33 Chapter 9 – Critical Theory

Introduction
Throughout this book we have looked at the various theories behind why someone would commit a crime. Most of those theories are based on either historical or individuals. In this chapter, we will explore societal level theories of both crime with Critical Criminology but also justice with Peacemaking Criminology. Critical Criminology calls us to look at the systems around us and how they affect those who commit crimes. It asks questions such as: What is the poverty rate of the community that the the individual that committed the crime ? Peacemaking Criminology may ask a similar question: How can the individual that committed a crime give back in a way the helps the community they come from? We will explore both theories individually and see where we see both in the great state of Louisiana.

What is Critical Criminology?

Defining critical criminology is a difficult task, critical criminology scholarship represents a break from the customary of the discipline of criminology (Tierney, 2006; Martel et al., 2006; Ratner, 1984, 2006). Critical criminology initially evolved alongside criminological theories loosely called “new deviancy” that proposed new theories of crime such as labeling theory, social reaction theory, and interactionism, and was a significant part of a general move in the social sciences away from the dominant positivistic paradigm of criminology (Tierney, 2006; Garland & Sparks, 2000; Hargreaves et al., 1976). In general, this dominant paradigm focused on identifying and studying causes of crime that could then be corrected, and the assumed purpose of criminological knowledge was to control crime. Lynch (2000) takes this further and suggests that traditional positivist criminology has had the effect of legitimizing control of the lower classes and normalizing punishment. This dominant knowledge was rarely questioned and became standardized in criminology/criminal justice language, practice, and research (Lynch, 2000). Critical criminology questioned this often taken-for-granted, normalized idea of crime and justice as well as its connection to crime control and punishment and encouraged research that questioned this and focused on thinking more broadly about crime in society (Martel et al., 2006). Ratner (2006) refers to this as “the push to construct an alternative to the ruling paradigm of a state-saturated field”. By this, Ratner means we should question what crime means in society and the government’s power to punish “criminals.”

Most critical criminology adopts a critical social science position that is anti-positivist. A critical social science examines/critiques normative boundaries of criminological knowledge and its use. Critical social science research focuses on the big picture or social structures instead of individual determinants of people’s behavior (trauma, upbringing, psychological traits). This focus allows scholars to deconstruct taken-for-granted or dominant knowledge. It also allows one to engage in social change by questioning established ways of thinking or knowing. Sayer (2009) discusses denaturalizing dominant knowledge as a way to propose that another world is possible and to re-think and re-constitute accepted ideas about how to administer justice (Kraska & Newman, 2011). For us, critical criminology is an attempt to investigate power relations and domination as they occur in social systems and social structures while providing alternatives to existing power relations and dominant social institutions. Critical criminology involves research and investigation, and it calls for activism and attempts to change things. In what follows in this chapter, we examine the key thinkers critical criminology draws on, beginning with Marx, as well as a few emergent elements of critical criminology.

Marx and the basis of Critical Criminology

Marx’s writings were concerned with the rise of social institutions during industrialization which included the development of criminal law, the power of police and prisons, and processes of criminalization. At the core of his work, Marx rejected the idea that societies operate based on a consensus. Instead, he suggests that societies are full of conflict, which is often reflected in, and stems from, its relations of production (the social relationships involved in producing the things we need to survive such as food, and shelter).

As he examines the capitalist mode of production, he explores the social formation that occurs alongside it. Marx argues there is nothing natural about the creation of private property (e.g., owning land or factories), the extraction of resources from the land (e.g, cutting trees or drilling oil), or the extraction of value from those resources (e.g., paying for lumber/gas or profiting from selling lumber/gas). Marx argues that our capitalist order is a political and economic one formed through various attempts at social control of these processes of private property, extraction and value. He claimed that the process of so-called primitive accumulation and the extraction of value from the resources found in land is only possible through the development of a state apparatus (e.g., government) that supports capitalist exploitation. Part of that state apparatus, perhaps the main part, is social control agents such as police and prisons.

