Courting disaster and indulging the Whiteness of the criminological imagination.

Rod Earle outlines his concerns about aspects of a recent court case in which a judge offered reading advice to a white supremacist criminology student. Drawing on Toni Morrison’s (1993) seminal analysis of whiteness and the literary imagination, Earle suggests the case has alarming implications that have been overlooked and underplayed.

Author Rod Earle

On 31st August 2021 Ben John appeared at Leicester Crown Court to be sentenced for downloading 67,788 documents from Nazi, neo-Nazi and similar white supremacist, antisemitic websites. The documents included information about bomb-making materials and techniques. John had previously been referred to the UK’s counter-terrorism Prevent scheme because he had come to the notice of the police and university authorities at De Montfort University where he was a criminology undergraduate. The police described him as a white supremacist with Nazi sympathies and he was charged with ‘possessing a record of information likely to be useful to a person committing or preparing an act of terrorism’ under Section 58 of the Terrorism Act.

In court, after considering reports, the judge in the case, Timothy Spencer, a senior resident judge and QC, opted for a two-year custodial sentence, suspended for two years, but it was his remarks to John in court that propelled the case into the newspapers and that should alarm criminologists. Spencer’s characterisation of the 21-year old’s behaviour as ‘an act of teenage folly’ is one thing, but his instruction that John should read more widely and that the judge provided a list of his preferred works of Shakespeare, Dickens and Austen was another . In passing down his sentence, Spencer instructed that John should be returned to court every four months where he himself would test his understanding of these great authors, remarking: “have you read Dickens? Austen? Start with Pride and Prejudice and Dickens’s A Tale Of Two Cities. Shakespeare’s Twelfth Night. Think about Hardy. Think about Trollope.” (BBC 2021; Richardson 2022)

As the unusual features of the sentence and the judge’s remarks became a news story I was alerted to it by a criminologist endorsing the sentence and the judge’s remarks on social media. For them the sentence was ‘excellent’ because reading such books and being encouraged to ‘really read’ them was far more likely to rehabilitate John than a period of custody. Others appeared to agree that a judge declining to impose an immediate custodial sentence and opting for a particularly ‘creative’ alternative was to be welcomed. I was aghast. The issue of racism had evaporated.

Before becoming a criminologist, as a youth justice practitioner I wrote hundreds of pre-sentence reports for teenagers. I know how difficult it can be, ethically and practically (Evans 2016). On some few occasions in the Crown Court I may have contributed to a surprise non-custodial sentence. Even now, still, as a criminologist that leans toward abolitionism, a small part of me wants to pay tribute to the author of the pre-sentence report if their work contributed to this non-custodial outcome. However, the judge’s remarks suggested a huge can of worms around which the criminological community remained relatively and characteristically silent. As I pointed out in my letter to a national newspaper (Earle 2021) the case clearly raised the issue of white privilege. In courts. In the judiciary. And, by implication, for criminology. It couldn’t be more obvious could it, I thought. A white judge, the white canon of English literature, a white defendant, an issue of white terrorism. Imagine if it had been otherwise and a young Muslim, perhaps named Rafiq Khan, was found to have downloaded thousands of inflammatory documents from ISIS-type and Al Qaeda-related websites. Imagine that this young man had already come to the notice of the police. What books and cultural icons might have sprung into the judges highly trained legal mind as potentially suitable remedies? None, probably. A long custodial sentence and possibly some liberal hand-wringing about a tragic waste of life is the best ‘Rafiq’ could hope for.

