Abolishing Carceral Distractions: Refusing the Discursive Punishment of Latinxs

Abstract

LatCrim scholars and LatCrim scholarship are concerned with working towards racial justice, particularly with and for Latinxs ensnared by the criminal-legal system. To support existing and future work in this area, we conduct a discursive analysis of existing research, public policy, and responses to policies at the nexus of crimmigration scholarship and Latinx sexualities to examine how the figure of “the criminal” drives scholarship on racial justice. We develop the concept of carceral distractions as a type of white distraction that orient us toward accepting carceral fate and consequences as an inevitable marker of state care, protection, and remedy for harm. Carceral distractions make it difficult to recognize the possibilities beyond and outside carceral formations and ideologies. We develop this article as an abolition feminist tool to help identify and understand carceral distractions. To do so, we pose three central questions when asking whether proposed interventions, approaches, or solutions are carceral distractions: (1) What are we oriented towards?; (2) What are we distracted from?; and (3) Who do we leave behind? Ultimately, we demonstrate how carceral distractions strengthen white supremacy by legitimizing carceral logics.

Keywords:

• Latinx/a/o criminology
• sexuality
• discourse
• abolition
• feminism

Introduction

When Mexico sends its people, they’re not sending their best. They’re not sending you. …they’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people … But I speak to border guards and they tell us what we’re getting … They’re sending us not the right people (Trump, 2015, June 16).

In fact, based on ICE’s own definition of a serious or ‘Level 1’ offense, only 12 percent of all deportations in 2013 were of people convicted of such offenses […] Relatively few people deported on criminal grounds had been convicted of violent crimes (Golash-Boza, 2015, p. 10).

The first quotation from Donald Trump exemplifies typical xenophobic, racist, carceral public calls to understand Mexican migrants as public dangers by invoking the figure of the sexual predator. The second quotation exemplifies work by anti-racist scholars and activists to respond to such claims with empirical evidence that migrants from Latin American nations rarely engage in violent or serious crime. We recognize the urgency of scholarship debunking racist carceral claims like Trump’s, especially because one of the things good empirical scholarship can do is use data to combat harmful beliefs and claims that justify oppressive practices and policies.

But are there costs to framing our understandings of oppression and violence as responses to white supremacist claims? How do both quotations reinforce a false binary between deserving and underserving, violent and non-violent immigrants, and the figure of The Sexual Predator against the Undocumented Immigrant? This framing provides justification for some policy shifts, including bipartisan investments in carceral and immigration reform. But it also positions carceral punishment and systems as normal, desirable solutions to social problems, and uses race, sexuality, and citizenship to reinforce an “us vs. them” approach to safety. Collectively, both statements ultimately bolster ideas about binaries between safe people and dangerous people, which links these social constructions to crime.

In the spirit of imagining beyond binary logics, we write this for and in conversation with people who teach, learn, and care about Latinxs’ self-determination, and who understand that punishment—whether interpersonal or structural—imperils liberatory possibilities. As invited contributors to this special issue on Latinx Criminology in The Journal of Criminal Justice Education, we envision this article as an appeal to reorient our collective pathways to freedom though an abolition feminist lens (Davis, Dent, Meiners, & Richie, 2022; Escobar, 2016). We know that LatCrim scholars and LatCrim scholarship are deeply concerned with how we might work towards racial justice, particularly with and for Latinxs ensnared by the criminal-legal system. To support existing and future work in this area, we conduct a discursive analysis of existing research, public policy, and responses to policies at the nexus of crimmigration scholarship and Latinx sexualities to examine how the figure of “the Criminal” drives scholarship on racial justice. As a multiracial collective of cishet women of color who are abolition feminists, we think and work in the tradition of anti-racist movements and scholarship. So this also compels us to ask what it means to leave a fundamentally anti-Black, racist category like “The Criminal” intact even and especially as certain approaches look to shrink the category of “The Criminal” by expelling undocumented immigrants from it (Escobar, 2016).

To think through the possibilities, we build on the concept of white distractions coined by Buggs, Sims, and Kramer (2020) to argue that a key function of racist and colonial ways of thinking is to distract from the important work of critical theorizing and freedom-dreaming by forcing marginalized people to “engage in the futile effort of attempting to prove one’s competence to people who are ideologically committed to mis(re)presenting you” (p. 1384). They show how white distractions function in the academy to force marginalized people to defend their knowledge and realities on whiteness’ terms, which maintains the existing racial order. In turn, we develop the concept of carceral distractions as a type of white distraction that orient us toward accepting carceral fate and consequences as an inevitable marker of state care, protection, and remedy for harm. This makes it more difficult to recognize the possibilities beyond and outside carceral formations and ideologies. Carceral distractions lead us away from understanding prisons, jails, detention centers, policing, surveillance, and punishment as causes of harm and violence, therefore obscuring that reform only invests more resources and energy into (re)producing carceral systems and the harm they cause.

Drawing on the model of question-asking advanced by Critical Resistance’s (Critical Resistance, 2021) “Reformist reforms vs. abolitionist steps to end IMPRISONMENT” poster, we develop this article as an abolition feminist tool to help identify and understand carceral distractions. We pose three central questions when asking whether proposed interventions, approaches, or solutions are carceral distractions: (1) What are we oriented towards?; (2) What are we distracted from?; and (3) Who do we leave behind? We show how these features manifest in popular and scholarly debates that implicate Latinx sexualities, and how carceral distractions ultimately strengthen white supremacy by legitimizing carceral logics.