Marx (2004) argues that, instead of land being collectively governed and people benefiting in a collective way from the value of resources and land, the capitalist mode of production requires the expropriation of people from their land, their territory, and the resources found there. This goes for populations in the early colonial south countryside, and it could be further extended to colonial relations with Indigenous peoples across the Americas. To achieve control of resources and land, social control agents of the state apparatus forcibly expropriate populations from the land to privatize it and its resources (such as lumber, oil, and minerals) for capitalist landowners. The example of establishing Indigenous reserves in early Louisiana and current west United States is an example of the expropriation of people from their land, a process that continues today.

Marx (2004) writes about bloody legislation, a group of laws passed by the state apparatus in the 18th and 19th centuries in the Commonwealth countries that do two things. First, they enable the creation of private property, enabling the privatization of wealth, value, resources, land, thereby creating a powerful capitalist class. Secondly, they are used against the working class. These laws allowed for the expropriation discussed above. These laws also force persons to work in the capitalist mode of production in factories. If people choose not to work, bloody legislation is applied to them, to criminalize and punish them. If persons are unhoused and move from region to region or from the country into the city because their land has been stolen from them by the capitalist class, they too have bloody legislation applied to them, specifically laws of vagabondage. Laws are also passed to dissuade labor organizing and resistance (Poulantzas, 1975; Griffin et al., 1986; Kuriakose & Iyer, 2021).

This group of laws is created to control the working class, and to enforce the capitalist mode of production. Although Marx is usually not identified as a criminologist per se, his work offers a rich history and analysis of the way the state apparatus was formed to support the capitalist mode of production and how criminal law in its origin emerged as a tool of control for elites. Criminal law, police and prisons from a Marxist perspective, exist to control the population, to force people to work, and to prevent people from collectivizing (or equally sharing) land, resources and wealth.

Foucault, Marx and Power

Another key figure in critical criminology is Michel Foucault. While not a Marxist, the influence of Marx is evident in his work. As discussed above, for Marx, power is always connected to economic power and how it manifests at the level of the state. Marx’s contemporaries focus on how bloody legislation and state repression to uphold capitalist relations of production/ capitalist social structures. Foucault reconsidered how power works, and he has been called a post-structuralist. He argued that simply focusing on power as equal to the law creates a kind of “sterilizing political consequence” (1990, p. 79). Instead, he views power via language and how we think and know about things, or in other words, how power works between people, not on people. What makes Foucault’s work important is that he extends or broadens the analysis of power away from economic re/oppression into thinking about power existing flowing/circulating between people and groups/institutions. A student of Althusser, Foucault rejected the idea that people were duped into submission by ideology, arguing instead that people actively engaged with power on a daily basis. For Foucault, power operates like a network of relations that we are all a part of. This encompasses more than economic power, and includes power in the form of language and action. He argued that thinking about power this way encourages us to understand power similar to a building block in how things get made, composed or constituted. As critical criminologists, if what we are interested in is investigating power relations, turning to Foucault helps broaden our scope of analysis.

