Aotearoa’s Criminal (In)justice System. I: Imperialism and Ideology

[This is the first part of a two part post. You can find the next post here, Section II: Repression and Resistance. CW: violence, rape, racism]

the master’s tools will never dismantle the master’s house. – Audre Lorde, 1983.


In Society Must be Defended, Foucault (2003) defines biopower as that which bounds life from death; a power which enforces itself on the level of population, fragmenting the human race into a multiplicity of races that are classified, hierarchised and judged against a norm (Foucault 2003). Incorporated into a politics of war, the decimation of the marked Other becomes crucial towards the security of the Self, the pure Subject of an imaginary nation-state; citizens that must be protected from a violent, alien world. Death becomes the means towards life—towards stability. In this topsy-turvy world, obscene power slips beneath the mask of democracy. Through the enactment of ideology, biopower ossifies the present moment into eternity. As any good Marxist/Foucauldian must ask: for whom does this benefit, and to what ends?

Power is never total; as bell hooks (1999) puts it, the gaze of the master always invites an opposition gaze; opens up a dialogue that generates inevitable resistance (Marx & Engels, 2010). Through the overflow of meaning (for the slave may always rebel), ideology is revealed as incomplete. The position of the master is undermined through the hysteria of non-compliance (Grosz 1986). Only in the transition from hysteria to coherence, however, is a counterhegemonic discourse born and individual hysteria legitimated into collective meaning.

I explore the birth of the penitentiary, in the first half of this analysis, through a genealogical/materialist lens. I begin at the Enlightenment, move through the colonisation of Aotearoa, and end in our contemporary neoliberal era. In the second half, I explore the rise of prison abolitionist group People Against Prisons Aotearoa (formerly named No Pride in Prisons) through political process theory and frame analysis. At all stages, I explore the workings of power; power through subjects, power through property, power through labour and power through discourse, to reveal how repression, domination and control can generate mass mobilisation, critical resistance and alternative visions of society.

The Birth of Disciplinary Power

The Enlightenment, capitalism and the penitentiary are inseparable phenomena. Through Enlightenment liberalism, the individual became reified from social standing; an abstract, transcendental potential, universally man and equal to all others. Capitalism did much the same. By veiling the sphere of production, labour products became enshrined as commodities—their value determined not by use, but by exchange, the invisible hand of the market which levels all to the mark of currency. In both cases, the lifeworld was alienated, abstracted and universalised (i.e. made quantifiable). One works by the hour, a standardised moment, serialised into repetitive chunks, so that the commodity of oneself can be rewarded a wage (Davis 2003, pp. 40-59; Foucault 1977). Order, classification, rationalisation; the iron cage of capitalism fell to encompass the western world (Davis 2003, pp. 40-59; Foucault 1977; Weber 2005).

Bentham's Panopticon.
Bentham’s Panopticon.

The modern penitentiary arose in response to these changes, for it was only with the birth of inalienable rights that the alienation of such rights could be seen as a punishment; and it was only with the abstraction of time that imprisonment itself could become a universalised, quantifiable punishment (Davis 2003, pp. 22-59). Disciplinary power—the continuous classification, quantification and surveillance of subjects—arose as a new technology of liberal capitalism. For Enlightenment thinkers, imprisonment was seen as a humanitarian reform over capital punishment; the cell a pensive site of reflection and transformation (Davis 2003, pp. 40-59; Foucault 1977). However, through disciplinary power, one’s reflection never wanders far from the norm—from the correct way of transforming.

Reflective tyranny reveals itself in the unequal power relations of prisoner and guard. Davis (2003, pp. 22-39) compares such a relationship to that of chattel slavery, for in both, the enslaved is subordinated to the will of the master. In this alienating, violent relationship, one’s actions are regulated by a strict timetable—by confinement, repetition, dependency and vulnerability (Davis 2003, pp. 22-39; Foucault 1977). Reflection is never for oneself, but for the master (Foucault 1977). The prison then, inevitably lacerates the philosophical underpinnings of liberal humanism, which advocate for autonomy and self-determination. Transformation back into a ‘good’ autonomous subject would appear impossible in such a contradictory environment.

Primitive Accumulation

Racism, as a justification for imperialism, has its roots in primitive accumulation—the violent theft of indigenous land (Rākete 2016; Smith 2014, pp. 4-9). Through primitive accumulation, private property and class come into being. A division opens up between the bourgeoisie, who own the means of production (land and resources), and the proletariat, who own only themselves (labour power). Similar to that of the slave and master (or prisoner and guard), the proletariat becomes dependent on the bourgeoisie. They are forced into a subordinate rank, alienated from their labour, and partitioned across space and time (Foucault 1977; Marx 2009). At the earliest stages of capitalism, biopower operates, for the threat of death looms over any who do not desire to assimilate into the new economic order.

Battle of Rangiriri.
Battle of Rangiriri.