In 2008 this imaginary scenario, only worse, came very close to happening. A Muslim student, Rizwaan Sabir, who was reading for a Master’s degree in International Relations at the University of Nottingham and an Algerian member of staff, Hicham Yezza, were both arrested and detained on suspicion of terrorism. They were held in custody for seven days in solitary confinement and were eventually released without charge. After a long campaign, supported by no lesser academic figure than Noam Chomsky, the truth emerged. Sabir had downloaded a copy of the Al-Qaeda Training Manual from a US Government website, a publication that was freely available to purchase from Amazon, Waterstones, or WH Smiths and could be loaned via the local library. The police had manipulated the evidence about the 140-page manual in that they misinterpreted the nature of the document to a key witness, Dr Rod Thornton, who was Nottingham University’s in-house academic expert on terrorism and insurgency. In his formal police interview, Thornton was misled by the police into saying that Sabir’s possession of the document was irrelevant to his studies and research. This is because the police told him that Sabir possessed a 5,000-page bomb-making manual known as the Encyclopaedia of Afghan Jihad. Thornton’s statement, acquired through manipulation, was then used by senior officers running the investigation to justify Yezza and Sabir’s arrest (Townsend 2012). After a sustained campaign in support of ‘The Nottingham Two’, and legal proceedings brought by Sabir in 2011, the police were eventually forced to pay £20,000 in compensation to Sabir for his ordeal, apologise for his detention outside his home on suspicion of terrorism, and correct a series of intelligence logs that wrongly claimed he was a convicted terrorist. Characteristically, their internal investigations concluded that no officer was guilty of misconduct and no apology was offered for the way the men had been treated. Sabir went on to complete his studies and a PhD on counter-terrorism, and is now a lecturer in criminology.  

What interests me about the John case is that the judge’s ‘affective proximity’ to John, his whiteness, triggered Spencer’s liberal reflexes and paternalistic sentiments, resulting in the extraordinary remarks made in court about the intrinsic virtues of studying a narrow range of iconic English literature (Tickell 2022). And the way some criminologists appeared to identify with this feature of the case above any others.  Despite the lethal attacks of white supremacists in the UK, Norway, the USA and New Zealand, and evidence of the rising frequency of racist attacks in the UK and the increasing traction of fascist ideology across Europe, the judge did not fear the man in front of him, did not sense the threats in his actions or the huge reservoirs of racial animosity that sustained him – he felt sorry for him and found him pitiable – he identified with him. As I stated in my letter, if the characteristics of white privilege are sometimes hard to pin down, here was a case where they were self-evident.  

Equally problematic was the judge’s identification of a ‘solution’ that mobilised the myth-image of the benign effect of an enlightened (i.e. white) cultural education, and the apparent alignment of some criminologist’s with, and sympathy for, it. His sentence and accompanying remarks are not a ‘creative’ or ‘inventive’ feature to be embraced by criminologists, they are a clear expression of white power. They are profoundly and dangerously reactionary (Mondon and Winter 2020; Buck-Morss 2003). The ideas expressed in the remarks are central to the white liberal imagination and the notion of cultural superiority that propelled 19th century colonialism (Morrison 1993). Racism, and its corollary of race, promotes humanity as divisibly hierarchical with white people and white cultures at the apex. This historic crisis in the narration of what it means to be human recurs again and again within criminal justice systems. Casually reproducing the exclusionary violence of race in the phrases and sentiments expressed by the judge is an appalling act of white privilege in which John was only the most obvious beneficiary. It should have no place in the 21st century, no place in criminology and no place in court (Phillips et al 2022 – forthcoming).   

References

BBC (2021)  Ben John: Right-wing extremist gets suspended jail sentence – BBC News [accessed 19/09/21)

Buck-Morss, S (2003) Thinking Past Terror: Islamism and Critical Theory on the Left, London. Verso.

Earle (2021) A racist, a judge and a clear case of white privilege | Letters | The Guardian

Evans, J. (2016) ‘Artful Dodgers: The role of unreliable narrators in the production of authorised histories and assessments of young people in conflict with the law’, Deviant Behavior Vol 38:9

Mondon, A and Winter, A. (2020) Reactionary Democracy: How Racism and the Populist Far Right Became Mainstream, London. Verso.

Morrison, T. (1993) Playing in the Dark: Whiteness and the literary imagination, New York. Vintage

Phillips, C., Parmar, A. and Earle, R. (2022) ‘Seeing is Believing: How the layering of race is obscured by ‘white epistemologies’ in the criminal justice field’, Journal of Criminal Justice Education (forthcoming)

Richardson, A. (2022) Angelique Richardson | Reading Sentences · LRB 4 October 2021

Tickell, A. (2022) English Literature, Racism and Rehabilitation – OpenLearn – Open University

Townsend, M. (2012) Police ‘made up’ evidence against Muslim student | Police | The Guardian [accessed 25/11/21)

About the author

Rod Earle works at The Open University where he is a senior lecturer in youth justice in the School of Health Wellbeing and Social Care. He helped to form the BSC Race Matters Network and is a founder member of British Convict Criminology.  