Foucault’s arguments changed over time. Although it is difficult to categorize Foucault’s work, some have argued that there are three movements or phases to Foucault’s thinking. The first is called the archaeological phase, the second is the genealogical phase, and the third is the phase of ethics. In the archaeological phase, Foucault (1972) is interested in the emergence of discourses and how these are translated into techniques or methods of power. In this case, power is not thought of as repressive but is based in knowledge and takes the form of charts, maps, diagrams and tables that make human activity understandable. A discourse is the general domain of all statements and classifications about some topic or issue, such as the discourse of child development (e.g., benchmarks of biological, emotional, and psychological changes occurring in young people as they grow) or discourse of victimhood (e.g., the condition of being hurt, damaged or made to suffer) (Gorkoff, 2011). Grounded in this way of thinking, rather than seeing law simply as a bloody mechanism or a mechanism of force, Foucault understands law as a discourse or a mechanism for categorizing and classifying people, and he uses developments in the human and natural sciences to do this. Discourse is like a system of categories captured in language that creates the way we perceive reality. Foucault said discourse is both an instrument and an effect of power. In the study of criminology, discourse is important. Discourses that come from and are used by courts, tribunals, commissions of inquiry, and the law itself operate as a machine for trying to produce truth out of complexity and for trying to categorize human beings in particular ways. Discourse therefore becomes a transfer point of relations of power between groups (such as prisoners, advocates, and politicians) and how a social issue/occurrence gets framed or thought about as a problem. For instance, the criminal is a key discursive category. Public discourses about the criminal as immoral, violent, troubled, abnormal, and to be feared or avoided appear commonsense. These discourses become entwined with discourses of law, punishment, and justice. Foucault would encourage us to examine these descriptors and their relations, and how they create particular realities. This language extends beyond the criminal justice system and we can examine how the criminal is amplified and reinforced in crime literature and television/movies that feed on the fascination with the sensationalistic imagery of criminal life. We can focus on how these notions of criminality inscribe meaning and play a central role in historical and contemporary social and cultural life, as well as the role these discourses play as mediators of social debates and crises (Atack, 2001).

Many other categories and classifications are important for Foucault as well. In this archaeological phase of his work, Foucault is trying to locate or dig up where these classifications and categories we take for granted today emerged. In the second phase of Foucault’s work, which we can call genealogy, Foucault (1975) is interested in not only techniques of classification, but how these types of classifications or discourses turn into different mechanisms of discipline and normalization. For instance, he examines how techniques of discipline and normalization that developed in the criminal justice system developed and operated in parallel ways in other institutions such as in education, factories, hospitals, and asylums. He details the historical development of timetables that organize one’s day and discipline one’s activity. In prisons, prisoners are subjected to a timetable that structures their day, requiring them to rise, eat, work, and sleep at certain times. This disciplinary timetable was used in numerous social institutions that developed around the same time. Schools used timetables to organize the day and discipline students into routines. Factories used timetables to order shifts and ensure the discipline of workers. Foucault argues that all these places tend to resemble one another to the extent that they deploy similar techniques of discipline and normalization. Foucault uses the term the carceral to articulate the multiple networks of diverse elements and the power of normalization that extends into the entire social body, how these things are tethered to one another, and how they reinforce one another over time. In his key genealogical work, Discipline and Punish (1975), Foucault focuses on a detailed history of how punishment changes from the body of the condemned (hanging, beheading) to the soul of the convicted (therapy, reflection, confinement, etc.). In the primary punishing institution, prison, the soul of the convicted is no longer tortured in public, but instead is subjected to hierarchical observation, normalizing judgements, and practices of discipline. These practices and techniques of punishment eventually become normalized. These techniques of disciplinary power are not about the use of the bloody power of the state on the individual, but how things such as a daily schedule, self-control over posture and bodily functions, and the use of surveillance become the mechanisms people find themselves exposed to, and how institutions, programs, and polices are created. This approach is nuanced enough to understand how domination operates and develops in different ways in various social settings. For Foucault, power and domination are not limited to the state. There are power relations operating that do not simply stem from law or from the state apparatus, but are actually located in individual relationships (e.g., guard/prisoner; lawyer/accused) though they may reinforce them at some points in time. The terms and processes Foucault advances allow for critical criminologists to locate power relations and domination in a multitude of sites and further, in a genealogical way.

The third phase of Foucault’s work is often referred to as the phase of ethics, where Foucault (1990) turns from an interest in the genealogy of disciplinary institutions to self-control or self-discipline and ultimately to how individuals engage in “care of the self” or makes themselves up as people or what he called an “ethical self.” In The History of Sexuality, Volume One, and elsewhere, Foucault (1982) shifts from studying technologies of institutions to technologies of the self. In his book, he examines how sex is spoken about and how it is known, then how individuals who engage in sexuality form themselves as sexual beings based on this knowledge. This includes understanding how we conduct ourselves as people. It is focused on how we make ourselves good students, good workers, good athletes, good partners, etc. In other words. Foucault was interested in how people governed themselves in a free society, how we make ourselves into members of society, and how we control our own behavior.

