 2015). As a whole, the interest in Syria by the United States is compounded by a multitude of geopolitical interests. Action in Syria gives the United States the opportunity to set the conditions for economic recovery. By doing so, Syria could, like Iraq, become a World Trade Organization-friendly country, which has the possibility to benefit the United States and its allies greatly. Nonetheless, the removal of the Assad regime would create dangerous power vacuums and give increasing amounts of power to the Islamic State and/or other extremist groups as deeply rooted schisms between the ruling Alwaite Shia and the Sunnis cause many of the marginalized Sunni population to turn its allegiance to violent jihadist groups. Further, if the United States were to implement similar policies, should they succeed in dismantling Assad, grounded in a neoliberalism that incorporates free-market economic reform, privatization, and deregulation as it has in Iraq, it could lead to anti-occupation resistance and thus open the door to further extremist intervention. Yet, this has not stopped the United States from again pursuing its ­self-interests and exercising of biopolitics all wrapped in the hegemonic discourse of national security. On September 23, 2014 President Obama addressed the country regarding airstrikes in Syria conducted by the United States, Saudi Arabia, the United Arab Emirates, Jordan, Bahrain, and Qatar, targeting the Islamic State in Syria  where he stated that “it must be clear to anyone who would plot against America and try to do Americans harm that we will not tolerate safe havens for terrorists who threaten our people.” Thus, proclaiming Syria as a threat to the United States and its interests and justifying the use of biopower and the continuation of the war machine.

170

Pedigo KULZER and Friedrichs

Through the latter part of 2018, there has been an estimated 105,000 total coalition bombs and missiles dropped in Iraq and Syria alone (Benjamin and Davies, 2018). The results of these actions against the Islamic State have been detrimental for civilians situated in the region. Moreover, these actions represent an overwhelming exercise of biopolitics in the name of the United States’ political and economic interests. It has been estimated that between 6,250 and 9,600 civilians have died as a direct result of coalition actions in both Iraq and Syria (Airwars, 2018). In December of 2013, United States hellfire missiles struck a wedding processional in Rada’a, Yemen, killing 12 civilians and injuring 24 more; this is just one such incident which the United States has refused to formally acknowledge (Draper, 2014). Likewise, in 2014, a United States-led airstrike posited to target an “isis-held building” in Hit, Iraq, struck a marketplace as well as apartment buildings in the vicinity, killing 22 civilians (Ditz, 2014). The situation in Syria has proven to be equally dire. In July of 2016, United States coalition airstrikes targeting Islamic State militants killed 56 civilians in Toukhan and 21 in Manbij, including 11 children (Cockburn, 2016). Within the same year, United States pilots in Deir al-Zour struck and killed 62 Syrian troops and wounded 100 more after mistaking them for insurgents (Barnard and Mazzetti, 2016). Further, when taking into account the actions of the Trump administration from September 2017 to September 2018, the Syrian Network for Human Rights (snhr, 2018) reported a minimum of 12 coalitionled attacks on civilian facilities resulting in the death of at least 432 civilians. As with Iraq, the airstrikes, bombs and civilian casualties served as a recruitment tool. Yet, as Raja (2005) rightly contends, the United States’ response to the violence taking place in the global terroristic crises serves a counter function as the response to violence with more violence has proven to only create more resistance. While the United States continuously utilizes biopolitics in deciding who should live or die, the Islamic State is drawing from what Mbembe (2003) and Raja (2005) refer to as necropolitics. In this sense necropolitics can be thought of as the ability of the extremist group to influence ­citizens, through the work of extreme religious orthodoxy and the current political structure, to take their lives for the ‘betterment’ of the group and religion. The necropolitical influences for such actions are grounded in “accomplishment” for the Islamic State of Iraq and Syria and for the extorted view of Islam. Accomplishment here is defined as killing oneself in order to also kill many of the enemy. Raja (2005) argues that the reasoning for the citizen’s selfsacrifice, and potentially the reason so many are willing to fight to the death for an ideology, may not be grounded in “accomplishment”, but rather in some other order of meaning. As Vatter (2010) suggests, the physical nature of life is tied to a life outside of the body. Through this assertion, life is more than just

Make Our Enemy—Kill Our Enemy

171

the body that eventually dies, but an eternal being that continues to live and thrive outside of the human body (Vatter, 2010). Similarly, the contradiction, of giving up one’s life implies that ‘one’ does not just act in the interest of oneself but in the interest of many. Therefore, if ‘one’ gives up one’s life to defend one’s ideology from whatever resistance is occurring, then ‘many’ will reap the benefits of these actions by living more prosperous lives (Murray 2005). In this sense, both the United States and the Islamic State have their own ideology about life, death, and the power to govern such things, both inspire citizens to fight for their ideology, and the end result is the same: more death, more resistance, and continued global warfare. 6

Concluding Thoughts

While a prospective criminology of state crime focuses on the identification of potential sites of prospective crimes of states, it also calls for the analysis of strategies to thwart such crimes (Friedrichs, 2013). In a utopian construct, enlightening leaders such as Hussein and Assad on the harms of human rights abuses would result in the doing away of subsequent forms of state crime. Rather, history has demonstrated that a more realistic strategy is needed, one that emphasizes critical reflexivity and pragmatic cost-benefit analyses to be completed before engagement. This analysis must emphasize the voices of those who are the most severely impacted by the decisions being made over that of the neo-liberal interests of the Global North. Regarding Iraq and Syria in particular, many of the victims of these state crimes have become criminalized, often being viewed by countries of the Global North as representative of a terrorist threat under the hegemonic discourse of national security. This further reduces their significance when decisions regarding foreign policy are developed. Rather than utilizing the Iraq strategy in Syria, in which Iraqi citizens were left with dismantled political and economic systems and an uptick in street crime (among other consequences), the gap between the state and the citizens living within them must be narrowed. This is particularly relevant to the field of critical criminology, which aims to identify policies and practices that reduce harm, rather than amplify it. One way in which the field of criminology can contribute to this void is by utilizing what Kramer, Michalowski, and Chambliss (2009) refer to as organic public criminology. By working in close connection with the victims of United States interventions in Iraq and Syria and engaging with the public about the widespread devastation and suffering that has occurred at the hands of their own governments, the neoliberal

172

Pedigo KULZER and Friedrichs

a­ genda of the Global North is exposed. Ideally, this would encourage a broad coalition of nations to act in concert to support progressive forces in Iraq and Syria, privileging the needs of the citizens of these nations over global neo-­ liberal interests. While as a practical matter this conundrum is beyond the scope of the present chapter, it is important to illustrate the role of criminology in the reduction of harms of the state. We hope this chapter adds to an emerging trend to not only be retrospective in the study of state criminality and the crimes of the powerful more broadly but to seize the opportunity to be prospective. Additionally, while previous research has focused on the commission of state crimes abroad, there has been little if any criminological research examining the United States’ involvement in Syria or how their policies and interventions in Iraq and elsewhere have created power vacuums that allow for and facilitate the rise of ‘terrorist’ groups vying for power. The United States’ prioritization of realpolitik and the exercise of geopolitical interests as the priority in Iraq ultimately resulted in the creation of a power vacuum, which isi gladly filled. The forcible removal of Saddam Hussein by the United States incited anarchical conditions that the United States and the Coalition Provisional Authority failed to quell. The United States privatization and deregulation of the Iraqi economy left its citizens without jobs and acted as a catalyst for the ensuing sectarian schism between the ruling Shia and the disenfranchised Sunnis. The United States’ actions in Iraq and Syria of condemning oppressive regimes, namely the Hussein and Assad regimes, while at the same time pursing its own political and economic interests in the region, has reified the prioritization of self-interests at all costs. Further, these actions were carried out through biopolitical warfare. The use of drones and missiles in the region by the United States resulted in an immense loss of civilian life. However, because these actions were taken in the name of national security, the aforementioned casualties have been subsequently viewed as those who must die. As a result, these losses have become legitimized through the hegemonic discourse of national security and have been largely ignored by United States officials. Assad’s regime in Syria has created a deeply seeded schism between the ruling Alawite Shias and the remaining Sunnis. Given the similarity in make-up between the two countries it is reasonable to conclude that if the United States were to remove the Assad regime and dismantle the Alawite ruling class as it did with the Hussein regime and the Ba’ath party in Iraq, it would leave Syria with an immediate power vacuum that could easily be filled by Sunni-backed extremist groups and the Islamic State.

Make Our Enemy—Kill Our Enemy

173

While we fully recognize that this chapter will have no impact on the United States’ foreign policy regarding Syria, or the exercise of biopolitics and realpolitik, the evidence indicates that by rethinking the foreign policy strategy utilized in Iraq and Afghanistan and changing these policies and practices before interacting with Syria, the United States may be able to avoid the creation of dangerous power vacuums and, subsequently, the further development of dangerous extremists groups such as the Islamic State. We do hope however, that this chapter contributes to additional conversations on the utility of a prospective criminology of crimes of states. This chapter has been composed during the second year of the truly surreal Trump presidency. The policies being pursued by the Trump administration—in the Middle East, as well as in other parts of the world—have the potential to give rise to immensely consequential forms of harm, beyond what has already been perpetrated by this administration. President Trump himself, in Fall 2018, had either been accused of or suspected of complicity in a wide range of different forms of crimes of the powerful. Although past, present and prospective crimes of the Trump administration can be framed in various different ways, we hope that the framing laid out in this chapter provides criminological students of crimes of states with one significant point of departure for the analysis of such crime. 7

Epilogue: A Personal Note about Bill Chambliss, by David Friedrichs

I first encountered the work of Bill Chambliss in the late 1960s and throughout the 1970s, as a graduate student and junior faculty member (initially at cunyStaten Island), during a time of much intellectual ferment within criminology. I first encountered Bill Chambliss personally when I found myself on a panel with him (and Richard Quinney, as well as Piers Beirne) at an East Coast Conference of Socialist Sociologists at the University of Delaware in April 1979. As this was for me at the very earliest stage of becoming a fully engaged and active participant within criminology it was a memorable (and initially intimidating) experience for me. I appreciated the warm and generous welcome that Bill extended to me at that time, as well as my subsequent encounters with him at various conferences over the next couple of decades, most notably at the World Congress of Criminology in Rio in 2003 and the Onati Symposium in 2008, but on many other occasions as well. I remain much persuaded that the criminological orientation advanced by Chambliss as well as his pioneering work in relation to a criminology of crimes of states will enjoy enduring and

174

Pedigo KULZER and Friedrichs

new attention in a rapidly changing world, going forward. His personal warmth and encouragement will be much missed by those who were fortunate enough to experience it. Acknowledgement, by Sarah Pedigo Kulzer I would like to acknowledge the invaluable contributions of Dr. Dawn Rothe whose guidance and expertise not only inspired this chapter, but also facilitated my interest in crimes of the powerful. References Airwars. 2018. “Iraq and Syria: Civilian and ‘Friendly Fire’ Casualties from International Military Actions.” Retrieved October 17, 2018 (https://airwars.org/ civilian-casualty-claims/). Barnard, A. and Mazzetti, M. 2016. “U.S. Admits Airstrike in Syria, Meant to Hit ISIS, Killed Syrian Troops.” The New York Times, September 17. Retrieved October 4, 2016 (http://www.nytimes.com/2016/09/18/world/middleeast/us-airstrike-syrian-troops -isis-russia.html?_r=0). Benjamin, M. and Davies. N. 2018. “The Iraq Death Toll 15 Years After the US Invasion.” Common Dreams, March 15. Retrieved October 19, 2018 (https://www .commondreams.org/views/2018/03/15/iraq-death-toll-15-years-after-us-invasion). Bittle, S., Snider, L. Tombs, S. and Whyte, D. (Eds.). 2018. Revisiting Crimes of the Powerful. London: Routledge. Bonn, S. 2010. Mass Deception: Moral Panic and the U.S. War on Iraq. Piscataway, NY: Rutgers University Press. British Broadcasting Corporation (BBC). 2018. “Syria Profile—Timeline.”BBC, January 14. Retrieved October 20, 2018 (https://www.bbc.com/news/world-middle-east14703995). Byman, D. and Miles, R. 2012. “A Modest Post-Assad Plan.” The National Interest, 122: 48–57. Cable News Network (CNN). 2016. “ISIS Fast Facts.” CNN, January 21. Retrieved March 10, 2016 (http://www.cnn.com/2014/08/08/world/isis-fast-facts/index.html). Carter, C.J., Starr, B.and Tuysuz, G. 2014. “Pentagon: New Airstrikes Target Refineries Used by ISIS in Syria.” CNN, September 24. Retrieved March 3, 2016 (http://www .cnn.com/2014/09/24/world/meast/us-airstrikes/index.html). Chambliss, W.J. 1964. “A Sociological Analysis of the Law of Vagrancy.” Social Problems, 12(1): 67–77.