[The author acknowledges with thanks the helpful comments and support of the Race Matters Network Co-Chair, Dr Monish Bhatia, Dr Rizwaan Sabir of Liverpool John Moores University in the preparation of this Blog].

r.earle@open.ac.uk

Twitter: @rod_earle

Why Were Prisoners Left Off the Covid-19 Priority Vaccination List?

Despite calls from health experts to prioritise the vaccination of prisoners, the UK’s punitive society prevented putting prisoners above law-abiding citizens.

Rosie Judd is a Politics and International Studies graduate from the University of Warwick with an interest in social politics. Her studies have focused on understanding how societal opinions govern day-to-day policy matters, particularly in light of the recent Covid-19 pandemic.

The Covid-19 vaccination programme presented a difficult challenge to the UK justice and punishment system: where do prisoners fit in our public health policy? For many, such a conversation was about the absolute health of inmates. Prisons were viewed as hotbed climates with porous borders that required the priority vaccination of inmates for their, and public, safety. Indeed, previous infectious outbreaks in prisons demonstrate the severity of prison walls.

However, where health experts were arguably naïve was their assumption that the vaccination list was simply a health matter. Rather, the list was a convergence of health and crime and punishment, which in our punitive society, meant that prisoners would not be put above law-abiding citizens. Really, no matter the strength of the health argument (which was strong), ideas on crime and justice triumphed. So, rather than discussing why prisoners should have received the vaccine first, it is more useful to understand exactly why prisoners could not be prioritisied.

First, is how we characterise prisoners. In today’s punitive society we adopt a harsh view on criminals. They are stereotyped as unruly, dangerous, career offenders who keep such labels even once they have served their punishment. With such labelling, punishment is more commonly administrated through i) retribution; where offenders morally deserve a penalty, and ii) incapacitation; where the prisoner is removed so they do not pose a threat to the public. There are other aims of punishment, such as rehabilitation, but these are subordinated to more penal aims. This punitive landscape is well evidenced by the steep increase in prison populations, where despite crime rates falling we still decide criminals need to be locked away.

Second, is what the aim of the punishment is. Today, society demands criminal justice is for our benefit, at the expense of what is best for prisoners’ own improvements. For example, we do not lock away prisoners to primarily help them, but to make us feel safe. Naturally, punishment and justice policy may have benefits to prisoners. However, this is a secondary thought to how law-abiding citizens benefit from the decision.

Third, is who directs prisoner characterisation and the focus of punishment. Notably, the public has increasingly demanded, or taken interest in seeing, expressive punishment. We view crime as an incredibly personal, emotional experience and therefore want to be involved in both how justice is administrated and how it affects us. Our inflated belief that crime is a national epidemic means that we demand harsher punishments too.  Of course, it is important to remember that these opinions are heavily shaped by the media. Given we care about these issues based on our personal consumption of them (i.e. the way we feel they will affect us), how the media directs us to think about crime will impact our attitudes. Therefore, with over-reporting of violent and sexual crimes to stories of ‘soft prison life’, the media is guilty of scaremongering the public and shaping their penal demands.

However, why exactly does public opinion on crime and punishment matter? For there are other matters we have opinions on but do not drive policy on as much. Fundamentally, the public has a key role in crime. We need to report crime, act as witnesses and jurors, or provide evidence, without which would undermine the success of our punishment and justice system.  Public trust is required to ensure we fulfil our roles, so it is vital that the government responds to public expectations of the system. Additionally, the government will serve public interest for electoral success. For contemporary politicians, punishment and justice policy is the opportunity to prove they will ‘get things done’ and act in favour of public interest.