Theoretical framework: Abolition feminism

Our analysis is driven by the visions of abolition feminism presented in Escobar’s Captivity Beyond Prisons: Criminalization Experiences of Latina (Im)Migrants (Escobar, 2016) and Davis, Dent, Meiners, and Richie’s Abolition. Feminism. Now (Davis et al., 2022). Escobar (2016) and Davis et al. (2022) advance an inextricable commitment to abolition and feminism as a path forward towards collective, radical freedom. Davis et al. (2022) write:

Abolition feminism is political work that embraces this both/and perspective, moving beyond binary either/or logic or the shallowness of reforms. We recognize the relationality of state and individual violence and thus frame our resistance accordingly […] Abolition feminism is a praxis–a politically informed practice–that demands international movement and insightful responses to the violence of systemic oppression…[it] does not shy away from contradictions, which are often the spark for change (pp. 3, 4, 5).

This provides us with the tools to reimagine Latinx struggles for self-determination beyond binary thinking that relies on responding back to carceral conditions. And instead, to lean into the messy contradictions that shape everyday violence and intertwined systemic oppressions.

Escobar (2016, p. 15) calls for an “explicitly feminist abolition framework because anti-criminalization and anti-incarceration understandings can often erase or exclude the ways in which […] subjugations are sexualized and gendered by primarily focusing on heterosexual men’s experiences.” She insists that true pursuit of radical freedom requires a focus on how women and those who are gender-expansive, fluid, non-conforming, and queer experience interpersonal and state punishment as linked. Central to this project requires understanding and intervening in gender-based harm through non-carceral means. Escobar specifies that “[a]bolition feminism is a ‘refusal to engage in politics of human valuing”’ (15). In other words, she invites us to ask: “What does a world look like where someone’s freedom and life are not contingent on (an)other’s immobilization and death?” (Escobar, 2016, p. 16).

The abolition feminist project fundamentally does away with the figure of the Criminal, and, in doing so, it also divests from the figure of the Innocent. Ruth Wilson Gilmore (2022, p. 484) articulates this need to move beyond these binary figures as “the Problem of Innocence,” writing:

[…] many advocates for people in prison and the communities they come from have taken a perilous route by arguing why certain kinds of people or places suffer in special ways when it comes to criminalization or the cage. […] this does not exhaust the litany of who shouldn’t be in prison, but what it does do is two things. First, it establishes as a hard fact that some people should be in cages, and only against this desirability or inevitability might some change occur. And it does so by distinguishing degrees of innocence such that there are people, inevitably, who will become permanently not innocent, no matter what they do or say.

Therefore, the Problem of Innocence (Gilmore, 2022) is precisely why Escobar (2016) insists that abolition feminism must do away with politics of human valuation; when the figure of the Innocent remains, caging and criminalization remain for those who cannot or will not be included. In other words, the Innocent requires the Criminal to exist. We see this binary unfold when certain vulnerable groups attempt to claim The Innocent label by claiming they are not engaged in “true” criminal behavior (Escobar, 2016). Escobar argues that this practice is rooted in anti-Blackness, in part because this leads us to ask who the “real” criminals are. She shows how Latina immigrants caught in the deportation regime are often painted as innocent, desperate migrants who came to the U.S. for survival, but that this framing justifies broader systems of carceral punishment by implicitly positioning Black people as true criminals and deserving carceral punishment. Such logics distract us from interrogating how the very category of “the criminal” is reliant on white supremacy as foundational to legal constructions and nation-making. Carceral distractions therefore operate as defense against criminalization. This defensive technique displaces criminal pathology onto other racialized groups, in part by positioning some groups at the border of innocence and belonging. This positioning therefore demands ongoing boundary work by those who proclaim carceral innocence in order to distance themselves from those criminally pathologized, in part by reifying the criminalization of those who cannot or will be read as innocent.

A key aspect of carceral distractions is the use of seemingly race-neutral language despite the ideal type of the Criminal rooting from anti-Blackness (e.g. Escobar, 2016; Miller & Stuart, 2017; Valdez, 2016, 2020). For example, state migration policy distracts us from immigration law’s roots in racial-chattel slavery and anti-Blackness (Escobar, 2016; Kurwa & Gurusami, 2022; Magee, 2009; Valdez, 2016). Contemporary implications of these distractions include the erasure of Black immigrant experiences within the crimmigration system. Examples include the high deportation rates and policing of Honduran and Haitian immigrants and diasporic communities, particularly when compared to Mexican and other Central American migrants (Ediberto & Sagás, 2020; Gutiérrez Rivera, 2018; Menjívar, Morris, & Rodríguez, 2018; Wu & Edmonds, 2020). These processes create gendered dynamics for immigrant women:

Gutiérrez Rivera (2018) argues that the historical and contemporary deployment of U.S. racial-colonial power on Central America shapes the hostile migration context for women from Honduras, both in the conditions that produce their forced migration to the U.S. to flee gendered violence and in racial-colonial representations of people from Honduras that make it nearly impossible for women to successfully claim asylum due to gender-based violence (Gutiérrez Rivera, 2018 via Kurwa & Gurusami, 2022, p. 370)

Collectively, this research indicates that the anti-Black ideal type of the Criminal intersects with the legal vulnerability of undocumented Black immigrants (e.g. Gutiérrez Rivera, 2018; Ritchie, 2017). We draw attention to the disproportionate rate of deportations for Haitian and Honduran migrants not to call for parity in immigration enforcement, but to show how immigration exclusion is embedded in anti-Blackness. Further evidence of the presumption of white innocence in this context is the national embrace of Ukrainian immigrants in the United States following the 2022 Russian invasion. Ukrainians were already painted as non-criminal because of their whiteness; Haitian, Honduran, Afro-Latinxs, and other migrants who experience anti-Blackness are not afforded the presumption of innocence and designated refugee status in the ways that white refugee applicants experience.

