Critical Theory and Social Justice Journal, Vol. 9

Critical Theory & Social Justice Journal of Undergraduate Research Occidental College

Volume 9: Spring 2020

Introduction to the Issue By the Journal Editorial Board Critical Theory and Social Justice: Journal of Undergraduate Research’s mission is to offer a transformative space for undergraduate students to engage critical theory in the pursuit of social justice. Through the pieces we publish, this journal seeks to serve as a platform for interventions within the various discourses our authors and artists work within. Keeping our mission of amplifying transformative scholarship in mind, we are excited to be launching Volume 9. In this volume, we chose articles primarily focusing on the way in which the power structures that are shaped can lead to the discrimination and/or the erasure of marginalized groups from social, political, and economic systems.

Volume 9 includes articles commenting on discourses from the erasure of intersex identities in government policies to the sexism the two-child policy in China gave credence to. We include powerful artwork on our cover that highlights the societal narratives of gender and a video reimagination of blackness through color. Our authors and artists have provided empowering perspectives and interventions that challenge normative expectations and beliefs. They call for action and justice through their insightful and vigorous pieces. We invite you to participate in the change their work aims to realize.

“Challenges in Rebuilding Food Networks and Resisting Disaster Capitalism: A Study on the Effects of Hurricane Katrina on Food Sovereignty in New Orleans” by Blake C. Allen (Loyola University, New

Orleans, Louisiana) exposes how after Hurricane Katrina, local governments partnered with corporations to privatize healthcare, education, and housing. The result was the creation of a new form of neoliberalism that has, to this day, persisted in New Orleans.

Michael Boyko (Lehigh University, Bethlehem, Pennsylvania), through their article, “The Erasure of Intersex: Upkeep of a Scientific Fiction,” interrogates the construction of scientific knowledge in its formation of biological “truth.” Boyko examines how science, a process invented by humankind, is viewed as a naturally occurring process and the violent consequences of this unquestionable expertise for intersex individuals.

August Barringer (Occidental College, Los Angeles, California) grapples with similar themes in her sculpture, Effulgence.

Baringer’s sculpture consists of two connecting fleshy red phallic and yonic forms that blur the lines between traditionally male and female imagery. Barringer created this piece with three objectives in mind: to highlight unconscious expectations of gender, to showcase the ambiguity and fluidity of gender, and to remind viewers of the everyday effects that gendered expectations have on real lives.

“Criminalizing the Other: Exploring the Impact of the Netherlands’ Adaptation of Prosecutorial Guidelines on Sentencing Disparities” by Alia Nahra (Washington

1

University in St. Louis, St. Louis, Missouri) unpacks the consequences of the institution of new prosecutorial guidelines in the Netherlands in 2015. According to Nahra, the adoption of these prosecutorial guidelines has only resulted in the perpetuation of ethnic and religious biases already solidly in place in the Netherlands.

Keerthana Annamaneni (Yale University, New Haven, Connecticut), in “Toward a Theory of Active Prerogative: Broadening the Justifications for Executive Pardons,” argues for the active use of executive pardons. Annamaneni builds upon this focus by implementing John Locke’s theory of executive prerogative power. This paper depicts an argument against punishing offenders when laws that harm society remain in place and resisting them results in sentencing.

Colors: BLUE is a video by Tatiana Garnett (Occidental College, Los Angeles, California) that is meant to show the relationship between the color black, which represents “power, mystery, and rebellion and sophistication” and the color blue, which represents “a color of faith, birth, trust, and intelligence.” This video includes clips of Oscar award-winning films that depict how black bodies and the color blue have been coexisting as a visual aesthetic. The video poses questions such as “does the visual

connection between the two colors influence with a color that matches its depth, power, versatility?” Garnett combines sonic and visual elements in a project reimagining Blackness with its comparative association on the color blue.

In “Sexist Narratives Underlying the Two-Child Policy in China,” Cody Mills (College of William and Mary, Williamsburg, Virginia) analyzes the sexism left behind by the one-child policy and amplified by the two-child policy in China. In Mills’s words, as a result of these policies, “underlying social and economic inequalities rooted in sexist logic surrounding women continues...” Mills traces the legacy of these policies through the lens of Michel Foucault’s concept of biopolitics.

We’d like to thank the editorial board at large for their commitment and dedication to putting together this volume as the Journal relaunches. We would also like to thank our faculty advisor, Malek Moazzam-Doulat, for his leadership and organization in relaunching the Journal. Finally, we’d like to thank the Department of Critical Theory and Social Justice of Occidental College for their innovative faculty advisors that have provided us with the tools and the space needed to amplify the important work found within this volume.

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Contributors Editorial Board Jenna Beales Margot Heron Shareef Khwajazada Kayla Lim Davin Mckinley Serena Pelenghian Mia Recio Hope Roehrs Lulu Wiesemann

Faculty Advisor Malek Moazzam-Doulat

TABLE OF CONTENTS 4 Challenges in Rebuilding Food Networks and Resisting Disaster Capitalism: A Study on the Effects of Hurricane Katrina on Food Sovereignty in New Orleans Blake C. Allen ​ - ​Loyola University New Orleans 28 The Erasure of Intersex: Upkeep of a Scientific Fiction Michael Boyko ​ - ​Lehigh University 43 Effulgence August Barringer ​ - ​Occidental College 45 Criminalizing the Other: Exploring the Impact of the Netherlands’ Adaptation of Prosecutorial Guidelines on Sentencing Disparities Alia Nahra ​ - ​Washington University in St. Louis 72 Toward a Theory of Active Prerogative: Broadening the Justifications for Executive Pardons Keerthana Annamaneni​ - ​Yale University 82 Colors: BLUE Tatiana Garnett​ - ​Occidental College 83 Sexist Narratives Underlying the Two-Child Policy in China Cody Mills​ - ​College of William and Mary

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Challenges in Rebuilding Food Networks and Resisting Disaster Capitalism: A Study on the Effects of Hurricane Katrina on Food Sovereignty in New Orleans Blake C. Allen​ ​- ​Loyola University New Orleans Introduction The greatest natural disaster to strike

restaurants and a few grocery stores in a few

the city of New Orleans, Hurricane Katrina,

neighborhoods. These initiatives by residents

still has the city in a state of recovery and

were considered a call for many proponents of

reconstruction

later.

food justice and food justice activists to further

Immediately in its wake, Hurricane Katrina

their work in the city. In the years following

displaced over half of all citizens living in

Hurricane Katrina, the reconstruction of food

New Orleans, stopped all local functions, and

networks in New Orleans saw a proliferation

left people waiting in the aftermath of the

of alternative agricultural food models in an

hurricane,

and

effort to provide potential solutions to the low

medical care and without food.1 A large part of

food access and security now rampant in the

restoring New Orleans has been restoring the

city.

nearly

without

16

years

adequate shelter

robust food community and the culture that

For my research project, I wanted to

accompanies it and that New Orleans is so

know how New Orleans has since adapted to

famous for. The concerns were about the best

its greatest natural disaster to ensure food

way to rebuild the food networks of New

security. ​These alternative agricultural food

Orleans, who would be the first to benefit, and

models which proliferated and saw success

who would be able to help. Very soon after the

briefly in New Orleans have waned as people

storm, people began growing their own food

began to question how their success was

on the abundant plots of abandoned land

measured, who they were serving, and if they

where homes once stood and had been washed

could be sustained. Run largely by non-profit

away. At the same time, there were many

organizations and NGOs, these food justice

initiatives pointed towards opening up local

initiatives have attempted to sustain a city increasingly losing public funding as the city

1

​Casselman

4

is privatized. Nonprofits and NGOs have

changed with this shift in demographics. More

become more important for providing public

white residents returned and white newcomers

services

local

arrived, even as many Black people were

government of New Orleans divests from the

unable to come home. As the city was being

citizens’ interests and needs. However, these

rebuilt in those crucial years following

organizations often lack the funding and

Katrina, the local government partnered with

capacity to fill all the gaps left behind; and

corporations to privatize healthcare, education,

there are some gaps they can not fill at all.

and housing. The socio-political landscape of

Since Hurricane Katrina, the demographics of

New Orleans had shattered and redeveloped

the city, and most notably the neighborhoods,

itself as the perfect incubator for a more

have

a

forceful form of neoliberalism. This paper

complicated and fluctuating black population

investigates how these larger post-Katrina

since its inception, New Orleans has seen a

dynamics have shaped and changed the

steady increasing majority of Black residents

foodscapes of present-day New Orleans.

and

changed

necessities

as

significantly.

the

With

since the 1920s. This majority reached a peak

The foodscapes and food systems of

in 2000 with Black residents making up 67%

New Orleans have been harshly affected by

of the population.2 As of 2018, the Black

Hurricane Katrina. In talking with advocates

population had decreased by 92,245, compared

involved in the current food networks of New

to the white population which saw a decrease

Orleans, I hope to unearth how much success

of 8,631; in percentages, this is an eight

post-Katrina food initiatives have had in

percent decrease and a four percent increase,

fulfilling their agendas of providing food

respectively. New Orleans has become less

access and food sovereignty and how certain

Black since the storm, with the number of

initiatives have been influenced or changed

Black residents decreasing as of 2017.3 As

since beginning. In talking with longtime

many Black New Orleanians have been

residents of New Orleans, I hope to get a sense

displaced permanently, the native food culture

of how they feel the foodscapes of New

of

Orleans and their lives have been impacted by

New Orleans has undoubtedly been

Hurricane Katrina and what they want for the future of the foodscapes of New Orleans.

​“Who Lives in New Orleans and Metro Parishes Now?” 3 ​Gardere and Plyer 6 2

5

Longtime residents of New Orleans have had a

encounter meals, food and food-related issues,

difficult time finding their place again in New

including health messages.”4 ​Foodscapes are

Orleans and the foodscapes of the city as they

often urban places where intersections are

face a variety of obstacles: a vision of food

abundant between people, the cultures, ideas,

justice largely defined by white and exogenous

and backgrounds of these people, and how

alternative

advocates,

they share whatever information they have

displacement, lack of economic support from

regarding food and what food means to them.

the federal, state, and local governments, and

As foodscapes are intersectional in their

cultural erasure. While these advocates tend to

nature, food justice must be, too. Food justice

focus on agricultural production and long term

operates to analyze and critique current

improvements and changes for the overarching

systems in order to change them so that they

food system, residents still face a lack of

function positively and efficiently for all those

access that affects them in both the short and

involved. Robert Gottlieb and Anupama Joshi,

long term and are struggling to be included

accomplished

and given the tools to rebuild a food culture

environmental, education, and food advocate,

for themselves, a food culture they can benefit

respectively, argue that food justice is meant

from.

to bind advocacy groups in many sectors to

food

movement

editor

and

health,

come together to “establish a new language of social change in the food arena.”5

Theoretical Background and Literature Review

The food justice that New Orleans

Food Justice and Alternative Agri-Food

needs is not outside of these definitions and

Networks

ideologies. It is necessary to explore what this

My interest in studying the current

newly formed language is attempting to

foodscapes of New Orleans began with my

convey and reveal to us now that it has been in

introduction to food justice. According to B.E.

practice in New Orleans. What food justice

Mikkelsen, professor in public health nutrition

means must constantly grow and change, like

at the University of Copenhagen, foodscapes

all living languages, because it is part of the

are defined as “the physical, organizational

continuous process of the alternative food

and sociocultural space in which clients/guests 4 5

6

​Mikkelsen 215 ​Gottlieb and Joshi 5-7

movement. The alternative food movement

Food Sovereignty and Local Farming

and food justice are not independent entities,

Practices

as they are shaped by one another. The

Oftentimes

periods

disaster,

food movement have made way, and must

communities immediately build food systems

continue to make way, for food justice, which

which operate outside of what is considered

is open to interpretation depending on where it

normal, or operate with an alternative model.

is employed.6 For New Orleans, the mass

After Hurricane Katrina, alternative food

inequity in access to healthy, affordable, and

practices became the focus for rebuilding food

desired food and the lack of opportunity for

networks, both immediately after the hurricane

sovereignty and security are seen as problems,

and in the rebuilding efforts in the years

or food injustices, to be solved by food justice.

following the storm. Passidomo reports, “the

Food justice can serve as a check on

sudden availability of approximately 44,000

alternative food movements, which may forget

vacant lots, representing roughly 20% of all

the

and

residential addresses in the city, following

socioeconomic issues and food. Food justice

Katrina facilitated conceptually, among food

has the ability to reorient the food movement

justice advocates, a physical ‘empty space’ for

by prioritizing the need to address inequities

enacting and materializing food justice.” On

while seeking to change the system as a whole.

these vacant lots, those who were still present

Determining how these advocates for an

in New Orleans and organizations part of

alternative food movement in New Orleans

rebuilding efforts, namely the New Orleans

have incorporated a language for food justice

Food and Farm Network, either began their

that fits the unique food culture, practices, and

own small scale farms or mobilized efforts to

histories of the city is dire as lack of access

get the word out about where these small

due to food deserts persist.

gardens were located among other sources of

of

cultural

within

the

following

methods and practices within the alternative

intersectionality

people

in

affected

7

food.8 The people of New Orleans employed methods

for

food

sovereignty

and

self-sufficiency when lack of governmental 7 ​ 6

Passidomo 389 Passidomo 390

8 ​

​Gottlieb and Joshi 223

7

support made this a necessity. Successful as a

on a city with its own unique food and farming

post-disaster solution for providing food,

practices.

many proponents of alternative agri-food

The idea that Black New Orleanians

networks, nonprofits and volunteers, sought to

need to be taught food sovereignty and

use this fervor to change the foodscapes of

incorporated into the white alternative food

New

make

movement erases and silences the wealth of

community gardens, urban farming, and local

knowledge Black New Orleanians already

food the most prominent aspects for food

have and their need for a food system that can

access in the city. Food sovereignty and urban

support the entire city. The notion that

farming were not unknown to New Orleans

“whiteness perhaps crowds out the imaginings

before

as “backyard

of other sorts of political projects that could

gardens historically have provided important

indeed be more explicitly anti-racist” and

supplemental (or even fundamental) nutrition

narrows the path toward food sovereignty

and served as leisure or recreational spaces for

made for New Orleanians, by New Orleanians,

Orleans

by

Hurricane

9

residents.”

attempting

Katrina,

However,

to

proponents

10

of

is also often a concern. As mentioned before,

community scale gardening and local food

Black New Orleanians already had experience

production being the largest source of food for

with

New Orleanians have not deeply considered

gardening, and this follows a historic trend

how much this is outside of the norm nor the

among Black Americans, especially those in

hazardous effects such a shift, especially in a

the South.11 Even now there are Black urban

state of dire recovery, could cause. In

communities in the United States that have

accordance with food justice ideologies, those

begun to cultivate abandoned plots of land in

white, transplant groups and people who have

an attempt to foster their own sense of

established themselves in the city must rethink

community, with these gardens being led

how they are heightening food injustice by

largely by Black women from within these

placing a one-size-fits-all

which

communities.12 These Black women want to

emphasizes localism and organic production,

take back their health and their bodies, and

model,

10 ​

self

Guthman 443 Taylor 51 12 ​ White 15 11 ​

9 ​

Passidomo 391

8

sustaining

and

recreational

believe transforming their communities to

private

contractors

and

abdicates

its

include urban gardens is the first step to food

responsibility altogether.”15 However, it is not

sovereignty.

just the blatant withdrawal by the government from the public sphere, it is the allocation of

Disaster Capitalism and Privatization

public funding into the hands of private

In New Orleans, the rush in of nonprofits

companies. Just one year before Hurricane

and other proponents of the

alternative

agri-food

necessitated

in

was

to FEMA for federal funds to develop an

the

in-depth hurricane plan and was denied; that

privatization of public sectors that follows a

same year FEMA awarded $500,000 to a

natural disaster. This phenomenon is called

private

disaster capitalism.13 Disaster capitalism has

emergency management.16 As we saw with

been fostered over time in American politics.

Hurricane Katrina, these private companies, as

Since the 1980s, neoliberalism has pervaded

business goes, have very little interest in

American politics and government, nurturing a

public welfare and too much interest in profit.

free market approach and the possibility for

In a society plagued by racism and classism,

disaster to become a market opportunity.14

allowing a free market approach to persist in a

Government mismanagement of disaster relief

time of emergency and in a majority Black

and other public resources and necessities

city in the south creates a different type of

require non-profit organizations and NGOs to

disaster, a social disaster.

large

movement

Katrina, the State of Louisiana put in a request

part

due to

begin providing for the public in ways that the

firm

After

supposedly

Hurricane

dedicated

Katrina,

to

“people

government would have, but oftentimes on a

talked about losing the ‘ingredients of life.’”17

much smaller scale, even when the public

Many people were struck with a distinct form

requires more resources. As quoted by Naomi

of

Klein in her book, ​The Shock Doctrine​, Harry

reported feeling losses on many levels -

Belafonte describes what happened with

emotional, physical, and familial - their

Hurricane Katrina as “the result of a political

communities, homes,

trauma,

post-disaster

trauma.

and families were

structure that subcontracts its responsibility to 15 ​

Klein 513 Klein 516.

17 ​ Adams, van Hattum, and English 621

13 ​

16 ​

Klein 6 14 ​ Gotham 634

9

People

destroyed and dispersed.18 ​With no help from

conflict with residents. Naomi Klein writes,

the federal government and the state of

“disaster capitalists have no interest in

Louisiana, the people of New Orleans lacked

repairing what was.”21 ​In that case these

the proper resources to be successful in putting

nonprofits and volunteers, especially those

their lives back together in a timely fashion.

who thought they could rebuild and reshape

Many people succumbed to being overworked

the food systems and foodscape of New

from having to rebuild their own home without

Orleans,

the proper funding and resources and feeling

capitalists. Although they had no ill intent and

forgotten. Residents did not want to discount

came to help rebuild, the necessity for them

the work many volunteers and nonprofits had

rose out of disaster capitalism and with all the

been doing, but they knew that in their time of

resources, their ideas of rebuilding, different

need it was not enough, and they could not do

from those of native residents, exacerbated

it themselves no matter how hard they tried.19

post-disaster dynamics rather than furthering

And the problem was not that residents were

residents along the road to recovery.

could

be

considered

disaster

not trying hard enough, it was that they were facing systemic classism and racism cultivated

Displacement

by the federal and state governments and being

The food culture that had lived in New

successfully prevented from doing any of the

Orleans prior to Hurricane Katrina had been a

self-driven rebuilding they so desperately

product of the largely African traditions. As a

wanted

predominantly

and

needed.