Make Our Enemy—Kill Our Enemy

175

Chambliss, W.J. 1989. “State-Organized Crime—the American Society of Criminology, 1988 Presidential Address.” Criminology, 27(2): 183–208. Chambliss, W.J., Michalowski, R. and Kramer, K. (Eds.). 2010. State Crime in the Global Age. Portland, OR: Willan Publishing. Cheliotis, L. (2013). Neoliberal capitalism and middle-class punitiveness: Bringing Erich Fromm’s ‘materialistic psychoanalysis’ to penology. Punishment and Society, 15(3): 247–273. Cheney, D. 2002. “Speech at Veterans of Foreign Wars 103rd National Convention.” August 26, Nashville, TN. pp. 75–80 in J. Ehrenberg, J. Patrice McSherry, J.R. Sanchez and C.M. Sayej (Eds.), The Iraq Papers. New York, NY: Oxford University Press, Inc. Clark, W. 2003. “The Real Reasons for the Upcoming War With Iraq: A Macroeconomic and Geostrategic Analysis of the Unspoken Truth.” Retrieved (http://www.ratical .org/ratville/CAH/RRiraqWar.html#p2). Cockburn, H. 2016. “US-Led Coalition Airstrikes in Syria Kill 77 Civilians Mistaken for ISIS Fighters.” Retrieved October 5, 2016 (http://www.independent.co.uk/news/ world/middle-east/us-led-air-strikes-syria-kill-77-civilians-mistaken-isis-fightersmanbij-latest-a7148061.html). Collins, V.E. and Rothe, D.L. 2013. “United States’ Support for Global Social Justice? Foreign Intervention and Realpolitik in Egypt’s Arab Spring.” Social Justice, 39(4): 1–30. Columbia Broadcasting System (CBS). 2014. “300 More U.S. Troops Headed to Iraq.” CBS, July 1. Retrieved March 2, 2016 (http://www.cbsnews.com/news/obamaorders-200-more-u-s-personnel-to-iraq/). Congressional Research Service. 2018. “Recent Trends in Active-Duty Military Deaths.” USNI News, July 3. Retrieved October 18, 2018 (https://news.usni.org/2018/07/03/ report-congress-u-s-active-duty-military-deaths). deHaven-Smith, L. 2010. “State Crimes Against Democracy in the War on Terror: Applying the Nuremburg Principles to the Bush-Cheney Administration.” Contemporary Politics, 16(4): 403–420. Ditz, J. 2014. “U.S. Airstrikes Kill 22 Civilians in Iraqi Market.” Antiwar.com, October 7. Retrieved October 2, 2016 (http://news.antiwar.com/2014/10/07/us-airstrikes-kill-22civilians-in-iraqi-market/). Draper, L. 2014. “The Wedding that Became a Funeral: U.S. Still Silent One Year on From Deadly Yemen Drone Strike.” Newsweek, December 12. Retrieved October 1, 2016 (http://europe.newsweek.com/wedding-became-funeral-us-still-silent-one-yeardeadly-yemen-drone-strike-291403). Dunham, W. and Perry, T. 2015. “Top ISIS Commander in Syria Killed in U.S. SpecialOps Raid.” The Huffington Post, May 16. Retrieved March 17, 2016 (http://www .huffingtonpost.com/2015/05/16/isis-abu-sayyaf-killed-sy_n_7297034.html). Ehrenberg, J., McSherry, J.P., Sanchez, J.R. and Sayej, C.R. (Eds.). 2010. The Iraq Papers. New York, NY: Oxford University Press, Inc.

176

Pedigo KULZER and Friedrichs

Falk, R. 2004. The Declining World Order: America’s Imperial Geopolitics. New York: Routledge. Foucault, M. 1977. “Power/Knowledge: Selected Interviews and Other Writings, 1972– 1977.” pp. 51–75 in P. Rabinow (Ed.), The Foucault Reader. New York, NY: Pantheon Books. Friedrichs, D. 2010. “Toward a Prospective Criminology of State Crime” pp. 67–80, in W.J. Chambliss, R. Michalowski and R.C. Kramer (Eds.). State Crime in the Global Age. Portland, OR: Willan Publishing. Friedrichs, D. 2013. “Transcending the Conventional Definition of Crime: Towards a Twenty-First Century Criminology.” A Paper Presented at: Presidential Panel: Reconsidering the Definition of Crime Annual Meeting of the American Society of Criminology Atlanta—November, 2013. Friedrichs, D. 2015. “Rethinking the Criminology of Crimes of States: Monumental Mundane, Mislabeled and Miscalculated Crimes,” International Journal for Crime, Justice, and Social Democracy, 4(4): 106–119. Giroux, H. 2015. Neoliberalism, Violence and Resistance: A Discussion on Forthright Radio. Truthout, August 24. Retrieved September 30, 2015 (http://www.truth-out .org/opinion/item/32464-neoliberalism-violence-and-resistance-a-discussion-onforthright-radio). Glenn, C. 2016. “Timeline: Rise and Spread of the Islamic State.” Wilson Center, July 5. Retrieved October 5, 2016 (https://www.wilsoncenter.org/article/timeline-riseand-spread-the-islamic-state). Green, P.J. and Ward, T. 2000. “Sate Crime, Human Rights, and the Limits of Criminology.” Social Justice, 27(1): 101–115. Griffis, M. (Ed.). 2015. “Casualties in Iraq: The human cost of occupation. 2015.” Antiwar. com, July 19. Retrieved June 5, 2016 (http://antiwar.com/casualties/). Hagan, J. 2015. Iraq and the Crimes of Aggressive War: The Legal Cynicism of Criminal Militarism. New York, NY: Cornell University Press. Hagan, J., Kaiser, J., Hanson, A. and Parker, P. 2015. “Neighborhood Sectarian Displacement and the Battle for Baghdad: A Self-Fulfilling Prophecy of Fear and Crimes Against Humanity in Iraq.” Sociological Forum, 30(3): 675–697. Hamm, M.S. 2007. “High Crimes and Misdemeanors: George W. Bush and the Sins of Abu Ghraib.” Crime, Media, Culture, 3(3): 259–284. Hashim, A.S. 2014. “The Islamic State: From Al-Qaeda Affiliate to Caliphate.” Middle East Policy, 21(4): 69–83. Heurich, S.J. and Vaughn, M. 2009. “Ill-Treatment and Torture at Abu Ghraib Prison: Irrational Policy Implementation and Administrative Breakdown.” Criminal Justice Studies, 22(2): 181–201. Iraq Body Count. 2018. Documented civilian deaths from violence. Iraq Body Count. Retrieved October 20, 2018 (https://www.iraqbodycount.org/database/).

Make Our Enemy—Kill Our Enemy

177

Isler, M.C. 2017. “Executive Summary of the Investigation of the Alleged Civilian Casualty Incident in the al Jadidah District, Mosul.” Operation Inherent Resolve. Retrieved October 18, 2018 (http://www.inherentresolve.mil/News/News-Releases/ Article/1193707/executive-summary-of-the-/). Kavalek, T. 2015. “From al-Qaeda in Iraq to Islamic State: The Story of Insurgency in Iraq and Syria in 2003–2015.” Alternatives Turkish Journal of International Relations, 14(1):1–32. Kramer, R.C. and Michalowski, R.J. 2005. “War, Aggression, and State Crime.” British Journal of Criminology, 45(4): 446–469. Kramer, R.C., Michalowski, R. J. and Chambliss, W.J. 2009. “Epilogue: Toward a Public Criminology of State Crime.” pp. 247–262 in W.J. Chambliss, R. Michalowski and R. Kramer (Eds.). State Crime in the Global Age. Portland, OR: Willan Publishing. Kramer, R.C., Michalowski, R.J. and Rothe, D.L. 2005. “The Supreme International Crime: How the U.S. War in Iraq Threatens the Rule of Law.” Social Justice, 32(3): 52–81. Mbembe, A. 2003. “Necropolitics”. Public Culture, 15(1), 11–14. Murray, S. 2005. “Thanatopolitics: On the Use of Death for Mobilizing Political Life.” Paper presented at the annual meeting of the American Political Science Association, Marriott Wardman Park, Omni Shoreham, Washington Hilton, Washington, DC Online . 2013-12-17 Retrieved (http://citation.allacademic.com/meta/p39735_ index.html). Neocleous, M. 2000. The Fabrication of Social Order. London: Pluto Press. Obama, B. 2015. The National Security Strategy. Retrieved November 20, 2015. The White House Office of the Press Secretary, February 6. (https://www.whitehouse.gov/sites/ default/files/docs/2015_national_security_strategy.pdf). Observer, The. 2003. “Iraq Nets Handsome Profit by Dumping Dollar for Euro.” February 16. Retrieved February 6, 2016 (http://www.observer.guardian.co.uk/business/ story/ 0,6903,896202,00.html). Office of the Press Secretary. 2015. “Remarks by the President on Request to Congress for Authorization of Force Against ISIL.” The White House, February 11. Retrieved March 26, 2016 (https://www.whitehouse.gov/the-press-office/2015/02/11/ remarks-president-request-congress-authorization-force-against-isil). Pearce, F. 1976. Crimes of the Powerful: Marxism, Crime and Deviance. London: Pluto. Raja, M. 2005. “Death as a form of becoming: The Muslim imagery of death and Necropolitics”. DOMES: Digest Of Middle East Studies, 14(2): 11–26. Rothe, D.L. 2008. “Beyond the Law: The Reagan Administration and Nicaragua.” Critical Criminology, 17(1): 49–67. Rothe, D.L. 2009a. “Exploring Post-Resistance to State Criminality: Realpolitik Versus Ideology.” Social Justice, 36(3): 111–121.

178

Pedigo KULZER and Friedrichs

Rothe, D.L. 2009b. State Criminality: The Crime of All Crimes. Lanham, MD: Lexington Books. Rothe, D.L. and Collins, V. 2018. “Consent and Consumption of Spectacle Power and Violence”, Critical Sociology, 44(1): 15–28. DOI: 10.1177/0896920515621119. Rothe, D.L. and Friedrichs, D. 2015. Crimes of Globalization: New Directions in Critical Criminology. New York, NY: Routledge. Rothe, D.L. and Kauzlarich, K. 2016. Crimes of the Powerful: An Introduction. New York: Routledge. Rothe, D.L., Kramer, R.C. and Mullins, C.W. 2009. “Torture, Impunity, and Open Legal Spaces: Abu Ghraib and International Controls.” Contemporary Justice Review, 12(1): 27–43. Rothe, D.L. and Muzzatti, S. 2004. “Enemies Everywhere: Terrorism, Moral Panic, and US Civil Society”. Critical Criminology: An International Journal, 12(3): 159–180. Rothe, D.L. and Steinmetz, K. 2013. “The Case of Bradley Manning: State, Victimization, Realpolitik and WikiLeaks.” Contemporary Justice Review, 16(2): 280–292. Scowcroft, B. 2002. “Don’t Attack Saddam.” Wall Street Journal, August 16. pp. 70–72 in J. Ehrenberg, J. Patrice McSherry, J.R. Sanchez and C.M. Sayej (Eds.), The Iraq Papers. New York, NY: Oxford University Press, Inc. Serralvo, J. 2012. “Privatized Military Firms’ Impunity in Cases of Torture: A Crime of Humanity.” International Community Law Review, 14(2): 117–135. Simura, B. 2015. “USA and Russia in Syria and Ukraine: The Irony of Geo-Political Interventions.” Alternatives: Turkish Journal of International Relations, 14(1): 68–75. Sly, L. 2014. “Al-Qaeda Disavows Any Ties with Radical Islamic Group in Syria, Iraq.” The Washington Post, February 3. Retrieved March 2, 2016 (https://www.­washingtonpost .com/world/middle_east/al-qaeda-disavows-any-ties-with-radical-islamistisis-group-in-syria-iraq/2014/02/03/2c9afc3a-8cef-11e3-98ab-fe5228217bd1_story .html). Smeulers, A. and Niekerk, S. 2009. “Abu Ghraib and the War on Terror—a Case against Donald Rumsfeld?” Crime, Law and Social Change, 51(3/4): 327–349. Smith, J. 2016. “U.S. Drone Strike Kill 15 Civilians in Afghanistan, United Nation says.” Reuters, September 30. Retrieved October 6, 2016 (http://af.reuters.com/article/ worldNews/idAFKCN1200FG?sp=true). Starr, B. 2015. “U.S. Officials Say 6,000 ISIS Fighters Killed in Battles.” CNN, January 22. Retrieved March 2, 2016 (http://www.cnn.com/2015/01/22/politics/us-officials-say6000-isis-fighters-killed-in-battles/index.html). Sutherland, E.H. 1940. “White-Collar Criminality.” American Sociological Review, 5: 1–12. Syrian Network for Human Rights (SNHR). 2018. “On the 4th Anniversary of the International Coalition Forces Intervention in Syria, SNHR Showcases a Database for the Incidents Constituting Violations of International Law.” SHNR, September 23. Retrieved October 15, 2018 (http://sn4hr.org/blog/2018/09/23/52682/).

Make Our Enemy—Kill Our Enemy

179

Vatter, M. 2014. The Republic of the Living: Biopolitics and the Critique of Civil Society. New York, NY: Fordham University Press. Vick, K. 2014. “ISIS Militants Declare Islamist Caliphate.” Time, June 29. Retrieved February 25, 2016 (http://time.com/2938317/isis-militants-declare-islamist-caliphate/). Whyte, D. 2007. “The Crimes of Neo-Liberal Rule in Occupied Iraq.” British Journal of Criminology, 47(2): 177–195. Whyte, D. 2010. “The Neo-Liberal State of Exception in Occupied Iraq.” pp. 134–151 in W.J. Chambliss, R. Michalowski and R.C. Kramer (Eds.). State Crime in the Global Age. Portland, OR: Willan Publishing. Wyke, T. and Tomlinson, S. 2015. “France Launches Wave of Massive Bombing Raids on ISIS Targets, Throwing Jihadist Group’s Syrian Capital Raqqa into Panic as Recruitment Centre and Training Camp are Blitzed.” Daily Mail, November 15. Retrieved March 20, 2016 (http://www.dailymail.co.uk/news/article-3319696/French-fighterjets-carry-massive-airstrike-operation-ISIS-stronghold-city-Raqqa-Syria.html).

Chapter 9

Whose Law? What Order? Struggles within Juridical Fields Ida Nafstad and Isabel Schoultz 1 Introduction The first part of the title of this chapter is borrowed from the book, Whose Law? What Order? A Conflict Approach to Criminology edited by William Chambliss and Milton Mankoff (1976). The book cover shows an illustration of Lady Justice inside a raised fist, symbolizing the book’s contents about conflict perspectives in the legal system and the categorization of crime. A year earlier Chambliss had published his famous article “Towards a political economy of crime” (1975) in which he challenges the previous dominant understanding of crime by suggesting that everyone commits crime. The relevant question is who becomes identified as a criminal and how this is mainly an issue of class and the conflict between the classes. This criminalization process embraces the process of labeling acts as criminal through both the creation of laws and the enforcement of such laws. Chambliss states that: “Acts are defined as criminal because it is in the interest of the ruling class to so define them” and continues by stating: “Members of the ruling class will be able to violate the laws with impunity while members of the subject classes will be punished” (Chambliss, 1975: 152). Chambliss argues that the interests of the ruling class are a major force in the creation of criminal law when he states: “Crime is a matter of who can pin the label on whom” (Chambliss, 1975: 165). A few years later, he published On Lawmaking in which he states that lawmaking is “a process aimed at the resolution of contradictions, conflicts and dilemmas which are inherent in the structure of a particular historical period” (Chambliss, 1979: 152), where the political and economic structures are dominant. The second part of the title of this chapter relates to Pierre Bourdieu’s understanding of the struggles within the juridical field and the exercise of power within the field. We will shed light on these struggles through two case s­ tudies. The first case departs from Chambliss’ (1989) call for research on “state-­ organized crime” and is based on a study of crimes conducted by the Swedish state and how crimes are controlled by various bodies controlling the state. The second case captures the creation of legal orders through a study of the

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004411678_010

Whose Law? What Order?

