Notes from the Outfield :
Richard T. Ford
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A recent study found that in California, "third time defendants who face
the prospect of 25 years to life. . . are no longer willing to enter into
plea bargaining arrangements." Jill Smolowe, "Going Soft on Crime," Time,
November 14, 1994, p. 63.
Jeromc Skolnick, "Wild Pitch: Three Strikes, You're Out and Other Bad Calls
on Crime," in American Prospect (Spring 1994), p. 32.
Michel Foucault, "The Eye of Power," in Power/ Knowledge (Pantheon:
1980), pp. 146, 149.
Indeed thc police function is the only function that would remain in libertarian/anarchist
philosopher Robert Nozick's minimal state. See generally Robert Nozick,
Anarchy, State, and Utopia (Basic Books/ Harper Collins, 1974).
One analytical consequence of the perspective I wish to bring to bear here
is that the police functions, while conceptually distinct from the other
regulatory functions of the state, are not pragmatically severable in the
way the minimal-state approach would assume. The danger of the libertarian
approach is not that it might be adopted in its entirety, but rather that
the perspective it provides as a utopian vision suggests that a noncoercive
police function is possible and thereby serves to obscure a predominant
threat to a democratic society.
Although statistics are contradictory, the consensus among criminologists
is that crime rates have fallen over the past twenty years. Cheryl Russell,
"Going Soft on Crime," American Demographics, August 1995, p. 22.
Ibid., note 1. Russell notes that higher reporting rates are attributable
to an "older, better educated public . . . more comfortable interacting
with authorities than was the public of two decades ago" and "the introduction
of 911 emergency phone services."
Celeste Olalquiaga, Megalopolis: Contemporary Cultural Sensibilities
(University of Minnesota Press, 1992), p. 23 [emphasis mine].
For example, the California Department of Alcohol and Drug Programs found
that reductions in criminal activity attributable to drug treatment saved
Californians over $1 billion in a fifteen-month period. Sheryl Stolberg,
"Study Shows Drug Abuse Programs Are Cost Effective," Los Angeles Times,
August 29, 1994, p. 1, col. 3.
The pervasive sense of moral outrage over the incident consistently emphasized
the damage Smith had done to the innocence of the small South Carolina
suburb. The entire town was cast as the victim of Smith's act, testament
to the overwhelming sense that the people of Union, and of middle America,
resented the reality that Smith came to symbolize—the inescapable truth
that middle-class suburban whites share responsibility for America's crime
wave, that seemingly average Americans are criminals as well as victims
In the prototype for Susan Smith's story, the husband and murderer of Bostonian
Carol Stuart concocted an elaborate story involving a black perpetrator
to explain her death. Until overwhelming evidence pointed to Stuart himself
and he committed suicide, press and police alike accepted Stuart's story.
Glen Pierce, director of Northeastern University's Center of Applied Social
Research, has determined the odds of a white woman in Massachusetts being
shot and killed by a black stranger to be roughly one in four million—about
the same as her chances of being struck by lightning. Jane Stevens,
"Myths of Violence," San Francisco Chronicle, January 12, 1994.
Donald Rawley, "Little Ghosts," Buzz, March 1994, pp. 72, 75.
The Los Angeles city jail is the prototype for this new form of "stealth
prison": situated in downtown Los Angeles, the jail resembles an office
tower from the street, complete with pristine high modern styling and sliding
glass entrances from street level. Only the functionally small windows
(too small for an adult to squeeze through) would alert the casual observer
that this building is anything out of the ordinary among the corporate
headquarters of the largest business district in the western United States.
Michel Foucault, Discipline and Punish (Vintage, 1979), p.
Mike Davis, Beyond Blade Runner: Urban Control, The Ecology of Fear,
Open Magazine Pamphlet Series (1992), p. 12.
Paul Virilio, Popular Defense and Ecological Struggles (Semiotexte,
1990), p. 17.
The most frightening manifestation of this trend is Charles Murray's already
infamous thesis of the Bell Curve (Richard J. Herrnstein and Charles
Murray, The Bell Curve: Intelligence and Class Structure in American
Life, 1994), which posits that intelligence is genetically correlated
along an axis that corresponds to racial and class hierarchies. It of course
surprised no one to discover that Murray's analysis placed blacks and the
poor at the bottom of the intelligence Bell Curve. What was surprising
was Murray's remarkable naivete (or feigned naivete) regarding the ideological
bias of his methodology (most notably, the authors assume what they must
prove: the existence and conceptual stability of the categories race and
intelligence). Murray's alarmist hypothesis—that the genetically deprived
groups will grow increasingly impoverished, resentful, and antisocial over
time and that no public policy intervention can level the Bell Curve—provides
a convenient alibi for the imposition of increasingly repressive police
apparatus, while his typology provides the strategy for implementing a
policy of quarantine and exclusion of which three strikes is only the most
extreme example to date.
Foucault, Power/Knowledge, p. 55.
Many three-strikes laws relax the "serious felony" requirement for the
third strike. For example, California's three-strikes law does not distinguish
between violent and nonviolent felonies, and the third strike need not
be a "serious" felony at all. As a result, in a twist that Hugo would appreciate,
one man was sentenced under three strikes for the third felony of stealing
a slice of pizza, another for stealing fifty cents. See "America's New
Enemy: The 1994 Crime Bill," The Progressive, October 1994, p. 8.
Robert Wright, "The Coverage of Happiness: When Prozac Meets Universal
Coverage," New Republic, March 14, 1994, p. 24.
Foucault, Power /Knowledge, p. 47.
Ibid., pp. 40-42.
Charles Murray, "How to Win the War on Drugs," New Republic, May
21, 1990, p. 19.
Most valuably by Douglas Massey and Nancy Denton in American Apartheid:
Segregation and the Making of the Underclass (1993).
James Baldwin, "Fifth Avenue, Uptown: A Letter from Uptown," in Nobody
Knows My Name (Dell Publishing, 1961), p. 71. The original reads: "It
is a terrible, an inexorable, law that one cannot deny the humanity of
another without diminishing one's own: in the face of one's victim, one
sees oneself. Walk the streets of Harlem and see what we, this nation,
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