The financial markets may be up, but the experts all warn that for ordinary non-elites in the United States, the economic situation is likely to get worse before it gets better. Joblessness lingers, while states and municipalities cut their services to the bone or even face bankruptcy. It seems an appropriate moment for legal scholars Richard Delgado and Julie Nice to turn their attention to the place of the poor in the U.S. legal system.
At a recent conference at the University of Alabama School of Law, a group of criminal law scholars (including myself) gathered to reconsider, twenty-five years after its publication, Richard Delgado’s proposal that severe environmental deprivation — or in a catchier, if unfortunately glib, formulation, “rotten social background” — should constitute a defense to criminal behavior. In his 1985 article, Delgado argued that “[t]he kind of pent-up rage and despair that can result from living in a crowded, violent neighborhood can cause an explosion of violence just as disordered brain circuitry can. When this occurs, a defense should be available.” At the conference, sponsored by the new Alabama Civil Rights and Civil Liberties Law Review, Delgado told the story of two imaginary criminal offenders, one black and poor who has grown up in an urban neighborhood characterized by dangerous physical infrastructure, inadequate schooling, gang violence, and a heavily militarized police presence, and affluent and white who has grown up in a suburban neighborhood characterized by gracious leafy lawns and safe streets, well-funded and well-regarded schools, no gang presence, and friendly and supportive police. Delgado argued that it should be no surprise when the former young man becomes a more or less permanent resident of the criminal justice system and the latter does not. He suggested that a rational approach to crime control would involve shifting resources away from the criminal justice state, investing instead in anti-poverty programs. From this perspective, creating a “rotten social background” defense is less a contribution to substantive criminal law than a recognition that the state loses its moral authority to punish when the basic social contract between the state and a group of its citizens has been broken — and a call to arms for policymakers to reinvigorate that contract.
In a recent book chapter, Julie Nice suggests that the United States has trapped the poor in an “everyday state of abandonment.” Drawing on the work of political theorist Giorgio Agamben, Nice shows how the poor are formally included in the polity only to be functionally excluded from it. At every turn, contemporary American law not only fails to recognize economic rights; it frames them as impracticable, even inappropriate. Nice argues that even when the courts have left open the possibility of economic rights, scholars have interpreted their decisions as ruling them out. In San Antonio School District v. Rodriguez, for instance, Nice argues, the Court understood the plaintiffs’ argument to be that people who lived in poorer school districts were being discriminated against, and it held that discrimination based on school district residency was not sufficiently “suspect” to warrant a heightened standard of equal protection review. But the case has been conventionally understood by scholars to have held that “poverty is not a suspect classification” — a much broader holding, and a wrong one, in Nice’s view. Not only the Court and Congress, then, but the chattering classes have participated in isolating and disempowering the poor. Nice concludes by calling for legal rights for the poor as a class, if only as a place to begin the hard work of political mobilization.
Delgado and Nice make a point that seems incontrovertible: Poor people in the United States are excluded from full social citizenship. Delgado paints a vivid portrait of disadvantage contrasted with privilege. Nice shows powerfully how the poor not only lack an effective social “safety net” to protect them from the vagaries of the market; they are systematically politically demobilized. Meanwhile, their dependency on the state for the provision of basic services is treated as a symptom of moral turpitude; the poor enjoy neither the liberties nor the privacy rights that Americans of means take for granted, but are the target of various surveillance and disciplinary projects aimed at reeducation and control.
Poor people need money, better social programs, and legal rights, Delgado and Nice conclude. What neither scholar addresses, however, are the significant cultural obstacles to providing these goods. One of these is what criminologist David Garland calls the “culture of control.” In his book of the same name, Garland suggests that in contemporary social life, “crime” is a keyword that serves as a placeholder for many different kinds of anxieties about security: economic security, social security (literally and figuratively), family security, and cultural hegemony. The punitive turn that became visible in American criminal justice alongside the inauguration of the War on Drugs, which today is carried on in “crimmigration,” the War on Terror, and the War on Sex Offenders,” isolates particular threats to the nation, but contributes to a broader tendency to “govern through crime,” in the phrase of my Berkeley colleague Jonathan Simon: to roll back civil liberties in the interest of controlling groups perceived as threatening to the polity. From the perspective of this culture, the poor are a dangerous class; it is unsurprising that jails and prisons are bursting with them, and it is imperative that they be controlled.
A second obstacle to the recognition of poor people’s rights is the contemporary American culture of neoliberalism, which in the last few decades has energetically discredited the very idea of a welfare state (even while corporate welfare flourishes), as well as generally trashing the idea that “big government” is capable of doing anything effectively and efficiently. The obvious goal of a poor people’s movement might be large-scale economic redistribution. But it’s hard to be sanguine about the success of such a movement, given that even the recession of 2008 and widespread public anger at “Wall Street” has resulted in very little restructuring. Instead, we have a flourishing campaign to destroy our new health insurance system. Deep pessimism that government is capable of “social engineering” is surely an obstacle to revitalized economic rights.
One more cultural obstacle should be recognized: the disinclination of poor people in the United States to self-identify as poor. Part of the problem is, of course, the notoriously weak class consciousness in the United States and the tendency for everyone to think of themselves as “middle class.” Moreover, a large segment of the working class and the poor in the United States believes (wrongly) that social mobility is quite high, so that with some pluck and a dream, anyone can be and have whatever they want. Jennifer Hochschild famously found that, among African Americans, belief in the American Dream intensifies the further one goes down the class structure. A belief in high social mobility obviously weakens any tendency to identify with “the poor.”
Moreover, rights as a strategy for political mobilization has been strongest when the campaign for rights overlaps with group social identity. Social movements grounded in “identity politics” are the obvious example. But even poor people’s movements like the farmworker movement and recent uprisings by undocumented students and groups like Justice for Janitors center on and cultivate a collective pride infused with ethnic identity. “Poor,” by itself, doesn’t mark a social category.
As Lisa Pruitt argues in a forthcoming article, white people who might be labeled “poor” by educational and cultural elites see significant inter-group differences. There are those who identify themselves in terms of their work ethic, and then there are the “hard living” poor, to whom contemptuous labels like “white trash” tend to be applied. Similarly, among African Americans, poor people who pride themselves on their “respectability” frequently look down upon those whom William J. Wilson named the “underclass.” And, argues Pruitt, the urban/rural divide also makes a difference: urban poor people do not necessarily identify with the rural poor. “Poor” may be a legitimate external ascription based on income, access to wealth, or education, then, but it is not an internalized identity.
So where might a politics of economic rights, wealth redistribution, and legal empowerment for people of little means come from, if not rational policymakers or a poor people’s movement? The only way forward may be a painstaking process of building coalitions — and, as Martha Mahoney has argued, interracial coalitions are crucial. Class has been so long and so thoroughly racialized in this country that any mass movement for economic justice will have to confront and somehow surmount, or evade, customary racial divisions. Until this is accomplished, the broken social contract with the poor is likely to stay broken.