181

process of constructing a justice and security sector in Palestine. Drawing on the legacy of radical criminology, and particularly Chambliss’ groundbreaking work, the aim is to discuss these two empirical cases that both concern the relationship between law and the state and, through this, analyze the dominant forces and power struggles of this relationship. Furthermore, we aim to show how Chambliss’ work is still of great value to social-legal studies and that it can be made even more valuable by combining it with other theoretical perspectives, in this case, with Bourdieu’s understanding of the juridical field. By adding a Bourdieusian analysis to Chambliss’ conflict perspective we will highlight the usefulness of both Chambliss’ and Bourdieu’s work in the analysis of the structural aspects of the power relations embedded in the creation and enforcement of law. Both Chambliss and Bourdieu emphasize struggles and conflicts in the creation of, and control through, law and they share the constant questioning of dominant concepts, such as law and crime. Law is understood to be a historical and social construct, following a reflexive sociological approach (Bourdieu, 1987). While Chambliss, grounded in a Marxist perspective, analyzes the creation and enforcement of law as consequences of class struggles and conflicts, Bourdieu adds several forms of capital (including cultural, social and symbolic capital) to economic capital. However, Bourdieu’s perspective on law differs from a Marxist conflict perspective – in which law is treated as an instrumentalized political ideology (as well as from a functionalist approach) and focuses instead on “how law is constructed out of power and regardless of who is in power” (Dezalay and Madsen, 2012: 439). Still, we believe that the merging of the perspectives can be fruitful and the two case studies – controlling the Swedish state and constructing the Palestinian state – are well suited to shed light on processes taking place within the juridical field, with a focus on dominations of power. Before we present and discuss these two case studies, we will provide some notes on the main theoretical concepts to be used, and how they can complement each other. 2

Struggles Within the Juridical Field and the Symbolic Violence of Law

In his analysis of the juridical field, Bourdieu (1987) identifies laws as being historical and social constructs resulting from struggles within this particular field, and in relation to other social fields. According to Dezalay and Madsen (2012), the totality of Bourdieusian thinking has to be deployed in order to conduct an analysis of the juridical field and make it relevant to socio-legal studies. Thus, we will provide a brief outline of Bourdieu’s concepts of field, doxa,

182

Nafstad and Schoultz

capital and symbolic power/violence and its relationship to Chambliss’ work in order to comprehend the meaning of the juridical field to our case studies. Among many achievements, Chambliss is remembered for his pioneering work in developing conflict theory in criminology, in which criminal justice should primarily be understood in terms of conflicts between social classes, and that such conflicts are unavoidable within the social structures of capitalist society. Chambliss’ conflict approach and the theories of how conflicts shape law become clear in his work On Lawmaking (1973, 169): “For if we see the law as shaped through struggles and conflicts in relation to fundamental contradictions then the engine of social change becomes conflict, not harmony or equilibrium.” These struggles cannot be found through a blunt study of generalized categories such as “social forces” or “ideology”; agency is of importance: “it is people in a particular historical context who are determining the content of the law” (Chambliss, 1973: 164). For Chambliss it was important to view actual agents within the structures; ‘society’ as an answer in itself was not enough. He also attempted to explain social phenomena by combining agency and structure, similar to Bourdieu. Instead of analyzing in terms of people or persons, however, Bourdieu takes his starting point in the positions that are inhabitable within certain structures; the fields and the struggles taking place between these positions and, in the case of the juridical field, the struggles to define law. Bourdieu understands the field as a site of struggle or as a battlefield. It is “an area, a playing field, a field of objective relations among individuals or institutions competing for the same stakes” (Bourdieu, 1993: 133). He sometimes uses the metaphor of “the game” to describe the struggle within the field. However, this metaphor should be used with caution since “the field is not the product of a deliberate act of creation and it follows rules or, better, regularities, that are not explicit and codified” (Bourdieu and Wacquant, 1992: 98). The field is defined by its specific stakes and interests. This means that in order to study a field we need to discover the struggles that constitute the field (Bourdieu, 1993). What is it that is worth fighting for? According to Moi (1991, 1021), the aim of the struggles in a given field is: “to rule the field, to become the instance which has the power to confer or withdraw legitimacy from other participants in the game.” Chambliss (1979) argues that as a result of conflict and struggles, capitalists are dominant when it comes to having the law represent their interests and views, but still, the law is a result of struggles rather than a simple reflection of interests and ideology: “The shape and content of the law is nonetheless a reflection of the struggle and not simply a mirror image of the short-run interests and ideologies of “the ruling class” or of “the people”” (Chambliss, 1979: 170). Bourdieu’s notions of the preservation and naturalization of dominant

Whose Law? What Order?

183

­structures through his concept of doxa can help explain how and why dominant classes emerge victorious from these struggles. Schemes of thoughts and perceptions of the social world that appear to be natural and self-evident within the field are referred to by Bourdieu (1977) as doxa. The objective and the imagined world overlap, without us acknowledging or being able to identify the difference (Bourdieu, 1984). The liberal understanding of the free market society can figure as an example of a doxic ­experience that goes unquestioned (Whyte, 2012). Even though doxa is understood as being established and beyond discussion, Bourdieu (2000) reminds us that doxa is historically situated. Consequently, doxa can also be challenged, but a crisis is a necessary condition for an anti-doxic critique to develop (Bourdieu, 1977; Moi, 1991). The position of social agents within the field depends on the composition of capital. Capital exists and functions in relation to a field (Bourdieu and Wacquant, 1992) and should not be understood as a specific object, nor as solely economic as in the Marxist sense, but as a social relation (Arnholtz and Hammerslev, 2012). To Bourdieu (2000), the unequal distribution of various kinds of capital – cultural, social, economic, and symbolic – constitutes the very structure of a given field, by defining distinctions between positions. The state is of crucial importance to the distribution of capital. According to Bourdieu (2000), the state has a particular capacity for distributing recognition and capital, like a central bank in the supply of symbolic capital. The state is the guarantor of several positions in the juridical field, such as judges, lawyers, police officers and criminals. Recognition is unequally distributed and one of the primary forces of this distribution is the state, particularly through the judicial and educational system (Bourdieu, 2000). Symbolic power enables the state to impose mental categories and schemes of thoughts in a population (Bourdieu, 1984). When Bourdieu (1994: 1) declares that “one of the major powers of the state is to produce and impose (particularly through the school system) categories of thought that we spontaneously apply to all things of the social world,” he is referring to ideas about the state or about “social problems.” We could, however, argue that he might as well be referring to the category of crime. The state also “holds the monopoly of legitimized symbolic violence” (Bourdieu, 1987: 838). Symbolic violence has a background in the tendency of power relations to be understood by the dominated not for what they objectively are, but as the legitimate order of things. Power holders have the means to control the language, action and understanding of social phenomena (Bourdieu, 1987). The unawareness of the dominated of the limited space available due to power relations implies symbolic violence, which can be defined as “the ­violence which

184

Nafstad and Schoultz

is exercised upon a social agent with his or her complicity […] I call misrecognition the fact of recognizing a violence which is wielded precisely inasmuch as one does not perceive it as such” (Bourdieu and Wacquant 1992: 167–168, italics in original). Drawing on what has been said thus far, below we will present the two case studies: the construction of the Palestinian state, the control of the Swedish state and in relation to juridical fields and doxa that constitute these fields, as well as the struggles taking place within them. 3

Struggles Over Structuring the Justice and Security Sector in Palestine

Chambliss (1979: 169) created a model of contradictions and resolutions in order to explain the formation of law, based on his conflict theory: “The law reflects the contradictions and attempts to deal with conflicts generated by those contradictions.” The model is as follows: the starting point is a contradiction, such as the contradiction between capital and labor, which stems from the logic of capitalism. Conflicts will follow from contradictions, such as the demand for higher wages versus striving for more profit, which can lead to strikes and even militant and violent conflicts. These conflicts cause a dilemma – the capitalist system will break down if the conflict is not resolved, but if the contradiction is resolved, it would signify the end of capitalism. This leads to the last phase in this model, the resolution of the conflict. The resolution of the conflict cannot resolve the dilemma nor the basic contradiction if the resolution is to uphold the capitalist system. Thus, the resolution will only handle the conflict by, for example, creating or changing the laws that influenced the conflict, such as minimum wage laws. Such a resolution that does not address the core of the conflict, the contradiction or the dilemmas, will eventually create new conflicts. In this section we will follow Chambliss’ contradictions-conflicts-dilemmasresolutions model in order to address the structuring of a justice and security sector in Palestine. In doing so we will draw on Bourdieusian theory where Chambliss’ model does not offer an exhaustive explanation, mainly with regard to the mechanisms that take place in the last point in the model, the resolutions and how these come about as a result of struggles and doxa within the juridical field, with an emphasis on the use of language within the juridical field. Below we will discuss the struggles between legal agents (judges and lawyers), international bodies and Israeli interest in the process of building a justice and security sector in Palestine. According to Chambliss and Seidman

Whose Law? What Order?

185

(1971), power relations and the interests of dominant groups not only create law, but also entire justice systems, which is the focus here. This section is based on material collected during three months of fieldwork in the West Bank in 2014. The total material comprises 34 interviews with around 50 persons together with courtroom observations during this period. The interviewees were judges, police officers, US and EU bodies operating in the West Bank, prison workers, ngo staff, ex-prisoners, social-, youth-, cultureand community workers, clan leaders and lawyers (for a more detailed discussion of the method, see Nafstad, 2016, 2018). Chambliss’ model in this Palestine case can be put to work in the following way: The main contradiction is the effort to build a functioning justice and security sector in the West Bank while the area is still under Israeli occupation. As part of the occupation and the results of the Oslo Accords,1 the Palestinian Authority’s (PA) judiciary and law enforcement have limited jurisdiction over both places and people. Numerous conflicts have resulted from this contradiction. The conflict highlighted here is one of priorities within the justice and security sector – between prioritizing security and terrorist threats or a functional justice system for protecting Palestinian interests. A main dilemma results from this conflict, which is the Israeli demand for a well-functioning Palestinian justice and security sector in order to transfer jurisdictional control, while such a well-functioning Palestinian sector is not achievable without proper jurisdiction over people and places. As part of finding resolutions to this, there are struggles within the juridical field, with international bodies and the Israeli side targeting the conflict while Palestinian judiciary and law enforcement are targeting the contradiction and dilemma. As mentioned above, Chambliss (1979) argues that those in dominant positions are largely victorious in their efforts to find resolutions. Based on Bourdieu’s theories, closer scrutiny into how and why this happens will be the focus below. Contradiction – a Functioning Justice Sector Without Jurisdiction Palestinian history is one of being subjected to imperialism, colonization and occupation. Having been under foreign rule over the last 500 years, Palestine

3.1

1 The Oslo Accords comprise the Declaration of Principles on Interim Self-Government Arrangements (DoP) signed in 1993 and the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo ii) signed in 1995. In the DoP, the Palestinian Liberation Organization and Israel agreed on a process towards autonomy and statehood for a future Palestinian state. As part of the DoP, the Palestinian Authority (PA) was formed.

186

Nafstad and Schoultz

has never had a monopoly on either laws, a given territory, or physical force. Each colonial power has implemented its own legislation. The Ottoman period, which ended in 1917, implemented Ottoman laws. When the British Mandate took over the area in 1917, British Mandate laws were implemented. In 1948 the West Bank was occupied by Jordan, and Gaza by Egypt, each country implementing its own laws. In 1967, Israel occupied both the West Bank and Gaza and executed Israeli military orders. Legislation stemming from all periods is still being used in Palestinian courts. As a result of the Oslo Accords, the Palestine Authority (PA) was formed in 1994 with limited governmental control over the Palestinian areas occupied by Israel. As part of the Oslo Accords, the West Bank was divided into A, B and C areas, reflecting the division of Palestinian and Israeli civilian and security administration. The PA was assigned with civilian and security control in the A areas (17.7% of the West Bank), which includes the urban and most populated areas. The Palestinian police can freely operate in these areas and Palestinian courts are located in A areas. Israel and the PA were to cooperate on governing B areas (21.3% of the West Bank), in which most West Bank villages are located, with Palestinian control over civilian issues and Israeli control over security matters. In reality, B areas are now under the full control of the Israeli military. C areas (61% of the West Bank) were to be under full Israeli control. About 150,000 Palestinians live in these areas. As with geographical jurisdiction, the PA’s jurisdiction over people is also limited and scattered. There is one jurisdiction for Palestinians from the West Bank, who can be controlled by the Palestinian police and sentenced in Palestinian courts. There is one jurisdiction for Palestinian Jerusalemites and one for Palestinian Israelis who are subject to the authority of the Israeli civilian judiciary. The Israeli military can, however, also exercise control over all Palestinians for alleged security matters, and bring them before military courts. Israeli citizens living in settlements in the West Bank are also under Israeli civilian jurisdiction and the Palestinian police have no authority over this population. The aim of the Oslo Accords was a two-state solution. Since this time there has been a constant tug of war about how this two-state solution can come into being – by first building viable state structures in Palestine so peace can be achieved, or creating peace by ending the occupation so that state structures can come into being. This contradiction recurs in research into peace and state building – what should come first: peace or a state (Call, 2008)? The contradiction in Palestine in this regard is the expectation of having well-functioning state structures, including a justice and security sector, in order to end the occupation, while the occupation has imposed vast limitations, as discussed, on the operation of these structures.

Whose Law? What Order?

