Harvard Law Review Harvard Law Review Harvard Law Review


Unsettling History

The full text of this Book Review may be found by clicking on the PDF link to the left.

At the time she set out to write City of Inmates, Professor Kelly Lytle Hernández wanted to tell the story of the “long rise of incarceration in Los Angeles” (p. 1). As a Los Angeles–based scholar, she was understandably drawn to study the question of how it was that Los Angeles came to “operate[] the world’s largest jail system.”1×1. Vera Inst. of Justice, Los Angeles County Jail Overcrowding Reduction Report, at i (2011), https://storage.googleapis.com/vera-web-assets/downloads/Publications/los-angeles-county-jail-overcrowding-reduction-project-final-report/legacy_downloads/LA_County_Jail_Overcrowding_Reduction_Report.pdf [https://perma.cc/2LGR-EM2K]. The report goes on to note that “[t]he County’s criminal justice system is extraordinarily complex, involving 88 municipalities, 47 law enforcement agencies, more than 30 criminal courthouses, and eight jail facilities.” Id. How did it come to be that “no city in the world incarcerates more people than Los Angeles” (p. 1)? The book jacket for City of Inmates states that the resulting book “explains how the City of Angels became the capital city of the world’s leading incarcerator.”2×2. Emphasis has been added. Although this characterization is consistent with some passages in the book itself, it is also not quite right. City of Inmates is not, in fact, an analysis of the mechanisms of racialized mass incarceration in Los Angeles. This book seeks to explain why Los Angeles is a leading site of racialized mass incarceration. Understanding that distinction is the key to grasping the significance of the work.

In her initial conception of this book, Hernández’s plan was to answer the “how” question. Her efforts to study the carceral state of Los Angeles are responsive to Professor Heather Ann Thompson’s call to historians to focus their trained eyes on the rise of mass incarceration in the second half of the twentieth century (pp. 1–2, 222 n.6).3×3. The author cites Heather Ann Thompson, Why Mass Incarceration Matters: Rethinking Crisis, Decline, and Transformation in Postwar American History, 97 J. Am. Hist. 703 (2010). But the project ultimately took unexpected twists and turns. Most notably, Hernández was unable to get a hold of the key materials that would have illuminated the inner workings of the twentieth-century jail system in Los Angeles (pp. 2–3). As Hernández observes in her introduction to the book, at some point after Professor Edward Escobar completed research for his work on early twentieth-century relations between Chicanos and the Los Angeles Police Department (LAPD),4×4. Edward J. Escobar, Race, Police, and the Making of a Political Identity: Mexican Americans and the Los Angeles Police Department, 1900–1945 (1999). the LAPD, “as well as the L.A. City Archives[,] destroyed all but four boxes of the LAPD’s historical records. Similarly, the Los Angeles Sheriff’s Department (LASD) either does not have or will not share its records” (p. 3). This lack of city and county records pertaining to policing and incarceration might have discouraged a lesser scholar from undertaking a historical project concerning incarceration in Los Angeles.

Cover for City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles, 1771-1965

City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles, 1771-1965

By Kelly Lytle Hernández. Chapel Hill, N.C.: University of North Carolina Press. 2017. Pp. 1, 301. $28.00.

Rather than surrender, Hernández turned to media accounts, court records, “the personal papers of local elites, authorities, and activists,” and “the records of local institutions and organizations” (p. 3). As she notes, the records of the powerful — those who control criminalization and incarceration — provided a great deal of relevant evidence concerning the history of incarceration in Los Angeles (pp. 2–3). But even more important to her were the traces of history that she found in what she calls the “rebel archive” (p. 4). Her rebels “were an eclectic bunch, including the incarcerated as well as journalists, musicians, migrants, mothers, and many others” (p. 4). Relying on the archival information provided by the powerful as well as by those who rebelled against them, Hernández ultimately weaves together six different stories of incarceration in Los Angeles. Her tale begins with the human caging of members of the Tongva-Gabrielino nation by the Spaniards in the Los Angeles Basin in the mid-eighteenth century and ends with the spiking incarceration rates of black Angelinos in the first half of the twentieth century (pp. 4–6). Both of these stories, and the other four that fall between, are summarized in Part I of this Review.