Three years

after

Black

city

before

and,

Hurricane Katrina, the only neighborhoods

decreasingly so, after Katrina, this culture

that were not still largely destroyed were the

driven by food was largely shaped by the

French Quarter, parts of the Garden District,

Black community. New Orleans, like many

and Uptown, all neighborhoods occupied

other American cities, is no stranger to

predominantly by those wealthy and white.20

segregation and redlining, especially as it is

And the volunteers that did come to the aid of

composed largely of Black residents. Where

the residents of New Orleans, had interests in

segregation separates communities along the lines of race, redlining has followed it up to

18 ​

Adams, van Hattum, and English 619 Adams, van Hattum, and English 620 20 ​ Adams, van Hattum, and English 19 ​

21 ​

Klein 10

10

discourage

investment

in

“risky”

has been defined as the replacement of lower

neighborhoods, or neighborhoods occupied by

income residents with more wealthy ones. This

older homes and non-white residents.22 Black

trend

New Orleans residents have done what they

“neighborhood ​revitalization” by proponents

could to not only survive in this system of

but serves the same purpose: reinvestment

“American Apartheid” but thrive. Investing in

with the arrival of upper-income households

their own communities to build an extended

oftentimes

home and keep in touch with their histories,

deterioration in central city neighborhoods

Black New Orleanians had been able to

without

showcase this through the health and longevity

residents.​14 Hurricane Katrina brought an

of a culture, a food culture, still intact.

abundance of deterioration and destruction,

Of the 240,000 residents who were

is

more

​after regard

affectionately

a

to

period

current

of

termed

sustained

low-income

and investors quickly noticed.

displaced immediately after the hurricane,

After a natural disaster, the period of

175,000 were Black. Today, as the population

“reconstruction” which follows, finishes “the

attempts to climb back up to pre-Katrina

job of the original disaster by erasing what

levels, over 75,000 Black residents still have

was left of the public sphere and rooted

not returned to the city, largely affecting the

communities, then quickly moving to replace

racial, cultural, and social makeup of the city.

them

This

decrease in the Black

Jerusalem—all before the victims of war or

population, and most notably the Black middle

natural disaster were able to regroup and stake

class,

especially

their claims to what was theirs.”24 And the

efforts and whose

long-term victims of Hurricane Katrina were

opinions have been guiding them.23 This

disproportionately Black residents because

complete upheaval of the New Orleans-born

they lived in communities redlined due to

population and culture of New Orleans by

greater risk for flooding and other damages

Hurricane Katrina and failed recovery efforts

that occur from hurricanes. These same Black

opened the doors for an effect of disaster

residents rarely had the resources to return and

capitalism called gentrification. Gentrification

stake these claims, even though they were the

significant

has

considering

been recovery

alarming

with

22 ​

Fullilove and Wallace 382 Casselman

23 ​

24 ​

Klein 10

11

a

kind

of

corporate

New

ones responsible for tending to the rich culture

food

which draws so many to the city. Reports

centuries; the harsh penalties of a system with

show

American

little to no prevention and then no post-disaster

communities that endured significantly more

care were realized in the wake of one of the

damage from flooding

country’s greatest natural disasters of the

that

those

“African

faced

the same

rebuilding costs that other neighborhoods did

culture

they

had

cultivated

over

twenty-first century.

but were given substantially lower grant amounts than white neighborhoods where

Food Tastes

comparable properties have higher values.”25

With the rightful stewards of New

Without the money to rebuild, residents could

Orleans and its food culture displaced and

not return, and their properties were deemed

dispersed, unable to return to the city, the food

blighted

for

culture of New Orleans has radically changed.

developers, investors, and other types of

With an influx of new residents, some

disaster capitalists to begin redesigning the

qualifying as gentrifiers as they move into

city without the input from many Black New

those “blighted” communities once occupied

Orleanians.

by Black residents, the way residents of New

or

abandoned,

allowing

When redesigning the city right after

Orleans access and experience food has been

Hurricane Katrina, investors and developers

made anew. Before Hurricane Katrina, there

followed similar segregated patterns, and food

were 800 restaurants dispersed around the city;

access became more and more of an issue.

now there are over 1,400.27 Yes, New Orleans

Shops quickly opened in those wealthy and

has always been a city with a rich food culture,

white neighborhoods where people just as

but this was not synonymous with a foodie

quickly were able to return immediately

culture until recent times. Where gentrifiers

post-Hurricane Katrina, as business is best

desire going out to restaurants with friends, as

where there are people and “favorable”

they do not have family in the city, native New

demographics.26 The poor and middle class

Orleanians desire the component of family

Black residents of New Orleans were left with

with meals and the tradition of recipes passed

decimated communities and no access to the

down to be made and distributed.28 The

25 ​

27 ​

26 ​

28 ​

Adams, van Hattum, and English 625 Bowen

Bowen Bowen

12

importance of the cultural tastes of New

they believe the objects of their efforts are too

Orleans is integral in figuring out how people

attuned to the ways they have been taught to

want to access food ​and w ​ hat they want to

experience taste by the larger industry and

access,

have

missing out on a form of cultural capital.32

attempted to rebuild New Orleans foodscapes

However, in New Orleans, people are attuned

have missed.

not mostly to fast food like in other cities, but

which

many people

who

Those proponents of the alternative

to their own unique food culture practices.

food movement often have the objective of

Those proponents of the alternative food

bringing good food to others.29 Because they

movement who come to New Orleans do not

see this as a morally sound reason, they are

see how they erase this rich culture so many

often perplexed when people are not receptive

New Orleanians value completely when they

to the alternative food movement and its

come into the city with the same model used in

promises of healthy, local, and organic food.

every other city. New Orleanians know what

Actors in the dominant industrial food sectors

they want to buy and many of these markets

work to make sure “populations are ‘better

simply do not sell those items.33 Native New

attuned to the sensory experiences that [food

Orleanians understand that these markets are

companies are] able to sell.’"30 While agents

there to allow new and white residents to build

and

of the alternative food

their own cultural capital and not to reestablish

movement have not been so explicitly for

the food culture of New Orleans that needed

profit, they share similar sentiments in trying

support

to shape people’s food tastes. So when people

Orleanians wanted was a place they could

reject the alternative food movement, it is seen

consistently shop where they knew the

as an “affective barrier,” those constraints

produce was the same. For example, where

which are perceived as “more than we can

they could purchase their holy trinity—a blend

tell.”31 As the proponents of the alternative

of onion, bell pepper, and celery—and keep

food movement want so desperately to teach

eating the foods that tourists come pouring

proponents

to

people how to eat and how to eat healthily,

29 ​

32 ​

30 ​

33 ​

Guthman 434 Carolan 320 31 ​ Carolan 321

34

13

Carolan 318 Kato 381 ​ Bowen

thrive

again.34

What

New

into the city to eat and native New Orleanians

between the environmental and social aspects

know how to make.35

of society. It is produced through our physical environment,

Methods

naturally,

or

by

way

of

manipulation, and we largely view food as

I was brought to this research topic and

being produced for people to eat. At this

question through my proximity to New

intersection is where we can find the stories of

Orleans: I was born and raised in the city and

those marginalized for lack of interest in

made the decision to attend college here in

delving into what is complicated. These stories

order to study environmental and social issues

deserve to be told so that each day when we

affecting New Orleans. During my time at

eat, for those of us who are lucky enough to

Loyola, I found food and food studies came

have food be such a common occurrence, we

into sharp focus when I began to uncover my

are reminded of how much of what we view as

passions. As a person, and as a person from

mundane is constantly shaping our lives.

New Orleans, food has long been an area of

To gather research, I interviewed ten

importance in my life. As a young person

participants. Five of the participants I coded as

under

my

professionals, and the other five were coded as

great-grandmother in her kitchen, I came to

consumers or residents. All ten participants

learn many things about how food can bring

needed to be full-time residents of New

family together and what lessons are to be

Orleans and over the age of eighteen who had

learned that go beyond food but can only be

lived in New Orleans since before Hurricane

understood through the act of making it.

Katrina. All five of the consumers or residents

People need food and populations across the

were self-identified Black women ranging in

globe have created and continue to create a

occupations. The women who were consumers

seemingly infinite amount of food cultures.

worked

How and why we produce food and what we

professional counselors, directors of non-profit

produce varies tremendously, but there are just

organizations, or

as many similarities between the different

retired. Four out of the five consumers were

outcomes. Food exists in a unique intersection

community activists or organizers, with two of

the

watchful

eye

of

as

city

government employees,

were self-employed or

them focusing on food activism. For the 35 ​

“A Record 10.45 Million People Visited New Orleans in 2016”

14

professionals, I was looking for individuals

bought food before and after Hurricane

who were the directors and/or founders of

Katrina, and what neighborhoods they lived in

community

agricultural

before and after Hurricane Katrina. I also

organizations, or involved in food policy and

asked them about how often they prepared

food law advocacy in New Orleans. These

food versus how often they ate food prepared

professionals would have to be individuals

away from the home, knowledge of alternative

who had established themselves as agents in

food sources, experience with gardening, their

shaping the food landscapes and individuals

overall feelings about New Orleans foodscapes

who had the tools and means to be these

post-Hurricane Katrina, and what they see as

agents. Of the five professionals, four were

their ideal way to access food in New Orleans.

self-identified as white. Of the four white

The shortest amount of time a participant

professionals, three were women. The one

reported living in New Orleans was 20 years

non-white professional was a self-identified

with the longest amount of time a participant

Black woman. Three of the five professionals

reported living in New Orleans being 63 years.

were the directors and founders of their own

All five participants stated that they prepared

community garden or farming organization.

their own food more often than they ate out,

Two of the professionals were involved in

were aware of alternative food sources, had

food policy and food law advocacy directly;

access to or owned a vehicle, had experience

one

a national non-profit

with gardening or owning a garden, and

organization working out of New Orleans and

believed there was a significant change in the

the other working for a non-profit organization

way they access food post-Katrina, expressing

specializing in food policy for the state of

both positive and negative opinions about

Louisiana.

these changes.

working

gardens

for

or

When asked where each participant Findings

lived before and after Hurricane Katrina, two

The resident group of participants were

reported having to move post-disaster. Before

each asked fifteen questions asking them how

Hurricane Katrina, participants reported living

long they had lived in New Orleans, about

in the Seventh Ward, Uptown, Ninth Ward,

their modes of transportation, where they

Gentilly,

15

and

New

Orleans

East

neighborhoods.

Post-Katrina,

the

two

to go to neighboring cities for groceries; two

participants living in the Seventh Ward and

grew their own food; and three reported

Uptown reported to be living in Gentilly and

frequenting

the Ninth Ward, respectively, at the time they

interpretations of ideal ways to access food in

were interviewed with all other participants

New Orleans, participants reported wanting a

living in the same neighborhoods. The two

food delivery system, similar to Mr. Okra; a

residents who had to move were priced out of

greater number of traditional grocery and

more centrally located neighborhoods and into

neighborhood

neighborhoods on the outer edges of Greater

produce; and growing and exchanging food

New Orleans where food access is much more

with their neighbors and members of their

scarce. When I asked one of the women about

communities.

urban

stores

gardens.

that

In

provide

their

fresh

why she moved and how it worked for her, she

The group of participants who were

told me this: “I wanted to buy a house, had the

professionals were also asked fifteen questions

opportunity to buy a house, knew I was about

regarding their occupations, why they chose a

to get priced out of Treme, and where I could

career in food justice, and how long they have

afford to buy a house was going to require two

been living in New Orleans. I also asked how

buses to get him to school, and another bus to

they service the community of New Orleans,

get to work… so I learned to drive, and I

what objectives they have in their work, and

bought a car.” When asked about where they

how these objectives relate to post-storm

shopped before and after Hurricane Katrina,

recovery and who they believe can benefit

all five women reported shopping mostly at

most from their work. I also asked them about

various neighborhood and grocery stores

their feelings of how Hurricane Katrina has

within New Orleans, namely Circle Food

impacted the food systems of New Orleans,

Store, Roberts, and Rouses; two reported

their experiences with the alternative food

growing their own food; and only two reported

movement in the city, and what they see as an

that they shopped at Walmart. After Hurricane

ideal future for the foodscapes of New

Katrina, all five of the women reported having

Orleans. The professional who had been in

to go to Walmart along with the smaller store

New Orleans for the most amount of time was

aforementioned for food; two reported having

New Orleans-born and had been here since

16

before 1991. The participant having spent the

participants mentioned that while there were

least amount of time in the city had been here

no

for three years nonconsecutively. When asked

specifically, they did see Hurricane Katrina

why they chose a career in food justice in New

highlight how New Orleans needed food

Orleans, three of the participants expressed an

justice. Three of the five participants discussed

emotional connection to food and food justice

hurdles regarding land access and city laws as

and wanting to shape and improve the

their biggest challenges in their alternative

foodscapes of New Orleans. Three participants

food movement work, while two of the

emphasized food access and the right to fresh

participants

food and its health benefits. When asked about

communication with the public being their

how they service the people of New Orleans

biggest challenge. As for their pictures of the

and their level of engagement, only two

future of foodscapes in New Orleans, the

participants expressed feelings of satisfaction

participants spoke about changing policies,

with their current level of engagement and all

and bridging

five participants felt they could improve the

residents together via the food system. They

services they offered the people of New

also wanted to implement the farming and

Orleans to better cater to the unique needs of

distribution methods of Black farmers and

the people in the city. When asked to speak

support more Black farmers.

more

about

what

could

be

importance

of

remarked

on

objectives

gaps

in

native residents and new

Limitations

demographics of the city, each participant the

Katrina

improved,

especially in regards to the racial and class

knew

post-Hurricane

the

At the end of my project, it was

Black

important for me to reflect on the limitations

community’s presence in New Orleans and

of research. Because all of my research was

that they should be doing more to be inclusive

qualitative, I ran the risk of my findings and

and hear the concerns of the diverse set of

analysis being skewed by participants who

communities of color in the city as an

idealized the past. I was asking natives of New

improvement. When asked about whether or

Orleans to provide their subjective opinions

not they had any objectives geared toward

comparing their experiences differentiated by

post-Hurricane Katrina recovery, three of the

a life-altering event. I also considered how

17

their opinions of the city could be skewed as

did not stop the immense sense of achievement

the city’s social, cultural, and racial makeup

I felt in speaking with the people of New

has been evolving since Hurricane Katrina and

Orleans about where the heart of their passion

the phenomenon of change has on their idea of

lies, one of the necessities of life, and a huge

what New Orleans is and what it should be.

component of what draws people to this city:

Interviewing the professionals about their

food.

work could also produce skewed data if the participants had an overly negative or positive

Conclusion

view of the work they had done based on how

The end goal for both residents and

they were received by the community they

those professionals in the food industry are the

worked with. Diversification of participants

same: more access to more fresh food and

was also a limitation I ran into. Snowball

fresh produce. However, how both groups

sampling was useful for gathering participants

envision achieving this in both the long and

which fit my criteria for involvement, but it

short term has some notes of harmony and

also meant for a biased group of participants.

some notes of discordance. The discordance

Initial participants could have only referred me

comes largely from how much attention is

to people who they shared like ideals with. For

being paid to increase food access for the short

this, it would be hard for me to obtain data

term and how much attention is paid to the

which is truly representative of public opinion.

larger food system as something to be

Interviewing is a time-intensive method for

improved in the long run.

gathering research in all of its stages, from constructing

questions

down

to

coding

Reimagining Current Foodscapes

responses; and the rigidity of structured

One of the first steps on the path

interviewing presented a challenge for getting

toward food security is defining food justice.

more telling responses. As my first in-depth,

For New Orleans residents, food justice was

qualitative research project, I felt that the

immediate access to fresh food and fresh

interviewing

though useful for

produce. This immediate access for them

obtaining large amounts of information, was a

would come as more grocery stores, more

potential limitation. In the end, my limitations

neighborhood stores, or some sort of delivery

method,

18

system, “like having two dozen Mr. Okras.”

purchase now is from the grocery store.”

Options like these decrease the distance

Although all of the residents I spoke with were

between the participants and fresh food and

familiar with urban gardens and where they

provide

a

pre-Katrina

foodscape

that

resembles

could find one, the residents said they were

foodscapes.

Of

the

largely inaccessible, as they are only open a

five

participants I interviewed, four of them

few

returned in under two years while one of them

transportation to get to. All of the participants

could not return until almost six years later.

mentioned they themselves or people they

Two of the participants living in more central

know have physical, social, and emotional

areas of the city were displaced as they had to

hurdles to overcome or lack of transportation

move to the satellite neighborhoods of New

making it hard to impossible to reach these

Orleans for economic reasons. All of the

gardens: “my sister, she doesn’t drive, she

residents now live in the outer neighborhoods

doesn’t have a car. She catches the bus to go to

of the city, the Lower Ninth Ward, Gentilly,

Walmart on Tchoupitoulas to get her groceries

and New Orleans East, neighborhoods deemed

or her sons might bring her every once in a

as food deserts due to lack of fresh food access

while. But she’s independent, she’s a year

points. While one of the urban farm founders

older than I am and she likes to do her own

praised the idea of a food delivery system, she

thing. So she has one of those little collapsible

also said that it was a modern concept. She

grocery carts and that’s what she does. It takes

said, “New Orleans [is] moving into being a

her half the day to do her shopping.” Another

modern city with things like food delivery. We

participant remarked on how “stress that folks

never had that before.” However, when

live

speaking with a long time resident who lived

stress-related diseases,” can lead to a number

in the Seventh Ward before Hurricane Katrina,

of outcomes, like chronic physical conditions

she revealed to me, “you [could] buy

or addiction, making the desire to go to great

vegetation from what we used to call peddlers.

lengths to get fresh produce complicated. A

People have their little trucks and they ride

system for food delivery was possible in the

around all fresh vegetables and fruits. Now,

city and this idea is not modern so much as it

you very seldomly see that and everything you

needs to be reborn. The foundations for

19

days a week and require reliable

through on a daily basis… [and]

constructing a sovereign oriented food system

being to break down barriers for residents who

have

wanted to produce. One participant who had

always

been

there,

and

these

professionals know they should be and want to

been

involved

be unearthing and enhancing these deeply

community garden remarked, “[community

buried foundations. However, in a food system

gardens are] not enough to satisfy the needs of

broken by a natural disaster and underfunded

the communities.” When asked if she wished

nonprofits left to repair them, the amount of

there were more producers to increase the

progress and cohesion possible becomes

bounty

limited.

responded that she wished there was, “at least

at

these

in

her

neighborhood’s

farmers

markets,

she

For many of the professionals, food

another store.” Nonprofits and those running

justice looks like initiatives that focus on

these urban farms can not provide for the total

production,

on

food system. One professional remarked on

on

the

consumption.

rather

than

Initiatives

focusing that

focus

dysfunction

within

the

relationship

production, however, make the efforts of these

between professionals and residents: “folks

urban gardens seem Lilliputian to residents

who are in situations that are difficult to deal

whose major concern is consumption. Another

with on a regular basis are really not looking

professional

a

to build or to grow, they’re trying to stabilize,

different type of delivery system initiative

they’re trying to create a foundation, and, you

where local, smaller farmers and producers

triage is what they end up doing a lot of.

could drop off their bounties to be sold at their

Stopping the bleeding, prioritizing what has to

Mid City farmers market so that they do not

come right now. And as soon as we can get to

have to set up a large spread or be at the

a point where those things settle, then we can

market for hours. This same professional

build and we can grow, but policy is around

mentioned how this initiative is in line with

building and growing. So there is another

their organizations overarching objective: “to

disconnect there.” All five of the residents said

break down barriers for anybody who wanted

that they made food at home more often than

to grow their own food to do that - be that for

ate out, so repairing the food system for the

home consumption or for production.” Other

short term so that they can make dinner

mentioned

implementing

professionals also mentioned their main focus

20

everyday is more important to them than

interviewed. The professionals all wanted to

building up a brand new food system first.

make fresh produce more available, and part of this lied in teaching residents how to grow

Post-Katrina Centered Recovery

their own food. And residents want to grow

Residents are still looking for an

their own food and are also concerned with

equilibrium or some sort of normalcy. This

how food affects their health, but they want to

normalcy often does include food sovereignty

be reassured that years later the effects of

as residents welcome the idea of urban and

Hurricane Katrina do not follow them, even

backyard gardening. One of the professionals I

via their gardens. For this, awakening food

spoke with told me that, “[pre-Katrina] what

sovereignty within Black, New Orleans-born

we had was a lot of folks who were

communities becomes more than just teaching

self-sufficient they

may not have been

people how to grow food or providing them

providing for themselves in a way any of us

with an affordable “box.” Professionals must

would have thought was optimal but they were

then look beyond the obvious price and

still providing for themselves.” All of the

location barriers and into the trauma caused by

residents I interviewed mentioned having

an immense natural disaster which in part

experience with small scale gardening, either

leaves residents afraid to even grow their own

before or after Hurricane Katrina. One resident

food or seemingly mistrustful of a sovereign

in particular was receptive to the urban

food system they already had.

gardens in her area and resuming her role as a

This is why initiatives specifically

producer for herself and her family but she

geared

told me, “my thing is remedying the soil…

recovery are essential in not only stabilizing

because since Katrina I don’t even feel

the food system for natives concerned about

comfortable growing anything myself. I look

the now, but building it up for professionals

at the flowers I grow and they don’t grow like

and natives, as well. Of the five professionals I

they used to grow before the storm. ”

interviewed,

two

Residents want to know that what they are

organizations

focusing

eating is safe and healthy, a sentiment

post-Katrina recovery, two mentioned wanting

reflected

to nurture post-Katrina guerilla gardens or the

in all

of the professionals I

21

toward

post-Hurricane

did

not on

Katrina

see or

their

including

alternative food movement in general, and

the food system.” While they all expressed

only one mentioned recovery initiatives being

their motivations for coming to New Orleans

integral: “[what] many other public initiatives

being to provide greater access to fresh food to

have gotten wrong post-Katrina is that as long

improve people’s lives and their health, the

as folks are content with what they have, and

sentiments they expressed in how they thought

they have enough, then there’s not a reason for

they could improve post-Katrina foodscapes

them to change things, but as soon as you

were in line with sentiments expressed by

attempt to adjust and tell them, well what you

disaster capitalists who may not have these

have is not good enough, then there’s a

same good intentions. As mentioned before,

resistance that forms…without respect of what

disaster capitalism requires that one wipe the

people feel or believe is important… bottom

slate clean and build on top of what was. An

line is there is always going to be an issue.” In

approach which may suit both residents and

addition, when asked about the changes they

professionals may be to try to find some of the

saw in post-Hurricane Katrina food systems,

value in the pre-Katrina foodscapes. These

only two of the professionals had been in New

same professionals were critical of capitalism,

Orleans since before the storm and could

and specifically post-disaster capitalism, as

pinpoint exact changes in the food system, and

two of them had been made to move their

two admitted to not knowing of any changes

farms multiple times due to landowners selling

but they could guess the food system as a

the property to developers and investors for a

whole

high

is

participants

worse. Although two of the were

explicitly

However,

they

must

also

of

understand that believing the food system of

two

New Orleans, which has carried so much

what

history and was crafted under such specific

pre-Katrina foodscapes were like. They were

conditions, to be completely deficient and in

also included in the three participants who

need of them to replace it is just another form

mentioned things like wanting to “​create a

of disaster capitalism. One professional was

completely different food system,” create

critical of this stance: “in a very well meaning

“innovative ways to grow food in urban

and concerned way we intervened… And what

areas,” and “prove ourselves worthy of fixing

we ended up with was again an overcorrection

capitalism,

they

were

participants

who

did

the not

critical

price.