187

3.2 Conflicts – Security for Israel or Justice for Palestinians How law enforcement and adjudication should be practiced, its goals, what it is supposed to appear in the West Bank, and actual opportunities for practicing it have created, and continue to create, tension and conflicts. Ever since the PA was established, security has been the main issue in the relationship between Palestine and Israel, and for the international community’s relationship to Palestine. The Israeli occupation and the peace negotiations have been dominated by a security discourse, to the extent that security has become synonymous with Palestinian statehood (Bouris and Reigeluth, 2012; Friedrich and Luethold, 2007). Israel regards the development of security as a means of enhancing its own security, producing “a system of Palestinian policing, too weak to constitute a danger and strong enough to confront the ‘infrastructure of terror’” (Friedrich and Luethold, 2007: 14). The donor community, meanwhile, is largely in line with Israel and regards it as a process of achieving the agreement of the Oslo Accords (Friedrich and Luethold, 2007). Bouris (2014) argues that the EU approach to security development in Palestine has been aimed at addressing Israeli security concerns, in line with US and Israeli priorities. One of the main goals of building institutions in this perspective has been to strengthen Fatah forces loyal to the president, to be able to control Hamas, rather than to the general benefit of the rule of law to the Palestinian people (Bouris, 2014). From a Palestinian perspective, Milhem and Salem (2011: 35) conclude that, “The main challenge to the rule of law in Palestine is occupation and the prevalence of an externally imposed agenda that does not have the wellbeing of the nation as its priority.” Further, the security coordination between Palestine and Israel is creating conflicts and distrust and constitutes “a major source of tension between the Palestinian people and their leadership” (Tartir, 2017: 15). The partition of the West Bank entails several specific problems for the operations of the Palestinian courts and police, in which the overall challenge is the limited access to the B and C areas, and thus the ability to offer a state-sanctioned justice system for the population in these areas (Nafstad, 2016). The donor community and the international bodies operating in the West Bank with the aim of developing the Palestinian justice and security sector believe that the problems and conflicts with regard to practicing law stems from a lack of infrastructure and knowledge among Palestinian legal agents: The [US body] is operating on the basis of an assumption that the Palestinian ‘Other’ would be lawless without the civilizing influence of the international bodies; whereas the [EU body] sees its mission as merely

188

Nafstad and Schoultz

technocratic, bringing knowledge to the unknowledgeable, denying the political implications of their work (Nafstad, 2018: 119). This externally led process has been criticized for not being sensitive to local needs and demands, and of handling developments in Palestine as if it was a country, but without recognizing it as such (Bouris and Reigeluth, 2012). In general, this conflict, which stems from the efforts to build a functioning justice sector in the context of limited jurisdiction, can be said to be about four conflicting foci: curbing internal threats against Israeli security forces, a technocratic reformation of the police and judiciary, the threat that the Israeli ­occupation poses to the Palestinian population, and the unofficial institutions of justice that operate in Palestine. 3.3 Dilemma – What Should Come First… The rule of law, as part of “good governance,” is perceived as being a cornerstone in building a viable Palestinian state within the nexus of the two-statesolution, both by the PA and the international community that is engaged in the conflict and the peace process. The development of law and legal institutions has come to be perceived as a solution to violent conflict. The absence of the rule of law is understood as being the reason for violence and instability, and the legal process as a key element of peace (Bouris, 2014). Instead of ­constructing law through the state, the vision is that the state is going to be constructed through law – aided by foreign donors and agencies, and in consensus with Israel. In order to transfer jurisdictional control to the B and  C areas, Israel is demanding a well-functioning justice and security sector, even though this is unachievable without such jurisdiction. Whereas the intention of the Oslo Accords was to gradually transfer the B and C areas to the full control of the PA during the late 1990s, thus far the Israeli military still has full control of more than 57% of the West Bank (Milhem and Salem, 2011). The matter of jurisdiction is not the main concern of the international bodies, which instead are of the opinion that something has to be done right away, notwithstanding the evident limitations. They are well aware of the constrictions to a well-functioning justice system posed by the occupation and the lack of jurisdiction, but believe that the alternative to attempting to structure the system would be to do nothing. They see their task as being a practical issue, how to make something work within the set limits (Nafstad, 2018).

Whose Law? What Order?

189

3.4 Resolutions – Technical Assistance and Security As mentioned above, the juridical field in Palestine is complex, with operating laws that stem from several different regimes, limited autonomy, and a complex patchwork of jurisdiction over people and places. The main actors in this complex juridical field as discussed here are agents within the Palestinian judiciary and law enforcement, the Israeli military legal system, and the international bodies helping to build a justice and security sector in Palestine. The different actors within the juridical field are struggling for legitimacy and control. They all have their own goals and perceptions of what a justice and security sector in Palestine is, how it should appear, be referred to and implemented. Friedrich and Luethold (2007: 12) point out that the important aspect for the Palestinians is a “fully-fledged functional security sector, which protects them against Israeli incursions and provides the basis for statehood and sovereignty,” though the Palestinian perspective is feeble in the power struggle that is taking place within the juridical field, due to a lack of symbolic and material capital in a field in which the international donor community and the Israeli military have taken such a prominent position. International bodies offer funding and expertise based on the doxa of Western superiority, which gives them an advantage in the struggle that is taking place within the juridical field with regards to understanding the phenomena of the Palestinian justice and security sector, and how to approach and advance it. The subtext of their approach is a claim to universality, a universality with regards to the correct path in the progression towards the development of a “modern” justice and security sector, while the Israeli military offers a security discourse, strongly reverberating in a Western understanding of the conflict and solutions to it. These actors manage and play by the rules of the game, following a Western juridical doxa, bringing with it a universality and naturalization of the security discourse. This relates to the tendency to regard the implementation of the rule of law as a technical task of drafting laws and creating institutions, overshadowing the socioeconomic, cultural and political aspects of the totality of a justice situation. The deficit is further reinforced by the trend of measuring the development of the rule of law in the light of international human rights standards and Western liberal democracy and rule-of-law models (Isser, 2011). In this complexity, other influences of the rule of law, such as ongoing colonization and the colonial legacy are being neglected; they do not fit in the juridical field. These elements are considered external to the rules of the game of the juridical field, thus having no voices when it comes to struggles within the field.

190

Nafstad and Schoultz

Still, the occupation, and the international donor community’s responses to it, have had a tremendous impact on the juridical field, is dominating the rules of the game and setting the doxa within the field; how the justice and security sector should be understood, and what it is to be in Palestine. The rule of law as the primary means of gaining peace and a Palestinian state and the ­importance of security, first and foremost Israeli security – as part of the rule of law – appears to be natural and self-evident, through processes of universalization. Resistance to this narrative is considered resistance to the d­ evelopment of the rule of law. Such discussions, challenging the doxa, have no place in the juridical field and the development of the rule of law in Palestine. Furthermore, challenging the doxa of the juridical field, as stated above, jeopardizes influence and credibility. To gain legitimacy in the juridical field the agents in the field have to adhere to the rules of the game – the rule of law and the security agenda defined by the dominant actors. These definitions and the implementation of the rule of law in which security is the main objective can be considered symbolic violence, forming the doxa in the juridical field to which the international donor community and the PA conforms, which, in the end, leads to fortifying the Israeli occupation by securing the interests of the occupation through a security narrative. The result is a focus on the conflict aspect of Chambliss’ (1979) model – how to improve the ability of the judiciary and law enforcement to provide security within the confinement of the scattered parts of the jurisdictions within which they are able to operate. Previous research has emphasized that failures regarding the peace and state-building project in Palestine are not due to the lack of technical assistance and practice, but rather the failure to handle the core political problems (Brynen, 2008). Thus, the main contradiction and dilemma, the occupation and the lack of jurisdiction, which causes these conflicts, have not been dealt with. This lack of focus on the contradiction and dilemma will, as Chambliss (1979) emphasized, eventually lead to new conflicts. Below we will discuss struggles within the juridical field, its inherent power relations, and the doxa forming these in relation to the control of the Swedish state, a case inspired by Chambliss’ state-crime perspective. 4

Controlling State Crime

A discussion on the criminality of states arose within criminology at the end of the 1960s. Scholars acknowledged the social and political process of defining crime, typically involving the interests of those in power. When Chambliss (1989) called for the study of “state-organized crime” in his American Society

Whose Law? What Order?

191

of Criminology presidential address, he triggered the emergence of criminological research into crimes by states (Michalowski, Chambliss and Kramer, 2010; Rothe and Mullins, 2011). Originally, Chambliss (1989: 184) chose to describe state-organized crime as “acts defined by law as criminal and committed by state officials in the pursuit of their job as representatives of the state.” Chambliss’ emphasis was on criminal law, until he subsequently noted that behaviors that violate international agreements and principles should also be included (Matthews and Kauzlarich, 2007). Since this time, several prominent researchers have moved beyond the traditional definition of crime, using international law and human rights standards to define crime (Cohen, 2009; Kauzlarich and Kramer, 1998; Michalowski and Kramer, 2006; Ross, 2003). Taking laws as the point of departure for defining whether or not state actions are criminal presents problems because the state defines the law and would rarely wish to classify its own behavior as criminal (Matthews and Kauzlarich, 2007; Rothe, 2009; Williams, 2010). As has been noted by Chambliss (1975), laws are created through political processes and power struggles between different interests. This is true to both domestic legislation and internationally agreed conventions on human rights. Inspired by Rothe (2009), state crime is defined here as either acts or instances of inaction, which are attributable to an agent of the state and which violate domestic law (including administrative law) or international law (including human rights violations). It includes, but is not limited to, acts committed by the state and acts for which state agencies are reprimanded, or deemed liable to pay compensation, by the mechanisms controlling the state. The focus on state crimes has also led to attention being directed towards the control of state crime, and towards the formal and informal bodies that exercise control in relation to the state. The focus of this case study is the control of the Swedish state in relation to its treatment of asylum seekers and others applying for residence permits in Sweden. The case study looks closely at five types of bodies of control whose focus is directed towards holding the state or its agencies to account for the treatment of current and former residence permit applicants who, for the most part, are asylum seekers. Five bodies of control were carefully chosen to represent various forms of control: formal and informal control, internal and external, domestic and international, and control focusing on both the state as a whole and on agencies within the state. The United Nations and the European Court of Human Rights have been put in place to document and call states to account for human rights violations. In addition, both the Parliamentary Ombudsman and the Chancellor of Justice have a long tradition as domestic bodies of control in relation to state agencies, and non-governmental organizations (ngos) are important informal bodies of

192

Nafstad and Schoultz

c­ ontrol in relation to state actions. These five bodies of control have criticized the Swedish state for the bureaucratic failures of state agencies in, for example, the process of seeking asylum and residence permits, an unfair and unequal process of seeking asylum, incorrect decisions in relation to asylum applications and the state’s failure to provide equal access to society’s welfare system. However, criticism varies to a great extent between the different bodies of control. The case study formed part of a larger research project aimed at developing an understanding of the outcomes and limitations of the formal and informal controls exercised in relation to the Swedish state, as well as an understanding of the positions and strategies of the social agents involved in the field (Schoultz, 2014). The study is based on a high number of judgments and reports from 2000 to 2010 by the Parliamentary Ombudsman, the Chancellor of Justice, the European Court of Human Rights, the UN and ngos. In addition, interviews have been conducted with representatives of some of the control bodies, namely the Parliamentary Ombudsman, the Chancellor of Justice, and the European Court, as well as several ngos. The ngos worked either on human rights in general or more specifically on the rights of migrants as asylum seekers and as undocumented individuals residing in Sweden. The ngos represent both well-established international organizations and locally based groups of activists (see Schoultz, 2014 for a discussion on the data and methods employed). The treatment of asylum seekers and others applying for residence permits in Sweden is part of a general trend in Europe, where border controls have intensified, immigration has become criminalized (Barker, 2012; Bosworth and Guild, 2008), and the majority of applicants are subject to the considerable force of what has been referred to as the European deportation machine (Fekete, 2005). Asylum seeking has been transformed from a human rights issue into a security problem and asylum seekers have come to be regarded as a group of people from whom “we” need to be protected, rather than as people in need of protection themselves (Aas, 2007; Abiri, 2000). The identification of failures to positively embrace the right to asylum throughout Europe (Green and Grewcock, 2002) may be particularly disturbing to the institutional legitimacy of a country like Sweden because of a desire to maintain the country’s self-image of decency and humanity. 4.1 The Struggle Within the Field The Bourdieu-inspired understanding of control of the state as a field produces a focus on the ongoing struggle between social agents. In this context,

Whose Law? What Order?

193

competitors in the field comprise the state, the bodies controlling the state, and the individuals or organizations that hold the state to account.2 Positions in the field depend on the capital possessed by the social agents (Bourdieu and Wacquant, 1992). There are, however, relevant differences in the possession of such capital both between different social agents and within the same type of social agents (particularly in relation to those holding the state to account). It has been suggested that a private individual has little power vis-à-vis governmental departments (Hurwitz, 1981). This could lead to the conclusion that the game has already been lost. However, since the game is taking place, those holding the state to account also possess a configuration of different forms of capital. In a state that is keen to appear democratic and fair, one strategy might be to ensure that the other players receive just the right amount of capital to ensure that the game can continue and does not appear to be fixed. In this respect, there could be a potential difference between the Swedish state and other states that have less interest in preserving their good reputation. In Bourdieu’s (1994) terms, the state is the holder of a form of meta capital, which enables the state to exercise power over the field and over the capital in the field. In other words, the state possesses the capital to settle the rules of the field and to determine who is a legitimate player. In this sense, distributing capital to the adversary agents in the game may actually strengthen the state’s position. Controls of states have often been interpreted as an all-or-nothing matter, with discussions focusing on their availability, functioning or consequences (Ross, 2011, 2000; Ross and Rothe, 2008). Instead, the conclusions of the analysis of the control of the Swedish state highlight a much more complex game, in which the positions and strategies of the agents in the field depend on their specific capital (in the form of, for example, resources, knowledge and support). Representatives of both formal bodies of control and ngos have highlighted the importance of recognition and legitimacy for being able to do their work. Bodies of control balance their criticism in an attempt to improve the state. Those holding the state to account have to adjust to the rules of the game or risk being defined out. This is also true for the ngos in their role as ­bodies of 2 Analyzing relationships in the field from the positions of these three main social agents could be problematic as it reduces the complexity found within each type of agent. For example, in a Bourdieusian sense, it is questionable to speak of the state as an actor. Also, the positions occupied by different groups are far from equal. In a sense, it is rather insensitive to consider all social agents within the field as competing for the same stake. When migrants attempt to hold the state to account, the struggle for recognition and legitimacy may also be a struggle for survival. Despite these limitations, we find the analysis valuable as a means of understanding the positions and strategies in the field.