Feminist abolition therefore is not distracted by the figures of the Innocent and the Criminal. Yet, abolition and abolition feminism are often dismissed as utopian distractions from the urgency of criminal-legal reform; reformists often argue that the problems emergent from carceral violence must be achieved through gradual change, and that eliminating carcerality altogether is both unrealistic and impossible. Yet, Ben-Moshe (2018) argues that abolition is a dis-epistemology invested in unlearning carceral logics, particularly logics invested in “certainty, optimism, and certain notions of futurity and temporality” (p. 341). Specifically, abolition rejects demand for certainty regarding knowing exactly what the consequences are of abolitionist work. This demand for certainty delimits the creativity required to imagine and co-create different social worlds. Abolition also rejects demands for prescription that assume that there is one definitive path or answer, closing off the possibility for a plurality of knowledge and strategies to enact abolitionist futures. Lastly, abolition rejects demand for clairvoyance attached to optimism; instead Ben-Moshe argues that “living in the ‘perhaps’ is the position of the abolitionist. Not knowing how things end up is not a disadvantage but in fact opens up possibilities of other life worlds that cannot be imagined right now” (p. 351). We therefore argue that abolition feminism is not a distraction from intervening in violence, but is instead essential to eradicating it. In what follows, we demonstrate how carceral reform is a distraction from understanding and dismantling the conditions of violence. We show how carceral distractions function to maintain white supremacy through gender-based violence, even as reformist efforts claim–and even intend–to remedy racist, gendered, and sexualized harm.

Concept and application: What are carceral distractions?

We define carceral distractions as a type of white distraction (Buggs et al., 2020) meant to reinscribe white supremacy by making reform to the criminal-legal system’s carceral logics, institutions, and solutions seem like inevitable, common-sense approaches for the common good. Exposing carceral distractions also exposes how reform produces and reproduces existing politics of devaluation, filtered through white supremacy’s hierarchies (Escobar, 2016). Sometimes, carceral distractions may look like positioning prisons and jails as benevolent sites of social service delivery. In other instances, carceral distractions manifest when reformers focus their efforts on those who are easiest to paint as pitiable and redeemable. As a result, these efforts necessarily abandon-–and even further criminalize–those who are perceived as more dangerous under normative social rubrics. To name and articulate the many forms that carceral distractions can take, we present our readers with three key questions that help to identify when they are conjured and how they fail to adhere to the principles of abolition feminism: (1) What are we oriented towards?; (2) What are we distracted from?; and (3) Who do we leave behind? In what follows, we unpack why each question is effective in identifying carceral distractions and apply this analysis to cases of the punishment of Latinx sexualities.

What are we oriented towards? Punishment

Carceral distractions are seductive, particularly when they are invoked in the name of protection and humanity. Asking “what are we oriented towards?” demands that we visibilize and interrogate the dubious terms of benevolence when advanced through institutions and logics of punishment. We show how carceral distractions orient us towards what James Kilgore (2014) labels as “carceral humanism,” where reformers respond to carceral punishment and legal conditions by trying to craft a more humane system of policing, punishment, and surveillance. This is often accomplished in research by documenting the suffering that existing systems produce, but frame interventions as prospective revisions to specific practices within those institutions. Such approaches often focus on recognizing the humanity of carceral subjects by highlighting the conditions of their suffering, but do not propose to dislodge the institutions that craft these practices (Gilmore, 2022). Carceral distractions respond to the urgency that carceral punishment motivates by focusing on its most immediate and cruel consequences. Yet, working to make a fundamentally unjust system more humane is self-defeating because this approach does not ultimately challenge the ideologies that position punishment as a solution to social problems. This exposes how the humanity of people suffering under carceral punishment remains conditional and tenuous.

For example, scholarship focused on how carceral punishment shapes the migration experiences of Latinxs is often framed through the term “immigration reform.” While such scholarship necessarily documents the scale of abuses produced through the growth of crimmigration, such scholarship poses modifications to, rather than reimagining, the legal structures that shape immigration. For instance, recent news highlights the use of “robodogs” deployed at the U.S.-Mexico border,¹ which are capable of producing severe injuries, and even death, for those migrants who encounter them. Public outcry focuses on the scale of damage afforded by this technology–including limb amputation and the capacity for such instruments to pursue people crossing the border without the limitations of the human body. Yet, the focus is largely on the instrument, rather than the legal architecture of a system that makes it possible.

In contrast, Falcón (2006) documents how harm at the border–and specifically sexual harm–occurs by design. Writing about immigrant women who are sexually violated at the US-Mexico border, Falcón (2006, pp. 121–122) argues that this functions as racial-sexual discipline on behalf of U.S. empire, revealing how sexual violence functions as state and vigilante justice:

The cases of militarized border rape…can be categorized as a form of ‘national security rape’… undocumented women [are positioned] as ‘illegal’ and as having committed a crime. Thus, law-abiding citizens need ‘protection’ from these criminals; […] national security rape privileges certain interests; …ranchers […and] ‘Minutemen patrols’ […] are seen as legitimate because they are protecting their property, land, and families. Their actions are supported by the state because they are literally taking the issue of national security into their own hands.

Yet, such actions are routine instances of extreme violence experienced by Latinx immigrants, in part because “state sexual violation is defined as security, the opposite of abuse” (Jackson, 2013).

Some activists and scholars–in the name of justice for Latinx immigrants–argue that trans immigrants are particularly subject to sexual violence when incarcerated in detention centers. Such work highlights that trans immigrants who are imprisoned in detention centers are routinely subject to brutalizing conditions of sexual assault, which includes from correctional facility staff (e.g. Anderson, 2010). Yet, such approaches do not look to dismantle carceral punishment or trans immigrants’ vulnerability to them; instead, they advocate for carceral care by placing trans immigrants in facilities that recognize their gender identity. Even as much of this work challenges harm within carceral facilities–like the use of administrative segregation/solitary confinement as a form of protection for trans people in immigration detention–it does not fundamentally unsettle the existence of immigration detention or incarceration–itself. Carceral distractions orient us toward accepting detention centers and carceral facilities as social service delivery centers, capable of meeting the needs of marginalized people. They orient us towards understanding carceral institutions as liberal–or even progressive—political spaces of inclusivity. They distract us with the language of gender-sensitivity, responsiveness, and mental health provision, therefore making state punishment and surveillance institutions seem like benevolent purveyors of social progress (Ben-Moshe, 2020; Davis et al., 2022).