same know

22

and oversimplification because what I have

Orleans for years and decades is important in

personally found is that those folks who were

understanding the nuances of how the food

food insecure or who didn’t have access before

system

still don't have that much access now.”

improved, what could be removed, and what

Remembering that intentions are not enough

needs to be sustained. The other professional

and that taking the necessary time to learn all

who had lived in the city since before

the ins and outs of a system, in this instance a

Hurricane Katrina noted how the loss of

food system, is oftentimes the missing link to

people led to changes in culture, history

achieving a goal when working in an

telling,

unfamiliar setting.

professionals told me their major concern was

worked

and

before, what

demographics.

could be

All

of

the

to provide fresh food for all of the residents of Future of Foodscapes

New Orleans who needed it, and that they

Knowledge of pre-Katrina foodscapes

“don’t want to be feeding tourists.” However,

is essential in understanding post-Katrina

in order to craft a future where all residents are

foodscapes for proper community engagement

fed,

and moving forward in the foodscapes of New

strengthen cooperation between themselves

Orleans. One of the two professionals who had

and the members of the communities they

been here since before Hurricane Katrina

serve just as much as they work hard to

acknowledged changes in how the people of

strengthen

New Orleans access food now, meaning what

organizations,

and who they eat with. They argued that as a

officials. The desire to cater to the community

native of and an agent within the food systems

for professionals is there, and all of them

of New Orleans, the biggest challenges in

spoke about improving their relationships with

moving forward will be catering to both

community members rendered invisible due to

natives and newcomers and in order to remedy

economic

the “charity models… , a solution that is going

professionals, the founders of urban gardens,

to have any lasting effect,” continuing to shape

farming and food organizations, and policy

the foodscape. Building a communication

makers, must refocus their efforts on talking

network with residents who have been in New

with New Orleanians, face-to-face, to answer

23

professionals

must

cooperation policy

and

work

hard

between makers,

racial

and

biases.

to

food law

These

their immediate needs. Both professionals and

because they actually did go to the growers in

residents spoke about how they doubt the local

the city and they came to the Circle and sold

or state governments will be able to give the

their stuff to them. So if you had a farm and

support they need, scorning policy and lack of

you grew okra you could sell your bushels of

motivation in answering their food needs.

okra to him and he would buy it and it would

These small nonprofits and organizations do

be right there available to people in the city. I

not have the resources to rebuild the entire

know my grandfather used to sell stuff to

food system as quickly as people need access

them, and it was extra little funds to keep it

to fresh food. All of the professionals when

rolling.” These nuggets of information are

asked felt that one of their major concerns was

essential in understanding why residents desire

accommodating the Black communities of

what they desire. Two other residents told me

New Orleans as they knew the importance of

that they would love to be able to support

helping them to rebuild food systems. One

other Black owned businesses like Circle Food

professional said specifically how they saw

Store, or just other Black producers. One

immense

farmers

resident remarked about how she “used to

own

shop at Circle a lot on purpose, so I could

communities and wanting to support more

support that store,” showing a commitment for

Black farmers. The residents I spoke with all

supporting local and black producers. Another

mentioned having shopped at Circle Food

resident theorized on why the store was forced

Store, now closed, both before and after

to close: “the gentleman who owns the Circle

Hurricane Katrina. Circle Food Store was the

Food Store, they sent him through hoops and

first Black owned grocery store in New

loops to get the place open. I was working in

Orleans, and one resident revealed to me that

the councilman’s office when he would come

she had been going since she was a little girl;

in and try to tell them what he needed, and

she’s now 62. She relayed to me what she

they did finally give him a grant to help him

knew

before

open but it still wasn’t enough. All I can say

Hurricane Katrina: “it’s really historical…

is, people of other persuasions have wanted

They had food outside, fresh fruits and

that property for some time and all we can say

vegetables, and you could get a good deal

is, I pray he’s able to keep the property and

value

cooperate

about

in

how Black

effectively

Circle

in

Food

their

Store

24

he’s able to hold on to it until he can get his

common goals between themselves and New

finances in order.� ​For residents, getting their

Orleanians and focus on what can be saved

food from Circle Food Store, a grocery store,

rather

was a part of their iconic Black history - a

Sovereignty can not be achieved without a

history that deserves preservation. Whereas

proper foundation. For New Orleans, this

the professionals I spoke with wanted to

foundation must include a food system led by

replace grocery stores in order to support local

the New Orleans-born residents who have

farmers, the residents I spoke with saw both as

been empowered to stake a claim on at least

inextricable.

two things they still have a chance to maintain,

Agents

in

the

alternative

than

what

needs

to

be

fixed.

food

how and what they eat. Thirteen years after

movement should use the resources they do

Hurricane Katrina, it is not too late to start

have to begin finding more specific and

refocused recovery efforts.

25

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Bowen, S. “Food as Accessory, Not Necessity.” Author: Shawn “Pepper” Bowen (blog). November 8, 2017. http://www.pepperroussel.com/gentrification-food-as-accessory-not-necessity.

Carolan, M. (2014) “Affective sustainable landscapes and care ecologies: getting a real feel for alternative food communities.” ​Sustainability Science​ 10. Pg. 317–329. DOI: 10.1007/s11625-014-0280-6.

Casselman, B.“Katrina Washed Away New Orleans’s Black Middle Class.” Aug 24, 2015. https://fivethirtyeight.com/features/katrina-washed-away-new-orleanss-black-middle-clas s/.

Fullilove, M. T. and Wallace R. (2011) “Serial Forced Displacement in American Cities, 1916–2010.” ​Journal of Urban Health​ 88.3.. Pg. 381-389. DOI: 10.1007/s11524-011-9585-2.

Gardere, L. and Plyer, A. ​The New Orleans Prosperity Index: Tricentennial Edition Measuring New Orleans’ Progress toward Prosperity​ (The Data Center: New Orleans, 2018). https://s3.amazonaws.com/gnocdc/reports/ProsperityIndex.pdf.

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Guthman, J. (2008) “Bringing good food to others: investigating the subjects of alternative food practice.” ​Cultural Geographies​ 15. Pg. 431–447. DOI: 10.1177/1474474008094315.

Kato, Y. (2013) “Not Just the Price of Food: Challenges of an Urban Agriculture Organization in Engaging Local Residents.” ​Sociological Inquiry​ 83.3. Pg. 369-391. DOI: 10.1111/soin.12008.

Klein, N. ​The Shock Doctrine: The Rise of Disaster Capitalism​. (New York: Metropolitan Books 2007).

Mikkelsen, B.E. (2011) “Images of foodscapes: introduction to foodscape studies and their application in the study of healthy eating out-of-home environments.” ​Perspectives in Public Health​ 131.5. Pg 209-16. DOI: 10.1177/1757913911415150.

Passidomo, C. (2014) “Whose right to (farm) the city? Race and food justice activism in post-Katrina New Orleans.” ​Agriculture and Human Values​ 31. Pg. 385–396. DOI: 10.1007/s10460-014-9490-x.

“A Record 10.45 Million People Visited New Orleans in 2016.” ​WGNO​. March 24, 2017. https://wgno.com/news/local/a-record-10-45-people-visited-new-orleans-in-2016.

26

Taylor, Dorceta E. 2018. “Black Farmers in the USA and Michigan: Longevity, Empowerment, and Food Sovereignty.” ​Journal of African American Studies​ 22.1. Pg. 49-76. DOI: 10.1007/s12111-018-9394-8.

White, Monica M. 2011. “Sisters of the Soil: Urban Gardening as Resistance in Detroit.”

Race/Ethnicity: Multidisciplinary Global Contexts​ 5.1. Pg. 13-28. https://www.jstor.org/stable/10.2979/racethmulglocon.5.1.13.

“Who Lives in New Orleans and Metro Parishes Now?,” ​The Data Center.​ October 10, 2019. https://www.datacenterresearch.org/data-resources/who-lives-in-new-orleans-now/.

27

The Erasure of Intersex: Upkeep of a Scientific Fiction Michael Boyko​ ​- ​Lehigh University Introduction In 2018, the United States Department

biological

fact

but

are

actually

social

of Health and Human Services expressed an

constructs. However, being rooted in biology

interest in redefining the legal definition of sex

does not make binary sex, the belief that sex

as “based on immutable biological traits.”36

can be put into two rigid categories, male and

While the transphobia infused in this newly

female, an indisputable fact. The binary

proposed definition is apparent, the definition

concept of sex ignores the existence of

also drew criticism from those seeking to

intersex individuals. Intersex is defined by the

publicize the existence of intersex individuals.

Intersex Society of North America as “a

Taking to the New York Times opinion

general term used for a variety of conditions in

section, Anne Fausto-Sterling, a biologist and

which a person is born with a reproductive or

gender studies professor at Brown University,

sexual anatomy that doesn’t seem to fit the

criticized the statement for ignoring scientific

typical definitions of female or male.”38 As an

consensus around both gender and sex, saying

umbrella term, intersex encapsulates every

that enough biologic evidence exists that the

combination of traits that determine the sex of

sex binary is not fully correct.37

a newborn outside of the female and male

This idea of an easy, binary distinction between

an

ambiguous genitalia, to a ‘mismatch’ in

oversimplification of human sex in order to

internal and external characteristics, or the

easily

distinct

presence of a hormone abnormality during

categories, female and male. Doctors present

gestation.39 With a wide range of traits that can

sex as a distinct element of biological science,

make an individual intersex, one must wonder

differentiating it from concepts like race or

how this decision is made. The exact

gender, ideas previously thought to be based in

specifications of this decision are discussed

36

38

37

two

group

sexes

people

is

into

ultimately

combinations. What this means can vary from

two

Byrne 2 Fausto-Sterling 1

39

28

ISNA 1 ISNA 7

later, but ultimately this decision, unlike the

show why scientists and doctors are so

popular perception of science as objective, is a

dedicated to the sex binary. Then, to clear up

subjective choice by scientists and doctors.

any

possible

preconceived

ideas

about

Science’s objective nature has been

intersexuality, I outline the basics of what

built up over time, through classification

intersex means. Along with this description of

systems being lauded as the “correct” way to

intersexuality, I detail the decisions made by

do science40 and the characterization of science

doctors when faced with an intersex infant to

as an effort to explain what already exists, not

exemplify dedication to the binary. I then

create new concepts.41 For the case of

follow the process of doctors after this initial

intersexuality, this objective nature is missing.

interaction with an intersex infant to the most

Doctors do not agree on, or about, what

common reaction: surgery. This surgery both

determines an intersex person; for some,

reinforces the binary by placing intersex

having an external genital that is too large or

individuals into one of the two binary sexes

too small may be enough, while some doctors

and exemplifies how violence results from

may need to see both ovarian and testicular

science’s obsession with the binary. Finally,

tissue present to decide.42 This discrepancy in

since operation is not where science’s say in

scientific opinion may come off as an innocent

intersex bodies ends, I bring in two personal

squabble in higher knowledge, but this

accounts that show how a decision made by

disagreement between scientists creates a

doctors at infancy carries on throughout the

scientific inconsistency that quite often leads

rest of an intersex individual’s life. Ultimately,

to violence: science’s history of non-required

through this analysis of pre-op, operation, and

sex reassignment surgeries being performed on

post-op procedures, I will show that the

infants, either with or without their parent’s

erasure of intersex identities is perpetuated by

knowledge, in order to ‘cleanly’ fit the infant

doctors in order to maintain the scientific

into one of the two sexes.43

validity of the sex binary, causing violence

First, I will analyze the innerworkings

towards intersex individuals.

of science and scientific thought further to 40

Foucault xxi Latour 94 42 ISNA 7 43 ISNA 8 41

29

Conceptual Science and Intersexuality

This concept is overly applied to

If the sex binary is consistently causing

concepts

of

biological

concepts,

and

violence towards intersex individuals through

realistically to any other concepts regarding

unrequired surgery, then how is science able to

the human body, that are found in science.

maintain it successfully? Bruno Latour’s

Since science both creates and describes

characterization of science as a force that

Nature, the sex binary is thought to be the

seeks to be seen as a method of discovery,

natural way of things. This is a very important

rather than one of knowledge creation helps to

element of the science around intersexuality.

understand

process.

Firstly, if the sex binary is natural, then

According to Latour, Science does this by

intersex individuals are unnatural. Secondly,

utilizing the concept of Nature. To Latour,

as a perceived natural occurrence, there is no

Nature is a created concept that allows science

possible way to directly change it through

to portray itself as the discoverer of truth.

scientific thought. Under the maintained status

Findings in science are not products of

of science as the discoverer of truth, correcting

science; instead, they are discoveries of how

what has been maintained as a natural

the world works.44 The key to this distinction

occurrence

is that if something is truly how the world

“discovered” it is not effective.46 This status as

works, its discovery does not create a genesis

a natural occurrence makes it much harder to

point on the timeline. If these processes were

change already existing scientific ideas; doing

not discovered by science, they would still be

so requires admission of their created nature.

occurring,

this

without

humans

through

the

process

that

having

Foucault also has insight into the

knowledge of them.45 This distinction between

structure and creation of scientific thoughts.

a scientific discovery being an explanation of a

Foucault

Natural process, rather than a created theory,

systems are an integral portion of how

means that regardless of if the scientific

scientific thought is created and upheld.47 The

discovery is completely false, partially true, or

way that these classifications systems gain

absolutely correct, it is characterized as

their strength is through domination of

natural, objectively correct fact.

scientific discourse; they are represented as the

44

46

45

just

maintenance

Latour 95 Latour 95

47

30

emphasizes

Latour 96 Foucault xviii

how

classification

sole way to look at a scientific topic. Rather

not hold up when put to data. The number of

than there being multiple different lenses to

intersex children born has always been a

observe

scientific

disputed figure, with numbers ranging from

classification seeks to pose a singular lens. As

every 1 in 500 to every 1 in 2000.50 Even by

a classification system itself, the sex binary

using the most conservative estimate, more

falls into this process of stifling other modes

than 3 million people worldwide would be

of viewing the topics it classifies. Anything

intersex. Higher report rates stem from the

that does not subscribe to this mode of

subjectivity of what deems an infant to be

classification, intersex identities included, is

intersex.

seen as illegitimate in the face of the perceived

‘unacceptable” genitalia, like penises that are

legitimacy of the sex binary. According to

too small, or clitorises that are too large, in the

Foucault, none of these classification systems

numbers.51

and the categories that they place scientific

For

findings

a

topic

into

through,

should

traits,

rates

include

classification

systems are often created to characterize them

scientific

as pathological result of a disease.52 One such

thought.48 If binary sex as a classification

system is the Quigley Scale, shown below.

system

monoliths

remains

held

intersex

high

as

unchallengeable

be

These

of

unchallenged,

then

the

violence inflicted on intersex individuals continues on unabated.

Quigley Scale created by Charmian A.Quigley et all. 6/7 are grouped together due to the difference being the type of pubic hair that appears

Intersex Identification

during puberty, and thus is unrecognizable at birth.53 6 has terminal

With the construction of the sex binary as

both

a

natural

occurrence

and

pubic hair, compared to the typically female vellus hair.54

a

The Quigley Scale was created to classify

classification system covered, the discussion

different degrees of the resultant genitals of

now moves specifically to intersex individuals.

A

common

belief

among

androgen insensitivity syndrome. The system

non-intersex

places these genitals on a scale from “typical”

individuals is the idea that intersex conditions are extremely rare.49 However, this idea does 48 49

50

Warnke 127 Warnke 127 52 Council of Europe 9 53 Quigley 281 54 Quigley 281 51

Foucault 150 ISNA 1

31

genital masculinization to feminized male

Intersex Surgery

genitals.55 The scale’s main creator, Dr. Charmian

A.

Quigley,

a

If intersex bodies are regarded as a

pediatric

result of a defect, what happens to those that

endocrinologist, has said that the scale is based

are born intersex? The procedure for what to

on “defective masculinization.”56 While the

do when an intersex infant is born differs

harm that can come from describing an

based on which sex is present in the infant’s

intersex trait as defective should be obvious,

genetics, based on the presence of a Y

Foucault’s work on classification systems says

chromosome. This usually denotes that a child

that this kind of classification is necessary to

is biologically male. Finding a Y chromosome

truly discover a concept scientifically.57 New

present in an intersex individual defines what

classifications base themselves on existing

the doctor’s next step will be.

scientific concepts.58 Rather than creating a completely

The recognition of a Y chromosome

new classification system to

prompts scientists to establish the child as

discover the genital abnormalities caused by

male.59 “Genetic males (children with Y

androgen insensitivity syndrome, Quigley et al

chromosomes) must have “adequate” penises

decided to create a classification system using

if they are to be assigned a male gender.”60 If it

the typical classification, the sex binary, as a

is determined that there is enough penis, the

model. This allows for the scale to be set up in

child is assigned as a male, but that does not

a way that corresponds to masculine and

mean that no surgery occurs. “When a genetic

feminine traits and makes sense in the larger

male is judged to have an 'adequate' phallus

order of human sex classification. Even in a

size,

scale wholly about intersex bodies, the criteria

repeatedly, to try and make the penis more

used to determine differences in genital

'normal.'”61 If the child’s genitals are deemed

formation are based on binary sex.

to be insufficiently masculine, then the child is

surgeons

may

operate,

sometimes

decided to be female, with cosmetic surgery being undertaken to shape the decidedly

55

Quigley 282 Quigley 282 57 Foucault xxi 58 Foucault 151 56

59

Dreger 21 Dreger 21 61 Dreger 21 60

32

malformed penis into more female-looking

differences between assigning an intersex

genitals.62

infant to be male or female.66 For those

This snap decision between male or

decided to be male, their new penis must pass

female is not seen when the Y chromosome is

a number of checks to be determined proper,

absent,

would

including the ability to be recognizable as a

genetically be female. Here, the priority is to

penis on sight, as well as “the capability to

keep the infant as a female, in order to

become erect and flaccid at appropriate times,

maximize their ability to reproduce.63 This is

and to act as the conduit through which urine

not a priority that is given to those with Y

and semen are expelled, also at appropriate

chromosomes, with testes being removed if

times. The urethral opening is expected to

they are chosen to become female.64 Even in

appear at the very tip of the penis. Typically,

cases

were

surgeons also hope to see penises that are

recognizable as male, if the child’s internals

'believably' shaped and colored.”67 This may

were capable of childbirth, thus having

seem like a rigorous amount of check boxes

ovaries, then surgery was conducted to create

for a surgically corrected penis to hit, but it

female genitals.65 The overwhelming focus on

looks even more daunting when compared to

childbearing ability forces more violence on

the single checkbox required for a constructed

intersex individuals, sometimes increasing the

vagina to be deemed as proper. In this case,

amount of surgery thought to be required in

the only required criterion is that vaginal

pursuit of the ability to have children.

penetration is possible.68

meaning

where

that

the

outward

child

genitals

There is also a difference between

So why is the scientific response to

what is seen as a successful or unsuccessful

intersex bodies surgery? Following Latour’s

operation when attempting to correct an

theories, this correction response is the perfect

intersex

Describing the

example of how science does not actually

requirements that surgeons hold themselves to

discover Nature, but instead creates it. If

for a successful operation on an intersex

science was truly about discovering new

individual,

things about how the world works, the reaction

child’s genitals.

Alice

Dreger

detailed

the

62

Dreger 22 Dreger 25 64 Dreger 25 65 Dreger 26 63

66

Dreger 26 Dreger 26 68 Dreger 27 67

33

to the birth of an intersex infant would be to

explaining to the parents that their child was

accept the new findings about human sex and

born intersex, doctors often characterize

learn more about them, not undertake surgery

intersex bodies as having a “correct sex,” but

to match a scientific concept that has already

development of the “correct” genitals is still

been created as Nature. For Foucault, the fact

occurring.71 Here, the existence of intersex

that surgeries aim to fit intersex individuals

bodies is completely black boxed, meaning

into one of the established classifications of

that the concept is not explained as it is too

sex exemplifies the idea that classification

complicated.72 Rather than explaining the

systems strive to be the only way to view a

existence of intersex traits and individuals,

scientific concept.

doctors blatantly lie to the parents of these

If these surgical interventions are being

infants.73 The discrepancy with the binary sex

done for the sake of the upkeep of a scientific

system is placed on the inability of the doctor

upkeep, how do doctors portray the need for

to determine which sex the infant lies within,

surgery? Based on the typical method of

rather than the possibility that the infant lies

explaining the occurrence of intersex infants to

outside of the binary.74 Combined with the

their parents, doctors believe that they are

power dynamic of a doctor recommending a

acting for the benefit of the infant, as there are

surgery to parents presumably uneducated in

concerns that having an intersex sexual

the existence of intersex bodies, it is no

identity will create confusion for the parents.69

surprise that surgery is often the result of an

“Clinicians treating intersexuality worry that

intersex child’s birth.75

any confusion about the sexual identity of the

As infants cannot consent, and parents

child on the part of relatives will be conveyed

are lied to in order to avoid de-black boxing

to

intersex,

the

child

and

result

in

enormous

then

why

is

an

essentially

psychological problems, including potential

non-consensual surgery being undertaken?