The act of weaving together these distinct stories over time led Hernández to conclude that incarceration in Los Angeles was and remains a form of elimination, incident and instrumental to settler colo-nialism. Or, as she puts it:

[T]he rebel archive pulled me toward one chilling conclusion: incarceration is elimination. Why? Because incarceration is a pillar in the structure of conquest and, in particular, settler colonialism. In the Tongva Basin, it was first used to clear Native peoples from life and land in the region by criminalizing, categorizing, and caging them as vagrants with no right to be in Los Angeles, a city of conquest. In the decades ahead, as the structure of U.S. invasion advanced and evolved in the region, settlers in the city repeatedly pivoted the practices of incarceration to address a series of racial and political threats, such as “tramps” and “hobos” as well as Chinese immigrants, magonistas, Mexican migrants, and black citizens. By the 1950s, Los Angeles imprisoned more people than any other city in the United States, and the pattern was clear: on the arc of an enduring conquest in the Tongva Basin, incarceration was born and bred as a system of elimination, targeting Native peoples and racialized outsiders for disappearance. (p. 197)

Hernández thus presents incarceration as one of a number of “eliminatory options” deployed by the settler state in service of conquest, land appropriation, and the subjugation of conquered and excluded peoples (p. 9).5×5. Hernández acknowledges the scholarly debate concerning distinctions between the settler-colonial projects of eliminating indigenous people and racial outsiders who are themselves “arrivants” (p. 12), but ultimately concludes that the term can be used capaciously to include both sets of processes (pp. 8–9).

In the same way that her archival focus shifted over the course of the project, the intellectual framework that Hernández ultimately relies upon in the book is not the one that she envisioned at the start. She notes that, as a field of study, the history of incarceration is “dominated by analyses of labor control and racial subjugation” (p. 9). But, in Hernández’s view, these frameworks have gaps in their explanatory capacity; they fail to account for some of what Hernández found in the rebel archive (p. 9). In filling these gaps, Hernández took seriously a challenge issued by Professor Angela Davis, who urged researchers of policing and state violence to work against an acknowledged backdrop that we “live on colonized land.”6×6. Angela Y. Davis, Freedom Is a Constant Struggle: Ferguson, Palestine, and the Foundations of a Movement 136 (2016).

The recent explosion of scholarly literature on settler colonialism7×7. See generally Jodi A. Byrd, The Transit of Empire (2011); Walter L. Hixson, American Settler Colonialism (2013); Walter Johnson, River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (2013); Aziz Rana, The Two Faces of American Freedom (2010); Lorenzo Veracini, Settler Colonialism: A Theoretical Overview (2010); Lorenzo Veracini, The Settler Colonial Present (2015); Patrick Wolfe, Traces of History (2016); Jodi A. Byrd & Michael Rothberg, Between Subalternity and Indigeneity, 13 Interventions 1 (2011); Patrick Wolfe, Settler Colonialism and the Elimination of the Native, 8 J. Genocide Res. 387 (2006) [hereinafter Wolfe, Settler Colonialism]. and foundational literature by indigenous scholars8×8. See generally Ned Blackhawk, Violence over the Land: Indians and Empires in the Early American West (2006); Byrd, supra note 7; Roxanne Dunbar-Ortiz, An Indigenous Peoples’ History of the United States (2014); Lisbeth Haas, Saints and Citizens: Indigenous Histories of Colonial Missions and Mexican California (2013); Robert H. Jackson & Edward Castillo, Indians, Franciscans, and Spanish Colonization: The Impact of the Mission System on California Indians (1995); Brendan C. Lindsay, Murder State: California’s Native American Genocide, 1846–1873 (2012); Native Historians Write Back: Decolonizing American Indian History (Susan A. Miller & James Riding In eds., 2011). therefore provides the theoretical through line for Hernández’s analysis of the eliminatory practices that she identifies in the two-hundred-year period traversed by her book. As defined by Patrick Wolfe, “settler colonialism is an inclusive, land-centred project that coordinates a comprehensive range of agencies, from the metropolitan centre to the frontier encampment, with a view to eliminating Indigenous societies.”9×9. Wolfe, Settler Colonialism, supra note 7, at 393. Settler colonialism is both a historical reality and an ongoing process.10×10. See, e.g., Veracini, The Settler Colonial Present, supra note 7, at 68. In recent years, “[s]ettler colonialism has flourished as a mode of critical inquiry, one that centers the originary violence directed at indigenous peoples as the active and expanding underside of colonial states.”11×11. Renisa Mawani, Law, Settler Colonialism, and “the Forgotten Space” of Maritime Worlds, 12 Ann. Rev. L. & Soc. Sci. 107, 113 (2016); see, e.g., Dunbar-Ortiz, supra note 8, at 7; Alyosha Goldstein, Introduction: Toward a Genealogy of the U.S. Colonial Present, in Formations of United States Colonialism, 1, 1–26 (Alyosha Goldstein ed., 2014); Rana, supra note 7, at 1–19. In the six different historical moments outlined in Part I, settler colonialism is the key conceptual link that Hernández offers to explain why the carceral state evolved and functioned as it did over the two hundred years of her historical survey.