Foucault is careful to note that self-governance does not happen in a vacuum. It may happen in relation to those forms of knowledge (discourses) Foucault uncovered in his archaeological work, or in relation to the discourses Foucault investigated in his genealogical work. This raises a number of interesting questions such as how we make ourselves into subjects of law (juridical subjects) including being, or not being, a law-abiding citizen. He thought that although we seemingly have the freedom to control our own actions (e.g., freely obey the law), Foucault outlined that these choices are not truly free, and that we are “governed from a distance” by the discourses and knowledge that we experience.

Foucault’s work allows us to think about power as an intersection between a knowledge about something, and techniques of organizing the behavior of others and/or ourselves. He gives this the term governmentality, which is the analysis of who can govern and who is governed but also the means by which our own and others activities are shaped (Foucault, 1990, 2005, 2011). In his final lectures, Foucault offers this concept as a tool for looking at the intersection of these different phases of his work. The goal is to examine how a governmental rationality or some kind of classificatory system intersects with the way a whole population starts to govern itself or make itself intelligible.

Emergent Elements of Critical Criminology

Police and Penal Abolition When one thinks of abolition, they likely think about abolishing prison before abolishing police. Prison abolition, sometimes called penal abolition, focuses on the whole set of sanctions, rules and punishments involved in institutional and community corrections. However, the idea of police abolition has recently become more popular. Since the police killing of George Floyd in May of 2020, police abolition has become a frequent and popular topic of public discussion. Police abolitionists argue that public police exist only to enforce social order. Public police do not provide real safety, though they cause much harm through violence, racism, and corruption. Here we elaborate on some of the roots of police and penal abolition while discussing contemporary developments. At its theoretical core, much abolitionist work draws on both Marxist and Foucauldian conceptions that posit criminal justice systems as part of the social structure and discourse. Discussions about police abolition have roots in the Black radical tradition in the United States, and the Black feminist tradition. Police abolition was also a core feature of the Black Panther Party. The Black Panther Party and movement called for more community responses rather than state responses to transgression and critiques of the violence of the state articulated through police (Jeffries, 2002). A number of Black feminist scholars, from Beth Richie (2012) to Andrea Ritchie (2017) among others building on the work of Angela Davis (2011), have been calling for police abolition for some time and in regard to particular transgressions such as violence against women and domestic violence. Thus, even for these types of transgressions, the Black feminist tradition recognizes that police often cause more harm, and amplify harm, to women in these scenarios.  We could claim that Purnell’s (2021) Becoming Abolitionists: Police, Protests, and the Pursuit of Freedom in the United States is adjacent to criminology and criminal law. Most criminologists would not have heard of it, unless they pay attention to abolition. Yet we would argue that Purnell’s text has much to offer regarding why even people who work in the criminal justice system should take abolition seriously. This is among the works that should be incorporated into critical criminology as it adopts more of an abolitionist point of view. Purnell is someone who has experience working in the criminal justice system. It is from those experiences that they developed an abolitionist perspective.

Angela Davis at Juneteenth protest in Oakland, June 20, 2020 (Flickr)