Ultimately, efforts to make inhumane systems of punishment more humane reveal assumptions–or even wishes–that carceral sites are functioning as designed when they advance cruelty (Davis et al., 2022). While carceral facilities like prisons, jails, and detention centers are often positioned by reformers as sites of essential service delivery,² they deliver sexual violence as a routine event of safety and security. For instance, one publication documenting the harm immigrants experience in detention centers finds that sexual abuse and lack of care for pregnant and post-natal people are two “major areas of concern” (Villalobos, 2011, p. 158). Villalobos’s recommendations for procedural changes in how ICE handles “special populations such as women, families, and asylum seekers” (p. 161) fails to account for how standard procedures upon entering carceral facilities–like strip and cavity searches–are sexual violence (e.g. Davis et al., 2022). To this end, Gómez Cervantes, Menjívar, and Staples (2017, p. 285) write that:

…detention centers encompass both “humanitarian” strategies […] as well as authoritative control, thus combining policies of order and policies of suffering. These “humane” tactics of control, confuse repression with compassion …, veil the violence that women experience, and deny women’s rights. At the same time, these tactics frame the government’s imposition to control and surveille in benevolent rhetoric that further fuses state control and immigrants’ everyday lives.

Gómez Cervantes et al. expose how “humane” tactics of carceral control reveal the limits of non-white humanity’s legibility. In Sylvia Wynter: On Being Human as Praxis (ed. McKittrick, 2015), scholars draw on Wynter’s work to unpack how “the human” emanates from the projects of white supremacy, including empire, anti-Blackness, and heterosexism. From this context, “humane” reform to carceral systems meant to hold non-white bodies is impossible, because such bodies exist outside Western conceptions of the human.

Efforts by scholars, activists, and policymakers that look to recover the so-called humanity of the most criminalized and marginalized people overlook the history of liberal democracies that are built on excluding non-white colonized and queer people from the category of the human (ed. McKittrick, 2015; Rodríguez, 2018). The inclusion of non-whites is always conditional and predicated on the fact that immigrant sexuality has always been a threat to the nation (Mogul, Ritchie, & Whitlock, 2011). For example, Chinese women were presumed to be “prostitutes” that justified barring entry and Arabs were seen as “sexually deviant” in the twentieth century (Massad, 2008). Scholarship focusing on emphasizing individual immigrants’ innocence and victimhood operate within a white supremacist system that has already cast all non-white groups as sexually deviant. Calls for reforming immigration therefore assume that the system is “broken.” Instead, we draw on abolition feminist knowledges to argue that the system is functioning as designed: to mobilize the perceived claims of sexual deviance among non-white populations to justify the seizure of Indigenous lands, imperial expansion, racial-chattel slavery, and the collective efforts of Manifest Destiny as a sexually civilizing project. Therefore, even if individuals are judged by legal systems as innocent of criminal intent and activity, the nation-making project of the U.S. as one of white supremacy cannot be legitimized without legally casting non-white and queer populations as perpetual sexual risks.

In summary, carceral distractions implicitly orient us toward understanding carceral punishment as a mechanism for protecting white humanity from the Racialized Criminal, but without explicitly invoking white supremacy (Cacho, 2014; Rodríguez, 2021; Valdez, 2016). Lisa Marie Cacho (2014) points to racist and sexist tropes as critical to carceral power, writing that “[…]racist and sexist attitudes and actions have so much power to do so much damage precisely because the presumption of (white) innocence normalizes, in fact, demands, violence against black and brown bodies.” (p. 1089). Carceral punishment is a critical mechanism of simultaneously insisting on white innocence while using state punishment to exact violence against people of color. Carceral humanism is therefore designed to fail because humanity is only extended to the (white) Innocent at the expense of the (non-white) Criminal. The invocation of Latinx sexual promiscuity is therefore mobilized to further reinforce both white innocence and the potential for victimization; carceral power therefore requires Latinxs to exist outside the category of the human. This means that only the “carceral” of carceral humanism can be extended to Latinxs caught in the criminal-legal system. In short, carceral distractions orient us toward white supremacy by reifying the figures of the white Innocent and the non-white Criminal.

What are we distracted from? Accountability

Carceral distractions function as a sleight of hand; they draw our attention towards seemingly positive, benevolent carceral interventions while masking how the state weaponizes carcerality to produce structural and interpersonal harm. Asking “what are we distracted from?” requires that we expose the underbelly of carceral violence: the harms it makes possible, the violence we are supposed to accept in the name of the common good, and how the state is held to different standards of accountability and harm than the people it criminalizes. In this section, we show how carceral distractions move us away from imagining and pursuing true freedom from harm and violence (Kaba, 2021). In other words, reformist measures distract us from understanding that the law and the state cannot liberate us or provide accountability from harm, especially because it mobilizes gendered, racialized, and sexual violence to enforce carceral power.

Carceral distractions, especially when invoked to resolve sexual or gender-based harms, reflect institutional attachments to what abolition feminists (building from Black radical traditions) call “carceral feminism” (Kim, 2018; Richie, 2012; Ritchie, 2017). Carceral feminists seek redress and punishment through the law as a solution for gender-based harm (Kim, 2018), largely as an attempt to protect vulnerable populations from violence. However, abolition feminists critique this approach as one that places the burden of legal proof on those who are harmed, reproduces trauma and reifies logics of rape culture, and fails to structurally prevent sexual violence (Jackson, 2019; Kaba, 2021; Meiners, 2015; Richie, 2012; Ritchie, 2017; Whalley & Hackett, 2017).

