Most people have committed crimes, but few have been caught. These individuals hold positions of sociolegal power by remaining unmarked. Findings from a survey administered to 209 university students following a criminal activity checklist exercise suggest that recall leads to increased identification with marked criminals and that identification is associated with decreased punitiveness and increased empathy. Through this common classroom intervention, the unmarked participants experienced a blurring of the socially constructed border between themselves and the marked, disrupting, to an extent and for a moment, positions of power that have served to justify and sustain social status positions and carceral forms.
MAINSTREAM CRIMINOLOGY HAS TENDED TO PERPETUATE A distinction between law-breaking and law-abiding people. Although contemporary scholars and activists continue to criticize the inaccuracy of this distinction (Arrigo & Milovanovic 2008, Baxter 2017, Becker 2008, Coyle 2014), conventional crime studies have generally neglected to address growing evidence that most people habitually violate the law (Baxter 2017, Coyle 2014, Gabor 1994). One in three people in the United States will have been arrested by the age of 23 (The Sentencing Project et al. 2014), and there is rising evidence to suggest that most people have engaged in at least one form of illegal behavior for which they were not prosecuted (Baxter 2017, Woodall 2016b). This includes criminology scholars (Robinson & Zaitzow 1999). Thus, as Michael Coyle (2014, 71) notes, "Criminalized behavior is a more deeply shared human expression than it is an aberration." Ignoring this inconvenient truth has resulted in theoretical blind spots to the contours of socially constructed differences between those who have been ensnared by the criminal justice system and those who have not. The criminally marked are often forced to bear the punishment for their crime for years or even a lifetime (Pager 2008, Western 2006), whereas the unmarked go free. The marked are augmented and remarked in conventional criminological theorizing and political thought. Scholarly focus remains on the features, plights, or conditions of those who have been caught. However, what maybe more "analytically exotic"(Garfinkle 1967) are the experiences of the individuals who commit crimes but are granted the luxury to forget. Such invisible power differentials and their role in perpetuating social agendas of punishment have been scantly theorized.
In this article, I examine the disruptive potential of remembering past, unprosecuted, criminal behavior as a border pedagogy, an instructional practice that provides a means for people to conceptually cross the borders of identity categories. In this case, it unsettles the illusionary distinction between the caste of criminals and everyone else. Such an activity tells us something about that distinction's relationship to a punitive worldview that legitimizes penal harms. I conducted a classroom-based experiment with 209 university students designed to call their status categories into question by bringing to memory crimes that they had committed but for which they were not arrested. Through the exercise, the invisible, privileged position of the unmarked became visible. Though this is a common classroom activity, I argue it has abolitionist potential. Before turning to the exercise and its results, this article considers several themes that emerge from the extant literature as follows: the first section, We Are all Criminals, overviews status attainment in the widespread transgression of laws; the following section, Constructions of Difference, Identity, Biographical Memory, and Sociological Positioning, situates the sociolegal positioning concept within the relevant contemporary social psychological literature; the section titled Borderspaces and Sociolegal Status describes the conceptual underpinnings of borderwork that are applied in this project; Punitiveness and Abolition addresses the contradictions of reducing punitiveness in an abolitionist agenda; and the Abolitionist Border Pedagogy section justifies the utility of this exercise for abolitionist purposes.
A Discussion of the Literature
We Are All Criminals
This study represents a convict criminological perspective in that it is rooted in lived experience (Richards & Ross 2003). I am a white woman from a working-class background whose friends and community have been impacted by incarceration. This experience affords me a particular "gaze" from somewhere (Haraway 1988). I have noticed in interactions over my life that a form of punitiveness tends to take shape in those who have not been sanctioned or who have forgotten their own crimes. They fail, in various ways, to relate to the marked. They are quick to point out differences and slow to consider similarities between themselves and those who have been arrested. I have come to believe that freeness, or the lived experience of averting a criminal mark, affords people much privilege. I suspected that such positioning plays a part in the sustenance of carceral sensibilities. This resonated with my readings of Bruce Arrigo and Dragan Milovanovic (2008) as well as Lois Presser (2014), who suggest that the reduction of criminal others serves as justification for the infliction of penal harm. I became curious about how the privileges afforded to the unmarked, and their role in discursive carcerality, have been largely unexamined by scholars. I sought to explore the unlimiting and uninhibiting possibilities of becoming the criminalized other.
People position themselves in relation to others (Korobov 2010). We "do" identity, and different versions of the past are performed or enacted (Middleton & Brown 2005, Kontopodis 2009) in relation with others. Little has been written on how institutional logics shape, and are shaped by, the essentialist misbelief that fundamental differences exist between some imagined natural character of those who have been prosecuted and those who have not. Invisible power shapes, and takes shape in, the application of punishments. People are lured by a sense of social innocence in their activity of condemnation. However, "It is difficult to condemn when we know that we, too, stand to be condemned" (Rowan 2012,392). Personal selective memory of law abidingness, or innocence, operates to justify punishments upon law-breaking, guilty others. In the classroom exercise that served as the point of inquiry and analysis for this article, students have the opportunity to become the other that they have condemned. This work serves as useful conceptual material for thinking about how the condition of being unmarked combines with forgotten criminal behavior to breed power.
There is little theoretical recognition of sociolegal status as an aspect of personal identity, like race, gender, or sexual orientation. This status itself is multiplex and needs conceptual specification. For example, there are many sexual orientations one may identify with, just as there are a host of sociolegal locations that people inhabit. Some are attached to more privileges than others. So, to argue that there are only two sociolegal statuses, marked and unmarked, is a false binary. However, this is the way that social constructions of difference often operate, in binaries (Newman 2018), and there is little to no theoretical or empirical work that fleshes the categories out further. Therefore, a conceptual line is placed between the marked quarter of the US population and the unmarked remainder, blurring heterogeneity of experiences for the purpose of conceptual clarity. A person marked with only a misdemeanor, for example, experiences discrimination less intensely, depending on the nature of the offense and the context, than a person who has been convicted of a more serious felony. Conversely, the lived experience of one unmarked person whose offending was a relic of their youth will be quite different from another unmarked person who currently relies on illegal activity for income today. One is arguably less free than another. The categories are endlessly fraught with nuances. Being marked likewise intersects with other identities like race, class, gender, and sexuality to impact lived experience. It is also one of the ways that race, class, gender, and sexuality are continuously fabricated. Criminalization and imprisonment continue to make these identities meaningful. More work is needed to explain what marked positions are and who occupies them, as well as how those aspects of identity intersect with other identity characteristics, how they change, how they are reified, and how they operate to maintain and justify the existence and operation of our social institutions, particularly our penal system.
In the fight for social justice, there is a need to point out and challenge positions of privilege (Griffin & Braidotti 2002). There seems to be no agreed-upon term in the knowledge base that sufficiently describes a group of people who have broken a law but who are not marked by their transgression. Devah Pager (2008) has referred to them as simply unmarked. Yet, she also interchangeably uses the term "nonoffender," which certainly describes the job applicant's experience as they coolly skip "the box. "However, by legal definition, they too are offenders. This group of unmarked people carry with them a proverbial "invisible knapsack' of privileges (Mcintosh 1990) by virtue of their hidden offenses. Such privileges have yet to be inventoried directly. Scholars and activists are increasingly aware of the marked experience of disadvantage but know less about the full experiences of unmarked advantage. Such a reversal of perspective makes the privileged, nonsalient figures of social life, and their common-sense ideologies, visible (Brekhus 1998).
The Construction of Difference, Identity, Biographical Memory, and...