So, today then we have a punitive criminal justice system which: i) constructs criminals as dangerous, ii) prioritises law-abiding citizens and iii) listens to public demand over expert advice. We have a society divided by ‘us’ and ‘them’, the ‘good’ and the ‘bad’, the ‘law-abiding’ and the ‘criminal’ – in which there is a clear order of preference. When health experts tried to argue that prisoners should be prioritised, this was asking us to completely overturn today’s attitude on crime and punishment. First, how we depict criminals would have to be based on vulnerability and hardship. Second, what the focus of crime and punishment is would have to prioritise criminals over law-abiding citizens. Third, who drives such decisions would have to be led by experts not the media and public.

Problematically, such changes are arguably difficult to induce and without these changes prisoners were never going to be prioritisied for a Covid-19 vaccine. In fact, even though the government did not actually prioritise prisoners, inflamed media coverage of the idea demonstrates the impossibility of the proposal. The government is not in a place yet to forgo public opinion on justice and punishment.

So yes, the Covid-19 vaccination programme was always going to require prioritisation. But no, deciding the list was not a simple health exercise. Rather, the vaccination list was the convergence of ideas on health and crime and punishment, which in our punitive society generates a contrast to serve the helpless and punish the contemptible. It was such an intersection that health experts failed to properly acknowledge and therefore why their bid for prisoner priority vaccination was never successful.

As a concluding thought, note the impact of failing to prioritise prisoners. With a lack of vaccines prisoners have been stripped of nearly all their opportunities: seeing family, undertaking education, and general day-to-day interaction. A report by the HM Chief Inspector of Prisons found most prisoners have spent over 90% of their time behind their cell door, with disturbing levels of well-being decline. Of course, law-abiding citizens have faced enormous restraints on livelihoods too. However, we must remember that such dramatic prisoner restrictions have risked indefinite rehabilitation failures – crossing the line between Covid-19 prevention and ensuring offenders re-enter society as better citizens. Failing to prioritise prisoners, not only illustrated exactly what our criminal justice system is but reinforced the dwindling focus on rehabilitation we have in this country.

Contact

Rosie Judd, Warwick University

Email: juddrn@btinternet.com

Photographs courtesy of author 

Political & Social Control Through Criminal Laws: politics of criminalisation in India

The marginalising tendency of criminal law has been effectively used to further a goal of political, social and economic marginalisation.

Naveed Mehmood Ahmad is currently working as a Research Fellow at Vidhi Centre for Legal Policy. He works in the area of criminal justice reform and has previously worked on the issue of criminalization of drug use in India. 

Human behaviour is governed by socially constructed norms that create acceptable paths of conduct. Any nonconformity with this is termed, by the mainstream, as ‘deviant behaviour’. When a conduct challenges societal sensibilities, recourse is often taken to laws for a more formal and sustained sanction. Criminal laws reflect this socially constructed idea of ‘deviant behaviour’ and categorize conduct that attract society’s condemnation as ‘crimes’. Since there is an underlying social and political current that drives criminal law, the legal construction of crime changes with the societal construction of deviance. This willingness of the State to co-opt social condemnation risks criminalising trivial acts or conduct that may offend sensibilities of the majority or dominant communities.

Conceptualising ‘crime’ and stricter penalties to satiate demands of the society often leads to a crisis of over-criminalisation and over-penalisation. It also institutionalises societal divisions and leads to marginalisation. For years, millions of people across the world have been criminalised for the mere expression of their sexual orientation or for consumption of prohibited drugs. Most legal systems today continue to respond to dominant value systems either by retaining or by removing criminal sanctions against drug use and homosexuality. Similarly, differing value systems continue to reflect in the criminal laws that seek to regulate, faith, personal relationships, eating habits etc.

Since, societal sensibilities govern conceptualisation of crime, their effect can also be seen in enforcement of criminal law. Inherent prejudices tend to categorise only certain kinds of deviant behaviour and even communities as criminal. This is evident from enforcement of criminal laws across the world, where racial/religious minorities are disproportionately affected by law enforcement.