Carceral feminists often point to sexual violence against children, queer people, women—especially those of color—as problems we need to take seriously. They often point to low rates of arrest, prosecution, and incarceration among men who commit sexual violence, and therefore call for more aggressive state punishment against those who commit sexual harm. However, posing incarceration as a solution to sexual harm, when part of carceral punishment is subjection to sexual harm, exposes how carceral feminism displaces sexual harm rather than prevents or intervenes in it (Levine & Meiners, 2020). For example, sexual violence is part of the punishment of incarceration by design; strip searches, surveillance while bathing, and common jokes about rape in prison expose how sexual violence is built into carceral punishment (Davis, 2003; Richie, 2012; Ritchie, 2017).

Furthermore, carceral punishment as the primary solution to sexual harm is rooted in the history of colonialism and slavery. While Black and Indigenous women have been routinely violated as a part of colonial discipline, Black men have been constructed as criminal sexual predators and lynched under the pretext of protecting white women (e.g., Davis, 1981; Deer, 2015; Haley, 2016; Roberts, 1999). Sexual violence and carceral punishment for it, therefore, is always already a tactic of colonial governance and race-making. Relying on the state to produce accountability for sexual harm reflects wishful thinking made into policy; carceral punishment simply amplifies the conditions that produce sexual harm within carceral institutions and outside of them. Looking to the state to hold those who create harm accountable obscures that the state does not hold itself accountable for the structural production of gendered, racialized, and sexual harm, particularly through the criminal-legal system. Moreover, the state’s lack of accountability for itself—whether through meaningfully responding to sexual assault by correctional and police officers, providing spaces for healing for those who are harmed by state agents, or providing reparations for the use of sexual violence to advance enslavement and colonial expansion—reveals how individuals who cause harm are held to wildly different standards of supposed accountability. Calls for more punishment distract us from understanding that the state does not provide freedom from violence. Abolition feminism pushes us to recognize that the state is a source of violence, so appealing to the criminal-legal system for freedom is destined to fail.

One common manifestation of this failure is in the conflation of legal notions of emancipation with freedom. Abolition feminist scholars explain that while emancipation is a category status that the state or other dominant actors situationally give to marginalized subjects, freedom can never be given—it is “taken and created. It exists as a right against the captor and/or slaver and a practice shared in community by the subordinate captives” (Escobar, 2016; James, 2005, pp. xxii–xxiii). The conflation of legal emancipation with freedom reifies our reliance on the state to govern, surveil, and punish the populations under its power and masks investments in civil reforms with the veneer of freedom-making. Appeals to the state for paths to citizenship as mechanisms to spread freedom fails to recognize that citizenship, by definition, is a project of exclusion and boundary-making (Escobar, 2016; Nakano Glenn, 2011). Therefore, citizenship pathways might offer something in the way of emancipation, but a narrow focus on citizenship and legal residency often distracts and moves us away from the possibilities of racial-sexual freedom.

Abolition feminism pushes us to understand that the state should not be trusted to determine what constitutes legitimate violence and harm for immigrants, which in turn determines migration and citizenship status (Kaba, 2021). Reformist efforts in the crimmigration system distracts us from the state’s demonstrated record of intentional misrecognition of violence and harm. Therefore, abolition feminism pushes us to understand that the state should not trusted to determine what constitutes legitimate violence and harm for immigrants, which determines whether immigrants are granted refugee status on the basis of gender or sexual persecution. Accountability cannot meaningfully exist in this context, in part because the state reifies violence through its evaluation process of what constitutes legitimate or serious harm (Davis et al., 2022).

A critical example of this is the Violence Against Women Act (VAWA), first implemented in 1994. It operates under provisions of conditional protection for those immigrant women who can demonstrate they are deserving subjects (Abbasi, 2020; Villalón, 2010). One of the ways VAWA operates as a carceral distraction is that it ultimately conflates the pursuit of citizenship and legal residency status as freedom from gender-based harm. Villalón (2010) argues that one of the key provisions of VAWA is that it provides employment authorization for immigrant women. She writes that, “[b]ecoming a lawful member of the United States begins…with the possibility of participating legally in the labor market, which also means the duty of collaborating with the taxation system (another instance of economic membership)” (Villalón, 2010, p. 38). To invoke VAWA also requires that immigrant women are married to their abusers, and further that they can establish a legal relationship with the state proving they were routinely subjected to abuse from their spouse. People in abusive relationships often avoid calling the police to avoid triggering the criminalization of those they love, and the introduction of mandatory arrest laws can also result in those who are being harmed getting charged and arrested as well (Richie, 2012; Ritchie, 2017). VAWA therefore produces subjects worthy of protection in part by mandating carceral cooperation, and the reward of emancipation from an abusive marriage is to participate in a labor market that harms and devalues immigrant women of color.

The failures of carceral feminism have particularly damaging implications for Latinx immigrants experiencing domestic violence. Specifically, carceral feminist scholarship confuses arrest, punishment, and surveillance with accountability, in spite of evidence that such interventions punish survivors of color (e.g. Richie, 2012; Ritchie, 2017). For instance, Ammar, Orloff, Dutton, and Aguilar-Hass (2005) propose that a critical intervention in domestic violence should be to encourage immigrant Latinas to call the police for assistance and a positive outcome includes an arrest of the person who harmed them. Such claims assume that the most effective tactic to escape a violent situation is to reach out to police, sidestepping the fact that the very structure of law enforcement relies on violence as a means to intervene in crisis situations. It also ignores that many people who are abused do not want those who harmed them to be arrested; the threat of carceral intervention is a deterrent towards escaping abuse and asking for help. It further assumes that problematic police responses are due to lack of diversity and language training rather than confronting that policing is built and relies on maintaining white supremacy (Davis et al., 2022). Furthermore, as a heteronormative policy intervention, VAWA does not provide a pathway towards emancipation for those who are unmarried and/or in queer relationships. Calls to “strengthen” the provisions of VAWA often focus on the imposition of criminal penalties for those who cause gendered-based harm to their spouses, but these calls narrowly produce worthy victims as those who are willing to participate in carceral constructions of gender, immigration, labor, and sexuality. Therefore, for many immigrant Latinxs, VAWA provides neither emancipation nor freedom; it ushers state surveillance and punishment into their lives, with the prospective possibility of future stable immigration status and selective protection from gendered violence as justification for a carceral response.