The colonisation of Aotearoa was driven by an economic and social crisis in Europe between 1789 and 1848 (Smith 2014, pp. 4-9). As a new colony, Aotearoa could provide cheap resources and export markets, potential sources of economic stability for Europe. While Europe could not afford a full-scale invasion at the time, the signing of the Treaty of Waitangi in 1840 guaranteed “the Crown as the sole purchaser of Maori land” (Smith 2014, p. 7). The stark pace at which this occurred can be seen in the figure below (Orange 2001). Not content with purchasing cheap from Maori and selling dear to Pakeha, when the settler population rose to overshadow that of the indigenous, the Crown simply confiscated the rest of the land (Smith 2014, p. 7).

These confiscations did not occur uncontested. In 1879, a sustained campaign of peaceful resistance began in Parihaka. The Crown’s response was to arrest all 600 protesters, despite the campaign breaching no occupational British laws and taking place on sovereign tribal territory, to which the British had no jurisdiction (Rākete 2016). The Maori prison population increased fourfold. This mass incarceration event was enacted not to punish social deviance, but rather, to suppress and remove indigenous people so that primitive accumulation could continue unhindered (Rākete 2016). This is not surprising if we see the penitentiary as a repressive apparatus of capitalism. Through the intermingling of capitalism and racism, biopower exerted itself in perfect alignment with capital logic; a logic that, time and again, undermines its own humanitarian visage. With Europe in crisis, it only made utilitarian sense to decimate the rights and lives of the minority Other.

Maori Land in the North Island, 1860-1939.
Maori Land in the North Island, 1860-1939.

The Reserve Army of Labour

With the destruction of the subsistence economy and the imposition of capitalist relations, Maori were transfigured into proletariat; working class citizens placed at the mercy of landowners (more commonly known as employers). Though formally democratic, Aotearoa, like most other capitalist nations, narrowly circumscribes democracy into that of the political sphere. When I enter into a ‘voluntary’ contract with an employer, I sell my labour power—I enter the totalitarian, competitive regime of corporatism. I do not vote my boss into power, I do not partake in any decision-making process. I simply work, hoping I will not be arbitrarily fired due to the ever mysterious dictates the market.

The New Social Movements of the 60’s and 70’s challenged the overt racism of the Crown. While these movements led to the formal recognition of biculturalism in Aotearoa, multiple socio-economic factors remained unaddressed. The outcome of treaty settlement processes often involved only monetary reparations (Smith 2014). Relations of power, property and wealth did not substantially change. As of 2017, Maori are still disproportionately concentrated in low-paying, blue-collar industries, with their median hourly earnings $4 lower than that of Pakeha (Stats NZ 2017b; Smith 2014) Biculturalism may have lifted Maori from shame, but not economic destitution.

Factory Workers, 1973.
Factory Workers, 1973.

This situation is not an unintended hangover from colonial relations. As Rākete (2016, p. 10) notes, “poverty is a key aspect of the system of capital production.” While not completely cut out of the economy, Maori, as a reserve army of labour, compete against one another for the few jobs that are available. Wages are kept low due to the small pool of jobs relative to the large pool of labourers. The ideological effect of this is the silencing of discontent. To resist such conditions would be to open oneself up to economic vulnerability, for one may be fired and replaced at any time. Not only does this divide Maori workers, but it also leaves them in a state of perpetual precarity. The rate of exploitation can remain high and predictable if wages and the rate of strike action remain low. (Rākete 2016; Smith 2014, pp. 10-20). Maori are left at the mercy of their employers (Smith 2014, pp. 21-24).

Mass Incarceration

The mass incarceration of Maori since the end of ‘formal’ racism has had considerable material and ideological effects. Smith (2014) noted in 2014, that since 1962, the number of prisoners in Aotearoa had increased fivefold. As if 2017, with a prison population of 10,035, this number is now sixfold (Corrections 2017), despite the fact that mass incarceration has had little to no effect on crime rates in other areas of the world (Davis 2003, pp. 9-21). While Maori only account for 14.9% of the nation’s population, they make up 50.9% of the prison population as of 2017 (Corrections 2017; Stats NZ 2017a). In addition, “Maori are more likely to be apprehended; once apprehended are more likely to be prosecuted; once prosecuted are more likely to be convicted; and once convicted, receive heavier sentences” (NZ Law Society 2016; Rākete 2016; Smith 2014, p. 3). The overwhelming majority of these crimes are non-violent (Smith, 2014, 10-20). The reactionary argument that Maori commit more crimes falls apart when we see that Maori are overrepresented at every stage of the criminal (in)justice system (CIS) (Rākete 2016; Smith 2014, pp. 10-20).

Department of Corrections, March 2017.
Department of Corrections, March 2017.

In what Davis (2003, pp. 9-21) calls “an era of migrating corporations” the economic foundations of communities are destroyed by capitalism’s endless drive for cheaper and cheaper labour. Through the destruction of social wealth, criminality becomes a survival tactic. With property and power on their side, the crimes of the rich go unnoticed as more and more of the poor are swept up by CIS. It is not surprising that up to 87% of prisoners in Aotearoa are unemployed at the time of their imprisonment (PAPA 2017b); and that, as of 2015, corporations made up only 0.6% of sentences in Aotearoa (NZ Law Society 2016). Furthermore, the mark of criminality does not fade upon exit from the penitentiary. In Aotearoa, one is legally obliged to reveal one’s criminal record to any and all agencies, if they should ask for it. The disproportionate imprisonment of Maori (especially Maori youth) then, acts as a socio-legal signifier of race, in an era of ‘post-race’ politics (Rākete 2016; Smith 2014, pp. 1-2, 10-20).