194

Nafstad and Schoultz

control.3 They are more independent of the state but are dependent to a greater extent on being recognized in order to be able to exercise control (Schoultz, 2014). Interviewees, from both the formal bodies of control and ngos, note the importance of having access to specific knowledge and experience in the form of legal competence when formulating their claims. Some appear to know the game better than others. This access to competence and knowledge constitutes a form of capital which, to use Bourdieu’s terminology, is necessary even to become a player in this field. For those least endowed with capital, having a legal representative who knows the juridical language as well as the field and who inhabits a well suited habitus may serve to strengthen their capital in relation to the other agents in the field. In some cases, legal representatives are themselves the ones who hold the state to account. As long as control bodies are not engaged in producing a systematic overview of crimes committed by the state, focusing instead on particular issues related to specific individuals – as is the case with much of the control of the state – their work may serve to strengthen the legitimacy of the state. This is, of course, problematic when the aim of the control has been the opposite, to challenge state practices (in the mistreatment of asylum seekers, for example). Those who participate in the field have (unconsciously) accepted the existence of the field, a field that requires an understanding of the state (and its agencies) as being controllable. The control then risks being counterproductive and serves to reinforce the legitimacy of the state in general and the process of seeking asylum in particular (Schoultz, 2014). This can furthermore be related to Chambliss (1979) and his contradictionsconflicts-dilemmas-resolutions model, which was in focus in the Palestinian example above. Here, the focus is about resolving conflicts between individuals and the state, and not the core problem relating to the state exercising its power and, in particular, border controls, which, in turn, contribute to creating new conflicts (individual cases) which will preserve the dominant structures. 4.2 Challenging Doxa The analysis of the struggles within the field highlights how doxa (in which the process of seeking asylum is taken for granted), molds the control of the 3 The NGOs have a double role in this game. First and foremost they act as bodies of informal control by publishing reports and disclosing state crimes in other ways. However they are also, in a sense, complainants, insofar as they make use of formal bodies of control in order to hold the state to account. In both these roles, however, it appears to be crucial to be accepted as credible and to receive recognition.

Whose Law? What Order?

195

state. The ways in which bodies that control the state frame their criticism are ­conditioned by a certain understanding of the social world. In Bourdieu’s terms, the system of sovereign nation states protecting their borders and only granting certain outside applicants access to the state is self-evident and “goes without saying” (Bourdieu, 1977: 167). A few of the representatives of the ngos who were interviewed question this doxa and ask what is so normal about borders, why is a restrictive immigration policy taken for granted, and how can we have ratified human rights conventions about the right to seek asylum when it is impossible to legally arrive in the country in which you wish to seek protection? In Chambliss’ (1979) terms, this could be referred to as the contradiction. As observed by ngo representatives, challenging the doxa of the field may compromise the organization’s influence and credibility. Some of the ngos interviewed acknowledge how they have to adapt to the rules of the game, or risk being perceived as irrelevant and losing their influence. In their role as an informal body of control, the formulation of their criticism of the state is based on issues of strategy and on considerations necessary to maintain their credibility. According to the interviews conducted, this is the case for all of the bodies of control, but for ngos in particular. As a result of their informal nature, they are highly dependent on being accepted in order to gain access to the field. This is described as a balancing act by some formal bodies of control, with every judgment being important for the legitimacy of the bodies of control since they depend on the cooperation of the state. The strategies involved include the ways in which they express their criticism or claims, for example, by avoiding certain expressions and adapting to the use of formal language. Other ngos appear to be less concerned about the risk of losing their position within the field. This is another result of the symbolic violence enacted by the state, this time in the form of the right to deny legitimacy to certain interests and forms of capital. Due to the logic of the field, the ngos cannot question the rules of the game, or the doxa within the field, and at the same time be accepted as players in the game. Furthermore, this can be understood in Chambliss’ terms as a result of the targets of control of the state being the conflict (the individual asylum cases) and not the contradiction in itself (the asylum system). In a Bourdieusian sense it could be said that struggles taking place inside the field contribute to solidifying the power structures. Thus, resistance from the dominated contributes to continued domination. Hence, the position occupied by a control body in the field in relation to the state may be highly ­relevant for understanding the control body’s potential for challenging the legitimacy of the state. Framing anti-doxic criticism (see Moi, 1991) may place the trustworthiness and legitimacy of the control body in question at risk. However, for those ngos that are less bounded by the field, and already have

196

Nafstad and Schoultz

less influence, the risk of being defined out may be less harmful and will instead contribute to an ability to challenge the doxa. 5

Concluding Notes

When the state attempts to resolve conflicts resulting from contradictions in the political and economic system, the state aims to resolve the conflict, not the contradiction inherent to the system (Chambliss, 1979: 153). Furthermore, according to Bourdieu, it could be said that the conflict is not aimed at the contradictions in the system, but rather on the consequences experienced and the outcome of that contradiction. The conflicts are positioned within the dominant framework. The system is naturalized through the doxa in the field and the actor’s belief in and struggle for capital and domination within the field. Neither the conflict nor the state’s solution to the conflict is about the contradiction, but about its outcome. The conflict is kept inside the field and is about the capital at stake in the field. The struggles within the field further legitimize the field, as Bourdieu explains: “Thus the scope for maneuver that agents win for themselves (and which theories of ‘resistance’ are quick to celebrate, in their concern to rehabilitate, as proof of inventiveness) may be the condition of their contribution to their own exploitation” (Bourdieu, 2000: 206). When challenging dominant positions within a field, you confirm the structures of domination, as presented in the example of how the control of the Swedish state legitimizes the state’s asylum policies, and in how the PA’s participation in developing the rule of law justifies the Israeli security force’s narrative that solidifies the occupation. According to Bourdieu, this is not resistance. It does not lead to or target structures of distribution of capital. To Bourdieu, resistance is about revealing and identifying the structural background of positions in social space; it is questioning the naturalized order, not acknowledging the doxa; it has to be directed towards what Chambliss (1979) identifies as the contradictions, in order not to contribute to your own domination. The social structures are so deeply embedded in social reality that it is not only i­mmensely difficult to change, but also to identify. The end product is social reproduction, of which resistance is a part. This means that struggles within the juridical field also lead to the reproduction and legitimation of ­power structures and doxa in the juridical field. In the title of this chapter we rhetorically ask, Whose laws? What order? In the spirit of Chambliss’ conflict perspective, throughout the chapter we have discussed the struggle within juridical fields. The two case studies on control of

Whose Law? What Order?

197

the Swedish state and on constructing a justice and security sector in Palestine have provided empirical examples of how the field provides a platform for a struggle between social agents about the meaning of the state, law and crime. Still, the fields and the struggle within the fields are bounded by the dominant understanding of the social world and, from a Bourdieusian perspective, we discover how doxa forms the fields. We have identified that the ways in which bodies controlling the state frame their criticism are conditioned by a certain understanding of the social world. Thus, the understanding of sovereign nation states (with the right to brutally differentiate between those who are considered to belong to the territory in question and those who are considered not to belong) shapes the control of the state. By analyzing the struggle in the juridical field in Palestine, and ­particularly the construction and understanding of justice and security in Palestine, we have also acknowledged how the international and Israeli definition and implementation of the rule of law is formed in the juridical field. In other words, the order that regulates these juridical fields is based on colonialism and the territorially circumscribed nation state. The struggles are taking place inside the framework of the field, not challenging the doxa. Power relations in the juridical field have been naturalized and contribute to solidifying doxa. Such resistance, on the terms of the dominating powers, leads to symbolic violence, a continued domination. References Aas, K.F. 2007. Globalization and Crime. London: Sage. Abiri, E. 2000. The Securitisation of Migration: Towards an Understanding of Migration Policy Changes in the 1990s: The Case of Sweden. University of Gothenburg, Gothenburg. Arnholtz, J., and Hammerslev, O. 2012. “Transcended Power of the State: The Role of Actors in Pierre Bourdieu’s Sociology of the State. Distinktion.” Scandinavian Journal of Social Theory, 14(1): 42–64. Barker, V. 2012. “Global Mobility and Penal Order: Criminalizing Migration, A View from Europe.” Sociology Compass, 6(2): 113–121. Bosworth, M. and Guild, M. 2008. “Governing through Migration Control. Security and Citizenship in Britain.” British Journal of Criminology, 48(6): 703–719. Bourdieu, P. 1977. Outline of a Theory of Practice. Cambridge: Cambridge University Press. Bourdieu, P. 1984. Distinction: A Social Critique of the Judgement of Taste. Cambridge: Cambridge University Press.

198

Nafstad and Schoultz

Bourdieu, P. 1987. “Force of Law: Toward a Sociology of the Juridical Field.” Hastings Law Journal, 38(5): 805–853. Bourdieu, P. 1993. Sociology in Question. London: Sage Publications (CA). Bourdieu, P. 1994. “Rethinking the State: Genesis and Structure of the Bureaucratic Field.” Sociological Theory, 12(1): 1–18. Bourdieu, P. 2000. Pascalian Meditations. Cambridge: Polity Press. Bourdieu, P. and Wacquant, L. 1992. An Invitation to Reflexive Sociology. Chicago, IL: University of Chicago Press. Bouris, D. 2014. The European Union and Occupied Palestinian Territories: State-Building Without a State. New York, NY: Routledge. Chambliss, W.J. 1975. “Towards a Political Economy of Crime.” Theory and Society, 2(1): 149–170. Chambliss, W.J. 1979. “On Lawmaking.” British Journal of Law and Society, 6(2): 149–171. Chambliss, W.J. (1989). “State Organized Crime – The American Society of Criminology, 1988 Presidential Address.” Criminology, 27(2): 183–207. Chambliss, W.J. and Mankoff, M. 1976. Whose Law? What Order? A Conflict Approach to Criminology. New York, NY: John Wiley and Sons, Inc. Chambliss, W.J. and Seidman, R 1971. Law, Order, and Power. Piscataway, NJ: AddisonWesley Publication Company. Cohen, S. 2009. States of Denial. Knowing About Atrocities and Suffering. Cambridge: Polity Press. Declaration of Principles on Interim Self-Government Arrangements. 1993. UN General Assembly Security Council. A/48/486 S/26560. Retrieved January 4, 2018 (https://peacemaker.un.org/sites/peacemaker.un.org/files/IL%20PS_930913_­ DeclarationPrinciplesnterimSelf-Government%28Oslo%20Accords%29.pdf.) Dezalay, Y. and Madsen, M.R. 2012. “The Force of Law and Lawyers: Pierre Bourdieu and the Reflexive Sociology of Law.” Annual Review of Law and Social Science, 8(1): 433–452. Fekete, L. 2005. “The Deportation Machine: Europe, Asylum and Human Rights.” Race Class, 47(1): 64–78. Friedrich, R. and Luethold, A. 2007: “Introduction.” pp. 13–30 in R. Friedrich, and A. Luethold (Eds.) Entry-Points to Palestinian Security Sector Reform. Geneva: Geneva Centre for the Democratic Control of Armed Forces (DCAF). Retrieved January 4, 2019 (https://www.dcaf.ch/sites/default/files/publications/documents/Entry-Points %28EN%29.pdf) Green, P. and Grewcock, M. 2002. “The War against Illegal Immigration: State Crime and the Construction of a European Identity.” Current Issues in Criminal Justice, 14(1): 87–101. Hurwitz, L. 1981. The State as Defendant. Governmental Accountability and the Redress of Individual Grievances. Westport, CT: Greenwood Press.

Whose Law? What Order?

199

Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip. 1997. UN General Assembly Security Council. A/51/889 S/1997/357. Retrived January 5, 2019 (https://peacemaker.un.org/sites/peacemaker.un.org/files/IL%20PS_950928_ InterimAgreementWestBankGazaStrip%28OsloII%29.pdf) Isser, D. 2011. Customary Justice and the Rule of Law in War-Torn Societies. Washington, D.C.: United States Institute of Peace Press. Kauzlarich, D. and Kramer, R.C. 1998. Crimes of the American Nuclear State: At Home and Abroad. Boston, MA: Northeastern University Press. Matthews, R.A. and Kauzlarich, D. 2007. “State Crime and State Harms: A Tale of Two Defintional Frameworks.” Crime, Law and Social Change, 48(1–2): 43–55. Michalowski, R.J. and Kramer, R.C. (Eds). 2006. State-Corporate Crime: Wrongdoing at the Intersection of Business and Government. Piscataway, NJ: Rutgers University Press. Michalowski, R.J., Chambliss, W.J. and Kramer, R.C. 2010. “Introduction.” pp. 1–9 in W.J. Chambliss, R.J. Michalowski and R.C. Kramer (Eds.), State Crime in the Global Age Cullompton: Willan Publication. Milhem, F. and J. Salem. 2011. “Building the Rule of Law in Palestine: Rule of Law Without Freedom.” pp. 253–276 in S.M. Akram, M. Dumper, M. Lynk and I. Scobbie (Eds.). International Law and the Israeli-Palestinian Conflict: A Right-Based Approach to Middle-East Peace. New York, NY: Routledge. Moi, T. 1991. “Appropriating Bourdieu: Feminist Theory and Pierre Bourdieu’s Sociology of Culture.” New Literary History, 22(4): 1017–1049. Nafstad, I. 2016. “Criminal Justice in a Partitioned West Bank: Impacts of the Oslo ­Accords seen from the Perspective of Palestinian Judges and Police Officers.” pp. 391–412 in K. Dahlstrand (Ed.), Festskrift till Karsten Åström. Lund: Juristförlaget i Lund. Nafstad, I. 2018. “International and Local Visions of the Justice and Security Sector in the West Bank.” International Journal for Crime, Justice and Social Democracy, 7(1): 108–122. Ross, J.I. 2003. The Dynamics of Political Crime. Thousand Oaks, CA: Sage. Ross, J.I. 2011. “Reinventing Controlling State Crime and Varieties of State Crime and Its Control: What I Would Have Done Differently.” pp. 185–197 in D.L. Rothe and C.W. Mullins (Eds.), State Crime: Current Perspectives. Piscataway, NJ: Rutgers University Press. Ross, J.I. (Ed.). 2000. Controlling State Crime. New Brunswick, NJ: Transaction Books. Ross, J.I. and Rothe, D.L. 2008. “Ironies of Controlling State Crime. International Journal of Law, Crime and Justice, 36(3), 196–210. Rothe, D.L. 2009. State Criminality: The Crime of All Crimes. Lanham, MD: Lexington Books. Rothe, D.L. and Mullins, C.W. (Eds.). 2011. State Crime: Current Perspectives. Piscataway, NJ: Rutgers University Press.