‘dysphoric’

Most surgeries on intersex infants are not

states

in

adolescence

and

adulthood.”70 This concern about relatives' reactions

characterizes

doctor/parent 69 70

the

relationship.

rest Rather

of

the than

71

Dreger 20 Latour 4 73 ISNA 1 74 Kessler 8 75 HRW 21 72

Dreger 20 Dreger 20

34

required for them to live76; rather, it is required

(AIS). Covino was not aware of her status as

for them to comfortably fit within the sex

an

binary. Based on both Foucault and Latour’s

chromosomes, typically found in genetic

theories around the creation of science, the

males, were found by a genetic test through

want to undertake surgery is not malicious and

23andMe.77 At the time of this test, Covino

done to cause harm to infants. Doctors act in

was 38,78 showing that while she did know that

the way that scientific thinking has taught

something was not right with her sex identity,

them to act, which ultimately justifies a violent

79

practice.

from being intersex. Covino was aware that

intersex

individual

until

her

XY

she did not have any lif- destroying effects

she was not “developing like a normal teenage girl” when she started to go through puberty.80

Intersex Post-Op While a large amount of this violence

Even though Covino may not have gone

is centered around birth and surgery on

through surgery as an infant, she did undergo a

infants, this does not mean that the violence

surgery

resulting from the rigidity of the sex binary

characteristic of AIS, when she was 15.81

ends there, as it continues throughout the

Rather than the operating doctors, it instead

intersex individual’s life. The characteristics

took the insight of a worker at 23andMe to

of how being intersex affects an intersex

recognize the discrepancy between Covino’s

individual’s life vary drastically based on the

sex identity as a female and her typically male

kind of intersex traits they have, as well as any

chromosomes.82 “I felt like a freak. I felt like

previous surgeries that were conducted. As

there was something wrong with me. I felt

such, rather than casting a general picture of

different, I felt like my body was different, and

what the violence occurred from attempting to

it was hard. I went through depression and

force intersex individuals into the sex binary

anxiety,” said Covino when talking about her

looks like, I focus on two specific cases.

life after her surgery.83 An explanation that

The first of these cases is of Dawn Covino,

a woman with

77

Weiss 4 Weiss 10 79 Weiss 16 80 Weiss 12 81 Weiss 12 82 Weiss 8 83 Weiss 15

the previously

78

mentioned Androgen Insensitivity Syndrome

76

HRW 21

35

to

remove

undescended

testes,

intersex individuals were not all that rare,

that she went through because of her internal

exactly why she needed surgery, and a

conflict.

clarification that she was not a freak may have

Something that both Foucault and

been able to assuage these feelings of

Latour speak on with Covino’s case is the role

difference for Covino. So why did they not?

of Nature. In Foucault’s nature, accumulation

Latour’s black box concept comes back

of

knowledge trumps all other factors,

in full force in Covino’s story. The black box

including the validity of that knowledge in the

of intersex identity is present through her

long term.85 The rejection of a scientific

birth, her surgery, and her eventual discovery

concept, like the sex binary, means that this

of her intersex identity. Through what Covino

knowledge needs to be removed, ultimately

talked about, it is unknown whether her

reducing

parents were aware that their child was born

accumulated by science. This removal and

intersex or if they just did not feel the need to

replacement is a hard process, as it challenges

tell their daughter. Foucault’s exclusionary

science’s reputation as a giver of objective

model of classification methods is also at play

truth, and the result is a departure of

with the erasure of Covino’s intersex identity.

knowledge from the overall knowledge base.

Rather than breaking with the established

The problem of that natural reputation also

system in order to acknowledge the original

points to Latour’s Nature, where science does

falsehood of Covino being a female, the

not create but rather explains as the provider

doctors that operated on her decided to remain

of truth.86 Science is resistant to any change

within the system of classification that was

that would require it to possibly reveal the

previously applied. With the delegitimizing

innerworkings of creating Nature, and thus

effects that the sex binary as a classification

rather than confront the mistake of Covino’s

system has,84 it is possible that if the

unknown intersex identity, the decision was

stranglehold over sex identity that the binary

made to conceal.

the

amount

of

knowledge

has did not exist, the doctors would have felt

Before getting into the second case, I

more comfortable with informing Covino of

feel the need to clarify some aspects about it.

her intersex status, minimizing the violence

Firstly, the case of David Reimer has been 85

84

86

Foucault 177

36

Foucault 176 Latour 95

covered extensively as the primary example of

identification

procedures

previously

the harm that scientific practice can do to

mentioned, the diagnosis for Reimer was to

intersex individuals.87 All the information I am

live out his life as a woman.91

citing about Reimer precedes his suicide in

However, this was not the end of

2004. Rather than use this event for shock or

medical intervention. Since Reimer was born

as the climax of talking about Reimer, talking

male, without hormone therapy no secondary

about this prior to his life story serves to keep

feminine sex characteristics, like breasts,

in mind that the people I am talking about are

would naturally develop. For Reimer’s life as

people first and anthropologic/scientific cases

a woman to be more “natural”, he was given

second. I think this should have been, but

estrogen

unfortunately was not, at the forefront of many

characteristics.92 Reimer was also put into the

involved in Reimer’s life.

psychological program of John Money, an

Reimer was born as a non-intersex

in

influential

order

sexologist

to

at

develop

John

female

Hopkins

male. At 6 months, he and his brother

University.93 Reimer was the “perfect” case for

developed phimosis,88 a condition in males

Money, as his twin brother served as the

where

“perfect” control for an experiment of the

their

foreskin

is

unable

to be

of

development

that phimosis normally goes away after 3 years

ultimately resulted in yearly visits to Money.95

of a child’s life and is not a particularly rare

Later, Reimer would disclose that some of the

occurrence for infants.89 Despite this, Reimer’s

sessions of Money would involve fake sexual

parents opted for their boys to be circumcised.

acts with his twin brother, with at least one of

Reimer’s penis was mutilated to the point that

these sessions having Money take a picture.96

it now fell under the category of intersex

In this case, Reimer was not the only one

genitals.90 Due to the massive failure of

harmed by Money’s experimentation, as his

Reimer’s operation, his brother was not operated on, and ultimately his phimosis cleared

up

naturally.

Following

the

91

Colaptino Chapter 3 Colaptino Chapter 9 93 Colaptino Preface 94 Colaptino Chapter 3 95 Colaptino Chapter 7 96 Colaptino Chapter 5 92

87

Dreger 38 Colaptino Chapter 1 89 InformedHealth 1 90 Colaptino Preface 88

37

gender

identity.94

sufficiently pulled back. It is important to note

This

brother eventually developed schizophrenia,97

an unnatural body into a natural one was a

and eventually committed suicide in 2002.

positive, and with Money’s methods being

Reimer’s time of being forced to

rooted in science, they were given natural

identify as a girl only lasted until he was 14,

legitimacy.

when he decided to reverse the effects of the

The knowledge-building elements of

estrogen he was given by undergoing male

Foucault’s conceptualization of nature also

hormone therapy and underwent a double

shows why Money’s course of action was seen

mastectomy and phalloplasty in order to look

as okay. Money openly characterized his

more male.98 Despite this, Money’s work with

desire to work with Reimer not just for his

Reimer was lauded as a massive success and

own benefit but for Money to truly test his

would end up influencing science working

scientific theories on gender formation.101 By

with sex and gender up until Reimer decided

characterizing his methods as an experiment

to be more vocal with his side of the story.

into solidifying a theory, Money was able to

`

The intersex black box also appears

operate on the basis of increasing the

with Reimer, as he himself was unaware of his

knowledge base of gender science; in the

birth sex and the effort to reassign him as a

pursuit

girl until he was 14.99 Had his parents not

reassigning Reimer to live his life as a girl was

decided to tell Reimer his true medical history,

ignored because of the benefits to the field.

at the request of a therapist working with him,

But even with the growth of scientific

100

Reimer would have lived without ever

knowledge disregarded, why was it necessary

knowing that he underwent multiple surgeries,

in the minds of Money and other doctors to

as well as not knowing the true nature of why

reassign Reimer? The answer here is the sex

he had to take hormones. Latour’s Nature also

binary’s work as a classification system.

serves

Money’s

Constrained to two modes of sex, sex

experiments were regarded as the proper

characteristics must be placed in one of the

answer to Reimer’s botched circumcision.

two categories. Having a penis falls into the

Echoing previous mentions of Nature, fixing

male category, but when Reimer’s penis was

as

an

angle

to

why

of

knowledge, the

violence of

annihilated by the botched circumcision,

97

Colaptino Chapter 14 98 Colaptino Chapter 3 99 Colaptino Chapter 3 100 Colaptino Chapter 3

101

38

Colaptino Chapter 4

Reimer did not qualify as male or female. Had

themselves.102 The binary’s status as a natural

Money not been tapped for input, it is possible

law must be broken down if we can ever

that Reimer’s medical history would look

expect science to treat intersex individuals

more like an intersex infant assigned male, but

with the respect afforded to male and female

regardless, the ability for Reimer to be

sex identifications. The scientific norm of

reassigned was only available due to how strict

unrequired surgeries on intersex infants needs

the sex binary as a classification system is.

to be eliminated.

While the elimination of invasive

Conclusion

surgeries on intersex infants should be

After looking at the scientific ideas

prioritized, this ultimately does not remove the

around the birth, operation, and post-operation

stigma that intersex people have as being

procedure prescribed to intersex individuals by

"abnormal." This abnormal status is attributed

science, upkeep of the sex binary is present in

to them because of this binary, and without the

all these decisions. With this upkeep taking

weakening of the binary as an absolute, this

main stage, intersex individuals themselves are

prejudice will continue to exist. Work is being

pushed to secondary importance in their own

done to both increase awareness of intersex

lives. Doctors claiming intersex traits to be an

individuals and to limit the ability of doctors

impediment towards their ability to determine

to operate without compelling scientific cause.

sex, rather than acknowledging an infant as

In New York City, the city council introduced

intersex, hides the possibility of an intersex

a bill in November 2019 that would require

identity from parents. This can lead parents to

doctors to correctly inform parents of their

be more accepting of unrequired surgeries,

intersex infants, combating the lies that they

influencing their decision towards operation.

have been able to tell discussed previously,103

These surgeries are not done for the benefit of

with the New York City Bar Association

the infant but to uphold an outdated scientific

supporting the bill as of February 2019.104 A

idea of binary sex, with some doctors even

state senate bill in California also looks to

hiding the true nature of why operations are

illegalize surgery on intersex infants unless

being conducted from the intersex person 102

Weiss 12 Weiss 27 104 New York City Bar Association 1 103

39

medically

necessary.105

Dawn

Covino’s

to make the experiences of intersex individuals

suggestion of the existence of intersex people

known have resulted in legislature like the

being taught in schools106 could also lead to a

previously mentioned California bill gaining

new generation of both doctors and a general

steam.107 Through legislature, education, and

populace who have a better understanding of

advocacy, scientific violence towards intersex

what intersex means.

individuals can be ended, and cases like Dawn

Advocacy groups like InterACT have

Covino and David Reimer will become a relic

also become more common, and their efforts

105 106

of science’s violent past.

Weiss 28 Weiss 45

107

40

InterACT 1

References Byrne, Alex. “Is Sex Binary?” Medium. Nov 1, 2018. Accessed October 27, 2019. https://arcdigital.media/is-sex-binary-16bec97d161e Colaptino, John. “As Nature Made Him: The Boy Who Was Raised as a Girl.” EPUB, New York, HarperCollins, 2012.

Council of Europe Commissioner for Human Rights. “Human rights and intersex people.”

Council of Europe https://rm.coe.int/16806da5d4 Dreger, Alice Domurat. “”Ambiguous Sex” – or Ambivalent Medicine?” The Hasting Center Report 28, no.3 (1998): 24-35. http://www.isna.org/articles/ambivalent_medicine Fausto-Sterling, Anne. “Why Sex Is Not Binary.” The New York Times. October 25, 2018.

Accessed October 27, 2019. https://www.nytimes.com/2018/10/25/opinion/sex-biology-binary.html Foucault, Michel. “The Order of Things.” London and New York, Pantheon Books, 1970.

HRW. “I Want to Be Like Nature Made Me: Medically Unnecessary Surgeries on Intersex Children in the US.” Human Rights Watch. Accessed September 15, 2019. https://www.hrw.org/report/2017/07/25/i-want-be-nature-made-me/medically-unnecessar y-surgeries-intersex-children-us#1df159 InformedHealth.org “What are the treatment options for phimosis?” Cologne, Germany: Institute for Quality and Efficiency in Health Care (IQWiG). October 7, 2015 (Updated 2018 Oct 31). ://www.ncbi.nlm.nih.gov/books/NBK326433/ InterACT. InterACT: Advocates for Intersex Youth. Accessed December 8, 2019. https://interactadvocates.org/ ISNA. “What is intersex?” Intersex Society of North America. Accessed September 15, 2019. http://www.isna.org/faq/what_is_intersex ISNA. “MYTH #10: Intersex is extremely rare.” Intersex Society of North America. Accessed November 23, 2019. https://isna.org/faq/ten_myths/rare/ Kessler, Suzanne J. “The Medical Construction of Gender: Case Management of Intersexed Infants,” Signs 16 (1990): 3-26; compare the advice given by Cynthia H. Meyers-Seifer and Nancy J. Charest, “Diagnosis and Management of Patients with Ambiguous Genitalia,” Seminars in Perinatology 16 (1992): 33239.

New York City Bar Association. “Medically Unnecessary Surgeries For Intersex Children: Education Campaign.” February 13, 2020. https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/d etail/medically-unnecessary-surgeries-for-intersex-children-education-campaign Latour, Bruno. “Science in Action: How to follow scientists and engineers through society.”

Cambridge, Harvard University Press, 1987.

41

Quigley, Charmian A, Alessandra de Bellis, Keith B. Marschke, Mostafa K. El-Awady, Elizabeth M. Wilson, Frank S. French, Androgen Receptor Defects: Historical, Clinical, and Molecular Perspectives, Endocrine Reviews, Volume 16, Issue 3, 1 June 1995, Pages 271–321, https://doi.org/10.1210/edrv-16-3-271 Warnke, Georgia. "Intersexuality and the Categories of Sex." Hypatia 16, no. 3 (2001): 126-37. http://www.jstor.org/stable/3810565.

Weiss, Rachel. “She sent 23andMe her DNA. They told her she’s intersex.” December 31, 2019. https://www.newsday.com/news/health/dawn-covino-intersex-solidarity-day-1.38037837.

42

Effulgence August Barringer​ ​- ​Occidental College ARTIST’S STATEMENT: ​Effulgence is a sculptural installation that illuminates the dissonance of society’s typical understanding of gender; many people still consider one’s gender to be whatever their assigned sex is, but the reality is that sex and gender are not always aligned. As a transgender woman, I have a heightened awareness of conventional gender expectations, which greatly affect my life. People have become so comfortable with gender norms that they’ve lost awareness of the harm society’s expectations can cause; ​Effulgence reminds viewers of the imposing and intimidating issues surrounding these societal expectations, and of the bravery of those willing to challenge them.

Two large and grotesque sculptural forms take charge of the space, the scale representing the massive effect gendered expectations have on our lives. Phallic and yonic forms intertwine through each other, showing the fluidity of gender by blurring the lines between traditionally male and female imagery; where does one stop and the other start? Kinetic aspects take this a step further, literally demonstrating the shifting characteristics of identity.

Fleshy and organic qualities, the bloody “meatiness” as it were, hearkens the violence against transgender individuals (transgender women of color in particular).

Effulgence is a term that describes something that is blinding or dazzling, overwhelmingly so. My sculpture aims to have that effect on the viewer, dazzling in its scale and multiplicitous possibilities for joy and also harm. I created this piece with three objectives in particular; to make viewers aware of their own unconscious expectations of gender; to show how gender can be an ambiguous or non-specific concept; and to remind viewers of the everyday effects these expectations have on real lives. The negativity of these binary gender norms is in direct contradiction with the positive connotation of the word Effulgence, which I chose to accentuate the joys and pleasures of being a member of the transgender community. My piece not only alludes to the struggles that transgender people face, but also provides validation and endorsement to those who challenge the issue, who fight normative gender expectations on a daily basis; ​Effulgence ​recognizes that transgender people are shining lights in society, and that they deserve to be celebrated.

43

44

Criminalizing the Other: Exploring the Impact of the Netherlands’ Adaptation of Prosecutorial Guidelines on Sentencing Disparities Alia Nahra​ ​- ​Washington University in St. Louis ABSTRACT: ​This research explores the impact of the 2015 institution of prosecution guidelines in the Netherlands.

Prior to this switch, the ​Openbaar Ministerie operated using a punishment point system, which provided a mathematical formula with which to decide sanctions. Though the motivation of this change was to make the overall system more efficient and enable individual prosecutors to consider each case in a customizable and more equitable form, this research demonstrates that the change has served instead as a perpetuator (and in some cases, facilitator) of the persistent ethnic and religious biases already at work in the Netherlands. The social and political history of the country has ensured generations of prejudice and disproportionate experiences within the criminal legal system, especially for racialized Others, which have resulted in discriminatory sentencing for those individuals. The division of individuals within the Dutch system into the categories of ​allochtoon and ​autochtoon r​ eifies the rampant criminalization and xenophobia faced by individuals in the Netherlands with a migration background. This paper shows that these experiences have not changed, or have become more aggravated, after the prosecution guidelines’ implementation.

Chapter I: Introduction

indict. I stopped moving, silently processing

Five years ago—on November 24,

what had just happened. Halfway across the

2014—I paced my bedroom on a school night

country, this decision failed to acknowledge

listening to the radio. This is not something I

the

did often, not in small part because my

Missouri, and the St. Louis area in particular.

bedroom only contains enough space for about

It prompted the rise of the Black Lives Matter

two and a half steps in either direction before

movement,

turning back around. But this night was

investigations into the St. Louis police forces

different, because Robert McCulloch was

that brought supposed progress within the

announcing the grand jury’s decision on the

criminal legal system of the area. Two years

case of Darren Wilson, who earlier that year

after that night, I began my career as an

had murdered Ferguson, Missouri teenager

undergraduate

Michael Brown. The grand jury decided not to

University in St. Louis, an institution with

45

already broken

as

policing

well

student

as

a

at

system in

number

of

Washington

complicated ties to its community that was just

systems and am especially invigorated by the

beginning to revamp its Sociology department

possibility of altering legal structures to ensure

with a staff of young, talented, urban

a more equitable existence. But pursuing this

sociology-minded

quickly

passion has also required stepping beyond the

became enamored by the department, swept up

legal system I grew up understanding; it

in its passion and vigor for learning about the

entails searching for a more international

school, its city, and the relationships between

understanding of criminal legal models and

them.

uncovering the potential for far-away places to

professors.

I

As a first-year student, I was interested

inspire positive change in each other. This

in the policing system around St. Louis but

brought me to the Netherlands, which has been

figured there had been so much scrutiny after

made famous for its low crime rate and even

Ferguson that loads of research must have

lower incarceration rate. News stories about

already been done; changes must have been

the Netherlands’ criminal legal system often

made. That sentiment wasn’t altogether false,

center around the closing of prisons, or the

but it certainly was naïve. The policing system

innovative ways in which prisoners are treated.

in St. Louis County, which comprises 90

Across

distinct municipalities and around 66 different

oppressive conditions are often exposed as

police departments, is a complicated mess of

myths, and I came to the Netherlands eager to

jurisdiction-confused and poverty-targeting

investigate whether or not the Dutch fit this

profit systems. The more time I spent in St.

mold. This paper will provide evidence that

Louis, the more aware I became that the fight

the reality of racism and xenophobia within

was nowhere near over. My interest in

the Dutch criminal legal system contrasts the

discriminatory experiences within the criminal

white Dutch majority’s narratives about its

legal system is heavily influenced by the

nation’s supposed equity.

history,

pleasant

descriptions of

milieu in which my academic passions have

Conducting this research did not come

been fostered, but it extends beyond St. Louis.

easily. As a white, cis-gendered, able-bodied,

I am interested in exploring the ways in which

wealthy,

different communities’ struggles with bias and

young woman, I entered this situation with a

discrimination are manifested in their legal

number of privileges that are not afforded to

46

somewhat-educated,

non-Dutch

many of the individuals whose lives are most

discriminatory experiences in the criminal

affected by the system I am studying. But I

legal system and how these data counter the

also soon found that my privilege within this

prevailing notions of white exceptionalism in

structure served as an advantage, to some

the Dutch system. The final chapter will

degree, because my interest in the subject is

consider the implications of this project’s

perceived less as navel-gazing than some of

findings and outline recommendations for

the

further research.

more

researchers.

personally-invested Acknowledging

my

Dutch outsider

status, and the pros and cons that accompany

The Dutch Criminal Legal System

it, was key to being able to get started on this

The

project.