This is not to say that the “how” questions are ignored. In the book, Hernández explores the critical role of state and municipal vagrancy laws under both Mexican and U.S. rule. She also highlights the role of federal immigration controls,12×12. In other work, she also takes on the rise of the Border Patrol. See generally Kelly Lytle Hernández, Migra!: A History of the U.S. Border Patrol (2010). insufficient checks on racialized police violence, and other legal tools and bureaucratic powers that, over more than two centuries, have provided officials with the means of locking up and banishing those denizens of Los Angeles deemed undesirable. But Hernández’s book is most valuable not for what it tells us about the specific deployment of the varied tools of the carceral state, but for its attempt to identify the ideology that drove and continues to drive the deployment of these tools. Hernández’s argument is that the legacy and ongoing processes of settler colonialism in the forms of “native elimination, immigrant exclusion, and black disappearance” (to quote the book jacket again) were the driving forces behind the expansion of Los Angeles’s vast jail system.

Hernández’s book is unsettling for several reasons. As with any story that focuses on our nation’s prisons and jails, it is unsettling because it forces the reader to take an intimate walk with some of the many millions of individuals that spend time within the walls of U.S. prisons, jails, and detention centers. It is increasingly difficult for scholars and journalists to gain access to these spaces, and the fleeting glimpses that the general public has of them offer haunting reminders of just how incredibly dehumanizing they are.13×13. One such glimpse into the carceral state came in Brown v. Plata, 563 U.S. 493 (2011), the first Supreme Court case to include photographs in the decision, in this case to illustrate the stark overcrowding of California prison facilities. Id. at 548–49. For a detailed discussion of the Plata case and its broader significance, see generally Jonathan Simon, Mass Incarceration on Trial (2014). For a more pessimistic account of the Plata case, see Keramet Reiter & Natalie Pifer, Brown v. Plata, Oxford Handbooks Online (June 2015), http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199935383.001.0001/oxfordhb-9780199935383-e-113 [https://perma.cc/T6VQ-8EVZ], arguing that the realignment remedy spurred by the Plata litigation will merely push prison populations down to less transparent and less accountable jail facilities. For an empirical assessment of the effects of the realignment spurred by the Plata litigation, see Anjuli Verma, A Turning Point in Mass Incarceration?: Local Imprisonment Trajectories and Decarceration Under California’s Realignment, 664 Annals Am. Acad. Pol. & Soc. Sci. 108, 108–10, 128, 132 (2016), finding that post-realignment county-level decarceration rates have been tremendously variable and notably distinct from county-level incarceration patterns.
For other recent and important glimpses into prison life, see generally Keramet Reiter, 23/7: Pelican Bay Prison and the Rise of Long-Term Solitary Confinement (2016); and David Kaiser & Lovisa Stannow, The Shame of Our Prisons: New Evidence, N.Y. Rev. Books (Oct. 24, 2013), http://www.nybooks.com/articles/2013/10/24/shame-our-prisons-new-evidence/ [https://perma.cc/99ZX-A3H4], discussing prevalence of sexual violence in prisons and juvenile detention facilities. For a discussion of the worsening of modern prison conditions as a response to the Attica Uprising, see Heather Ann Thompson, Blood in the Water 561 (2016), noting that Attica “reflected, and helped to fuel, a historically unprecedented backlash against all efforts to humanize prison conditions in America.”
Through the distancing lens of history, we can observe with greater clarity the extent to which criminal punishment has always been, and remains, a political project. Part I of this Review summarizes Hernández’s deeply troubling history of Los Angeles, which centers on the lives of those most powerfully affected by the city’s carceral web. This summary attempts to pinpoint precisely the ways that Hernández seeks to unsettle conventional understandings of what drives incarceration in the United States through her focus on settler colonialism.