The responses from Latinx civil rights and community organizations to the sexual harassment and subsequent 2020 murder of former U.S. soldier, Vanessa Guillén, by another enlisted soldier, Aaron David Robinson, illustrate the inevitability of political failures when carceral distractions shape notions of accountability. Organizations including The League of United Latin American Citizens (LULAC) emerged as prominent voices in the collective outcry and demands for justice following Guillén’s murder. Among LULAC’s calls to action included demands for an independent criminal investigation and prosecution of Robinson, while advocating for reforming the military to develop a culturally competent approach that recognizes the unique experiences and needs of Latinx families who commit to military service. In addition, in a June 2020 press release, LULAC national president, Domingo Garcia, urged Latinas to boycott the military “until we have assurance they will be protected and taken care of when they serve our country. And right now I just don’t believe the military is capable of doing that because of what happened to Vanessa Guillén.”³

The reformist measures advanced by organizations like LULAC sidestep the fact that the military is, by colonial design, a mechanism of sexual violence both in the interpersonal relations between members of the military and in the mandates of the U.S. military to advance U.S. interests in imperialist expansion at the expense of dispossessed people (Mesok, 2016). These calls for reforms also ignore the strategies that the military engages in to purposely target poor and working-class people of color for military service, especially in service that increases their odds of experiencing permanent injury and death. Further, when Garcia demands a police investigation into Guillén’s murder that is independent from the military, he presumes that the police force is actually capable of bringing closure and accountability to Guillén’s family, rather than simply expanding the modes of violence pervading the conditions surrounding her murder. Importantly, the rallying cries following Guillén’s murder often cited her military service as a reason to demand swift justice given the unequal treatment of women of color soldiers. Whether intentional or not, these remarks suggest that Guillén represents a respectable Latina deserving of retributive punishment, in contrast to the many trans and cisgender women of color who routinely experience sexual violence and are largely ignored in national outcries. By positioning the military as the true “wrongdoer” in need of punishment and correction, responses like LULAC’s undermine important dialogues and actions regarding the abolition of the military. In conflating recognition of harm with punishment and accountability, such strategies look to emancipate Latinas by making the military a sexually safe place for them to serve. Presenting “service” as a pathway to emancipation for Latinxs is a carceral distraction as it masks the predatory aims and tactics of the military that exploit poor people of color.

Who do we leave behind? The “unworthy”

Carceral distractions rely on the binary of exceptionalism and disposability as a reason for a group to escape punishment, and thereby position other groups as disposable and deserving of exclusion and punishment. Carceral logics construct the physical and social removal and incarceration of people convicted of crimes as the most effective means to punish and rehabilitate. Thus, this binary requires that marginalized people prove their economic, social, and political value to the (white) national polity (kehal, in progress) to be considered worthy of national inclusion. These claims often rely on essentialist constructions of marginalized groups–as a hardworking, respectable, resilient, and/or achieving in ways that validate mythologies about the American Dream–that obfuscate structural inequalities and prevent solidarity-building between marginalized groups (e.g. ed. Abrego & Negrón-Gonzales, 2020; Guzmán, 2020; Mitchell, 2018; Oliviero, 2021). Exceptionalism legitimizes an unjust system by allowing only a small number of marginalized people incorporation into the polity, albeit tenuous, thus projecting that the system is functioning based on meritocratic ideals. An abolition feminist approach refuses a politics of disposability and asks us to consider who and what we sacrifice if we leave anyone behind (Davis et al., 2022; Escobar, 2016).

Carceral distractions rely on a binary construction between those who deserve criminalization and those who do not. For Latinx migrants, particularly those with liminal or undocumented legal status, the line between those who are deemed worthy targets of carceral punishment and those who can escape it is fine, blurry, and porous. Carceral distractions function to highlight so-called “bad apples,” which serves to make sexual violence seem exceptional, both in how it is deployed and by whom (Davis et al., 2022; García, 2019; Kaba, 2021). Yet, sexual violence is a remarkably common experience, particularly for those who are multiply marginalized across race, gender, sexuality, citizenship, socioeconomic status, and other forms of structural vulnerability (e.g. Kaba, 2021; Ritchie, 2017). Legal structures also individualize sexual harm by locating it as both a violation of and by the individual, and therefore frame intervention in sexual violence as the pursuit of individualized punishment and blame (e.g. Davis et al., 2022; Kim, 2018). In this context, controlling images of the Latinx migrant rapist, the mother of the so-called “anchor baby,” the sex worker, and other images all pose different types of potential sexual harm to the white national imagination, inclusive of prospective embodied harm, fiscal dependency, disease, and moral violations (Chavez, 2008; Escobar, 2016; Flores, 2016; Guzmán, 2020; Maldonado, 2019). Yet, heteropatriarchy produces sexual violence as a form of structural violence, in that sexual violations in the forms of humiliation, bodily harm, and sexual policing are routine forms of everyday socialization. By focusing on individual perpetrators of harm—finding and punishing these individuals—legal-carceral solutions to harm are made to seem like natural, normal, and desirable correctives to gender and sexual violence (Davis et al., 2022; Levine & Meiners, 2020). This carceral feminist approach strengthens carceral systems in the name of gender justice (Davis et al., 2022).