Dutch

have

an

efficient,

streamlined legal framework that focuses on

The rest of this introduction will serve

the individual under review. The Dutch justice

to present and contextualize the Dutch legal

system differs considerably from the American

history and procedure. In the second chapter, I

version, about which the majority of past

introduce

the

conversations

intellectual

and academic

sentencing research has been conducted. To

to

I

begin with, there is no jury system in the

which

contribute,

specifically sentencing research, the Dutch

Netherlands.

racial culture, the debate around ​allochtoon

training for whom is an extensive, years-long

and ​autochtoon,​ and crimmigration. The third

process—hear court cases, then decide on both

chapter

theoretical

guilt and punishment. Cases that go to court

frameworks through which I approach this

can be argued before a single judge, who will

research, namely focal concerns theory, the

pass judgement on the case immediately, or a

ZSM-process,

colonialism/Othering.

panel of three judges, who are allowed a

Chapter IV introduces the methodology of this

maximum of two weeks to come to consensus

research, which combines legal evaluation,

on both culpability and penalty. While there

aggregate

are

will

data

describe

and

the

analysis, interviews, and

vague

Judges—the

outlines

of

professional

acceptable

vs.

courtroom observation. In the analysis section,

unacceptable punishments for crimes, judges

I will explain how the 2015 switch to

maintain a large degree of personal discretion

prosecutorial

in their verdicts. The panel option is generally

guidelines

has

impacted

47

reserved for the most serious cases, and a large

there are insufficient grounds for a public trial.

percentage of criminal cases are settled by the

Prosecutorial sentencing decisions are also

prosecution service before a judge is involved

open to challenge by the accused: if a

108

at all.

There are no mandatory minimum

defendant wishes to appeal against a penalty

sentences in the Dutch system beyond the

imposed by a prosecutor, then that case will be

requirement that any prison sentence must be

brought before a court. Defendants are entitled

longer than a single day. The most severe

to legal counsel at all stages if they so choose.

penalty possible for a convicted adult is life

Low-income defendants are able to apply for

imprisonment, and the maximum sentence for

subsidized

crimes

life

government will pay for their legal counsel.

imprisonment) is 30 years. There are no plea

However, it is not uncommon for an individual

bargains, which ensures that prosecutors are

to show up to court for a minor infraction

not tempted to provide a sentencing/charging

without a lawyer.

(without

the

possibility

of

legal aid, ensuring that

the

concession in exchange for a guilty plea.

Defendants are also not tempted to falsely

Legislative History

confess to avoid the threat of harsher

Throughout the history of Dutch law,

punishment, which has been a persistent

the prosecution service has retained full

problem in the American legal system.

discretion over prosecution decisions, though

In 2008, in order to further simplify and

expedite

the

Dutch

legal

the nature of their role has evolved as it would

system,

in any country. The method through which

prosecutors were given authority to impose

prosecutors make decisions most recently

almost all punishment in criminal cases.

shifted from a sentencing points model

Prosecutors can levy sentences of community

(instituted in 2001) to the current guidelines

service or transactional fines, or they can

model (2015, updated 2019). In the former

recommend a case go before a judge for more

model, a baseline crime translates to a certain

serious punishment such as incarceration.

number of points; for instance, a burglary is 60

Defendants are able to officially object to a

points. Additional circumstances, such as the

case being called before a judge if they feel

inclusion of a weapon, particular brutality, or serious injury, add more points to the base. A

108

​Tak

48

burglary at knifepoint that caused no injury

2015 Designation Framework for Criminal

would

Proceedings and Prosecution (Aanwijzing

be

intent—what

77

points.

Americans

Discriminatory term

a

hate

kader voor strafvordering en

crime—and other circumstantial aspects of the

OM-afdoeningen)

criminal act add a certain percentage to the

As part of a general overhaul of its

total points. Eventually, points are added and

criminal code and related legislative content,

converted to a total sentence. Each point may

the Dutch government introduced a framework

lead to a fine of €22, two hours of task

of prosecutorial guidelines in 2015. These

penalty,

imprisonment.

guidelines shifted away from the punishment

Individual prosecutors may deviate from these

point system, which provided prosecutors with

mathematical structures, but they must provide

a mathematical model to be utilized to

an explicit reason for doing so. Uniform

determine

requests from the prosecution service to the

recommendations.

judiciary, following this model, are intended to

guidelines was sent to several ​Openbaar

lead to more uniform sentences from the court

Ministerie (OM) offices before enactment, in

system.

and

order to ensure that it accurately reflected the

international developments prompted more

intentions of the OM. The 2015 system

and more caveats to the points system,

provides one

increased differentiation served as a rationale

general principles to be used in adult criminal

for reevaluating OM procedure in tandem with

cases, as well as 74 common-offense-specific

a consideration of how well the Dutch legal

guidelines. Given that the OM holds a

system fits into the European Union’s (EU)

monopoly right over prosecuting criminal

expectations.

offenses, prosecutorial discretion plays a key

or

one

However,

day

as

of

domestic

appropriate A

draft of

sanction the new

overarching framework of

role in the functioning of the justice system in the Netherlands. This decision-making is meant to be guided by the common good, which includes both victim and defendant, if applicable. Prosecutors are able to dispose of cases for reasons of technical consideration

49

(e.g. evidentiary concerns) or practical public

imprisonment because the thief has dependent

interest—they can even customize out-of-court

children at home and was determined to be

sanctions to avoid judicial involvement.

acting out of financial strife more than malice.

Traditionally, the Dutch legal system prioritized

sentencing

preventing

discussed in more detail later in this paper, a

retaliation, general deterrence, and special

basic understanding of the legal context and

prevention

motivations behind the change are key to

(e.g.,

around

Though the specifics of the framework will be

individual

security

or

resocialization); however, the 2015 guidelines

establishing the motivation behind this study.

also incorporated the contemporarily-added focus on repairing the infringed rights of those

Chapter II: Literature Review

affected by the crime. The new framework

Sentencing Research

was introduced to allow for customization

Despite the pervasive importance of

within the given principles, encouraging

prosecutorial and judiciary decision-making in

prosecutors to propose sanctions that are

nations across the world, the United States has

proportional to the criminal offense but that

historically been the epicenter of research into

take into consideration the circumstances of

criminal sentencing. Though the United States

the act itself and the individual(s) involved.

has provided a useful blueprint for innovative,

The application of the new guidelines is

comprehensive research into sentencing (and

intended as a two-step process; first, the

specifically, disparities in sentencing), in the

starting point of deciding which sanctions

past decade a growing number of academics

seem most applicable in comparison to other

outside the United States have advocated for

cases

the

the importance of a more global understanding

customization portion that reflects on any

of criminal justice system-related research. In

aggravating

penalty-reducing

this tradition, research in the Netherlands into

circumstances. For example, a burglary under

criminal justice decision-making has been

the guidelines framework is eligible for

largely concentrated in the years after 2000.

imprisonment (maximum nine years) or a fine

The three main demographic factors studied in

(maximum â‚Ź82,000), but a prosecutor may

relation to sentencing across the world are

decide

with

to

similar

facts;

factors

pursue

or

a

shorter

then

term

of

50

109

gender, race/ethnicity, and age.

Ethnicity

and subsequently more likely to be given an

has historically been viewed as an ​indirect

incarceration

origin of sentencing disparity, due to the

Moroccan ethnicity are 60 percent more likely

number of other personal characteristics that

to be incarcerated than Dutch offenders.

often correlate with ethnic differences and are

Non-Dutch offenders are also more likely to

used as formal justification for disparate

receive longer terms of imprisonment than

sentencing

the

Dutch offenders, consistent with theoretical

modern

arguments that “foreign offenders are more

international research on race and ethnicity in

likely to be perceived as more dangerous or

sentencing

crime prone than native offenders.”

outcomes.

overwhelming

However,

consensus

indicates

of

that

sentence:

defendants

112

“disadvantaged

of 111

Even

minority groups in every Western country are

before the prosecution phase, minority ethnic

disproportionately

arrested,

groups consistently have more official contacts

violent,

with police than the native Dutch, despite

convicted,

and

likely

to be

imprisoned 110

property, and drug crimes.”

for

In the American

cross-sectional

and

context, the minority groups that are focused

demonstrating

that

on tend to be Black and Latinx individuals,

self-report committing more crime.

compared against a white standard. However,

this research has been completed solely in the

in the Netherlands, studies have focused on a

Netherlands,

different set of discernible ethnic clusters,

disadvantaged ethnic groups receiving harsher

largely Moroccans, Turks, Surinamese, and

sentences and more scrutiny within the

other non-white immigrant groups.

criminal legal system is a phenomenon that

Recent years of Dutch sentencing

but

the

longitudinal Dutch

trend

surveys

respondents 113

All of

of socially

has been documented across the globe for

research has documented clear disadvantages

years​.

throughout the criminal legal system for minority individuals, from interactions with police

to

sentencing

outcomes.

Dutch Racial Culture

Cases

As an enduring European power, the

involving a defendant with a migration

Netherlands’

all-too-recent

background are more likely to be sent to court, 111

Wermink et al. 2016, 12 Wermink 2014, 47 113 Unnever 1-18

​Wermink 2014, 26 110 Tonry 1: Emphasis in original.

109

112

51

history

with

slavery and colonization has greatly impacted

society. As Gloria Wekker describes in ​White

the nation’s contemporary societal formation.

Innocence,​

Many of the country’s non-white citizens are

self-representation is governed by the belief

either immigrants (or the recent descendants of

that the Dutch are “a small, but just, ethical

immigrants) whose migration to the country is

nation; color-blind, thus free of racism.”

explained by colonization or labor migrants

However,

from the late 20​th century. The Netherlands

primarily as a perpetuator of willful ignorance

remains a majority-white nation, with about 80

around the racism that governs Dutch society.

percent of its population identifying as white

This concept of white innocence comes from a

114

(around 76 percent of Dutch ethnicity).

the

dominant

white

Dutch

115

this

self-idealization

serves

The

position of privilege and entitlement that

nation boasts a relatively wealthy population,

intentionally relegates the (immigrant) Other

though the majority of this wealth was

into a position of problematizing non-issues

produced at the expense of a racialized,

into unnecessary debates. The common denial

colonial Other. These Othered groups have,

of racism, including blaming racialized Others

over time, become more common within the

for perpetuating the idea that racism exists,

Dutch residential context, especially given the

occupies much of the white mainstream Dutch

increase in “guest workers” who are mostly

culture. The most obvious example of this

Moroccan (though, in recent years also come

cognitive dissonance comes in the form of the

from Southern or Eastern Europe). These

Black Pete (​Zwarte Piet)​ tradition, where

workers come into the Netherlands with

blackface and slave imagery are defended by

economic

many as simply a children’s holiday tradition.

disadvantage

and

are

further

stigmatized as a result of their skin tone and/or

116

religion, whether that be Islam, Catholicism,

and/or intent as racism has been clearly

or Orthodox Christianity.

documented

The

economic

and

A continuous refusal to label racist actions

across

the Dutch

historical

social power

context. Halleh Ghorashi has written on the

imbalance of this arrangement has resulted in a

nearly ubiquitous resistance to using the term

prevalence of structural racism that often goes

“racism” to describe outright discrimination in

unacknowledged by mainstream white Dutch

Holland, demonstrating the ways in which a 115

114

116

“StatLine - Population Dynamics; Month and Year”

52

Wekker Hayes et al. 16–32

normalization

and

anti-Muslim sentiment in the nation. Negative

anti-immigrant sentiments has created space

attitudes towards Muslim individuals in the

for the permission of explicitly racist language

Netherlands is not a new phenomenon, though

that is not considered “actually racist” such as

the rise of the political right—especially the

consistent references to Islam as a “backward

Partij voor de Vrijheid ​(PVV)—has given a

117

culture.”

of

anti-Muslim

The quotidian usage of this

renewed

normalization

to

anti-Muslim

language intentionally permits it to pass under

rhetoric. The PVV has only continued to gain

the cultural radar.

political influence after its initial victories in

Mainstream

Dutch society’s vocal

the 2009 elections for European parliament,

denial of discrimination does nothing to

embodying the right-wing populist trend that

actually negate its existence. In Ghorashi’s

has gained traction across the world. The PVV

argument, discriminatory sentiment against the

is mostly known for its anti-Islamic views, in

Other often correlates with the perception of

addition to broader xenophobic positions

non-white, non-European migrants as a threat

framed around protecting the so-called native

to Dutch society. Research from a variety of

Dutch culture. In the Dutch context, “Muslim”

scholars

practical

is often used synonymously with “immigrant,”

implications of this perceived threat in a Dutch

triggering a series of related assumptions that

context, including Tonry (1997), Coen et. al

aren’t completely tied (though also not entirely

(2016), and Wermink et. al (2016). The most

distinct from) actual religiosity. A recent study

stigmatized migrant group in the Netherlands

regarding attitudes towards Muslims in the

is Moroccans, who are “portrayed in the media

Netherlands found that the “Muslim Other”

as crime prone, are overrepresented in crime

poses a prevalent symbolic threat—embodied

and prison statistics, and tend to be associated

by perceived group differences in values,

with

the

customs, etc.—to the so-called “proper” Dutch

sociological literature on ethnic rankings.”

118

culture. This symbolic threat translates into

This prejudice against ethnic minorities in the

negative

Netherlands, especially Moroccans, continues

distinguishable emotions of disgust, anger, and

to be pervasive and is connected to rising

pity. All three emotions are associated with

has

more

documented

negative

the

attitudes

in

stereotypes

and

empirically

prejudice; disgust is also closely tied to social Ghorashi ​101-16.

118 Wermink et al. 2016, 24 117

53

distancing, anger with political intolerance,

higher chance to receive a prison sentence that

and

a

exceeded the duration of pretrial detention,

white-savior manner. The PVV has succeeded

and received more additional incarceration

in maneuvering each of those emotions into

time than Dutch offenders.”

political impacts that both reflect and magnify

persists

anti-Muslim sentiment across the country.

immigrants, which documents the continuation

pity

with

social

distancing

in

119

The practical impact of racial and

for

second-generation

This trend Moroccan

of perceived and symbolic threat posed by the

cultural Othering accentuates the interpersonal

children of immigrants.

implications of structural xenophobia and Allochtoon ​vs. ​Autochtoon

institutional racism. Hilde Wermink and her colleagues at Leiden University have been

Any discussion of Othering in the

pioneering research into sentencing disparities

Netherlands would be remiss to leave out the

among ethnic groups in the Netherlands as

terms ​allochtoon and ​autochtoon​, labels with

well as general disparities in policing of

which all Dutch persons are familiar. The

minorities. Their research focuses on men

terms were first coined by sociologist Hilde

involved in the criminal justice system, which

Verwey-Jonker in 1971, but they have steadily

reflects

international trend of

seeped into the Dutch social consciousness

emphasizing the experiences of masculinized

ever since. The labels are drawn from geology,

individuals as more relevant to criminal justice

as they describe rocks that are non-native to an

study. However, this consistent focus on men

area in opposition to those that appear within it

may be more justifiable in the context of the

naturally. In geological settings, the ​allochtoon

Netherlands, given the overall low crime rate

label

and

prison

dirtiness that easily translates to the perceived

population. Though Wermink et al. find that

contamination risk that non-white bodies carry

although ethnicity does not factor into pretrial

against

release decisions in a statistically significant

Though Verwey-Jonker may not have intended

way, it does manifest in final sentencing

for the terms to be used as justification for

decision differences. Specifically, “Moroccans

disparate treatment under the law and the

a

nearly

larger

non-existent

female

entails

the

fundamental

perceived-​autochtoon

received longer unsuspended sentences, had a 119

54

impurities—a

Wermink et al. 2016 24.

Dutch.

ensuing detrimental social outcomes such

don’t exist. The popular understanding and

distinctions ensure, the terms have been

usage of the terms has continued.

weaponized against both migrants and Dutch nationals who “look” like migrants. The

Crimmigration

Central Bureau of Statistics has historically

In addition to rhetorical demonization,

defined the term ​allochtoon as describing

migrants in the Netherlands face a racialized

individuals born abroad or with one or more

super-surveillance that renders them more

parents born abroad, while ​autochtoon is

susceptible to perceptions of shortcomings

reserved for family lineages born only in the

than their Dutch peers. People of color, when

Netherlands. In more general social usage,

occupying a physical space that has always

allochtoon is a synonym for immigrant,

been controlled by whiteness, often face an

wielded against both those who are actually

Otherization that deems any demonstration of

migrants as well as their descendants, but

capability

generally only against immigrant groups who

imperfections as emblematic of the Othered

are non-white. In 2016, the Central Bureau of

group as a whole. In ​Space Invaders​, Nirmal

Statistics (CBS) and the Scientific Council for

Puwar describes the ways in which bodies

Government Policy (WRR) banned the use of

deemed out of place are “constantly under a

allochtoon

and

​autochtoon

in

official

as

exceptional

and

any

spotlight, as they are seen to represent a 120

documents. However, the distinctions between

potential

those with an “immigrant background” and

racialized and gendered optics in a way that

those with a “native Dutch background”

not only notices slight mistakes, but often

continue throughout their data. The ban was

exaggerates and weaponizes them. Though

viewed as a symbolic move, rather than an

Puwar’s work focuses on super-surveillance in

actual signal of cultural change, and has

employment

largely been ignored by the public. The

long-documented

government’s ban on these terms serves as a

surveillance from a governmental and policing

symbol for the Dutch attitude towards racism

perspective. In the Dutch context, worries

and

about immigration have become increasingly

xenophobia—not

speaking explicitly

about those concepts as a way to pretend they 120

55

Puwar 61

hazard.”

This

settings, history

emphasizes

there of

is

a

increased

interwoven with a rising concern about crime

threats. It does not matter if a person is

and safety, resulting in policies that merge

actually a Dutch citizen—any immigrant

criminal justice and immigration. The concept

background or indication of ​allochtoon-​ ness

of “crimmigration” describes this merging,

(e.g., Muslim identity or darker skin) marks

defined as “the intertwinement of crime

one as not Dutch. In the legal context, these

control and migration control” that includes

assumptions of Otherness are projected onto

the “social context of crimmigration such as

racialized

the public and political discourse on issues

heightened

surveillance

of

crimmigration

as

justifications and

for

criminal

121

The

suspicion.

Neighborhoods

in

the

immigrant

populations are more heavily

relating to crime and migration.” manifestation

bodies

with

higher

Netherlands has included an increase in

policed and viewed by many white Dutch

“undesirable aliens’ resolutions” in addition to

people as more risky places to live. During

expanding

and

case considerations, neighborhood is often

an

considered as a corollary indicator of risk,

Though

even when it is not formally invoked during

much of crimmigration study has been focused

legal proceedings. It is in this setting that the

on the U.S. context, exploring this trend in the

prosecution guidelines were altered to allow

Netherlands demonstrates how crimmigration

for more individual case customization, which

is not only about legislation but also blurring

could

the lines between immigration and criminal

reiteration of discriminatory assumptions in

justice in

the legal process.

grounds

administrative

for

deportation

detention

based 122

immigrant’s criminal background.

Netherlands’

a way that rejection

on

exemplifies the of

migrants

as

inherently threatening to the Dutch way of life.

Chapter III: Theoretical Frameworks

The overall theme of existing literature into

racialized

facilitate either the correction or

In the last decade, the population of the

Othering and sentencing

Netherlands has increased from around 16.5

disparities in the Dutch context is that

million to 17.25 million people, rendering it a

individuals

small country even by European standards.

perceived

as

non-Dutch

123

are

consistently targeted as social and legal 121 122

Of this population, around 10,500 individuals

Van Der Woude et al. 3 Van Der Woude, et al. 7

123

56

“StatLine - Population Dynamics; Month and Year”

124

are currently imprisoned.

Given the low rate

approach in relation to sentencing in 1980 (and

of imprisonment for which the Netherlands

subsequently expanded upon the framework

has

renowned,

with colleagues in 1993 and 1998). The

investigating the theoretical legal frameworks

blameworthiness/culpability element is most

that guide this system provides a ripe

important in determining a guilty verdict,

opportunity for cross-national comparison.

though in the Dutch legal system, varying

This section will include an explanation of the

levels of culpability can translate to different

focal concerns theory, which leads the Dutch

levels

framework for prosecution and sentencing, as

protection element focal concern is most often

well as the victims’ rights position and

the focus of critique from criminal justice

ZSM-model within the legal system. It

advocates,

concludes with an exploration of conditional

dissimilarities often translate to aggrandized

citizenship in the setting of Dutch colonialism,

assessment

which helps explain the power of the Other’s

dangerousness—regardless

constantly monitored existence as a threat.

recidivism trends. A related challenge of this

become

internationally

of

punishment.

as

The

racial

of

community

and/or

future

cultural

minority of

actual

framework is that it relies upon a judgement Focal Concerns Theory

outside the pure facts of the case; an

As mentioned above, the Dutch penal

individual’s risk to the community is not

code and judiciary have been studied as

solely determined by the action that person

centered around the focal concerns theory of

took that landed them in court, but also by a

judicial decision-making. This framework

number of other factors that would influence

“identifies

blameworthiness

future action. The judicial system rarely has

/culpability, dangerousness and community

complete information regarding a person’s life

protection,

constraints

context, so to apply the focal concerns

/consequences” in order to decide on a

framework is to rely on stereotypes and

sentencing

offender

and

practical 125

determination.