City of Inmates also unsettles theoretical conventions in contemporary scholarship on criminal enforcement in the United States. Legal scholars might find the book unsettling in the way that it deliberately rejects legal formalism in its exploration of incarceration. Hernández’s account generally ignores legalistic distinctions between forms of incarceration — jails, prisons, immigration detention centers, and locked dormitories — in favor of an approach that presents all modes of state-sponsored liberty deprivations as comparable instances of “human caging.” Although multiple governmental agencies, actors, and institutions make up the carceral state in Los Angeles at any given time, Hernández does not spend a great deal of time allocating blame and responsibility among these actors. As I explain in section II.A, this approach opens itself up to legal critique and questioning. Legal scholars might find it difficult to map out specific doctrinal or bureaucratic fixes that would follow from Hernández’s account, and some will see this as a problem with the book. For reasons that I explain below, I do not see this as a problem. This approach seems true to the voices in Hernández’s rebel archive. Moreover, it offers an important reminder that carceral control is both exercised and experienced in ways that can be obscured by formalistic analysis. Ultimately, there is great value in following the lead of the rebel archive because the narratives contained therein reveal the interconnected nature of governmental oppression.

A related unsettling aspect of the book is the way that its narrative arc veers away from the book’s initial framing. Throughout the book, but particularly toward the end, Hernández’s focus is not so much on “human caging” — which has a prominent place in the very title of the book — but on policing, broadly defined. Hernández never explicitly accounts for this shifting focus. Section II.B of this Review therefore analyzes the shift. The central preoccupation of the book is the carceral state in Los Angeles, not just the cages of Los Angeles. The carceral state encompasses prisons, jails, and nominally civil detention centers, of course, but it also encompasses the state actors who are charged with maintaining order and who process individuals in and around these human cages. By expanding her focus from jails to the full set of actors in the carceral state, Hernández reminds readers how the explosive growth of the carceral state has been generated by a host of actors and decisions, making it unlikely that a single-minded focus on prosecutors, or police, or prison guards, or immigration enforcement agents will get to the root of our current carceral crisis.

Ultimately, the book is unsettling in the way that it attempts to re-orient our thinking about the historical forces that helped to define the contours of criminal punishment in the United States. Much of the recent literature on policing and punishment has turned away from accounts of the carceral state as a feature of bureaucratic modernity.14×14. For a classic account of modern punishment, see, for example, Michel Foucault, Discipline and Punish 293–308 (Alan Sheridan, trans., Vintage Books 1979) (1975). For a more recent, grounded, and nuanced account, see Mass Imprisonment 1–27 (David Garland ed., 2001). More recent accounts center instead on the role of race and racism in explaining the pathologies of U.S. criminal punishment; in most accounts, the legacy of slavery dominates the frame.15×15. See, e.g., Michelle Alexander, The New Jim Crow 21–58 (2010); Khalil Gibran Muhammad, The Condemnation of Blackness 192–268 (2011) (focusing on the urban northeast in the late nineteenth and early twentieth century); Naomi Murakawa, The First Civil Right 40–66 (2014); cf. Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics 10–14, 139–62 (2015) (stressing the role of both race and neoliberal ideology); James Q. Whitman, Harsh Justice 6 (2003) (eschewing discussion of the role of race and racism in shaping the United States’ uniquely punitive and degrading approach to criminal law enforcement, but acknowledging the historical legacy of racism in shaping the mores that favored harsh punishments); Loïc Wacquant, From Slavery to Mass Incarceration: Rethinking the ‘Race Question’ in the U.S., 13 New Left Rev. 41 (2002) (tracing the origins of the hyper-incarceration of African American men from urban centers). Slavery is important to Hernández’s account as well, but Hernández situates slavery in the broader rubric of settler colonialism and argues that incarceration in Los Angeles is best understood not as a direct legacy of the U.S. system of slavery alone, but as a manifestation of a settler-colonial legacy that included slavery as part of a much broader system of exploitative and eliminatory practices. This analytic brings the Southwest — and a host of settler-colonial practices in the West — back into the story of the formation of U.S. criminal laws and legal institutions. In so doing, it suggests an important reorientation in how we think about the roots of the current pathologies of our system of criminal punishment. At the same time, the capaciousness of this theoretical frame also raises questions about its explanatory capacity. Section II.C of this Review therefore evaluates the utility of the settler-colonial framework as a means for understanding policing practices and the rise of the carceral state in the United States.


* Professor of Law and Senior Associate Dean for Administration, U.C. Irvine School of Law. The author wishes to thank Professors Sunita Patel, Sharon Dolovich, Eric Miller, Christine Scott-Hayward, and India Thusi for their very thoughtful comments on an early draft.