For example, U-visas seemingly provide immigrant victims of mental and physical abuse with state protection, so long as they cooperate with the State. The U-visa was created as a part of the legislation Victims of Trafficking and Violence Protection Act to strengthen the prosecutorial arm of the state in the name of protecting victims. First, the U-visa frames violence immigrant women face as solely interpersonal violence while obscuring structural, and particularly, state violence. Second, the imperative to provide the state evidence of their mental and physical pain as a condition for emancipation is not only dehumanizing and, often, traumatizing, it gives the state discretionary power to decide whose pain counts. Third, the requirement to collude with the police and prosecutors, often against their own family members, reinforces the state’s power to coerce and control. Such processes create a binary between a deserving victim and a criminal threatening national security interests; those women who refuse to “help” the state by assisting in the prosecution of a supposed security threat then are positioned as criminal co-conspirators. Scholarship that emphasizes how women are “victims of crime” as opposed to “criminals” overlooks how unstable and blurry the boundary is between victim and criminal (e.g. Abbasi, 2020; Villalón, 2010). In trying to construct Latinas as victims of gender-based violence, such claims assume that the category of victimhood is stable for Latinas–or that it should be. This process reifies the disposability of those who cannot or will not concede to the state’s selective operationalization of victimhood, thereby cementing particular bodies within the category of “criminal” (e.g. Guzmán, 2020).

The invocation of Deferred Action for Childhood Arrivals (DACA) and DREAMers in the immigrant rights movement is emblematic of the role of exceptionality discourse and its positioning as oppositional to criminality. Former President Obama, who earned the title “Deporter-in-Chief” as his administration deported more immigrants than any previous administration, invoked the rhetoric of DREAMers as exceptional from other immigrants, in part by being indistinguishable from citizens and those with stable immigration status: “These are young people who study in our schools, they play in our neighborhoods, they’re friends with our kids, they pledge allegiance to our flag” (Barack Obama, 2012, June 15). This vision of who is a deserving immigrant hinges upon assumptions that DACA recipients want what “good” Americans want: a means to pursue upward mobility. What remains unspoken in Obama’s construction of DREAMers is that these are young people who “chose” to uphold law and order by not engaging in criminal activity that is often imagined of undocumented adults writ large. As such, DREAMers are cast as innocents dragged into illegal activity, unlike their parents who “chose” to break the law. In this way, the innocent/criminal binary draws a line of criminalization within families by age, ability, generation, and sexuality (Oliviero, 2021).

Undocuqueer youth expose how legislation like DACA engage carceral distractions by relying on notions of exceptional achievement, conditional innocence, and sexual normativity (Cisneros & Gutierrez, 2018; Oliviero, 2021). The reliance on sexual heteronormativity and tropes of innocence erases the multiplicity of tactics that undocuqueer youth engage in to survive. For example, Cisneros and Gutierrez (2018) highlight that while sex work was common amongst their undocumented trans respondents because of the difficulties in finding work while undocumented, their engagement in sex work made them vulnerable to increased police harassment and the looming threat of deportation. Trans undocumented Latinx youth are not simply multiply positioned to encounter carceral punishment; they are representative of the supposedly sexual threat that immigrants of color pose to the nation. Therefore, they are often constructed as deserving punishment, disposability, and exclusion. Trans people of color are constructed as sexual threats to the nation’s children, even if they are children themselves. Additionally, because trans people—especially those of color—are often assumed to be sex workers, perceptions about sex workers as carrying disease across borders further positions trans Latinxs as sexual risks to the nation. This also results in trans people of color being stopped and criminalized by law enforcement for existing in public space, with queer youth of color being especially vulnerable to these stops, in part because they are more likely to lack stable housing and shelter (Ritchie, 2017; Robinson, 2020). In sum, normative constructions of nationhood, race, sexuality, and citizenship construct queer desire as pathological, violent, and therefore grounds for criminal suspicion (e.g. Cisneros & Gutierrez, 2018; Cohen, 2004; Oliviero, 2021; Richie, 2012; Rodríguez, 2014).

The emphasis on innocence and productivity of immigrant youth therefore erases that youth who cannot legally obtain employment still have economic survival needs, and these needs must often be met outside the law. Therefore, the innocent/criminal binary disqualifies those with criminal convictions from being granted protections under DACA. This means that those with DACA status may merely escape formal criminalization, even if they must engage in unlawful activity to gain the economic means for survival. In sum, even as DACA excludes criminalized Latinx youth who desire the pursuit of higher education, it also says nothing of those populations who are not young, who do not desire the questionable pursuit of higher education as a means of upward mobility, and those who cannot or will not conform to the tropes of innocence as deserving of survival resources. To respond to Trump’s claim that Mexico is “not sending their best” by pointing to DREAMers exposes how “best” relies on ageist, ableist, classist, and heterosexist notions of exceptionality and achievement. This is a carceral distraction away from the forms of white mediocrity that are not only permitted in everyday life, but are rewarded (Mitchell, 2018).

Conclusion

What is possible if carceral logics and practices stopped distracting us from working towards the world we all deserve? This question was not only the motivation for this article, but the motivation for the lives we want to live and the lives we think we deserve. Each of us, as the authors of this article, have been violently touched and shaped by carceral systems. We and those we care for-–and even those we don’t—should be afforded futures that exist outside of the looming threat of punishment and violence. Time and time again, we find ourselves asking: How do we build this world? How do we refuse the distractions that come from trusting our futures to carceral systems that harm, confine, and punish? Are we truly asking ourselves as activist Paula X. Rojas does: “Are the cops in our heads and our hearts?” (Rojas, 2017, p. 197).