The

position

preliminary

judgements

originates from Darrell Steffensmeier, who

individual—almost

initially wrote about the focal concerns

incomplete picture of that person’s life.

124 125

“Netherlands | World Prison Brief” Wermink 2014, 4

57

always

about based

an on

an

The focal concerns approach has

and ZSM offices have been steadily opened

become the dominant theoretical framework

since the OM formally adopted the 2015

across the world for explaining sentencing

guidelines.

decisions by judges. Though many countries

understood to stand for “​zo spoedig mogelijk,”

do not employ the Netherlands’ system of

a Dutch equivalent of ASAP, there are a

professional judges without juries, the same

number of other motivations within the model:

three

astuteness,

primary

concerns

apply in most

Though

ZSM

is

selectivity,

typically

simplicity, 127

contemporary legal contexts. Research in the

collaboration, and community-orientation.

United

has

The method was introduced as a roadmap for

supported the focal concerns perspective as a

solving common cases in a way that does not

framework,

discriminatory

require going to trial, hoping to settle the cases

sentencing does correlate with the offender

out of court as soon as possible. The impetus

characteristics that the framework predicts to

behind this policy switch was that the court

be

system has been consistently overwhelmed

States

and

other

finding

indicators

that

countries

of

assumptions—especially

stereotypical and

and behind schedule. A consistent goal of the

The continued relevance of the

Dutch Ministry of Security and Justice has

approach, despite modern changes in criminal

been to reduce case backlog and process new

legal systems since its conception, indicates

cases more quickly; the ZSM-process is a

the staying power of unconscious prejudices

large part of the path towards that goal. But

that often go unnoticed.

less bureaucracy in processing cases is not the

126

citizenship.

race,

sex,

only reason for the ZSM-method, as it also ZSM-Process The

provides partner organizations within the ZSM-method

was introduced

criminal legal system more of a formal

officially into the Dutch legal framework

codependency, increasing collaboration. This

between 2011-2015, intended to incorporate a

collaboration is facilitated by ZSM offices

problem-

including

and

prosecution.

victim-oriented

model

of

The implementation of this

cooperating

representatives

from

organizations, who

all

five

meet to

method has become a key focus for the OM,

discuss the context and future of each case as a

126

127

Hartley et al. 58-78

58

Roshangar

group. However, the new system is often

protected, traits that are “threatened” by the

criticized because of the emphasis put onto the

allochtoon-​ ization 129

of

the

Netherlands’

“rapid” portion, as less information is recorded

population.

than in traditional case-review methods. This

between ​allochtoon and ​autochtoon into an

leads to a potential for misinformation and an

exploration of the practical implications of

inherent lack of transparency. As is common

automatic citizen rights as compared to gifted

with

governmental

citizen privileges, I am able to delve into the

structures, the ZSM-process also comes with a

complicated intersectionality of Dutch social

potentially dangerous lack of accountability.

and political hierarchies. In the Dutch context,

efficiency-minded

By broadening the distinction

minorities are not only discriminated against because of their ​allochtoon-​ ness, but also

Colonialism and “Conditional Citizenship” This paper will utilize Claire Jean Kim’s

conception

of

“conditional”

because of the myriad other demographic

and

characteristics that are often associated, if not

“unconditional” citizens, which has been

fully

adopted into the Dutch context by Guno Jones.

Otherness is reified by their conditional

Kim defines conditional citizenship as “formal

citizenship status. The constant risk of losing

citizenship whose meaning is contingent upon

one’s

variable forces in a given place and time […].

cultural perception as a threat, renders ethnic

Unlike unconditional citizenship typically

minorities stuck with little way out of their

enjoyed by whites, conditional citizenship is

assumed dangerousness.

always on the verge of being compromised.”

correlated

citizen

with

Otherness.

Their

privileges, combined with

128

In the Netherlands, conditional citizens are the

Chapter IV: Methodology

allochtoonen,​ who despite owning Dutch

Language of Sources

passports and often only ever living in the

This research required sources both in

Netherlands, are never considered fully Dutch

Dutch and English, many of which did not

because of their racially Otherized status.

come with official translations. I translated all

Whiteness is built around self-perceptions of

Dutch publications into English, with the help

respectability and “goodness” that must be

of Google Translate, a series of dictionaries,

128

129

Kim 159

59

Çankaya and Mepschen 626-640

and kind strangers in cafes. Any point in this

Interviews

paper where I reference the importance of a

Similar to my requests for quantitative

specific phrase or shift in language has been

data, many of my requests to interview

vetted by at least one native Dutch speaker.

relevant experts were turned down. The OM declined to permit any of its prosecutors to be

Accessing Data

interviewed, and the judiciary information

I submitted a number of requests with

center declined to forward my request to

the OM, ​Rechtspraak,​ and other government

judges. I reached out to a number of

agencies for data regarding prosecutions and

professors,

sentencing since 2015—all of which were

post-incarceration service providers, and other

denied. The intention for these requests had

related professionals, most of whom declined

been to perform a quantitative analysis on

to be interviewed or did not feel they could

individuals' outcomes within the criminal legal

speak to the shift in prosecutorial framework.

system before and after the guidelines change,

This reluctance to be interviewed spoke

to examine the impact (if any) the shift in

volumes, as it indicates the broad-scale

framework

experiences.

resistance to an outsider’s research into a

However, without access to data on individual

criminal legal system considered by the

cases,

available

majority of its subjects as just and infallible.

numbers and legal documents

Those who were willing to be interviewed

I

aggregate describing

had

on

relied upon

the

those

publicly

students,

either aligned with or admitted to a previous

work-around is not a full solution, but rather a

understanding of the Dutch legal system as

necessity given the limitations imposed by the

near ideal in terms of racial equity. In

bureaucratic hurdles that so often accompany

interviews, as well as casual interactions with

criminal

aggregate

Dutch folks, the sentiment that “the Dutch

numbers are mostly downloaded from the

way” is the only (proper) way to do anything

WODC and CBS websites, though some were

was constantly repeated, as was the idea that

sent

the

native Dutch people do not commit crimes.

Rechtspraak and OM as consolation data after

These idealizations of Dutchness are key to

the denied requests.

understanding

directly

research.

from

shift.

law

This

legal

prosecution

researchers,

The

employees

at

60

both

the

white

Dutch

self-conception and the structure of the

treatment

Netherlands’ legal system. All interviews for

characteristics persist in the Netherlands’

this study were conducted in person—in

criminal legal system. This treatment is

English—at the interviewee’s place of work,

influenced by and serves as a reification of the

recorded, then later transcribed. Any quotes

societal racism and xenophobia that permeates

included in this paper have been edited for

modern Dutch culture.

clarity, but no content has been altered.

based

The

on

twofold

demographic

intention

of

the

prosecution guidelines is summarized in the Chapter V: Results and Analysis

executive summary portion of the guidelines.

This project began with an exploration

The ZSM-process is clearly adopted as the

of the intent behind the switch to prosecutorial

route of implementation for the efficiency

guidelines, in order to compare this to its

goal, formalizing the merging of the relatively

actual

the

new (but already established) ZSM offices

documentation of the 2015 guidelines, two key

with the OM mission. But the personalization

goals became clear: making the entire criminal

aspect of the new prosecution framework is

legal process more efficient and facilitating

less

more customization by prosecutors than the

describe

points system permitted. This section will

prosecution policy that combines “clear and

examine the law itself, as well as the

recognizable starting points for each criminal

publicized data around criminal legal system

offense (the framework),” with unambiguous

involvement since the implementation of the

“room for the public prosecutor to apply

new guidelines to examine their effectiveness

custom

in accomplishing these goals. Conclusions

personalizing each case to its individual

about the change’s impact will also be

suspect fits with the overall tailored sense of

supplemented with interview data and personal

the

observations from court hearings.

facilitated by its small prison population and

impact.

In

reading

through

Overall,

this research has determined that despite the

obviously the

defined. intention

work.”

130

Netherlands’

This

The of

guidelines a

emphasis

stated intentions of the guidelines shift, sentencing disparities and overall disparate Ministerie van Binnenlandse Zaken en Koninkrijksrelaties. Translated by author.

61

on

criminal legal system,

low reported crime rate.

130

criminal

The ZSM method has been positively

coordination and consideration of all relevant 132

received by the legal community, but its

information.

implementation has not necessarily been

years of implementation, acts the dominant

correlated with practical positive change. As

focus of the ZSM-method and as such has

Dr. Hilde Wermink, professor of criminology

been consistently questioned by those tasked

at

with executing it in practice.

Leiden

University,

reflected on

the

Speed, especially in the first

ZSM-method’s realization, “from a theoretical

Aligning with the ZSM-method is the

point of view you could argue that if it’s really

parallel efficiency goal of the new prosecution

so quick, then it could be that with a time limit

model. The number of registered crimes has

and an information limit, stereotypes could

been in consistent decline, but the clearing

131

play more of a role [in sentencing].”

This

percentage of those crimes has continued to

not intended as an

fluctuate around 25 percent both before and

empirical statement of fact, is supported by

after the guideline implementation. The low

other data.

In an interim review of the

percentage is not unusual, as cases may take

ZSM-method conducted by Utrecht University

more than one year to filter through the legal

in

was being

system. But changes to the percentage still

implemented through the new prosecution

matter, as the timing for processing cases has

guidelines), respondents in focus groups who

not been altered. As such, the efficiency of the

work with the ZSM-method were enthusiastic

new system is a nuanced discussion. The

about the potential

of the model, but

clearance rate actually declined in the years

consistently pessimistic about its enactment.

after implementation, from 27.3 percent to

This negative outlook is particularly evident in

25.4 percent.

positions on the provision and sharing of

only body responsible for clearing reported

information across organizational partners (the

crimes, it would be an incomplete story to only

OM, police, probation organizations, Victim

rely on this decline to determine that the

Support, and Council for Child Protection),

ZSM-method is not as efficient as it claims to

where the amount of cases and intended speed

be. Due to budget cuts, the OM is tasked with

of processing cases regularly prevent effective

clearing cases more quickly with less staff and

conclusion, though

2015 (while

the

policy

132 131

133

Hilde Wermink interviewed by Alia Nahra, 2019.

62

133

Because the OM is not the

Thomas et al. 1-8 “Rechtspraak in Cijfers”

fewer resources. The ZSM-method’s goal of

number dropped to 105,481. This indicates

efficiency, given the context of financial

that while about half of prosecuted cases went

pressure, seems both well-intentioned and

before criminal court in 2014, closer to 60

bureaucratically/fiscally motivated.

percent

Concurrently,

incarceration

went before a judge after the

is

guidelines were implemented. The increased

becoming less and less popular as a solution to

ability of prosecutorial discretion seems to

criminal activity in the Netherlands. The

have facilitated, if not caused, a more

number of persons prosecuted in the Dutch

judicially-minded approach to prosecution.

justice system has declined steadily from

Given that judges are the only parties able to

2013-2016 (the years before and after the

impose a prison sentence, the increased

guidelines change), from 206,328 to 186,386.

reliance

134

sentencing

This decline is in line with the decline in

reported crimes across the country, which

on

court

may

have worsened

disparities among Dutch and

non-Dutch defendants being incarcerated.

boasts one of the lowest crime rates in the

Evaluating shift

the

creating

of a

the

world. These numbers can be attributed to a

guidelines

variety of factors, including the rehabilitation

personalized and fair criminal legal system

model of Dutch prisons (which leads to a

becomes

lower recidivism rate), relatively low levels of

sentencing outcomes of racialized Others in

poverty across the country, and a strong social

the country. The CBS provides data regarding

safety net. But when comparing the decline in

prosecution totals by “migration background,”

crime rates to the number of persons brought

which divides defendants into Dutch and

before the criminal court, it becomes evident

non-Dutch according to the same divisions

that the prosecution service is handling fewer

that ​allochtoon and ​autochtoon supplied.

cases on its own (not sending to court) than

Notably, it is not just immigrants who are

before the guidelines change (Figures 1 and 2).

considered “non-Dutch” in this description,

2014, right before the prosecution guidelines,

but also anyone for whom one or both parents

saw 109,056 persons brought before the

were born abroad. While the total number of

criminal court. But after the change, the

decisions by the OM has declined in recent

clearer

in

success

more

when investigating the

years, the number of decisions involving a 134

“Criminal Justice System Process: Netherlands Statistics and Data”

63

non-Dutch defendant has remained stagnant

disproportionately

(Figure 3). Whereas a number of demographic

immigrants and their descendants are in the

and

criminal

Dutch justice system. Overall, there has been a

involvement, they are consistently correlated

slight increase in the percentage of cases that

in the Dutch context with ethnicity—and these

are settled by prison sanction, indicating that

other factors are less often acknowledged in

more non-white defendants are being sent to

social discussions of crime than the ethnic

prison than would have been before the

social

135

labels.

factors

This

influence

indicates

that

involved

136

the

guidelines change.

This is clear in that the

disproportionate involvement in the criminal

overall

legal system of those with an immigrant

non-Western individuals has stayed the same

background

of

between 2013-2016, but the overall number of

discrimination that persists even after the

prosecutions (as well as court summons for

guidelines change.

Dutch individuals) has declined. Therefore,

is

a

valid

indicator

number

non-Western

of court

summons for

The increase in the percentage of cases

non-Western immigrants embody a higher

brought to court seems to have benefitted

percentage of cases going to court after the

Dutch defendants more than non-Dutch ones.

guidelines implementation and as such likely

Specifically, individuals with a non-Western

explain the increase in prison sentences.

migration background (those who are the target

of

crimmigration

Otherizing

framework intends to create a more efficient,

rhetoric) have been called before a criminal

tailored, and consistent criminal legal system,

court at a slightly higher rate than before the

the switch has not actually lessoned the

guidelines shift, and remain an almost equal

disparities faced by minorities. Slightly more

proportion

Dutch

cases are being brought to court than in the

defendants—despite embodying a significantly

past, where judges and prosecutors are

lower percentage of the population. Figure 4

expected to predict the dangerousness and

compares court summons of Dutch and

culpability of defendants using past experience

non-Dutch defendants before and after the

and social expectations. Especially given that

guidelines implementation, demonstrating how

ethnic minorities comprise a disproportionate

of

overall

and

Though the prosecutorial guidelines

cases

to

136 135

“Misdrijven; opgelegde straffen en maatregelen 1994-2016”

Fitzgerald 327-347

64

percentage of individuals brought before the

intending to discriminate against individuals in

court, “court actors may rely not only on legal

their charge because of their demographic

case characteristics but also on stereotypes

characteristics, though there is evidence to

linked to offender background characteristics

suggest that that is the case for some. I am

137

such as ethnicity.”

These stereotypes are not

arguing, however, that the Dutch criminal

currently being addressed within the Dutch

legal system is not impervious to the nation’s

legal system, as the perception of the

broader struggles with racism, xenophobia,

professional judiciary and prosecution service

and white exceptionalism. While the legal

is that the system has been structured to

system is often viewed as an independent,

consider

The

rational arbiter of justice, this research and the

guidelines structure serves as further emphasis

decades of scholarly analysis before it have

on this personalization and ensuing perception

demonstrated that this perception does not fit

of equity, which is not actually reflected in the

reality. Interviewees often reiterated that they

experiences of minorities in the criminal legal

believed there to be no disparities in the Dutch

system.

criminal legal system, around ethnicity or any

each

case

individually.

other Chapter VI: Discussion and Conclusion

factor.

Individual

well-intentioned people may not be setting out

This paper has demonstrated the continuity of

demographic

to pursue Dutch-appearing individuals less

the Dutch legal system’s

aggressively, or punish those with a migration

disparate treatment of certain demographic

history more severely, but these are the

groups

of

well-documented outcomes of this system.

prosecutorial guidelines. Despite the more

The prosecution guidelines posed an ample

personalized approach outlined in the switch

opportunity to reverse this trend, given the

to

stated

after

the

prosecutorial

2015

introduction

guidelines,

the societal

goal

of

personalization

persecution of minority individuals in the

ZSM-framework’s

Netherlands continues to permeate its legal

instead the years after the guidelines switch

system. I am not aiming to accuse individual

have either perpetuated or intensified disparate

judges, prosecutors, or other court actors of

experiences in the criminal legal system.

137

Wermink et al. 2016, 9

65

holistic

and the

approach,

but

Despite this outcome, there is little

mindsets of ignorance or blind acceptance fail

awareness of the prosecutorial changes even

to acknowledge the extent to which these

years after they have taken effect. Searching

guidelines shape individual lives.

for material about the impact of the change,

perception that the changes do not matter is

both in Dutch and in English, resulted in little

simply untrue, yet it endures.

information aside from a single, short, and

Another

mostly speculative blog post by a law 138

professor.

common

The

refrain I heard

throughout this research was that the native

When interviewing participants

Dutch simply don’t commit crimes. Again,

and reaching out to prospective interviewees, I

this is untrue. But it clearly leads to the view

was continuously struck by how few people

of crime as an immigrant problem, one that is

knew there had been a change at all, or who

brought into the country rather than produced

offered no interest in understanding why the

within it. This mindset allows for the social

change was made or what effect it had even if

demonization and rhetorical Otherization that

they did know it existed. Part of this mentality

have

seems to fit with my understanding of the

academics, but it also permits the legal system

Dutch adage “that’s just how we do it here,”

to maintain a stellar reputation among most

which has been repeated to me endlessly over

white Dutch people, despite its obvious

the past few months. The guidelines are there;

failures for the non-white Dutch population.

it doesn’t matter why because they are already

Sitting in on court sessions, about three

in effect and it doesn’t matter what impact

quarters of the defendants I saw were

they have because they aren’t going away.

non-white. Only two were women. And for

The problem with this mentality is partially

most of them, I was the only outside observer

that the guidelines themselves are clearly

in the entire courthouse. Though I did not

editable—the points system was replaced only

speak to people outside the criminal legal

14 years after its implementation—so it is

system for this research, I have no doubt that

worth understanding why they exist the way

they would reaffirm the conclusion that I have

that they do and whether or not they can be

drawn—that most people don’t care about

improved. But even more importantly, the

these changes or their impact because they

been

so

clearly

documented

don’t see the system as needing to change.

138

Van Wingerden and Jakub Drápal

66

by

This study is also only the beginning of the

just the final charge. This scrutiny should

work that needs to be done in order to

also be applied to the ZSM-method, in order

manifest social and legal change for the

to document how effective and efficient the

people of the Netherlands. Subsequent

model actually is—and whether these goals

research should explore the perceptions of

are measured according to those employed

individuals within the criminal legal system

within the system or those experiencing it in

(those who have been incarcerated, are

their own cases. Simply put, the Netherlands

incarcerated, or whose cases have been

is

settled in another manner). It should

self-examination

investigate the impacts of criminal legal

system. Despite the country’s continuous

system involvement on future life outcomes,

denial of legal and social injustice, the

especially whether or not those impacts are

criminal system is in need of a more just

different

different

model to be truly successful. More research

demographic backgrounds. There must be

would enable this model to be crafted in an

more focus on prosecutorial discretion, to

empirically justifiable way, and therefore

examine how prosecutors make decisions in

should be a top priority for academics and

every step of the criminal process and not

prosecutors alike.

for

individuals

of

67

falling

behind of

in its

its

lack

criminal

of legal

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Appendix

70

71

Toward a Theory of Active Prerogative: Broadening the Justifications for Executive Pardons Keerthana Annamaneni​ ​- Y ​ ale University ABSTRACT​: In this paper, I argue for the active use of executive pardons. I first consider the influential theory of John Locke, whose view of executive prerogative power justified the use of pardons to address inescapable deficiencies in the rule of law. I demonstrate that his theory, though compelling, permits the use of prerogative power only in narrow cases. In contrast, I argue that its use is not only often justified but ​necessary to remedy legislative limitations, and that therefore executives should actively use it to promote the public good. I extend Locke’s logic to show that failing to grant pardons to correct apparent judicial errors constitutes an abuse of executive power. I then apply my logic to two contemporary cases to show the far-reaching implications of this understanding of pardons.

Introduction 140

In 1996, the body of 19-year-old

to grant Reed clemency or to pardon him.