Racism is very much alive; inescapably twined into the institutions that have the most power to decimate communities and lives. No longer overt, racism exerts itself through “unconscious bias” (Brown 2015)—through state institutions that masquerade as neutral and objective, all the more hiding their violent raced, classed and gendered dimensions. There have been innumerable cases of CIS violence in Aotearoa. In 2006, Rawiri Falwasser, suffering from a psychotic episode, stole his neighbours car in an attempt to reach his relatives for help. The police arrested and placed him into a cell, with no mental support. He grew increasingly distressed over several hours. When he refused to move to another cell, four police officers assaulted him with batons and pepper-spray, for twenty minutes, until blood covered the floor and walls, and the cloud of pepper-spray became so dense the officers had to don gas masks. After donning the masks, they resumed the beating. All officers were acquitted of assault (ODT 2008; Reith 2008; Smith 2014, p. 1). Or in 2015, when a transgender woman, held in a men’s prison, was moved against her will from protective segregation into the general population. She was violently assaulted by seven male inmates. Correction’s moved her into a double-bunked cell, already housing another male inmate. He subsequently raped her (No Pride in Prisons 2016b). [1]

Racist, sexist fucks marching at the 2015 Pride Parade.
Racist, sexist fucks marching at the 2015 Pride Parade.

The Prison-Industrial-Complex

Davis (2003, pp. 9-39) links the rise of mass incarceration in the United States, to the abolition of slavery. Prior to its abolition, slavery was a source of immense capital (Davis 2003, pp. 22-39; Smith 2014). The recuperation of black slaves as prison labourers resolved any economic crisis that may have come in the wake of abolition. The penitentiary became the new site of absolute exploitation, a site that Davis (2003, pp. 22-39) states was initially worse than slavery, for convicts on lease, unlike slaves, were not owned. While slaves represented an economic investment, convicts could be worked to death without affecting profit-margins (Davis 2003, pp. 22-39). Slavery and convict labour were simply the most efficient and rational means towards economic expansion through industrialisation (Davis 2003, pp. 22-39). Neither slavery nor mass incarceration are aberrations in the history of liberalism, but rather, calculated, utilitarian decisions.

Aotearoa’s history is quite different from that of the United States’. Rather than a source of capital, the penitentiary in Aotearoa (as outlined in the previous sections), works more as an ideological apparatus—a site that encodes criminality to justify the unequal and exploitative capitalist relations elsewhere in our society. Aotearoa, however, still employs prison labour; and while we, as of 2017, have no private prisons, services are still subcontracted through multinational private companies such as Serco (Corrections 2017b), notoriously known for its ineptitude, corruption and abuse of human rights across the world (Hoyle 2016; Pennington 2016; NZ Herald 2017; Vance 2015; West 2013; 2015; Elgot 2013). As Davis (2003, pp. 84-104) notes, the prison-industrial-complex is immense: it involves the construction of facilities, the provision of electricity and clean water, the installation of security systems, the hiring of guards, medical, kitchen and admin staff, the purchasing of hygiene products, meals and drinks, clothing, mattresses, blankets and pillows, electronic devices, gym equipment, the implementation of timetables, therapy and training regimes. The contract for Mt. Eden prison alone was worth $10.5 million in 2016 (NZ Herald 2017). One of our most vulnerable populations is supplied by for-profit capitalist ventures.

America’s Prison-Industrial-Complex.

On the other side of the prison-industrial-complex lies prison labour. From the Department of Corrections’ (2001, pp. 5, 10, 14) Inmate Employment Policy: “Inmates are not employees of the Department of Corrections and are therefore not subject to the same wage rates, rights and remedies as private sector workers.”; “Setting a commercial objective will ensure that prison industries are self-sustaining.”; and lastly, “The rates for incentive payment range from $0.00 per hour to $l.00 per hour.” What we have here is the open discrimination of working prisoners entrenched in law. There is no discourse to deconstruct, no ideology to unveil, only the pure bureaucratic expression of a barbaric ruling class. The state’s desire to control, exploit and weaken an already vulnerable and humiliated population is their desire to rehabilitate, retrain and reintegrate. State rehabilitation is punishment (Foucault 1977).[2]

Section II: Repression and Resistance

1. Let me repeat the argument of earlier Enlightenment thinkers: the penitentiary exists as a place of rehabilitation.
2. This exploitation is not restricted to the sphere of production. While prisons provide basic necessities, a market of exchange exists. Canteen goods, such as food and toiletries, can be bought. As one report found, however, these goods can reach up to twice the price of those outside the facility (Owen, 2016). Not only are prisoners extremely underpaid, but the goods on offer are overcharged. Why work then? A report from 2016 found that prisoners live in unsanitary, derelict conditions and are often underfed (No Pride in Prisons, 2016a). The purchasing of food and toiletries becomes a necessity towards the maintenance of one’s body and dignity.

References can be found in Part II.

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