As people who work at universities, the latter question is what, perhaps, we imagine is so important for those coming to this special issue on LatCrim in The Journal of Criminal Justice Education. We believe that as long as the cops are in our heads and our hearts, carceral distractions will drive our scholarship and work, therefore limiting the possibilities of freedom we can imagine and pursue. We envision the introduction of carceral distractions as central not simply to this special issue on LatCrim, but as core to the possibilities, pitfalls, and paradoxes of a criminal justice education. As we think about the future possibilities and projects of LatCrim and refusing its vulnerabilities to carceral distractions, we are compelled by the insights offered by Cisneros and Gutierrez’s queer-of-color critique (Cisneros & Gutierrez, 2018, p. 85): “Scholars need to remain attentive to the ways that power—through representation, authorizing agents, and discourse—legitimizes certain ways of being while invalidating and consequently marginalizing those that do not conform to prevailing cultural, political, or social norms.”

Criminology and criminal justice education serves academics and practitioners, so what we teach and learn in our classrooms are carried well beyond the borders of educational institutions. The concept of carceral distractions has forced each of us-–especially as the authors of this article—to reconsider the costs of common academic arguments we’ve made in our classrooms, and that those who end up paying those costs are often the most marginalized in our social worlds. Abandoning the figure of the Innocent also allows us the freedom to acknowledge that we, as academics, are never innocent; we are implicated in the social structures that produce harm, in part because of the status conferred upon us as supposed “experts.” We therefore envision carceral distractions as supporting LatCrim because we know that scholars in this realm are often committed to justice, and that often means committing to reflecting on the hard questions that implicate those of us—especially us-–who are trying to pursue and build a radically different world than the one we live in now. Doesn’t it then follow that we consider the consequences of the frames and arguments we employ, regardless of our intentions?

Feminists of color have taught us about the liberatory possibilities that come with ongoing dialogue. As such, we are compelled to recognize important critiques that will likely emerge from reading this article. For example, some may question whether we essentially, “pass our own test” in creating the conditions for the freedom-making that we advocate for in this article. We write this article using the colonial language of English, using jargon that is often inaccessible to non-academics, for an academic journal that uses paywalls to benefit for-profit publishers and further exclude non-academics from this arena of knowledge production. In another vein, some may suggest that our framework does not recognize that it is not safe for everyone to work toward the visions of freedom that we advocate for in this piece. And of course, we are cognizant of the oft-used criticism of abolitionist perspectives that contend that we cannot afford to wait for abolitionist futures and instead, we must center immediate harm reduction.

We recognize these as questions of accountability. Yet, we also wonder how carceral distractions may be embedded in the premises of these questions. We do not envision freedom-making as a test; to do so imposes punitive conditions on the imaginative capacity of freedom-building. While we are limited by the language and elitist expression of colonial conditions—within and beyond the academy—abolition feminism presses us to use whatever imperfect tools and mediums that we have at our disposal to dislodge the cops in our heads and hearts (Rojas, 2017). Those tools may be art, protesting, or even an academic article like this one. We envision this article as part of an incomplete, in-progress archive building towards something we do not yet know (e.g. Davis et al., 2022; Kaba, 2021; Purnell, 2022), and we hope it serves as some small inspiration for LatCrim students and educators to consider the infinite means of building and envisioning futures that are not limited by carcerality. We also envision the rejection of carceral distractions as a mechanism of recognizing the capaciousness of LatCrim, particularly as it recognizes the contributions of scholars, thinkers, activists, and interlocutors who are not part of the Ivory Tower. We believe that there is nothing to be lost when we are unafraid of failure, particularly because we know keeping carcerality in-tact always produces failures of freedom. We will not be distracted by the demand to know exactly what we are building when the process of building collectively and bravely is what matters most (Ben-Moshe, 2018; Bey, 2021; Davis et al., 2022; Kaba, 2021; Shange, 2019).

Acknowledgments

The UIC Criminology, Law, and Justice Department Speaker Series received the earliest iteration of this work with enthusiasm and support, and their collective engagement inspired much of what landed on these pages. We thank the guest editors of this issue and the anonymous reviewers for their comments that notably improved this article. We are grateful to abolitionists across and beyond borders whose commitment to world-making motivated our arguments.

Disclosure statement

No potential conflict of interest was reported by the authors.

Additional information

Funding

The UIC Criminology, Law, and Justice Department Speaker Series received the earliest iteration of this work with enthusiasm and support, and their collective engagement inspired much of what landed on these pages.

Notes on contributors

Susila Gurusami

Susila Gurusami (equal author) is a sociologist and Assistant Professor in the Department of Criminology, Law, and Justice at University of Illinois Chicago. Her interests include carceral governance, abolition feminism, race, gender, and sexualities.

Rocío R. García

Rocío R. García (equal author) is Assistant Professor of Sociology in the School of Social and Family Dynamics at Arizona State University. Her research interests focus on intersectionality, social movements, critical social theories, and reproductive justice.

Diya Bose

Diya Bose (equal author) is an Assistant Professor in the Departments of Sociology and Gender, Sexuality, and Women’s Studies at the College of William and Mary. Her interests focus on gender and sexuality, law and governance, intersectional feminisms, and post-colonial feminist theories.

Notes

1 Holmes, O. (2022, February 4). US tests of robotic patrol dogs on Mexican border prompt outcry. The Guardian https://www.theguardian.com/us-news/2022/feb/04/us-tests-of-robotic-patrol-dogs-on-mexican-border-prompt-outcry

2 See, for instance, the Los Angeles Sheriff’s Department characterization (at the time of this writing in March 2022) of Twin Towers Jail as the largest mental health care facility in the nation http://shq.lasdnews.net/pages/tgen1.aspx?id=TTC

3 Lopez, R. (2020, June 29). LULAC president urges Latinas not to join the military after the disappearance of Vanessa Guillen. Kens5 San Antonio News

https://www.kens5.com/article/news/national/military-news/lulac-natl-president-domingo-garcia-says-the-military-is-not-protecting-female-soldiers-vanessa-guillen-disappeared-from-fort-hood-two-months-ago/287-b8a1c16b-36ca-4ab5-a2b9-a5bac0bc97ef