Every society is really governed by hidden laws, by unspoken but profound assumptions on the part of the people, and ours is no exception. It is up to the American writer to find out what these laws and assumptions are. In a society much given to smashing taboos without thereby managing to be liberated from them, it will be no easy matter.
— James Baldwin, Nobody Knows My Name1
I begin with James Baldwin, as does Professor Fred O. Smith, Jr. in his innovative and important article, Abstention in the Time of Ferguson. Smith quotes Baldwin to introduce the concept of economic victimization but never exactly explains how readers should interpret his reference to Baldwin, nor his references to A Raisin in the Sun or I Know Why the Caged Bird Sings.
Contemporary black writers and scholars perpetually rely on Baldwin not because his words remain persuasive and relevant to current social conditions — though they do — but because of what Baldwin represents: a stunningly free black truth-teller, unafraid to express himself, directly and damningly, about the American racial hierarchy. When Baldwin writes about poverty, he is also writing about race. When Baldwin writes of the “hidden laws” structuring American society, one can surmise that white supremacy is one of them.
We who invoke Baldwin are reminding ourselves and signaling to others that we are not naïve. Pulitzer Prize–winning essayist Rachel Kaadzi Ghansah explains as much in a recent piece, part of the Baldwin-referent anthology The Fire This Time:
And this is how his memory is carried. On the scent of wild lavender like the kind in his yard, in the mouths of a new generation that once again feels compelled to march in the streets of Harlem, Ferguson, and Baltimore. What Baldwin knew is that he left no heirs, he left spares, and that is why we carry him with us.2
We are spares, barely. But invoking Baldwin to write prescriptively about law is composing in code. We know that there is only so much reforming doctrine or policy can do. We advocate for these changes because they could improve conditions at the margins, but we understand that the root issues that remain to be addressed are bound up in culture, ideology, and deep structure — knots that may have loosened but will take generations to unravel. Our condemnation of white supremacy might at times be less blistering and direct than Baldwin’s, but our work sits on a lower, feebler branch of the same tree.
It was in this light that I read Smith’s Abstention in the Time of Ferguson, a rich exploration of Younger abstention3 as applied to “criminalization of poverty” cases.4 Although Smith does not fully acknowledge or interrogate how deployment of abstention and other jurisdictional and procedural doctrines in so-called “criminalization of poverty” cases is bound up in a long-term project of race-class subjugation via the carceral state, Smith’s jurisdictional proposal has the potential to carve out space in the federal courts for marginalized litigants to fight subjugation, and to create economic and racial justice. I suspect that Smith’s ultimate goal is to chip away at the litany of jurisdictional and procedural devices that courts use in this way,5 so that, in the end, federal judges have fewer legitimated reasons to turn their eyes away from the plights of disadvantaged litigants who have no meaningful recourse in state courts. This is admirable work.
On Smith’s account, Younger abstention is a formidable barrier to the federal courts at a moment when poor (and often black) people are entering them in order to challenge certain practices that criminalize poverty — nondiscretionary bail schedules, particular court fee regimes, incarceration for inability to pay money judgments such as those associated with traffic tickets, and more. At first blush, it might be tempting to criticize the article because it focuses so heavily on the doctrine surrounding access to the federal courts, giving little attention to the context surrounding these claims. That is — the article focuses too much on abstention, but not enough on the time of Ferguson. In order to believe that carving out an exception to Younger abstention will make a difference for poor people challenging state-level criminal law, one has to believe that “Our Federalism”6 is a significant reason that these challenges sometimes do not go forward. Smith may be more inclined to believe that than I am.
However, I would urge readers with similar orientations to mine not to discount Smith’s work in a broad rejection of doctrinal approaches to deeply ideological and structurally embedded problems like the “criminalization of poverty.” There are likely many judges who have an earnest belief that Younger abstention is a requirement of “Our Federalism,” and they are an important audience to reach. Lawyers representing indigent clients might also benefit from Smith’s roadmap for navigating around Younger-based arguments.
And remember, Smith begins with Baldwin. He might share my view of the relevance of Younger abstention doctrine, which is that its fuzziness makes it a particularly effective tool for maintaining the status quo, and that it allows federal courts to punt on potentially disruptive issues of justice under the cloak of federalism.
While Smith claims to be writing a doctrine-focused article that is largely about Younger abstention, he also exposes the situational contingency in when federal courts care about federalism and when they are willing to prioritize other interests. In this Response, I focus on the nature of that contingency from a sociological perspective. In doing so, I attempt to engage with a few of the hidden laws (or what sociologists would call social facts) that make Smith’s doctrinal intervention particularly important in the time of Ferguson, hopefully adding richness to Smith’s already impressive work.