200

Nafstad and Schoultz

Schoultz, I. 2014. Controlling the Swedish State: Studies on Formal and Informal Bodies of Control. Stockholm: Department of Criminology, Stockholm University. Tartir, A. 2017. “Criminalizing Resistance: The Case of Balata and Jenin Refugee Camps.” Journal of Palestine Studies, 46(2): 7–22. Whyte, D. 2012. “Between Crime and Doxa: Researching the Worlds of State-Corporate Elites.” State Crime Journal, 1(1): 88–108. Williams, K., S. 2010. “State Crime.” pp. 742–761 in F. Brookman, M. Maguire and T. Bennett (Eds.), Handbook on Crime. Cullompton: Willan Publishing.

Index accumulation 30, 103, 107, 111, 112, 113 acts 4, 5, 8, 9, 11, 12, 14, 116, 157, 161, 169, 171, 172, 191, 194 harmful 3, 8, 9, 13, 21 overt 5, 11, 13 violent 75, 76 Adler 44, 49, 56 administration 60, 61, 68, 92, 96, 97, 99, 100, 126, 130, 132, 168, 173 Afghanistan 130, 131, 161, 162, 166, 167, 168, 173, 178 agencies 5, 26, 64, 91, 97, 147, 182, 188, 191, 194 agents 182, 189, 190, 191, 193, 194, 196 aggression 132, 136, 159, 161, 177 Aggression and State Crime 25 airstrikes 164, 165, 166, 169, 170, 174 Albini 30, 37, 40, 41, 42 allies, key United States 169 American Civil Liberties Union 148, 149, 151 American consumers 123, 124 American Empire 118, 134, 135, 136 American exceptionalism 118, 125, 128, 129, 130, 131, 134, 136 American Nuclear State 144, 153, 199 America’s War 116, 118, 119, 125, 130, 133, 134 Amusement Association 36, 37 Andersen, Arthur 11–12, 23 Angel Families 68 Apple 20, 21, 24 Applebaum 53, 55, 56 argument 1–2, 40, 50, 60, 61, 94 Armstrong 128, 129, 134 arrangement, conspiratorial 11, 12, 13, 14 array 97, 99, 146, 147 arrest 33, 35 asylum seekers 191, 192, 194 attacks 38, 76, 128, 130, 131, 132, 138, 163, 164, 165 terrorist 127, 130 attention 3, 6, 59, 60, 71, 79, 96, 134, 141, 142, 143, 144, 147, 157, 158 audience 63, 116 authorities 9, 12, 15, 64, 65, 67, 71, 97, 105, 159, 186

Bacevich 116, 118, 121, 122, 123, 124, 125, 126, 127, 128, 129, 133, 134 Baker 7, 15, 23 barrels 123, 124 bases 49, 52, 72, 101, 106, 123, 145, 146, 147, 163, 187, 189 Bashar Al-Assad 158, 159 beaten 32, 33 Beinart 76, 80 benefits 1, 4, 7, 8, 13, 99, 101, 102, 103, 106, 132, 133, 151, 169, 171 Bennett, Bill 36 Bernd 143, 150, 151 bias, individualistic 3, 4, 5 Bill 1–3, 53, 90, 91, 116, 173 biopower 162, 167, 169 exercise of 160, 162, 167 Block 29, 30, 38, 41, 42, 94, 110 Blood for oil 116, 117, 119, 121, 123, 124, 125, 127, 129, 131, 133, 135, 137 Bloomington 23, 24, 42, 47, 51, 57 bodies 47, 48, 144, 157, 162, 167, 170–71, 180, 185, 187, 191, 192, 193, 194–95, 197 informal 191, 195, 200 international 184, 185, 187, 188, 189 Boggs 116, 117, 118, 119, 120, 121, 134 borders 59, 66, 68, 77, 135, 149, 195 Boston 42, 43, 56, 57, 86, 111, 114, 135, 153, 199 Bourdieu 181, 182–85, 193, 195, 196, 197–98 Bouris 187, 188, 198 Boyer 106, 107, 111 Bradshaw 140, 142, 143, 144, 146, 148, 150, 151, 152, 153, 154 Braithwaite 4, 6, 16, 22 bribes 21, 34, 35 Broadway Jones 46, 47, 48, 49, 50, 52, 55, 58 Bush 59, 126, 127, 131 elder 126, 128, 129 Bush, George W. 57, 59, 129, 131, 137, 176 Bush Administration 127, 128, 130, 131, 132, 134, 137, 168 business 2, 6, 7, 34, 36, 48, 58, 103, 105, 137, 158, 199 business crime 6, 23

202 campaign 66, 99–100, 128, 142, 150, 155 capital 103, 104, 105, 106, 107, 110, 113, 114, 181, 182, 183, 184, 193, 194, 196 owners and managers of 103, 104, 105, 106 capital accumulation 92, 102, 105, 108, 110 capitalism 16, 18, 91, 103, 105, 107, 108, 110, 112, 114, 135, 140, 184 regulated 108, 109 capitalists 17, 18, 94, 104, 105, 182 capitalist state 24, 103, 104, 105 capitalist system 110, 184 Carter 59, 124, 125, 164, 174 cases 16, 19, 20, 30, 37, 58, 93, 150, 154, 158, 178, 190, 194, 197, 200 case studies 139, 140, 143, 145, 180, 181, 182, 191 century 6, 94, 105, 107, 110, 114, 116, 126, 133 Chambliss. 1, 3, 18, 28, 29, 31–42, 44, 45, 46, 49, 51, 52, 53–58, 60, 61, 79, 90, 103, 116, 134, 139, 140, 156–158, 160, 173–177, 180, 182, 190–191, 198. Chambliss’ conflict perspective 181, 196 Chambliss’ field study 38 Chambliss’ model 184, 185 Chambliss’ power paradigm 46 Chambliss’ research 32, 40, 41 Chambliss’s address 156, 157 Chambliss’s contribution 157 Chambliss’ state-crime perspective 190 Chambliss’ use of deception in field research 53 Chambliss’ work 181, 182 Chancellor of Justice 191, 192 change, climate 96, 97, 99, 101, 117, 123, 134, 137 Chernus 128, 129, 130, 134 children 15, 51, 93, 170 cia 11, 19, 116, 118, 121, 122, 133, 137 cities 32, 34, 36, 37, 38, 39, 43, 55, 60, 71, 73, 113, 142, 165 citizens 14, 61, 76, 79, 99, 103, 104, 161, 171, 172 civilians 166, 167, 170, 175, 178 Clarke 6, 23, 129, 130, 131, 135 client states 120, 124, 129 climate crimes 117, 133, 136 state-corporate 117 Clinton 59, 126, 127–29 cnn 70, 79, 81, 84, 85, 87, 163, 164, 165, 166, 174, 178

Index CO (corrupt organizations) 7–8, 26, 42, 43, 134 Cohen 20, 23, 50, 52, 56–57, 191, 198 Cold War 119, 121, 123, 125, 126, 128 collar crime 46, 58 white 6, 23, 24, 26, 116 Collingwood 60, 81, 82 commission 3, 4, 5, 8, 9, 10, 11, 13, 19, 55, 140, 172 inter-organizational conspiracy of 11 company 13, 14, 21, 42, 113, 136 concept 8, 24, 26, 30, 139–40, 159, 183 conflicts 18, 19, 103, 104, 180, 181, 182, 184, 185, 187, 188, 189, 190, 195, 196 Congress 67, 72, 83, 85, 97, 100, 115, 133, 145, 164, 177 conspiracies 2, 3, 4–5, 7, 8, 9, 11, 12, 13, 14, 15, 17, 19–22, 30, 39 alien 31, 39 crime of 4, 8 inter-organizational 10, 12, 19 intra-organizational 9, 10, 13, 14, 15 construction, social 59, 60 contamination, environmental 144, 145, 147, 150 contradictions 17, 18, 19, 21, 22, 24, 104, 105, 180, 184, 185, 186, 190, 195, 196 fundamental 18, 182 contributions 1, 28, 41, 156, 196 control 22, 23, 35, 36, 123, 124, 125, 131, 132, 133, 164, 165, 168, 188, 191–97 informal 191, 192, 194 control bodies 192, 194, 195 Controlling State Crime 190, 199 Copp 147, 151–52 corporate behavior 92, 105 correctional facilities 139, 142, 145 Corrections Information Council 148, 152 corruption 7, 15, 23, 32, 33, 37, 43, 55, 139 organizational 6, 7, 26 corrupt organizations. See CO cost-benefit analysis 101, 102, 111 country 13, 14, 59, 60, 66, 67, 70, 72, 73, 119, 120, 121, 124, 126, 127 safe 68 county 36 creation 60, 72, 74, 100, 125, 156, 162, 163, 164, 166, 172, 173, 180, 181, 182 Cressey 39, 40, 43, 46, 49, 50, 51, 52, 53, 57, 58

Index crime control 29, 80, 158, 160 Crime in State Crime Studies 25 crime networks 33, 34, 37, 38, 39, 40 crime rates 60 crimes 4, 5, 8, 16, 26, 29, 42, 57, 117, 156–60, 173, 176, 178, 180, 199 address 157, 158 committing 19, 68, 86 corporate 2, 6, 22, 23, 25, 26, 57 illegal alien 74, 75 pervasive state-corporate 96 prospective 160, 171, 173 study 4, 6 terrible 158 undocumented immigrant 68, 74 violent 59, 68, 82 war 46, 120, 132, 135 white-collar 2, 23, 25, 27, 57, 59, 81, 156, 157 crimes of states 157–58 the crimes of the powerful 158 crime victims 62–63 criminal 2–3, 8, 9, 13, 16, 17, 19, 20, 58, 59, 62, 116, 118, 180, 191 criminal behavior 2, 3, 6 criminal conspiracies 2, 4, 5, 6, 11, 21, 26 criminal convictions 141 criminality, organizational 6, 17 Criminal Justice 24, 26, 28, 43, 56, 86, 152, 182, 198, 199 Criminal Justice Policy Review 81, 82, 85, 87 criminal organizations 31, 41, 43 Criminals Act 73, 74, 85, 87 criminological inquiry 28, 29, 157 Criminological Theory 57, 58, 84 criminologists 2, 6, 28, 29, 31, 39, 46, 47, 49, 50, 52, 58, 60, 153, 157 green 139, 140, 141 criminology 1–2, 27–29, 41, 42, 44, 45, 46, 49, 51–52, 56, 57, 58, 153, 173, 198 cultural 45, 52 prospective 160, 173 state crime and green 58, 139, 140, 141, 151 criminology of crimes of states 156, 157, 159, 160, 173, 176 crises 35, 109, 111, 113, 115, 134, 183 Critical Criminology 25, 58, 151, 153, 154, 160, 161, 171, 178 criticism 76, 129, 192, 193, 195, 197

203 C-span 64, 67, 70, 71, 75, 81 Cullen 60, 62, 63, 64, 66, 68, 70, 72, 74, 76, 78, 80, 81, 82, 84 culture 6, 16, 23, 49, 52, 56, 57, 82, 118, 120, 176, 185, 199 Curbing State Crime 136 Customs Enforcement 65, 67, 71, 74, 75, 88, 141, 148, 155 dcaf (Democratic Control of Armed Forces) 198 deaths 13, 14, 33, 60, 65, 69, 71, 72, 77, 78, 93, 167, 170, 171, 177 deception 45, 46, 48, 49, 50, 52, 53, 54 art of 44, 45, 47, 49, 51, 53, 54, 55, 57 decisions 1, 3, 18, 19, 21, 35–36, 63, 95, 97, 98, 127, 130, 171 Defense 117, 118, 130, 131, 144, 146, 155 democracy 3, 61, 87, 126, 129, 130, 131, 132, 175 Democratic Control of Armed Forces (dcaf) 198 deregulation 92, 105, 106, 108, 169, 172 development 1–2, 6, 24, 32, 48, 52, 63, 116, 117, 118, 127, 187, 188, 189, 190 deviance 6, 7, 16, 51, 56, 57, 114, 158, 177 organizational 7 Diaz 71, 72, 81 Diebel 64, 65, 68, 88 dilemmas 17, 18, 19, 21, 24, 103, 180, 184, 185, 188, 190 Doctrine, Carter 124, 125, 126, 127, 133 documents, official 30, 31, 32 domination 181, 195, 196, 197 Dorrien 126, 129, 130, 135 Dower 117, 118, 120, 121, 135 doxa 181, 183, 184, 189, 190, 194, 195, 196, 197, 200 drugs 33, 34, 35, 37, 43, 53, 59, 66, 158 edgi (Environmental Data and Governance Initiative) 101, 112 efforts 60, 63, 70, 72, 74, 91, 105, 106, 108, 118, 120, 123, 129, 132, 185 El-Khatib 60, 81, 82 emergence 45, 49, 102, 117, 119, 120, 157, 159, 191 empire 118, 119, 121, 134, 135, 136, 137, 138 climate crimes of 116, 117, 118, 123, 133 crimes of 116, 118, 120, 133, 134