There are some criminological works that do provide an abolitionist perspective. For instance, McDowell’s (2019) article on insurgent safety theorizes alternatives to policing and argues that state-sponsored social control fails to provide real safety against harm/transgression and fails to reduce it. They argue that community-based safety is the only way to reduce harm/transgression and achieve safety. Fernandez (2019) likewise argues that critical sociology and critical criminology should adopt an abolitionist perspective. McDowell and Fernandez (2018) wrote about the practice of police abolition in the journal Critical Criminology. This is a landmark article for discussions of police abolition, which shows that this topic predated the 2020 mass mobilizations against police and that there is an affinity between discussions of police abolition and critical criminology. This article makes a compelling case for disbanding, disempowering and disarming police and argues that criminologists should orient their research agendas in this regard. Alex Vitale’s (2017) The End of Policing makes the argument that police fail to reduce harm/transgression. Vitale argues that police reform (making changes to the existing structure of policing) is a failed endeavor and reforming police actually allows them to accumulate more resources for police and less to community-based safety. It never changes the institution. This is a common argument against reform made by several critical criminologists who claim that the system works as it is supposed to work to support the relations of marginalization and capitalist power (Lynch, 2000; Colaguori, 2005; Gordon, 2005). There is also Siegel’s (2017) work on abolitionist police history and police work as violence work. All these contributions demonstrate the affinity between a police abolitionist approach and critical criminology and are among the major contributing schools of thought in the abolitionist line of argumentation.

Prison abolition and penal abolition are more well-known in criminology compared to police abolition contributions back to the 1970s. The most well-known prison abolition works are those of Thomas Mathiesen, who in the 1970s and 80s argued for prison and penal abolition. Mathiesen (1974) offers some useful concepts. For example, Mathiesen focuses on positive and negative reforms and argues it is not contradictory for abolitionists or critical scholars to advocate for negative reforms, that is reforms that diminish the power of the state and diminish the power of carceral institutions. However, it is contradictory to argue for positive reforms or reforms that do add to the power of the carceral state. Mathiesen also gives us the concept of the unfinished. Mathiesen argues there is no precise or exact formula for abolitionist inquiry or activism. Instead, there is a terrain of shifting tactics and strategies. Questions of negative reform and penal power constantly emerge. The project of abolition is ongoing and requires constant struggle and analysis.

The works of Mathiesen have inspired a generation of penal abolitionists. Saleh-Hannah (2017) argues that abolitionist approaches to prison must take seriously the issues of racial justice and gender that feminists and critical race scholars have pointed to.  An abolitionist perspective that does not account for other forms of domination, such as racism and sexism would not be a complete abolitionist theory. Complete penal abolition needs to account also for racial domination and gender domination. Consistent with critical criminologists’ contention that rethinking what we perceive as normal is necessary, critical scholars and activists focus on ways to undo these infrastructures and institutions not only physically but mentally. This requires us to develop new ways of speaking about and responding to harm/transgression, which is a common theme across police and prison abolitionist work. It also reminds us of the ideas of how ideology and hegemonic thinking about crime needs to be unraveled. Whalley & Hackett (2017) argued that feminist scholars need to take penal abolition more seriously because any kind of carceral feminism, or feminism that advocates for police and prison responses to things like gendered violence, is contradictory and undermines the goal of both feminism and critical/abolitionist criminology to live in a world free of domination. Whalley and Hackett (2017) make a strong argument for the abolitionist project and against carceral feminism that Garland outlined in Culture of Control. Similar to Carrier, Davis & Rodriguez (2000) argue that prison abolition does involve challenges, such as how to respond to a transgression and how to respond to harm that occurs in the community. These are key questions that police in prison abolitionists and penal abolitionists must address. Brown & Schept (2017) argued that there is a new abolition emerging in critical criminology and critical carceral studies in the United States. They argue that this approach brings together critical geography and critical criminology. For example, Brankamp’s (2022) article on the humanitarian border and immigration migration camps and detention centers is part of this new abolition. Whether this is a new abolition or an extension of current discussions of penal/ carceral abolition is an open question. The point is that there is a movement to go beyond prison abolition and focus on penal, and carceral abolition, which would include all kinds of carceral sites that need to be investigated and confronted. This is consistent with Marx and Foucault who argued that the criminal justice system is entwined with other social formations, discourses, and institutions and social transformation cannot happen in one system alone.

