Crossing Borders and Criminalizing Identity: The Disintegrated Subjects of Administrative Sanctions

• DOI: http://doi.org/10.1111/lasr.12281
• Date: 01 September 2017
• Published date: 01 September 2017

Crossing Borders and Criminalizing Identity: The

Disintegrated Subjects of Administrative Sanctions

Keramet Reiter Susan Bibler Coutin

This paper draws on in-depth, qualitative interviews that examine individual

experiences in two different legal contexts: deportation regimes and supermax

prisons. Through putting these contexts and experiences into dialogue, we iden-

tify common legal processes of punishment experiences across both contexts.

Specifically, the U.S. legal system re-labels immigrants (as deportable noncitizens)

and supermax prisoners (as dangerous gang offenders). This re-labeling begins a

process of othering, which ends in categorical exclusions for both immigrants

and supermax prisoners. As individuals experience this categorical exclusion,

they cross multiple borders and boundaries—often against their will—moving

from prison to detention center to other countries beyond the U.S. border, and

from isolation to prison to “free” society. In both cases, the state action that sub-

jects experience as punishment is civil and, therefore, nominally not punitive.

Ultimately, excluded individuals find themselves in a space of legal nonexistence.

By examining these common processes and experiences, we argue that a new

kind of subject is revealed: a disintegrating subject (as opposed to a juridical or

disciplinary subject) whose exclusion reinforces the power of the state.

“It is not crime that alienates an individual from society, but

that crime is itself due rather to the fact that one is in society

as an alien.” (Foucault 1977: 275–76)

Susan Coutin’s research was supported by funding from the Law and Social Sciences

Program at the National Science Foundation (NSF) (grant number SES-0518011), as was

Keramet Reiter’s research (grant number SES-1061643). Any opinions, findings, and con-

clusions or recommendations expressed in this material are those of the authors and do

not necessarily reflect the views of NSF. Susan Coutin also thanks Luis Perdomo, Katie

Dingeman-Cerda, Tim Goddard, Danny Gascon, and the San Salvador offices of the Cen-

tral American Resource Center and Homies Unidos for research assistance, as well as all

who participated in interviews. Keramet Reiter thanks those who participated in inter-

views. An earlier version of this paper was presented at the 2015 Law and Society Associa-

tion annual meeting. The authors thank the LSA panel organizers, discussants, and

audience members for their comments, as well as the students in Keramet Reiter’s Fall

2015 Law and Society II seminar for their critical reading of an earlier draft, and the edi-

tors and anonymous reviewers for their thoughtful comments.

Please direct all correspondence to Keramet Reiter, Department of Criminology, Law

& Society and School of Law, University of California, Irvine, 3373 Social Ecology II,

Irvine, CA 92697-7080; email: reiterk@uci.edu

Law & Society Review, Volume 51, Number 3 (2017)

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C2017 Law and Society Association. All rights reserved.

567

As Foucault’s quote suggests, there are deep connections

between criminalization and being treated as an alien or nonciti-

zen: both are mechanisms through which individuals are

excluded from social membership and its benefits. Through anal-

ysis of interviews from two separate projects—one about long-

term solitary confinement and the other about deportations to El

Salvador—we argue that illegalization and criminalization pro-

duce a new form of legal subject, which is neither a juridical sub-

ject governed by law, nor a disciplinary subject “responsibilized”

by punishment (Foucault 1977; Rose et al. 2006). Instead, the

subject is disintegrated through the imposition of severe sanc-

tions—like solitary confinement and deportation—without access

to the legal protections traditionally accompanying punishment.

The two narratives juxtaposed below exemplify the legal produc-

tion of this increasingly prominent form of subjectivity.

In 2010, one of us—Keramet—met with Max at a bench out-

side of a Starbucks, 40 days after he had been released from prison.

Max,

1

who was 50 years old at the time of this interview, had spent

10 years in California’s Pelican Bay State Prison, where he had

been in solitary confinement, or “the hole,” in the Security Housing

Unit (SHU), a supermax. He described his experience:

One of the guys that ... worked there [in the prison] ... He

goes, “They’re talking about moving you ... [to] the Hole.”

And I said, “For what?” And he goes, “I don’t know. So I see

the goon squad coming in.” So I just crashed through the

classification, and I walked in there, and I said ... “You know

what? You’re going to lock me up; you have to give me a

reason ...”

I’ll never forget that day. I said, “Lord, if you’re for real,

man, I turn my life over to you completely.” ... And I went

straight to the SHU. I remember ... they go up on a bus,

and it took forever to get there ... I’m just looking at trees,

birds. And you see it’s a beautiful coast out there. Man, I’m

looking at it. I’m like—the big old pelicans and I’m trying to

get everything I can because I know that it’s over—that I

already have a life sentence. Then with another life sentence

in the Hole ... And I was trying to look at everything—the

waves, everything. Then finally, we get to Pelican Bay ... And

the best way I can describe the front of the entrance of the

SHU is it’s like—remember the old Star Wars movies? Hans

Solo’s ship—the big old glass vessel? It’s the first thing that

came into my mind right then and there....

1

All interviewees have been given pseudonyms.

568 Crossing Borders and Criminalizing Identity

When you’re sentenced to indeterminate SHU sentence,

you’re allowed to appear before the classification unit every

120 days ...There’s no touching. You can’t touch each other.

You spend 23 out of the 24 hours—you can spend all 24

hours if you want in there, but I used to go out to my little

yard for an hour to work out ... .

Two years earlier, the other of us—Susan—sat opposite Amil-

car in the offices of a non-governmental organization in San Sal-

vador, El Salvador. Amilcar, who was 24 years old at the time of

this interview, described how, even though he had been a lawful

permanent resident in the United States, he had been deported

to El Salvador:

In 2004, late 2003 or 2004, I caught myself a criminal case

... It was a DUI [driving under the influence], and when

they searched the vehicle, they found less than 30 grams of

marijuana in the car. That was just enough for them to

charge me. Even though it was a misdemeanor. I paid my

fines, I went to probation. One day, when I went to proba-

tion, there was a detainer out for me. A warrant, pretty

much. And that’s when the probation officer said, “We have a

federal warrant for you.” When I heard “Federal warrant,” I

said, “Why is the FBI trying to go after me? I haven’t done

anything.” And she told me, “No, it’s Immigration.” That’s

when they took me in. They considered it to be two crimes

of moral turpitude, equaling one aggravated felony... .

Then I stood it until a year after, which was July 3

rd

. And

then ... the Immigration judge, he gave me the case, then it

went to appeals court, because the attorney general, she

appealed his ruling... I was called back later to go to court,

and then he [the judge] ordered me deported. He told me,

“Look, this is not what I want to do.” He knew what my

intentions were in the beginning. “And this is something that

has come from up above. And I just have to follow through.”

And that’s when he ordered me deported. On June 6,

2006... . When you got the deportation letter, “You’re inad-

missible to the United States at any time.” It’s not for five

years, it’s not for three years... .

And we landed here at the airport, and I was like, “Wow, this

is nice... .” And you start to get homesick. I miss where I

grew up. “Where’s this? Where’s that?” But little by little, you

get used to it. You don’t adapt, but you get used to it....I

guess I have no plans. Just to get married. This is just part

of my sentence. I’m just going it day by day. Just a little bit

more freedom. I guess I haven’t settled in yet, it hasn’t kicked

in. That I’m destined to be here for the rest of my life. I

Reiter & Coutin 569