I recently finished Foucault’s “Discipline and Punish” and I believe I deserve an award. I will not go into detail why that is a victory for someone like myself who loves the analytical tradition of philosophy, universal definitions, and normative claims; I will save that for another post in which I will take time to discuss the ups and downs of reading Foucault. But back to the reason why I am writing this post. I think the chapter I most enjoyed was “Illegalities and Deliquency”. If you want to view an outline/presentation of the chapter where I share my full thoughts on it while also comparing his historical findings with present day realities of crime and race, please enjoy yourself.
In the chapter “Illegalities and Delinquency”, Foucault provides a sentence that can easily be overlooked but one which grabbed my attention: “with more restrictive legislation come more illegal practices” (273-275). New York’s “Stop and Frisk” policy is a present day example of restrictive legislation producing illegal practices. (NOTE: if you have no idea what stop and frisk is, I recommend you view this video recently released by THE NATION now!!!).
Stop and Frisk allows police officers to stop “suspicious” people who may be suspected of caring guns; usually men of color are stopped in their communities because of this criminal suspicion. In the first six months of 2012, New Yorkers were stopped 337,434 times. 89% of them were innocent and 85% of the stops were of Blacks and Latinos. Although the young men may not get caught for carrying a gun, they could be concealing marijuana. (For the record, less than 1% of guns have been found through this practice. For a mapping of this fact, check this out.) Although private possession of small amounts of marijuana is not a crime, the law of searching these young men makes the drug now in public view, and therefore an arrest is justified. In 2011, marijuana arrests were the largest arrest category in the city… for a reason of course. The policy of “Stop and Frisk” creates the illegality.
Similarly, in the south after reconstruction, black codes were implemented for blacks and was not binding on whites. The black codes made it possible for blacks to go to jail for drunkenness, not attending work, making a threatening gesture towards a white person, etc. Since as Foucault notes, the powerful social class creates the laws and because justice is in the “interests of the stronger”, the idea that people put themselves in prisons may not be that simple. Bias laws and policies created by those in power create the illegalities that provide a yellow brick road to incarceration for the marginalize of our society.