There are also some adjacent works that do not explicitly identify as abolitionist, but provide compelling tools and arguments in this vein. For instance, Pemberton’s (2007) work on social harm is useful for showing how prisons and police create social harm. Instead of being conceived as a response to harm, it is argued that they create social harm in numerous ways including harming entire communities and neighborhoods that become criminalized. The concept of social harm is useful for thinking about the negative consequences of the criminal justice system and also for introducing some language not based on the ideological language  of crime and criminal law, which reproduces stereotypes (like the discourse of “the criminal” discussed above) and assumptions regarding who is engaging in harm/transgression. Clear’s (2009) Imprisoning Communities is an incredibly important book on how imprisonment creates more harm than it avoids. Using quantitative data, Clear demonstrates that imprisonment undoes social bonds in neighborhoods and communities where criminalization is high. Imprisonment increases divorce rates, decreases education rates, decreases employment rates, and dissolves the community. Pemberton’s (2007) notion of social harm and Clear’s (2009) notion of imprisoning communities show that prisons and jails are not only failed institutions in the sense that they fail to produce rehabilitation at an individual level, but they are damaging and harmful institutions at a social level because they have the capacity to damage entire communities and neighborhoods where policing and criminalization is high, often in already marginalized and racialized communities.

Hil & Robertson (2003) wrote about the future of critical criminology and the need to continue the project undertaken early on by those studying “new deviancy” to create different terminology and language that is an alternative to criminology itself. Today, it is difficult to imagine critical criminology without the terms and insights that police abolition and penal abolition work has provided. The future of critical criminology needs this abolitionist work to truly provide not only an alternative to criminology but an alternative to the criminal justice system. One major difference between abolitionist critical criminology and some forms of critical criminology which remain mostly analytical, is that it is engage and scholar activist oriented. Abolitionist critical criminology provides analyses and it provides investigations, but it also advocates for material change. It follows the path of critical social sciences with a focus on deconstructing dominant knowledge and engaging in social transformation by questioning taken-for-granted ways of thinking or knowing.

Convict Criminology Another important approach somewhat connected to abolitionist work is convict criminology. Convict criminology is an approach to criminology that privileges the voices and standpoints of persons who have been criminalized or who have been affected by the criminal justice system (Richards & Ross, 2001). Experiential people combine their time inside prisons with their academic knowledge to provide new insights into the operation of the criminal justice system. Convict criminology began two decades ago (Jones et al., 2009) and was largely a US-based approach bringing together scholars who had experience behind bars or experience being criminalized to use their insights as a platform for analyzing the criminal justice system and exploring the power relations involved in the criminal justice apparatus. Using ethnographic methods and empirical research, they highlight the destructive impact of prisons and penalty from an experiential position. Convict criminology has now branched out and become a global phenomenon (Ross et al., 2014).

What is important about this expansion is that convict criminologists in different countries are uniquely positioned to shed light on and investigate the criminal justice system in each country, and to provide comparative insights. The works of convict criminology are experiential and provide insights from inside prisons and jails, which is important because scholarly criminological work that is more or less based on deductive academic concepts can not only be wrong, but also be harmful and alienating to people who have experienced the harms of the criminal justice system. Rather than providing a deductive armchair approach, convict criminology provides a more inductive and immanent understanding of criminal justice processes. The Journal of Prisoners on Prisons is the official journal publication of convict criminology. Today, it is almost impossible to think about what critical criminology would be without including convict criminologists and the kinds of inquiries they provide. In sum, abolitionist thinking provides the alternative to criminology and the criminal justice system that critical criminology should be seeking. Convict criminology provides experiential voices that are pivotal to critical criminological studies.

Conclusion

Critical criminology appears abstract and difficult, but in many ways, it is simple. It has its beginnings in the critical theories of Marx and the conception of repressive power as it is linked to the state and the capitalist economy. It was expanded by Foucault who thought about power as constitutive and all- encompassing, considering people as part of the processes of power in how they regulate themselves and others. Contemporary critical criminology has largely settled on abolitionist thought. All these different ways of thinking about criminal justice share the idea that existing systems are inherently violent therefore, they must be rethought, denaturalized, and deconstructed in an effort to emancipate and create material change.