Law, Normativity, and Violence

By living and aging in the United States, many Americans assume the goodness, the neutrality, and rationality of law. Some even judge the morality of others based on their adherence to these legal regulations, without critiquing the merits or source of the law itself. Others recognize that some laws unequivocally create unjust worlds and resist them actively. Few, however, question the very nature of law as a systemic means of regulating and organizing the social Normative, arising not from objective and liberal ‘truth’, but from “a human desire for reliability and pattern that protects a finite being from a chaotic world.” [1] Therefore, codifying norms and punishing those who fall outside of them is the essential purpose and role of law.

 This punishment of the ‘other’ creates Robert Cover’s legal world of “pain and death”, one where the legal system acts as “organized, social practices of violence." [2] In maintaining, this social Normative, law creates “rituals of banishment” to exile and expel all of the ‘other’ and the ‘chaotic’, rituals that are carried out by judges, juries, attorneys and the public, often resulting the sanctified, justified depersonalization of ‘the other.' [3] Therefore, the other becomes popularly known as the criminal; the criminal, in falling outside the social Normative, no longer has access to the claim of ‘person’. As Americans, we understand claims of personhood to be (nominally) guaranteed by the constitutional rights, but in reality, claims of personhood, and constitutional rights, are contingent on adhering to the Normative. Because law arises from the Normative and not from objective truth, law performs rituals of exclusion and violence to those who fall outside of the socially prescribed and relative standard, thus permanently wounding and formally depersonalizing those deemed as ‘other’, the prisoner. In fact, the Supreme Court of the United States in Rhodes v. Chapman and Wilson v. Seiter sanctified violence against prisoners and therefore, signaled a strict and indisputable connection between American high law and violence.

 Socially sanctioned legal violence is best demonstrated through the ritualized depersonalization of prisoners and convicted felons. Through the 1980s and 1990s, coinciding with the rise of mass incarceration, legal depersonalization of prisoners was codified and finalized in the Supreme Court; the justices, in fact, used “punishment [as] an excuse for depersonalization”, thus demonstrating causal relationship between law and violence. [4] Two Supreme Court cases of this era, Rhodes v. Chapman and Wilson v. Seiter demonstrate the elimination of constitutional rights, specifically the Eighth Amendment, based on the guilt, or perception of ‘otherness’, of the convicted felon. In the 1981 case Rhodes v. Chapman, which raised the question of cruel and unusual punishment with regards to prison conditions, the Supreme Court ruled not only that “the Constitution does not mandate comfortable prisons”, but specifically that prisons must have “discomfort”; instead of demonstrating various liberal beliefs of universal human protections, the Court ruled that these conditions “are part of the penalty that criminal offenders pay for their offenses against society”. [5] By focusing on a justified “penalty” equal to their “offenses”, the Supreme Court has established precedent that a form of violence, a form of suffering, is necessary to the maintenance of law. The Court therefore erases the rights claiming possibilities of prisoners, in that their suffering, regardless of how they may perceive it as ‘cruel or unusual’ may be justified by the crime they committed and thus defensible in the face of the Constitution.

Although this egregious legal definition of justifiable suffering, erases the personhood of prisoners, five years later, the Supreme Court would further erase ‘rights’ defenses against tangible ‘cruel and unusual circumstances’ by centering illegality of punishment in the intent of prison officials, rather than the experience of the prisoner. In 1986, in the case Wilson v. Seiter,  the Court was presented with information that prisoners endured conditions of  “overcrowding, excessive noise, inadequate heating and ventilation, unsanitary dining facilities and lack of protection from communicable disease,” [6] and again, the Court further sanctified violence and depersonalization by limiting Eighth Amendment interpretation to the intent of the punishment, rather than the actual, tangible, conditions of the punishment itself. [7] Stating that the Court rejected the claim for cruel and unusual punishment because prison officials did not “possess a sufficiently culpable state of mind” and did not inflict “unnecessary and wanton” pain. [8] Therefore, the law does not exists to protect or alleviate the actual suffering of the prisoner, but rather it exists to regulate and justify forms of punishment based on the intent, a subjective measure to determine the justifiability of suffering, of those responsible for maintaining social rites of banishment.