Stacey Stites was found in Bastrop, Texas. She

Meanwhile,

had been assaulted, raped, and strangled.

against pardoning Reed; Stites’s sister insisted

Police and investigators quickly focused on

Reed was guilty and should be executed.

one

suspect,

Rodney

Reed,

others

vehemently

protested 141

eventually

Reed’s case and subsequent debates

charging him with the crime. Despite what

about his fate have drawn renewed attention to

defense counsel claimed were holes in

the question of when an executive should

prosecutors’ evidence and signs of Reed’s

pardon individuals who have been convicted

innocence, Reed was convicted of Stites’s

through a criminal trial and about the strengths

139

murder and sentenced to death.

and limitations of executive power. Thus,

In the months leading up to Reed’s

examining the legitimacy of the executive’s

execution date, November 20, 2019, Reed’s case received an abundance of national attention. Half a million people signed a

​Johnson In this paper, I use executive pardon as an umbrella term for the executive’s power to grant clemency, commute sentences, or pardon offenders. I will use Beth Nolan’s definition of the executive’s pardoning power as the power to either “pardon or commute.”

141 Cross 140

petition asking Texas Governor Greg Abbott

139

​Johnson

72

the

contemporary significance.

commitment to the rule of law, Locke also

In this paper, I argue for the active use

limits of

the law.”

143

power to pardon through a theoretical lens has

Despite his

acknowledged that laws often hindered the 144

of executive pardon. I first consider the

“public good.”

influential theory of John Locke, whose view

to overcome these limits, Locke justified the

of executive prerogative power addressed

executive’s use of extralegal powers, which he

extralegal executive action, including the

called the power of prerogative.

power of pardon. I demonstrate that his theory,

prerogative as “the power to act according to

though

the use of

discretion, for the public good, without the

prerogative power only in narrow cases. In

prescription of the law, and sometimes even

contrast, I argue that its use is not only often

against it. … [T]here is a latitude left to the

justified but ​necessary to remedy legislative

Executive power, to do many things of choice,

limitations, and that therefore executives

which the Laws do not prescribe.”

should actively use it to promote the public

Locke’s view, executives can act outside the

good. I then suggest that this active reading of

boundaries of the law, as long as their actions

prerogative power requires the executive to act

definitively “manifestly” benefit the “public

in Rodney Reed’s case. Finally, I use a second

good.”

compelling,

contemporary

case

permits

study

to

show

As one way for government

145

He defined

146

In

147

the

Locke

argued

that

executive

far-reaching implications and applicability of

prerogative is necessary for two reasons. First,

this understanding of pardons.

it ensures that the legislature will convene and take necessary action whenever a crisis

Locke’s Theory of Prerogative Power

develops. Because laws must be enforced at all

Throughout his Second Treatise​, Locke

times, he argued, the executive is responsible

insisted that governing powers are restrained

for managing enforcement around the clock. In

by “established and promulgated laws”

142

and ​Locke ​Locke 135 145 Prerogative power includes all forms of extralegal action taken for the “public good.” I treat the executive’s power of pardon as one form of executive prerogative, which is an umbrella term that includes other extralegal powers.

146 ​Locke 160 147 ​Locke 158 143

that people must “be safe and secure within

144

The rule of law is central to Locke’s ​Second Treatise,​ as Locke believed that the rule of law can rein in arbitrary rule. However, a full discussion of Locke’s conception of the rule of law falls outside the scope of this paper.

142

73

contrast, laws endure even when they are not

long as it is used to benefit the public. As one

in session, so the legislature may disperse and

example,

reassemble as needed. The executive, argued

inadequate because lawmakers can never have

Locke, should use prerogative power to decide

enough “foresight” to construct laws that can

when the legislature should assemble because

resolve every scenario.

only the executive, who is “always to be

limitation on lawmakers is inevitable because

present, and whose business it [is] to watch

the world is tumultuous and cannot be fully

over the public good,” could effectively assess

understood or predicted. For Locke, the world

148

when the legislature should convene.

Locke

argued

152

that

laws

are

This epistemological

A law

is in “so constant a flux, that nothing remains

that prescribes when the legislature should

long in the same state,” and new crises arise

meet cannot be sufficient because laws cannot

with no warning; “thus people, riches, trade,

predict

the

power change their station…mighty cities

commonwealth,” and the legislature must be

come to ruin … whilst other unfrequented

able to convene whenever unforeseeable

places grow into populous countries.”

“all

circumstances

the

arise.

exigencies

149

of

Regulating

153

When

the

legislators fail to predict these crises and

legislature’s meeting time should therefore not

create appropriate laws, the use of executive

be “settled by the original constitution” but

prerogative is justified.

instead by an extralegal, executive power that

prerogative is far-reaching since it authorizes

would be “exercised only for the public

executives to use their prerogative as often as

[good], as the occurrences of times and change

necessary to mitigate legislators’ inescapably

154

150

of affairs might require.”

Second,

Locke

This account of

limited ability to predict and respond to future asserted

that

circumstances.

prerogative power is justified whenever laws

Furthermore, even when lawmakers do

cannot adequately resolve crises. “The law can

have the foresight to predict crises, executives

by no means provide for” every crisis, he

may justifiably use their prerogative if the

151

wrote.

If existing laws prove to be

existing laws do not sufficiently aid the public.

insufficient, prerogative power is justified, as

Laws can harm the public, he argues, “if they

​Locke 156 ​Locke 156 150 ​Locke 156 151 ​Locke 159 148

​Locke 156 ​Locke 157 154 ​Locke 159

149

152 153

74

158

are executed with an inflexible rigor, on all

can prove no prejudice to the innocent.”

occasions, and upon all persons that may come

other words, showing mercy even to the guilty

155

in their way.”

In contrast to this rigidity,

prerogative provides

may be appropriate if doing so does not harm

with

anyone else. In summary, Locke views

discretionary power to achieve a fairer

prerogative power as a remedy for two

resolution

not

limitations of the rule of law: its inability to

adequately consider specific circumstances. To

handle individual circumstances flexibly and

demonstrate his point, Locke presents a

its excessive severity in some cases.

when

the executive

In

uniform

laws

do

159

hypothetical situation in which someone decides to “pull down an innocent man’s

Toward an Active Prerogative Power

house to stop the fire, when the [house] next to

Locke’s account of the abuses of

it is burning” and is punished for breaching an

prerogative power is compelling, yet limited.

156

innocent man’s right to property.

In such a

Granted, executives clearly misuse their

case, the law concerning damage to property

prerogative if their actions harm the public.

obviously does not justly address the helpful

However, they can also commit abuse of

man’s intent. In this way, the executive acts as

power by ​omission—​i.e., by failing to use their

a check on the law, which “makes no

prerogative power for public benefit. In this

distinction of persons” and cannot distinguish

section, I argue that executive prerogative

between wrongdoing and those actions “that

power is necessary to mitigate legislative and

may deserve reward and pardon.”

157

legal deficiencies. Therefore, if executives

Additionally, laws can harm the public

underutilize their prerogative by choosing not

if they are needlessly severe. In these cases,

to mitigate these legal shortcomings, they

the executive can justifiably use prerogative

hinder the public good and effectively abuse

“to mitigate the severity of the law, and pardon

their power.

some offenders: for the end of government

Locke’s own logic tends in this

being the preservation of all, as much as may

direction. He believed that the legislature’s

be, even the guilty are to be spared, where it

inescapable flaws necessitated the availability of executive prerogative power as the only

​Locke 160 ​Locke 160 157 ​Locke 159 155 156

158 159

75

​Locke 159 ​Locke 157

solution for legal shortcomings that would otherwise

have

persistent,

Active Prerogative and Rodney Reed’s Case

deleterious

In 1996, police charged Rodney Reed

consequences for the public good. Locke

with the murder of Stacey Stites and dropped

expressly acknowledged that the executive has

their leads on other suspects, including Jimmy

“fiduciary trust placed in him, for the safety of

Fennell, Stites’s fiancé. But 23 years later, in

the people” to address situations in which the

October 2019, a witness reported that Fennell

legislature’s decisions could harm the public.

had confessed to killing Stites. After this

160

In other words, the executive has power

witness’s critical testimony surfaced just one

over the legislature—including prerogative

month before Reed’s scheduled execution,

power—as a check on the legislature’s flaws.

Reed applied for clemency from the Texas

The executive has these powers because the

Board of Pardons and Paroles, citing the new

legislature cannot “exactly answer all the

evidence along with testimony from several

exigencies of the commonwealth,” and the

other witnesses about Fennell’s violent and

executive’s prerogative power is the best

threatening remarks toward Stites.

162

remedy” that “could be found for this defect.”

161

Reed’s case has received notice from

But if the executive’s prerogative power is

millions of people across the United States.

the only solution for certain inherent judicial

Celebrities from Kim Kardashian to Rihanna

and legislative limitations, then does a passive

have turned to social media to build support

executive who fails to act in the face of such

for him.

injustices not also harm the public? Locke’s

Republican

own argument seems to necessitate the

Democratic state senators wrote to Governor

corollary that executives have both the ​right

Abbott and the Texas Board of Pardons and

and also the ​responsibility to use their

Parole, urging them to consider the new

prerogative power to limit legislative and

evidence and to pardon Reed if the evidence

judicial harm to the public.

pointed to his innocence.

state

Senators,

and

eight

​Johnson ​Johnson 164 Two law enforcement officers came forward after Reed’s trial, recalling incidents of hostility between Fennell and Stites. Jim Clampit, a sheriff’s deputy, claimed that he had heard Fennell saying that Stites “got what she deserved” at her funeral. After Reed’s trial, 163

161

U.S. Senator Ted Cruz, seven

164

162

160

163

​Locke 156 ​Locke 156

76

In November 2019, a Texas appeals

theory, Governor Abbott has a responsibility

court halted Reed’s execution, just one week

to limit judicial and legislative failures by

before he was scheduled to be executed, and

granting Reed his pardon, and failure to act

ordered Reed’s original trial court to review

despite such strong evidence of an unjust

new evidence and Reed’s innocence claims.

conviction constitutes an abuse of prerogative

On the same day, the Texas Board of Pardons

power. In contrast, a Lockean interpretation of

and Parole unanimously recommended that

Reed’s case would suggest that although

Governor Abbott grant Reed a 120-day

Governor Abbott would be justified in using

reprieve, or a postponement of his execution.

prerogative power, he is not morally required

The board did not recommend commuting

to pardon Reed.

Reed’s sentence to a lower penalty, which

Rodney Reed’s case demonstrates the

165

clear structural limitations of the rule of law.

Until the trial court reviews Reed’s claims and

Assuming that Reed is innocent but was duly

the new evidence, his final verdict remains

convicted in a criminal trial, we can begin to

uncertain. Although his execution has been

grasp these limitations. Even if (as was the

taken off the calendar for now, he could be

case, to the best of my knowledge) Reed was

returned to death row after the trial court

afforded all his due-process protections and if

reviews his case—or he could be fully

the prosecution did not withhold evidence,

exonerated, his record wiped clean.

nevertheless he likely suffered a wrongful

would have removed him from death row.

Rodney illuminates

the

Reed’s

pardon

distinction

petition my

come forward with exonerating evidence until

theory—which I will call the “theory of active

decades later. Thus, despite all the laws in

prerogative”—and

place to facilitate

Locke’s

between

conviction because key witnesses did not

theory

of

prerogative power. From the perspective of my

an effective

judicial

system—such as laws preventing prosecutors from withholding exculpatory evidence and affording

other reports of Fennell’s history of racial and sexual violence were unearthed. See: Smith, Jordan. “Texas Prepares to Execute Rodney Reed Amid a Flood of New Evidence Pointing to His Innocence.” ​The Intercept (blog), November 8, 2019. https://theintercept.com/2019/11/08/rodney-reed-death-r ow-texas/.

165 ​Johnson

defendants

important

protections—wrongful convictions are still possible. Because the rule of law cannot guard against all wrongful convictions, the executive

77

retains the power to pardon criminals, a check

another

166

on the inescapable limitations of the law.

case

that

highlights

additional

legislative and legal shortcomings calling for

According to my theory of active

the use of executive prerogative. My purpose

prerogative as described above, Governor

is to show how the theory of active prerogative

Abbott has an affirmative obligation to pardon

can clarify appropriate executive action in a

Reed. Gubernatorial prerogative is a necessary

broad range of cases.

structural solution for judicial and legislative

In 2004, Cyntoia Brown, then 16, was

flaws, and Abbott’s reluctance to pardon Reed

charged

enables the flaws in the rule of law to persist

43-year-old real estate agent who solicited her

indefinitely and to harm the public. Indeed,

for sex. Brown argued that she shot Allen as

wrongful convictions harm innocent people,

an act of self-defense when he acted violently

but they also harm the public by damaging

toward her. Prosecutors, however, argued that

trust in the judicial system. Abbott, I contend,

the murder was premeditated. Though she was

has therefore abused his prerogative power by

a teen, Brown was tried as an adult, and in

refusing

2006 she was convicted of first-degree

to

perform

his

executive

responsibility.

with

premeditated

killing

murder,

Johnny

Allen,

first-degree

a

felony

murder, and aggravated robbery. She received 168

Application of Active Prerogative: Cyntoia

two life sentences.

Brown’s Case

Thirteen

years

after

her

arrest,

Rodney Reed’s case study illuminates

Cyntoia’s case made headlines again when

how executive pardons can resolve wrongful

celebrities from Rihanna to Lebron James

convictions. However, executives should use

discovered

prerogative power ​whenever the rule of law

statements urging Governor Bill Haslam of

and the legislature cannot sufficiently serve

Tennessee to grant her clemency.

167

the public’s interests.

her

story

and made

public

169

I will now discuss

Some

commentators argued that the court did not give adequate weight to her self-defense 170

166

Of course, there are other possible solutions for Reed’s problem, such as habeas corpus petitions, but they have their own limitations, and a discussion of judicial remedies is outside the scope of this paper.

167 An account of how “active prerogative power” can be abused, especially by tyrants, is necessary, but outside the scope of this argument.

argument because she is a black woman

​Kaba and Schulte ​Kaba and Schulte 170 ​Kaba and Schulte 168 169

78

and

that

courts are less likely to consider

self-defense

racial

judicial shortcomings. Governors can grant

Others contended that the court

pardons or clemency, for instance, in cases

failed to take into consideration Brown’s

where racism appears to have clouded jurors’

extenuating circumstances, such as the fact

judgment.

that she was just 16, had been abused by

executives can use prerogative power to

multiple men, had been coerced into sex work,

“mitigate the severity of the law”; in cases like

171

minorities.

arguments

made

by

prerogative can help to limit these intrinsic

172

and lacked parental or familial support.

Further,

as

Locke

suggests,

Brown’s, this would mean commuting overly

I will assume three things to be

harsh sentences that do not reflect the defendant’s

in self-defense; second, that the court did not

Critically, because executive prerogative can

adequately consider this defense, in part

resolve the law’s shortcomings, I would

because of racial prejudices; and third, that the

contend that the executive is obligated to

court

pardon Brown; conversely, refusing to pardon

did

not

adequately 173

mitigating evidence.

consider

her

If we acknowledge

extenuating

175

possible in Brown’s case: first, that she acted

circumstances.

her would harm the public

these possibilities, we can also see the intrinsic

176

and would

constitute an abuse of executive prerogative.

limitations of the judicial system. Specifically,

In January 2019, Governor Haslam

implicit biases—including racist and sexist

used his executive authority to commute

biases—can

courtroom,

Brown’s sentence, and Brown was released to

whereas the court applies uniform laws and

supervised parole, after 15 years in prison, on

sentencing frameworks to diverse cases,

August 7, 2019.

flourish

in

the

177

reflecting a failure to consider mitigating circumstances

adequately.

174

Through this action,

existence of implicit biases, demonstrating them conclusively is beyond the scope of this paper. See Kang, Jerry, Mark Bennett, Devon Carbado, Pam Casey, and Justin Levinson. “Implicit Bias in the Courtroom.” ​UCLa L. Rev.​ 59 (2011): 1124.

175 ​Locke 159 176 Again, I will assume that Brown’s incarceration harmed her, her family, and possibly the broader community. Austin Sarat’s work in “When the State Kills” is salient here, but I will not explore this argument here. See Sarat, A. ​When the State Kills: Capital Punishment and the American Condition.​ Princeton University Press, 2018. https://books.google.com/books?id=Ff5ZDwAAQBAJ. 177 ​Paul and Schmidt

Executive

​Roman ​Kaba and Schulte 173 I will not discuss the efficacy of considering mitigating evidence, the role of racism in Brown’s case, or the merits of her self-defense arguments. Those claims are outside the scope of this paper. Instead, I am interested in considering what role the executive can and should play in mitigating such shortcomings where they appear to be present.

174 Of course, all these claims can be persuasively contested. Although there is strong evidence for the 171 172

79

Governor Haslam showed how executives can

unanswered. How should the public decide

use prerogative power to curtail failures of the

whether the executive is using prerogative

rule of law—in this case, racism in the justice

power in their interests? How can citizens

system

inadequate consideration of

voice their opinions about the executive’s use

mitigating circumstances. By granting Brown

of prerogative power? What, if any, are the

clemency, Haslam fulfilled his executive

legislature’s checks on executive prerogative

responsibility and demonstrated both the

power? These are crucial questions to which

far-reaching applicability of prerogative power

my robust theoretical account of prerogative

and the contemporary significance of the

power could be applied. In showing the

theory of active prerogative.

limitations of Locke’s account of prerogative

and

In this paper, I have aimed to show

power, I have also uncovered a flaw in the

why executives are not only justified in

theoretical underpinnings of today’s most

pardoning offenders but ​obligated to do so

pressing criminal justice debates. Specifically,

when existing laws harm the public. Based on

discourse on the use of executive pardons

this argument, Governor Haslam has acted

should be disentangled from the prevailing but

appropriately to correct injustice and Governor

unjust assumption that such actions should be

Abbott is abusing his executive prerogative

limited to the most egregious instances and

power by failing to use it. This argument,

that refusal to act is generally prudent.

however,

leaves

numerous

questions

80

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Sarat, A. ​When the State Kills: Capital Punishment and the American Condition​. Princeton University Press, 2018. https://books.google.com/books?id=Ff5ZDwAAQBAJ. Smith, Jordan. “Texas Prepares to Execute Rodney Reed Amid a Flood of New Evidence Pointing to His Innocence.” ​The Intercept​ (blog), November 8, 2019. https://theintercept.com/2019/11/08/rodney-reed-death-row-texas/.

81

Colors: BLUE Tatiana Garnett​ ​- ​Occidental College ARTIST’S STATEMENT: ​Black, a color of power, mystery, rebellion, and sophistication. Blue, a color of faith, birth, trust, and intelligence. Separately, the two colors stand dynamic in their own rite. The two together, however, make a powerful pairing. This film is meant to probe the relationship between the two. Perceptions of Blackness are distorted as they are. This project is meant to serve as a reimagining of Blackness with its comparative association with the color blue. Does the visual connection between the two colors influence the way we view and engage with what it means to be Black? When Blackness is associated with a color that matches its depth, power, and versatility, what is both the visual and deeper emotional response that the two colors simultaneously evoke?

Countless of Black artists have already begun answering these kinds of questions. From simple YouTube videos to Oscar award-winning films, Black bodies and the color blue coexisting has been an emerging visual aesthetic. This film serves as a compilation of preexisting visual work strung together with the eccentricity of Flying Lotus underscoring it all. The film allows a deeper exploration of the relationship of Black skin to blue light, wardrobe, shadows, and setting. Together the collection of clips underscore the forever changing perceptions surrounding Blackness. In this case, Black skin and the color blue form a powerful pairing. A pairing that embodies power, mystery, rebellion, sophistication, freedom, faith, trust, intelligence, and everything in between.

Video Link: ​https://vimeo.com/306236882

82

Sexist Narratives Underlying the Two-Child Policy in China Cody Mills​ ​- ​College of William and Mary ABSTRACT: ​China’s one-child policy has long been a radical case-study of population control in the modern world. With the government’s decision to transition into a more liberal two-child policy, it seemed that women would be liberated from a history of forced abortions and infanticide. Despite this, underlying social and economic inequalities rooted in sexist logic surrounding women continues. Furthermore, the focus of the Chinese government on biopolitical actions meant to regulate and enforce reproductive population conditioning only binds women to the state as their bodies are used as the medium for both physical and transcendental power relations.