204 Enemy 135, 156, 157, 159, 161, 163, 165, 167, 169, 171, 173, 175, 177, 178, 179 enforcement 28, 34, 42, 63, 91, 104, 106, 149, 180, 181 Enron 10, 11, 12, 19, 24, 25 entities, organizational 6, 7, 15 entrepreneurs, illicit 32, 34, 36, 37 Environmental Data and Governance Initiative (edgi) 101, 112 environmental harm 139, 140, 144, 150 environmental injustices 139, 141, 143, 150 Environmental Protection Agency 98, 99, 106, 142, 155 EO. See Executive Order epa 98, 99, 100, 101, 102, 106, 115, 142, 143, 144, 146 establishment 36, 97, 119, 120, 129, 132, 156 ethnographers 44, 45, 49 euro 167–68, 177 Europe 192, 197, 198 European Court 191, 192 Everest 121, 123, 135 Executive Order (EO) 67, 68, 74, 82, 91, 92, 94, 96–97, 99, 112, 113, 142 Executive Orders 67, 68, 74, 91, 92, 94, 96, 97, 99, 112, 113, 142 expansion 105, 106, 107, 129, 133 exposure 93, 100, 101, 140, 147 failure 4, 8, 9, 12, 14, 19, 126, 143, 157, 190, 192 fairness 2, 3, 4, 40, 43 families 31, 60, 62, 63, 66, 67, 68, 69–72, 74, 75, 77, 78, 79, 86, 88 father 49, 51, 64, 65, 69, 70, 71, 81 Federal Crime Control Policy 85 felonies 60, 73 Ferrell 45, 46, 48, 50, 52, 54, 56, 57, 58 field 2, 6, 140, 141, 152, 157, 158, 171, 180, 181, 182, 183, 184, 189–90, 192–98 state-corporate crime 11 field research 37, 53, 56, 57 finance 11, 95, 96 focus 7, 9, 17, 21–22, 59, 61, 78, 79, 117, 118, 185, 190, 191, 192, 194 forces 96, 103, 104, 106, 129, 137, 164, 165 Ford Pinto 10, 14 foreign policy 123, 125, 126, 129, 132, 160, 161, 171, 173

Index formal bodies of control and ngos 193, 194 framework 92, 162, 197 Francisco, San 37, 65, 66, 70, 81, 83 Friedman 92, 101, 102, 111, 112 Friedrich 187, 189, 198 Friedrichs 152, 156, 157, 158, 160, 161, 162, 164, 170, 171, 172, 173, 174, 176, 178 Galliher 30, 43, 48, 49, 51, 52, 57 game 34, 53, 182, 189–90, 193, 194, 195 Garcia Zarate 64, 65, 68, 70, 77 Garland 61, 62, 63, 64, 82 Gaylord 48, 49, 57 geopolitical interests 121, 129, 162, 167, 169, 172 George Air Force Base 139, 145, 146, 147, 150, 151 Global Age 25, 136, 153, 176, 177, 179 Global North 109, 171, 172 goals 3, 4, 5, 6, 8, 11, 13, 16, 17, 18, 77, 79, 128, 129, 131 imperial 123, 129, 130, 132 Gonzales 65, 68, 82 Gordon 112, 132, 135 Graham 76, 78, 83 Greater Middle East 116, 118, 119, 120, 121, 122, 123, 125, 126, 127, 129, 130, 132, 133, 134 Green Crimes 140, 153 green criminology 7, 58, 139, 140, 141, 144, 151 Green-State Crime and Justice 153 green state crimes 139, 140–41, 150, 151 Green State Crimes and Toxic Prisons 139, 141, 143, 145, 147, 149, 151, 153, 155 groups 7, 9, 18, 21, 22, 37, 74, 75, 140, 142, 163, 164, 166, 192, 193 growth 53, 107, 108–9, 113, 157 Gustin 20–21, 24 Hagan 7, 24, 46, 57, 59, 75, 83, 161, 162, 176 Hamm 13, 24, 44, 45, 46, 51, 52, 53, 54, 55, 56, 57, 161, 176 Hamm and Ferrell 46, 48, 50, 52, 54, 56, 58 harms 4, 8, 9, 10, 11, 12, 13, 14, 62, 92, 149, 157, 158, 161, 171 social 4, 8, 9, 17, 25, 93, 140 Hashim 163, 176 health 102, 110, 111, 142, 154 health care 95, 96, 148

Index High Crimes 57, 176 history 30, 42, 48, 107, 113, 118, 119, 136, 137, 171, 198 human rights 26, 103, 170, 176, 178, 191, 192, 198 Hussein 126, 127, 128, 129, 168, 171 Ianni 31, 40, 43 ideology 24, 69, 80, 120, 162, 167, 170, 171, 177, 182 illegal immigrant crime 75, 78, 88 illegal immigrant crime victims 69, 75, 78, 88 illegal immigrants 60, 66, 67, 68, 77, 78, 79, 83, 86 illegal immigration 66, 67, 68, 74, 77, 81, 83, 86, 87, 198 immigrants 30, 59–60, 62, 66, 68, 73, 74, 79, 81, 109, 143, 148, 149 immigration 46, 65, 67, 68, 70, 84, 88, 89, 95, 96, 103, 141, 149, 192 Immigration and Customs Enforcement 65, 67, 71, 74, 75, 88, 141, 148 Immigration Crime Engagement 67, 74, 88 immigration crime victims 74, 88 immigration policies 67, 71, 81, 149 immigration reform 66, 69, 71, 74, 76, 78 implementation 97, 98, 125, 189, 190, 197 individuals 4, 5, 6, 7, 8, 9, 12, 13, 28, 30, 35, 36, 72, 193, 194 informants 30, 31, 32, 33, 35, 37, 39 information 15, 29, 30, 40, 54, 74, 101, 166 injuries 9, 12, 14, 92, 149 inmates 142, 143, 147, 148, 155 intention 102, 158–59, 188 interests 8, 61, 62, 63, 102, 158, 160, 169, 171, 180, 182, 190, 191, 193, 195 key United States 168 intersection 2, 58, 137, 139, 151, 199 interviews 31, 32, 46, 51, 54, 55, 57, 69, 70, 71, 72, 78, 185, 192, 195 introduction 3, 32, 47, 48, 49, 58, 140, 158, 178, 180, 198, 199 invasion 25, 127, 131, 132, 133, 136, 153, 159, 161, 166 investments 19, 37, 98 Iran 10, 13, 122, 123–24, 126, 131, 133, 169 Iran-Contra Affair 11

205 Iraq 123, 126, 127–29, 131, 132, 136, 159, 160, 161, 162, 163, 164, 165, 166, 167–78 invasion and occupation of 25, 133, 136, 144, 153 invasion of 131, 158, 163 Iraq Body Count 167, 176 Iraqi government 132, 163 Iraqis 131, 132, 133, 158, 159, 163, 164, 166, 168 Iraqi security forces 163 Iraq Papers 175, 178 isis 159, 163–64, 166, 172, 174 Islamic State 164–66, 169, 170, 171, 172, 173, 176, 177 Islamic State-controlled 165 Islamic State-controlled oil refineries 164 Islamic State in Iraq 164 Islamic State of Iraq 156, 159, 160, 161, 162, 163, 164, 165, 168, 170 Israel 123, 124, 167, 169, 185, 186, 187, 188 Israeli 185, 186 Israeli control 186 Israeli military 186, 188, 189 Israeli occupation 185, 187, 188, 190 Italian-American organized crime family in New York City 31 Italian-American role in organized crime 31 Jenkins 32, 36, 37, 40, 41, 43 Johnson 59, 80, 117, 121, 127, 136 Jones 46–48, 50, 52, 145, 146, 152 journalistic accounts 29, 30 journalists 30, 32, 54, 55 Juhasz 123, 124, 136 juridical field 180, 181–85, 189–90, 196, 197, 198 jurisdiction 19, 60, 185, 186, 188, 189, 190 justice 2, 3, 4, 57, 64, 81, 88, 153, 155, 187, 188, 191, 192, 197, 199 environmental 110, 139, 141, 142, 143, 155 Kate 60, 64, 65, 66, 69, 70, 71, 72, 90–91 Kate’s death 66, 69, 70, 71, 77 Kate’s family 69, 70, 71 Kate’s Law 59, 60–61, 63, 65, 67, 69, 70–73, 75, 77, 78, 79, 81, 83, 85, 87 Kate’s name 67, 69, 70, 71, 72, 79 Kate’s parents 69, 72 Kate’s story 70, 71, 77

206 Kauzlarich 8, 24, 25, 46, 58, 140, 144, 153, 154, 178, 191, 199 Kelly 70, 72, 83 killing 64, 83, 165, 170 Kinship and Social Control in Organized Crime 43 knowledge 3, 45, 54, 187–88, 193, 194 Kotz 107, 108, 109, 111, 113, 115 Kramer 8, 9, 24–25, 118, 120, 132, 133, 136, 137, 144, 153, 161, 177, 191, 199 Kulig and Cullen 60, 62, 63, 64, 66, 68, 70, 72, 74, 76, 78, 80, 82, 84, 86 Kuwait 127, 165 labor 94, 95, 96, 98, 103, 107, 108, 112, 184 Laub 50, 51, 57 law 23, 28, 34, 42, 60, 61, 63, 70, 72, 90, 180, 181, 182–89, 191, 196–99 rule of 153, 177, 187, 188, 189, 190, 196, 197, 199 law enforcement 33, 39, 41, 46, 185, 187, 189, 190 law enforcement agencies 19, 22, 29 leaders 13, 72, 85, 95, 121, 163–66 legitimacy 103, 104, 182, 189, 190, 193, 194, 195 life 41, 47, 52, 57, 59, 69, 70, 71, 90, 94, 118, 125, 138, 148, 170–71 limitations 29, 100, 186, 188, 192, 193 Lindesmith 35, 51, 52, 57 Lipton 96, 98, 113 Luethold 187, 189, 198 Lustgarten 145, 146, 152 Lynch 7, 25, 140, 144, 153 Making Law 23, 24, 41, 42 malfeasance, organizational 2, 17 managers 103, 104, 105, 106, 110 Mann 129, 130, 137 manuscript 3, 47–48 market, illicit 34, 35, 39, 40 mass incarceration 82, 139, 141, 151, 155 matter 30, 62, 63, 64, 92, 131, 172, 180, 188 members 20, 35, 36, 37, 54, 63, 72, 88, 145, 180 memory 62, 63, 77, 90 mercury 101, 102, 112 Mercury Rules 102, 111 Mexicans 59, 60, 64, 76 Mexico 64, 66, 67, 77

Index MF Global 20 Michalowski 8, 9, 24–25, 58, 92, 104, 114, 136, 144, 149, 153, 161, 177, 191, 199 Middle East 121, 123, 124, 125, 129, 130, 132, 158, 159, 169, 173 militarism 118, 133, 136, 137, 176 military 118, 121, 124, 125, 128, 133, 134, 135, 139, 144, 145, 150, 151, 161, 166 military bases 120, 121, 144, 145, 147, 150, 154 military power 118, 119, 120, 121, 126, 131 Military Times 147, 151–52 Mollie 77, 78 Mollie’s death 78 Moloney 2, 4, 6, 7, 8, 10, 12, 14, 16, 18, 20, 24, 25, 26, 140 money 21, 30, 35, 38, 40, 50, 51, 108, 114 motive 12, 13 Mullins 7, 8, 18, 25, 26, 136, 153, 161, 178, 191, 199, 200 Muslims 59, 60, 76, 127 mutual conversion 20, 21 myths 5, 31, 39, 60, 61, 118, 120 Nafstad 185, 187, 188, 199 Nafstad and Schoultz 182, 184, 186, 188, 190, 192, 194, 196, 198, 200 nationalist, hard-core 120, 126, 128, 130 national security, hegemonic discourse of 162, 167, 169, 171, 172 nations 22, 25, 38, 39, 40, 43, 59, 75, 79, 109, 120, 130, 131, 135, 172 nationwide 141–43 Needleman 6, 25 neocons 128, 129, 130 neoconservatives 120, 126, 128, 129–30, 135 neoliberalism 113, 160, 161, 162–63, 167, 169, 176 neoliberal ssa 107, 108, 109 New Bottles 90, 91, 93, 95, 97, 99, 101, 103, 105, 107, 109, 111, 113, 115 ngos 3, 19, 21, 191, 192, 193, 194, 195 Normalization of State Crime 153 Nozicka 78, 85 nuclear weapons 128, 144, 146, 153 Nugent 118, 119, 137 occupation 25, 132–33, 136, 144, 153, 161, 176, 185, 186, 187, 188, 190, 196 Occupied Iraq 179

Index offenders 59, 61–63, 69 offenses 5, 69, 79 oil 106, 117, 122, 123, 124, 125, 131, 132, 133, 135, 136, 164, 167, 168 control of 120, 125, 131 oil fields 126, 127 omission 3, 4, 8, 9, 10, 12, 13, 14, 15, 140 Operation Desert Storm 126, 127, 133 operations 6, 36, 37, 38, 103, 117, 139, 164, 165, 186, 187 O’Reilly 70, 72, 83, 85 organizational conspiracies 1, 3, 4, 5, 8, 9, 10, 11, 12, 13, 16, 17, 19, 21–22 Organizational Conspiracy Type 11, 12, 13, 14 organizational crime 6–7, 16, 25, 26 explanations of 16, 17 organizational crime/malfeasance 7 Organizational Criminal Conspiracies 1, 3, 4, 5, 7, 9, 11, 12, 13, 15, 17, 19, 21, 23, 25 organizations 1–9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 26–27, 74 corrupt 7, 8, 26 powerful 2, 21 single 13, 14 terrorist 164, 165 organizations of corrupt individuals 7, 26 organized crime 22, 28, 29, 30, 31, 32, 33, 34, 35, 37, 38–43, 45, 46, 53, 55 research on 29, 55 state- 180 Organized Crime and American Power 43 organized crime groups 11, 55 Organized Crime in America 42, 43 organized crime research 31 Organizing Crime 38, 43 Oslo Accords 185, 186, 187, 188 others 62, 75, 76, 77, 79, 187 outcomes, harmful 8, 9, 11 owners 103, 104, 105, 106, 110 Oxford 58, 88, 111, 113 PA (Palestinian Authority’s) 23, 58, 110, 185, 186, 187, 188, 190 Palestine 185, 186, 187, 188, 189, 190, 197 justice and security sector in 181, 184, 189, 197 Palestinian Authority’s. See PA Palestinian police 186 Palestinians 186, 187, 189