Mirroring trends across the globe, the Indian prison statistics show that the percentage of scheduled caste and scheduled tribe prisoners in Indian jails is substantially higher, when compared to their proportion in the population. Research also suggests that Muslims are likely to be overrepresented in prisons as pre-trial and undertrial detainees and therefore tend to be over-incarcerated. As analysed here, 22 states in India have a higher proportion of Muslim prisoners than the Muslim population in the state. In a more recent trend, the politics of criminalisation has changed its character. It has now been used as an effective tool to further a goal of political, social and economic marginalisation.

Although preventive detention laws have for long been used to subvert judicial processes and fair trial, over the past few years it seems these laws have been exceedingly used to against Muslims. Forming only 14% of India’s population, Muslims form 16.6% of the convicts, 18.7% of the undertrial prisoners and 35.8% of the detainees in Indian prisons. The percentage of Muslims detainees has grown exponentially in Uttar Pradesh where it has gone from 33% in 2017 and 58% in 2018 to 83.9% in 2019. In addition to preventive detention, laws against cow slaughter, religious conversion and triple talaq – a form of instant divorce practiced by some Muslims, are pushing more Muslims into the criminal justice system.

Rooted in Brahmanical tradition, laws against slaughter of bovine animals criminalise millions of beef eating Hindus, Muslims, Christians etc. and marginalise farmers and cattle traders who now find it rather perilous to keep cows. Although the more vociferous opposition to these laws has come from Dalit groups trying to resist this attempt at maintaining caste hegemony, the manner in which the laws have been used in the recent years reflects a rather concerted political action. Over the past few years, due to an overwhelmingly communal rhetoric, dozens of people – mostly Muslims, have been lynched by mobs for transporting cows and for allegedly eating, storing or carrying beef. It has been reported that 98% of such violent incidents, since 2010, have taken place after the current dispensation came into power in 2014.  Instead of attempting to put an end to this vigilante violence, the State has chosen to reinforce the beef ban through laws; institutionalise cow protection groups; register cases against victims and shield perpetrators. As the debate on cow protection reignites, a more recent push for enacting an anti-cow slaughter law in Karnataka has been termed to be state sanctioned violence against Muslims and Dalits under the cover of law.

Criminalisation of Muslims was taken a step ahead when the government enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019. Although the Act is in accordance with the constitutional bench decision of the Supreme Court and declares ‘triple talaq’ to be void, having no effect on the marriage, it goes on to criminalise the act of pronouncing ‘talaq’ thrice, attracting an imprisonment of three years. While the government justified the enactment by stating that it will bring justice to Muslim women, it has been termed as an attempt to criminalise Muslim men rather than an attempt to emancipate Muslim women.

Male chauvinism and Islamophobia resurfaced as legal paternalism when anti-conversion laws began to be reshaped to have a chilling effect on inter-religious marriages. Although the recently passed Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 has been criticised for criminalising the right to choice, it is even more problematic for it has roots in the idea of preserving caste through endogamy. Building on claims that Hindu women are being converted to Islam under the garb of marriage, the new anti-conversion laws, while being blatantly sexist are aimed at vilifying Muslim men and to create more avenues for pushing them into the criminal justice system. With dozens of people already arrested under the law, it has proved to be a shot in the arm for communal forces operating on ground.

The concerns discussed above are a mere reflection of the unprecedented change occurring in India’s social and political life. While this may continue for the foreseeable future, there is an emergent need to revisit the debates on the extent of criminal law. The fact that criminal law can be so easily guided to achieve political ends, is reflective of the fact that its superstructure is not based on solid principles, immune from divisive political agendas. Although the ‘harm principles’ have been central to the discussion on the extent of criminal law, they have never really been universally followed, perhaps because legal systems haven’t conceptualised a force behind them. While stating that shifting and subjective notions of right and wrong cannot be a valid justification for restriction of fundamental rights, the Naz Foundation judgement envisioned constitutional morality as guiding framework for criminal laws and not popular morality. If the tendency of criminal law to co-opt social and political goals is to be checked and its marginalising tendency eradicated, the policy of criminalisation must be guided by constitutional principles.

Contact

Naveed Mehmood Ahmad works as a Research Fellow with the Criminal Justice team at Vidhi Centre for Legal Policy, New Delhi.

Email: ahmadnaveed183@gmail.com

Photographs courtesy of author 

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