Introduction

The One-Child Policy in China

In China, the one-child policy and

Since 1979, China has been limiting

eventual two-child policy are rooted in

the ability of mothers to birth multiple babies

existing assumptions surrounding the validity

through restrictive population policies like the

and value of female children. Though China’s

one-child policy. This began as an attempt to

policies represent an ever-changing discourse

combat food shortages and lack of housing in

on reproduction and population control, they

a rapidly growing population. Due to a spread

both

government

of healthcare to poor and rural areas after the

intervention in reproductive decision making

creation of the People’s Republic of China, the

and bodily autonomy is inherently detrimental

population growth rate rose more than 10%,

to the well-being of women and society as a

leading to an inability of the state to provide

whole. In combating gendered discourse, a

adequate resources.178 The socialist economic

new focus needs to be placed on the

and social system in China meant that many

underlying social institutions that promulgate

mothers didn’t have economic anxiety over

or

maintain practices such as selective

birthing another child, as they expected the

abortion and policies such as the one-child

state could care for it. Furthermore, not only

policy, rather than a focus on political and

did this system allow individual mothers to

social action for the sake of state productivity

reproduce at their own whim but it often

and forming ideal populations.

encouraged

show

the

ways

that

178

83

it for families of a lower

​Cronin and Clark

socioeconomic status who were seeking

policy was complicated by the fact that local

greater access to resources through producing

governments and institutions dictated to what

another head that required adequate care and

level and through what methods their relative

attention from government funds. In addition

constituents would adhere to the law.180

to this, Mao Zedong, the Chairman of the

Furthermore, abortion and contraception were

People’s Republic of China, expressed clearly

made widely legal under the one-child policy;

his desire for women to have many children

however,

for the sake of the country. This instituted a

dominant frame under which they operated.

deep cultural and political narrative that

For the majority of women, they had no say in

encouraged fertility. This, followed by the

the method of contraception they were put on

failure of simple birth control measures, led to

and most were told or expected to use

the necessity of government intervention to

“intrauterine devices or sterilization.”181 ​While

ensure that this Malthusian population crisis

rates of abortions decreased, the primary

could be calmed. The result was China’s

reasons given for receiving an abortion were

implementation of a one-child policy that led

“contraceptive

to an enforcement of fines for those who failed

government approval” indicating that, though

to adhere to the law as well as an entire culture

options seemed to be made available, the

of sexist practices that prioritized male

scope of the one-child policy was limited in its

children and selective abortions. As a result,

application to women’s bodies and their

the population growth rate stabilized.

abilties

choice was certainly not the

to

failure

make

and

a

independent

lack

of

decisions

The one-child policy was an intricate

regarding them.182 As the policy came into

framework of checks and balances as well as

effect, it gradually reduced the population

exceptions that made it a unique piece of

growth of China, however, the policy itself

population policy. For example, the one-child

wasn’t the only thing responsible for rapidly

policy was leniently applied to people in rural

reducing population size and reproductive

areas. In general, they could have a second

output. Under the Communist Party of China,

child if the first one was a boy and if they

Mao Zedong declared the “late, long, few”

waited five years between the children.179 This ​Hesketh and Xing 1172 ​Hesketh and Xing 1173 182 ​Hesketh and Xing 1173 180 181 179

​Hesketh and Xing 1172

84

guideline for families wanting to reproduce.183

on past population policies. Chinese leaders

The principle, which was not enacted through

seldom cite gender violence, infanticide, and

law, encouraged women to wait to marry, wait

selective

to have children, and ensure that there was a

autonomous,

good

loosening of reproductive policies. This is only

length

in years between birthing

children.

abortions, as

being

both

forced

reasons

for

and the

further strengthened by the way the Chinese government handled the issues presented by

The Two-Child Policy and Current China

the one-child policy in terms of violence and

Now China finds itself in a very

sexist attitudes towards female children. The

different situation as the more populous

government inherently chose to turn a blind

generation is rapidly aging, while the younger

eye by refusing to loosen policies despite both

generation does not consist of enough bodies

internal and external research detailing the

to fulfill the labor and resource needs of the

negative consequences for female children in

state. China has more people over 60 than any

society. Furthermore, the government’s role in

other nation on earth.184 Along with this, many

permitting forced or coercive abortions in

government leaders and senior citizens are

order to ensure that population policy was

attempting to figure out not just how to fill the

followed only goes deeper into proving that

labor gap that will occur as they begin to die

demographic threats to the state as it stands

but also who will care for these elderly

economically are one of the only aspects the

individuals as the younger citizens account for

government cares about enough to enact a new

a far smaller proportion of the population. In

policy. Though the two-child policy may seem

addition to this, the China Academy of Social

like a win for women and children across

Sciences reports that if fertility rates are

China, it is clear that it is rooted in a much less

constant, China will fall to 1.17 billion people

compassionate rhetoric of state power with

by 2065 (Fensom 2). These specific threats to

little regard given to the lives of individual

demographic

women and families.

stability

are important for

understanding why China has decided to

Furthermore, due to a preference for

implement its two-child policy and ease back

male children,

there is now a gender

imbalance in China as 115 boys were born for ​Hesketh and Xing 1172 184 ​Cronin and Clark 183

85

every 100 girls in the year 2016.185 Women

policy because they knew they would only

between the ages of twenty-two and thirty-one

require paid maternity leave once throughout

are expected to decline by 40 percent between

their career, and if they had taken this

2015 and 2025.186 This has created a unique

previously or already had a child they were

social situation wherein an influx in possible

certain it wouldn’t happen again. With the

male partners has made reproduction and

implementation of the two-child policy, this

marriage difficult for many men in China.

relative comfort in reproductive restriction

Though the root of this unique phenomenon is

dissipated. In a survey done by 51job.com, it

a sexist society and gendered assumptions

was found that 75% of employers in China

about the worth of female children, the result

were more reluctant to hire a woman after the

is assumed to be a setting of relationships that

passage of the two-child policy.188 Another

offer more options and power to females.

poll by the All-China Women’s Federation

Despite this presumption, some men are

found that more women reported being asked

utilizing human trafficking to combat the lack

specific questions about their relationship

of available women in China. Studies show

status or desire to have children in the future.

that the majority of these women are being

189

taken from Vietnam as large rings of

and Zhu Wei Xing explain, “it’s likely..that

Vietnamese women have been kidnapped,

even in the absence of the policy, sex-selective

captured, and sold to men in rural areas of

abortion would continue...the solution will

China, specifically over the past ten years.187

come only with a change in attitudes toward

Furthermore, as scholars Therese Hesketh

Despite feminist sympathizing with

female offspring.”190 These experiences show

Chinese population policy, the existence of

that the place of women in Chinese society

gender

the

continues to be bridled by embedded sexism

two-child policy, which has only put an

despite their government-granted ability to

additional strain of reproduction and the

have additional children.

inequality

persists

through

workplace on women. Many employers felt

China’s two-child policy, though more

comfortable hiring women under the one-child

lenient than its predecessor, still restricts the

185

188

186

189

Cronin and Clark Fensom 2 187 Keith 15

Economist 3 ​Economist 3 190 ​Hesketh and Xing 1174

86

ability of individual women to control their

Despite the policy’s emphasis on

own reproductive decisions. This outcome

attempting to repopulate the country after the

should not be surprising after examining the

population decline of the one-child policy, it

makeup of China’s leadership. China, as it

continues to restrict women from having more

stands today, has never had a female president.

than their desired amount of children. One

China’s “standing committee” is where it

article details the ways in which these policies

makes all of its key decisions and it hasn’t had

of restriction are also centered around ideals of

a woman on it since its establishment in 1949.

who can and should be able to become a

191

Furthermore, few women have served at

mother (National Post). A 67-year old Chinese

any capacity in leadership roles throughout the

woman, named Tian, had a third child with the

top rungs of the Chinese government.192 The

help of fertility treatments. Though the

Chinese

an

population policies of China specify that they

antagonistic view of feminism or feminist

are for women under the age of 49, the

concepts as five women were once detained

Chinese government is attempting to fine her

for holding protests of sexual harassment on

for her reproductive decision (National Post).

public transportation and state-run agencies

This raises two questions about the purpose

have, on multiple occasions, criticized female

and scope of the policy as it seems to target

leaders for not adhering to traditional feminine

women that are viewed as ideal mothers,

roles such as being unmarried or being too

meaning women below the age of 49, while

opinionated.193 These women became known

also continuing to stigmatize and economically

as the “feminist five” and were regularly

burden women that are legally out of its

ridiculed by public journals and networks.194 In

confines. In doing so, it is clear the law is less

connection to this antagonism, China harshly

about generating general population growth

cracked down on women’s rights as they

and more about creating an ideal population

related to protecting unions and fighting for

within a growth mindset. Furthermore, the

labor rights.195

government’s attempts to fine Tian outside of

government

has

long

had

its written boundaries show the ruthless nature of the Chinese government in addressing these

​CNN ​CNN 193 CNN 194 Foreign Policy 8 195 Foreign Policy 8 191 192

reproductive controls for they are not tied to

87

their own judicial limitations. This is certainly

male children as they age when compared to

an example of a tyrannical government

female children who are less likely to be born

attempting to regulate women’s bodies.

but more likely to reap the societal rewards for

Though there are a plethora of sexist undertones

regulate

with son preference and sex-selective abortion

reproduction in China, these practices are

tend to have tougher competition for marriage,

generally

favorable

as Hesketh claims that “in China, 94% of all

outcomes for women. As Therese Hesketh

unmarried people aged 28–49 are male, and

claims in ​The Consequences of Son Preference

97% of them have not completed high school.”

and Sex-Selective Abortion in China and

197

Other Asian Countries, i​ n societies where

higher rates of low self-esteem and depression

there is a higher ratio of men to women, such

and there have been fears that these “outcast”

as in China, nearly all women are married,

groups of men will fall into organized crime or

women are able to advance socially through

other forms of violence as they have no

marriage, and women are more highly valued.

genetic stake in the well-being of the society

In the feminist perspective, there is an

around them.198

argument

to

seen

policies

as

that

their lack of birthing value. Males in societies

influencing

Within these groups of men, there are

that sex-selective abortions in

Though this may be seen as a

countries with son preference actually help to

productive argument for the dichotomous

decrease unwanted births, thereby reducing the

relationship of a one or two-child policy with

number of unwanted girls born into society

gender relations, it is also worth noting that it

and, in effect, decreasing levels of female

creates a social structure in which women are

infanticide.196 The downside in terms of

only able to define their power over men in

feminist discourse is that this reality is

terms of their ability to become wives and

achieved through the idea that birthing a

have a wide-array of options in terms of who

female is worth less than birthing a male. It

they will marry. The only power they obtain

seems rather socially ironic the way in which a

from these population control effects are ones

high emphasis on the worth of birthing a male

in which they must be on the search for a man

tends to produce a lower quality of life for

in 197

196

​Hesketh 3

198

88

order Hesketh 2 Hesketh 3

to

obtain

individual

value.

Furthermore, both the one-child and two-child

notion

that having

two

boys is more

policy represent China’s centering of women

advantageous than having a girl in the mix.

as political or economic pawns in a zero-sum game of capitalist enterprise. The one-child

“Biopower” and a Theorization of Power

policy subjected women to an existence of

Relationships in Chinese Reproductive

forced abortion, sterilizations, and even social

Policy

settings in which they felt that abandoning a

The institutional transition of the

female child was more advantageous than

one-child policy to the two-child policy can be

keeping it as far as defending the economic

examined through the lens of Michel Foucault

prosperity of the family. The one-child policy

in his ideas of biopower and the changing

was set on a stage of government propaganda

identities

that was not only set to the tone of morality

theoretical

but a woman’s duty to her country in terms of

conceptualizing the two policies as part of the

limiting

same gendered narrative of reproductive

her

births

and

ensuring

that

of

state

governments.

grounding

important

coercion

her country. Now, with the entrance of the

subjugation. Foucault worked to place liberal

two-child policy, a woman’s womb is being

ideologies

used

conversations surrounding power dynamics.

strategically

increase

China’s

state-sponsored

for

population growth didn’t negatively impact

to

and

is

This

within

a

gender

framework

of

resources for the sake of nationalistic pride

Foucault understood power to be constant and

and economic production. In both cases, the

always present in societies. It is not something

woman is granted little autonomy and the

that can be passed between generations or

social

policy are

yielded by specific individuals or groups.

compounded and expected to be forgiven by

Rather, it is a force that acts on all and is

the next. These policies continue to regulate

regulated by some but ignored by none.

without any attempts to ensure that girls are

Despite being ever-present, it is often exerted

treated and valued equally to boys or that

in a diversity of ways that contribute to our

women,

sexist

relationship as individuals and communities

their

with the government. Foucault charts history

pregnancies, are not influenced to abort on the

through the development of a term he coins

ills of

still

assumptions

the previous

carrying about

the

forward value

of

89

“biopower.” As Foucault explains, in the past,

politics.201 The goal of this was that adhering

power was exerted through the “right of the

to the given government structure would mean

sword.”199 This is to say that kings and

that you could live the fullest possible life in

monarchs had the power to enforce state

which you would be protected from disease

control through killing off those who stood

and able to contribute equally to the society

against them and allowing life to those who

around

stood by them. This was how they developed

identified less with fear and more with

sovereignty. The relationships constructed by

productivity. Capitalist societies, Foucault

this were less about population regulation and

believed, were at the forefront of these modes

more about the institutionalization of the

of operation for they incentivized their citizens

individual leader as the legitimate commander

to work for better lives and contribute to their

of the state structure. This process was one of

given

“anatomo-politics” in that the individualized

acquiring/protecting health and wealth.

you. This form of

economies

in

the

government

hope

of

body was the center of power relations. This

For the purpose of understanding the

all changed with the development of modern

two-child policy’s vapid contributions to

governments and democracies in the 20th

social

century

became

welfare and gender equality, it must be

centered on “making live and letting die.”200

understood that China’s one-child policy

For Foucault, this means that governments

represents the first in Foucault’s analysis of

became

ensuring the

governmental power dynamics. In his primary

optimization of life through careful regulation

introduction of the theory of anatomo-politics,

of human beings in public health, education,

he intended to focus on the power dynamics

and workplace settings. “Biopolitics” is much

and authority designations of the 18th century,

less interested with the power medium being

with a focus on Europe. However, for the sake

the individual body and more focused on the

of this theorization, this understanding of state

population

power

control and ideas of sovereignty will be

deployment through a melding of science and

framed through reproduction and applied to

as

government

motivated

as

its

control

through

grounds

for

modern China for the same purposes of 199 200

Foucault 42 Foucault 44

201

90

Foucault 46

making

connections

through

mothers to produce more children for the good

distinctions in ideology. This ideology of

of the state. As Foucault claims, biopolitics is

making die and letting live can be seen in

rooted in a sense of community formation

forced abortions, abandonment of young girls,

around

and infanticide under the one-child policy;

optimization can be seen by the Chinese

however, rather than the government always

government’s goal of ensuring a thriving and

doing it in direct contact, they produced a legal

growing population for the sake of economic

system and ideology that encouraged mothers

productivity and care for the elderly. The

to do it themselves. Though there are several

focus becomes less about a suppression of

instances of government individuals and

certain types of children and more about the

agencies stepping in to force abortions, the

assurance that more babies can be had under

primary motive for infanticide was the harsh

the guidance of certain mothers in the context

penalties and fines incited on mothers who

of Chinese success. Furthermore, the focus on

could not afford them. The purpose of this

assuring that elderly Chinese citizens have

policy was a result centered in population

individuals to care for them in the future

reduction, or the removal of certain bodies

directly represents calls for a political force to

from the population as a whole, as would be

maximize life both in quality and in care. Of

the

anatomo-political

course, the two-child policy does not entirely

narrative. Their methods of economic coercion

escape the past of its predecessor in terms of

and forced abortions show a relationship in

discouraging female children and possibly

which the individual woman is faced with the

leading to infanticide or forced abortions, but

option of either producing a child that will be

this is more dependent on social contexts and

neglected

and financially not supported,

rooted sexism than it is in direct policy. The

murdered, or not born at all due to an abortion

two-child policy seems to be a clear indicator

procedure.

that more life is expected for the sake of not

mass-goal

of

of

the

power

an

optimization

of

life.

This

In applying the theory through to

only population progress but also individual

modern day, the two-child policy fits rather

responsibility as the identity of the mother,

well within biopolitical narratives. For one,

expected by some to be a private and personal

it’s primary purpose has been in encouraging

position,

91

becomes

defined

by

state

responsibility and nationalistic impulses. The

forced abortions played in past policy, the

ideal of motherhood continues to be one in

underlying gender dynamics and social views

which the body is a tool for state necessity;

are entirely ignored for the sake of a clear

however,

the introduction

glorification of the policy as it compares to its

progress

works

to

soften

of population it

in

brute

predecessor. In a piece by Avraham Ebenstein entitled ​The “Missing Girls” of China and the

application.

Unintended Consequences of the One Child Policy, ​he examines the negative role of the

Examining Research and Media Attention In the same vein of underlying sexist motivations

one-child policy in terms of practically

for both population policies

eliminating an entire generation of women but

enacted by China, the true tone of ignorance

then shifts to focus on the two-child policy

comes from articles concerning the shift.

with the hope that it will strengthen the role of

Media attention to the transition has largely

women in society with an increase in

been

population density.203 This surely does not go

heralded

as

positive

for

its

acknowledgement of the one-child policies

far enough in examining the true realities

population faults. In a recent paper published

women in China face. This is not to say that

in ​The Lancet ​by Professor’s Yi Zang and

there aren’t any fair reasons to praise the

Therese Hesketh, the effects of China’s

two-child policy as it will certainly alleviate

two-child policy are assessed as being positive

some experiences of women and families as

for reducing forced abortions and encouraging

reproductive units; however, the near erasure

a more normal sex ratio and unsure in terms of

of past concerns around gender violence and

how it will impact population growth. As the

socialization of sexist norms should be

authors conclude, they stress the need to keep

criticized

looking into ways to ensure that the population

propaganda continues in the vein of ensuring

changes positively support the elderly, who are

that the state is well-maintained and economic

situated as the primary population that has

output increases, the lives of individual

been wronged by past policy impacts.202

women

Though the article acknowledges the role

Furthermore, the use of state power to regulate

202

​Zang and Hesketh 1172

203

92

and

and

​Ebenstein 8

highlighted.

girls

remain

As

in

China’s

jeopardy.

and influence a woman’s ability to control her

government has given no indication of any

own reproductive future remains on the

intention to stop it.

sidelines of the conversations being had

Though the two-child policy alleviates

surrounding the Chinese government and the

many of these concerns, a culture of son

legitimacy of its authority to dictate these

preference is still in effect, and many couples

decisions.

could very well be aiming to produce multiple

Sexist policy

as

undertones well

contributing produced

by

to

as the

the

in

reproductive

boys rather than one girl, slight changes in

restrictions

state policy on reproduction still work to

transformation

regulate reproductive access and don’t address

further mild

two-child

policy

are

any of the underlying reasons for why the

well-represented in Chinese policies

social, economic, and demographic problems

surrounding single parents. A recent NPR

occurred in the first place

article detailed the ways in which single mothers are often at the mercy of their local

Conclusion

governments in terms of whether or not their

Throughout

history,

the one-child

children will receive public health care and

policy and eventual two-child policy have

education.204 The article specifically follows a

been rooted in sexist assumptions surrounding

single mother named Liu who has been

the validity and value of female children.

discriminated against for her status as an only

Though China’s policies show an evolving

parent. Her child has not been granted

discourse on reproduction and population

healthcare and has to pay a social support fee

control, they both represent the ways that

for violating family laws. Furthermore, she has

government intervention into reproductive

not been granted a permit to access other

decision making and bodily autonomy is

necessary resources like clean water, meaning

inherently detrimental to the well-being of

she has to travel between towns to receive

women and society as a whole. Through the

simple accommodations (NPR). Though this is

work of political philosopher Michel Foucault,

not the case for every Chinese locality, it is

it can be more easily understood that these

certainly

policies represented a shift in power dynamics

the

case for

many, and the

rather than a liberation of women or an act of 204

NPR

93

scientific necessity with regards to population.

clear dedication of the government as a body

Though power became less concentrated in the

to intervene in the personal decisions of

anatomo-politics of the one-child policy, the

women through purely economic factors that

enactment of a more cohesive biopower

are central to their ability to live dignified and

through the two-child policy means that entire

safe lives. In combating gendered discourse, a

reproductive

become

new focus needs to be placed on the

sounding boards for government influence and

underlying social institutions that promulgate

power. Alongside these stable exertions of

or

power, the government’s consistent operation

abortion and policies such as the one-child

of economic coercion, whether it be rewarding

policy, rather than a focus on political and

mothers who have just enough children or

social action for the sake of state productivity

fining mothers who have too many, reveals a

and forming ideal populations.

populations

have

94

maintain practices such as selective

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The Bio-Politics of Population Control and Sex-Selective Abortion in China and India, Feminism & Amp; Psychology - Lisa Eklund, Navtej Purewal, 2017, journals.sagepub.com/doi/pdf/10.1177/0959353516682262.

“China's Two-Child Policy Is Having Unintended Consequences.” The Economist. The Economist Newspaper, July 26, 2018.https://www.economist.com/china/2018/07/26/chinas-two-child-policy-is-having-u nintended-consequences.

Cronin, Anne, and Grant Clark. “China's Two-Child Policy.” Bloomberg.com, Bloomberg, 2017, www.bloomberg.com/quicktake/china-s-two-child-policy.

Ebenstein, Avraham. "The “missing girls” of China and the unintended consequences of the one child policy." ​Journal of Human Resources ​45, no. 1 (2010): 87-115.

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