207 Palestinian state 181, 184, 185, 188, 190 Parliamentary Ombudsman 191, 192 Passage of Federal Crime Control Policy 85 payoffs 35, 36 peace 37, 161, 186, 188, 190 Pedigo Kulzer and Friedrichs 158, 160, 162, 164, 166, 168, 170, 172, 174, 176, 178 Persian Gulf 121, 123, 124, 125, 127 persons 4, 5, 25, 66, 69, 72, 77, 78, 182, 185 petition 72, 83 petroleum 121, 122, 123, 132, 133 Petty Crooks 32, 42, 45, 56 picture 31, 32, 54 pier 65, 83, 84, 88 Pinto 6, 7, 8, 26 Piscataway 174, 198, 199, 200 pnac 129, 130, 137 poker games 53, 54, 55 police 10, 14, 15, 31, 32, 33, 34–37, 73, 77, 78, 81, 88, 187, 188 police custody 33, 65 policies 7, 8, 67, 100, 101, 124, 125, 130, 131, 158, 159, 161, 162, 171, 172 policing 41, 42, 55, 125 Political Crime 24, 199 politicians 28, 32, 34, 36, 37, 39, 54, 70, 78, 106 Politico 67, 76, 84, 86, 88 Portland 153, 175, 176, 177, 179 positions 15, 53, 74, 124, 128, 129, 182, 183, 189, 192, 193, 195, 196 post–World War 117, 118, 120, 121 Potter 29–30, 32, 34, 36, 37, 38, 40, 41, 42, 43, 45, 57 power 2, 3, 28, 35, 36, 37, 41, 42, 90, 111, 127, 128, 129, 159, 181 legal 30, 40 power plants 93, 98, 101 power relations 181, 183, 185, 190, 197 power structures 153, 195, 196 power vacuum 159, 160, 161, 162, 172 presidential address 2, 116, 134, 139, 156, 157, 175, 198 President Obama 159, 164, 169 presidents 36, 37, 42, 56, 66, 67, 75, 91, 92, 96–97, 110, 123, 124, 126, 127 Presidents and Crime Control 80 President Trump 60, 62, 64, 68, 79, 88, 110, 112, 115, 166, 173

208 prices 20–21, 123, 124 prison ecology 142, 151 prisoners 141, 142, 143, 152, 153 prisons 62, 73, 82, 87, 141, 142–43, 145, 148, 149, 150, 152, 155 problems 15, 19, 20, 21, 25, 40, 46, 48, 66, 104, 123, 125, 143, 146, 187 process 17, 18, 19, 20, 21, 97, 180, 181, 184, 185, 187, 188, 190, 192, 194 professional thief 37, 48, 49, 50, 55, 58 profits 13, 14, 18, 19, 33–34, 39, 98, 107, 111, 132, 184 progenitors 156–57 project 1–2, 53, 59, 63, 94, 108, 129, 137 protection 22, 30, 34, 38, 98, 161, 192, 195 Pruitt 100, 114 pursuit 116, 123, 140, 161, 167, 191 al-Qaeda 127, 159, 163, 164, 165, 177 qualitative research 38, 39, 40, 41 Quoted 111, 112, 113, 114, 115 raid, joint United States-Iraqi 163 Reagan 83, 104, 114, 125, 126 realDonaldTrump 66, 67–68, 77, 78, 86 realpolitik 156, 161, 162, 166, 172, 175, 177, 178 framework of 161, 162 recognition 105, 183, 193, 194 reenters 72–73 region 122, 124, 125, 126, 129, 130, 132, 156, 164, 166, 167, 168, 169, 170, 172 regulations 34, 36, 91, 92, 96, 97, 98, 100–102, 105, 106, 107 environmental 93, 95, 96, 100 existing 91, 97, 101, 102 new 91–92 regulatory agencies 95, 96, 97, 99 Reich 107, 111, 112, 113, 115 Reinventing Controlling State Crime and Varieties 199 Reinventing Controlling State Crime and Varieties of State Crime 199 Reitman 47, 58 relation 3, 6, 7, 157, 158, 161, 173, 181, 182, 183, 184, 190, 191–95 international 160, 161, 177, 178 release 47, 48, 63, 65, 112, 117, 133, 165 reliability 29, 30, 40 Remembrance Project 67, 75

Index representatives 116, 140, 191, 192, 193, 195 research 2, 3, 6, 29, 36, 40, 41, 42, 44, 45, 46, 55, 100, 141, 144 criminological 29, 46, 144, 159, 162, 172 ethnographic 45, 57 skid row 53, 55 residence 90, 191, 192 resistance 76, 170, 171, 176, 190, 195, 196, 197 resolutions 18, 19, 99, 103, 104, 180, 184, 185, 189 resources 74, 75, 76, 102, 120, 121, 122, 129, 137, 140, 165, 169, 193 response 15, 19, 21, 25, 68, 69, 71, 75, 77, 78, 103, 104, 165, 167, 170 result 9, 12, 31, 32, 94, 97, 98, 149, 159, 161, 164, 171, 172, 182, 195 return 30, 63, 72, 92, 107, 109, 122, 126, 163, 168 risk 2, 19, 21, 34, 45, 59, 60, 79, 93, 98, 100, 146, 162, 168, 195–96 role 1, 3, 37, 41, 99, 103, 139, 140, 141, 161, 162, 193, 194, 195, 197 rollbacks 91, 93, 95–96, 99, 109, 113, 128, 168 environmental 94, 96, 98 regulatory 92, 93, 94, 110 rolling 95, 96, 102, 112 Ross 144, 146, 147, 154, 157, 191, 193, 199 Rothe 1, 7, 8, 25, 26, 136, 137, 144, 153, 154, 158, 161, 162, 163, 174, 177–78, 191, 199–200 Roughnecks 2, 41, 42, 46, 56, 57 rules 31, 91, 93, 97, 98, 101, 102, 104, 105, 108, 120, 182, 189–90, 193, 195 Saddam Hussein 129, 132, 158, 159, 167, 172 sanctuary cities 60, 65, 66, 70, 71, 79, 81, 82, 83, 84, 87 San Francisco County Sheriff Ross Mirkarimi 71 Saudi Arabia 122, 124, 127, 164, 169 Sawyer 141–42, 155 Schoultz 182, 184, 186, 188, 190, 192, 194, 196, 198, 200 science 100, 101, 114, 116 secret 99–101 sector, justice and security 181, 184, 185, 186, 189, 190, 197, 199 security 19, 64, 82, 122, 131, 167, 187, 189, 190, 197

Index security sector 181, 184, 185, 186, 187, 188, 189, 190, 197, 199 seeking 30, 59, 102, 106, 128, 192 seeking asylum 192, 194 Seidman 41, 42, 60, 61, 79, 80, 111, 184, 198 selection of friends 52, 55, 56 sexual abuse 14, 15, 26 shared problems 20, 21 shooting 65, 84, 88 Simon 6, 10, 26, 38, 43, 59, 62, 63, 67, 75, 79, 87, 137, 138 sites 144, 145, 146, 147, 150, 182 toxic 143, 150–51 Smith 4, 30, 43, 76, 79, 87, 89, 100, 134, 136, 137, 166, 178 Snodgrass 46–48, 50, 58 social agents 183, 184, 192–93, 197 social change 25, 26, 27, 43, 104, 154, 178, 182, 199 Social Justice 26, 58, 153, 175, 176, 177 social organization 7, 16 society, modern 2, 4, 6, 21 sociologists 6, 22, 53, 54, 55, 133 sociology 2, 32, 41, 51, 53 Sociology of Organizational Conspiracies 1, 3 Sociology of Organizational Crime 26 solution 18, 20, 21, 104, 150, 188, 189 two-state 186 sovereign nation states 195, 197 Soviet Union 120, 121, 123, 125, 126, 128 state 3, 23, 24, 31, 39, 103, 104, 139, 140, 142, 150, 156–61, 173, 183, 190–99 rogue 131, 135 state actions 118, 140, 191, 192 state agencies 143, 191–92 State and Crime in State Crime Studies 25 State-Corporate Crime 24, 25, 58, 120, 137, 199 state crime 1–2, 25, 136, 139, 140, 144, 149, 153, 154, 171, 175, 177, 191, 199, 200 control of 25, 191 criminology of 160, 177 prospective criminology of 160, 171, 176 public criminology of 150, 153 State Crime and Green Criminology Synthesis 25, 154 State Crime and State Harms 199 state crime commissions 29 State Criminality 172, 177–78, 199

209 state frame 195, 197 state governments 18, 19 statehood 185, 189 state interests 29, 167 state legislature 35 statement 48, 76, 87 state officials 35, 116, 140, 143, 191 state-organized crime 23, 116–17, 121, 133, 134, 151, 156, 157, 175, 190–91 State Organized Crime 198 state-organized crime, defined 116 State-Organized Crime-The American Society of Criminology 134 state policies 157, 158 state power 28, 162, 167 state prisons 141, 143 Steinle, Kate 60, 64, 65, 66–69, 72, 75, 76, 81, 86 stories 41, 50, 54, 63, 67, 68, 70, 71, 75, 77, 78, 85, 87, 177, 178 strategies 62, 69, 94, 102, 108, 129, 131, 137, 161, 164, 171, 192, 193, 195 streets 32, 39, 40, 47, 48, 55, 70 structural contradictions 17, 18, 19, 23, 24, 41, 103 Structural Contradictions and Organizational Criminal Conspiracies 17 Structure and Operations of Organized Crime in America 43 structures 5, 16, 17, 19, 22, 105, 120, 180, 182, 183, 186, 188, 196, 198 struggles 105, 122, 128, 159, 180, 181, 182–85, 189, 190, 192, 193, 194, 195, 196–97 Study of Organizational Crime and Deviance 6 Study of Organized Crime 28, 42, 43, 56 Study of State Crime and Violence 136 Sutherland 6, 16, 26, 47, 48, 49, 50–52, 57, 58, 116, 156–57, 178 Sutherland’s address 156, 157 Sweden 191, 192, 197 Swedish state 180, 181, 184, 190, 192, 196, 197, 200 symbolic violence 181, 183, 190, 195, 197 Syria 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171–74, 178 Syrian 158 system 35, 36, 38, 39, 61, 105, 134, 187, 188, 195, 196

210 terms 72, 81, 83, 85, 87, 90, 118, 154, 158, 160, 162, 182, 193, 195, 197 Terror 134, 135, 138, 144, 152, 154, 175, 178 terrorism 59, 73, 131, 132, 159, 162, 178 thief 47, 48, 49, 52 Tibbetts, Mollie 77, 78, 84, 88 torture 46, 161, 176, 178 toxic prisons 139, 141, 143, 144, 145, 147, 149, 150, 151, 153, 155 toxic waste 9, 11, 140, 145, 150 Trump 59, 60, 66, 67, 68, 71, 74, 75–81, 83, 84, 91, 95, 96, 97, 98, 110, 112 Trump administration 76, 91, 94, 95, 96, 97, 98, 101, 102, 105, 139, 143, 149, 170, 173 Trump campaign 66, 67 truth 3, 26, 29, 54 types 7, 8, 10, 11, 12, 16–17, 19, 26, 66, 95, 99, 110, 191, 193 understanding 28, 31, 32, 34, 51, 160, 162, 167, 183, 189, 192, 193, 194, 195, 197 undocumented immigrants 64, 66, 67, 68–69, 72, 75, 77, 79, 82, 139 undocumented immigration 60, 67, 69, 70, 71, 74, 75, 76, 79, 82 unipolarists 130, 131, 132 United States 5, 28, 38, 39, 72–77, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168–73 United States’ actions 167 United States’ actions in Iraq 172 United States and capitalist societies 41 United States and Mexico 67 United States and other 122 United States Coalition 165 United States coalition airstrikes 170 United States Conference of Catholic Bishops 26 United States Defense Secretary Ashton Carter 165 United States’ exercise of biopower 162 United States’ exercise of realpolitik 166 United States Federal Criminal Code 5 United States for decades 162 United States in conjunction 165 United States Institute of Peace Press 199 United States interventions 171 United States’ involvement 124, 159, 162, 172 United States’ involvement in Iraq 159, 162

Index United States Policy 158, 159, 160 United States policy initiatives in relation 161 United States’ policy response and actions 162 United States’ prioritization of realpolitik 172 United States privatization and deregulation 172 United States’ response 170 United States’ Support for Global Social Justice 175 United States’ use of moral panic 161 US 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 131, 132 vice 28, 32, 35, 37, 43, 54 Victimology of State Crime 154 victims 33, 47, 60, 61–64, 67, 69, 74, 75, 76, 77, 78, 79, 80, 171 individual 63 victims and offenders 61, 62 Victims of Immigration Crime Engagement 67, 74, 88 Victorville 64, 145, 148 Victorville fci 148, 149, 150 Victorville Medium, fci 148, 152 violence 36, 55, 59, 60, 76, 86, 136, 137, 165, 167, 170, 176, 178, 184, 188 voice Office 74, 75 voices 63, 67, 74, 171, 189 Wagner 141–42, 155 wall 59, 68, 77–78, 86 war 117, 118, 119, 125, 126, 127, 130, 131, 132, 134, 135, 137, 144, 162, 177 War Aggression and State Crime 153 warfare state 117, 119, 120, 134 Washington 34, 36, 51, 53, 88, 89, 101, 111, 121, 122, 130, 131, 137, 177, 199 weakening 91, 92, 99, 101, 105, 108 West Bank 185, 186, 187, 188, 199 White House 68, 69, 73, 74, 76, 78, 87–88, 103, 126, 137, 177 Whyte 105, 115, 158, 161, 167, 168, 174, 179, 183, 200 Willan Publishing 136, 153, 175, 176, 177, 179, 200

211

Index Williams 32, 33, 35, 39, 43, 56, 57, 118, 119, 126, 138, 191, 200 Wine 91, 93, 95, 97, 99, 101, 103, 105, 107, 109, 111, 113, 115 Winter 64, 65, 68, 88 women 59, 67, 84, 86, 97, 103, 104, 147, 148, 151 work 1–2, 47, 50, 51, 52, 55, 60, 63, 97, 106, 139, 140, 188, 193, 194 workers 18, 95, 96, 99, 104, 106, 108

workshops 44, 156 world 109, 113, 117, 119, 120, 121, 128, 131, 132, 134, 135, 136, 160, 169, 173 social 41, 183, 195, 197 World War 104, 119, 120, 121, 123, 134, 135 writing 1–3, 15, 35, 41, 47, 51, 53, 54 York 23, 42, 43, 57, 80, 94, 112, 113, 134, 135, 136 Zatz 18, 23, 41, 42, 79, 89