The Supreme Court has now established the need for prison officials themselves to fall outside the Social Normative for punishment to be cruel and unusual, rather than measure the claim that punishment itself, the normative punishment, may be cruel and unusual.These decisions participated in a legitimization of depersonalization of prisoners’ rights; not only are they forced to live in poor conditions, but their right to even claim these conditions are poor, have fallen outside the purview and understanding of the law. Despite claiming of violence against them, courts can only find and interpret conditions of prisons as ‘cruel and unusual’ if the intent is wanton and therefore unjustifiable. With the Court’s focus on intent, it is impossible to find neglect or even the Normative behavior of prison officials to be ‘cruel and unusual’, and this limitation prevents prisoners’ access to rights. All of this violence, the depersonalization of prisoners and the limits of Constitutional rights when applying to those who break the law i.e. fall outside the Normative, thus demonstrates the limits of objectivity itself, especially objectivity in law, a codified means for regulating social behavior.

Law’s violence is unequivocal and omnipresent. Law seeks to maintain the ‘normal’ and provide ‘security’ in simultaneously exiling the ‘other’ and navigating forms of justified and unjustified suffering to rationalize its ritual violence. [9] Only when prisoners experience unjustified suffering, defined by the Court to be irrational and random acts perpetrated by wanton intent to cause harm, is exclusively deemed to be ‘cruel and unusual’ and therefore, protected. Whereas, justified suffering, such as uncomfortable imprisonment, is considered necessary to maintaining codified norms of society and order. However, this social practice of determining justified and unjustified rituals of violence is never objective; it is never removed towards a perfect world wherein histories, prejudices, and structures and hierarchies of power do not dominate the Normative. Who experienced justified and unjustified violence is determined by the individual’s spatial location from the Normative; but because the law is created by the powerful Normative and the Normative is a white, heteronormative, wealthy citizen, for example, it deems those who fall outside of that identity as more likely to be criminalized and depersonalized by the law.

The violent histories of Rhodes v. Chapman and Wilson v. Seiter continue to affect prisoner conditions today. Rhodes v. Chapman’s concepts of “justified suffering” were reaffirmed in Glossip v. Gross, which determined whether botched lethal injections were constitutional. The Court found that “some risk of pain is inherent in any method of execution” and that “the Constitution does not require the avoidance of all risk of pain,” signaling contemporary conceptions of justified suffering and law’s maintenance of violence. [10] Similarly, Wilson v. Seiter’s standards for ‘wanton” intent rather than objective suffering was reaffirmed in Kingsley v. Hendrickson, a case where a pretrial detainee was beaten and then claimed his right to due process was violated. Scalia’s dissent argued that “acting with the intent to punish” is the central mechanism for determining prisoner rights, rather than their material experiences of pain. [11] Therefore, stratified and exclusionary histories of law, contradicting the liberal conceptions of ‘neutral and universal law’, justify acts of violence through “blame… punishment” and justified suffering, and commit violence through practices aimed “to restrain, hurt, render helpless, even kill the prisoner.” [12] Therefore, law is not always, rational or modern, rather it is still depersonalizing those considered too separated from structures of normativity, like prisoners, through a system of regulated, organized violence.

 

Sources:

[1] Linda Ross Meyer, “Suffering the Loss of Suffering: How Law Shapes and Occludes Pain”, in Knowing the Suffering of Others, ed. Austin Sarat, (Tuscaloosa: The University of Alabama, 2014), 16.

[2] Robert Cover, “Violence and the Word”, The Yale Law Journal 95, no. 8 (July 1986): 1601.

[3] Colin Dayan, The Law is a White Dog, (Princeton: Princeton University Press 2011), 16.

[4] Dayan, The Law is a White Dog, 192.

[5] Rhodes v. Chapman, 452 U.S. 337 (1981), 347-349.

[6] Dayan, The Law is a White Dog, 191.

[7] Wilson v. Seiter, 501 U.S. 294 (1991).

[8] Wilson v. Seiter, 501 U.S. 294 (1991), 297.

[9] Meyer, “Suffering the Loss of Suffering: How Law Shapes and Occludes Pain”, 32-33

[10] Glossip v. Gross, 576 U.S. ___ (2015), 4.

[11] Kingsley v. Hendrickson, 576 U.S. ___ (2015), 18.

[12] Cover, “Violence and the Word”, 1608-1609.