I. The Juridical Field in the Time of Ferguson
A background presumption in Smith’s article is that “Our Federalism” has real content and is very important to some number of federal judges. At the same time, there have been moments when federal judges, particularly the “Fifth Circuit Four,”7 have set aside federalism concerns out of concerns about justice. From a sociological perspective, one might treat courts’ reliance on Younger abstention and similar doctrines as narratives or discursive representations that are meant to reflect but also construct reality; they are not necessarily direct reports of judges’ deep motivations and modes of reasoning.8 This is not the same as saying that judges are lying when they claim to rely upon abstention doctrine or that they are intentionally hiding some real, perverse interest in oppressing poor people. They may not be acting in bad faith or attempting to obfuscate.9 However, the discourse of federalism has a sanctified social meaning in American law, so much so that judges may offer federalism as a legitimated justification for their behavior, even when federalism is not at the core of their decisionmaking process.10
Judges, like all of us, are situated actors operating within strategic action fields.11 On the “juridical field,” — or “the site of a competition for monopoly of the right to determine the law”12 — judges, lawyers, police, court officers, legal scholars, litigants, and other actors wield various tools to produce legal decisions. They use legal language, create documents, apply procedural rules, present individual and group interests, invoke constitutions, and appeal to preconstitutional values. Long-established doctrines such as Younger abstention are tools wielded by different actors to win the spoils. Power relations tinge the success or failure of certain tools, even when no one present has intentionally decided to disadvantage the dominated13 — and even, at times, when legal actors aim to counteract domination.14 These dynamics are present across disciplinary cultures, but vary in the precise techniques used.15 Each case is a war by other means. The “law” of power relations within fields, and their relationship to public sentiment and social movements, is one of the (barely) hidden laws that surely lurks behind the occasional invocation of Younger abstention and other jurisdiction-related doctrines in these cases.
Without deeper research, we cannot know precisely how the distribution of power and the use of legal apparatuses are driving outcomes in the cases Smith discusses. But we can ascertain that abstention is only part of the story, and perhaps not even the major story. The bigger story is the time of Ferguson — the cultural moment in which judges are making decisions about Younger abstention.
A line of scholarship on judicial decisionmaking has noted the influence of public opinion, social movements, and other shapers of cultural dynamics.16 It would have been fruitful for Smith to discuss how current events might be constructing how judges see the indigent litigants before them and the trustworthiness and salience of these litigants’ claims. I suspect that part of the confusion over whether to apply Younger abstention in some of these cases arises in part because of the shifting social meaning of the criminal justice system over roughly the past decade. At least two dynamics seem important. First, since 2007 or so, there has been an uneasy but productive convergence between certain people on the right and the left in support of criminal justice reform.17 While recent decarceration efforts fall short of the deep structural change needed to release the grip of the carceral state on marginalized communities,18 changes in law, policy, and culture have produced a slight decline in the United States’ uniquely high incarceration rate for the first time in more than four decades — perhaps gently loosening the grip.19 Second, more recently, people across the nation have roundly critiqued police for excessive and unjustified uses of force, primarily but not exclusively against African Americans. The movement against police violence similarly alters the cultural milieu in which judges are making decisions.20
Certain officials in all branches and at all levels of government have resisted attempts to scale back the carceral state and improve police-community interactions. For a prominent example, President Donald Trump, speaking before police officers in Suffolk County, New York, encouraged officers not to be “too nice” to suspects (or in his words, “thugs”).21 Attorney General Jeff Sessions recently issued guidance that reasserted the federal government’s interest in marijuana enforcement, rescinding Obama-era guidance that gave states more leeway to decide whether and how to punish marijuana use.22 In this way, judges are faced with competing messages about the desired ends of the carceral state, and federal judges might understandably be unsure of their proper place in the regulation of criminal punishment.
We are in the midst of an unsettled cultural moment when it comes to criminal justice. In unsettled times like these, new research and public understandings of the carceral system can expand judges’ repertoires and either weaken or fortify jurisdictional and procedural barriers to the courts. Unsettlement gives opportunities for reimagining current forms of domination, such as poverty criminalization, within the carceral state.23 Cultural sociologists argue that in unsettled contexts, culture (such as judges’ shared understandings of what constitutes acceptable legal reasoning) matters for how people behave,24 including how judges might rule in unclear cases.25
What new frames, scripts, narratives, and strategies are part of these expanded judicial repertoires? More research is needed to explore this question, but it is certainly true that “the time of Ferguson” has demanded that courts and other players on the juridical field become more aware of the distinction between punishment and blameworthiness. Ferguson revealed that many people who are caught up in the system lack the level of blameworthiness that the public likes to believe underlies criminal punishment. Ferguson and incidents of police violence have caused onlookers to question the explosion of criminal law, the standards we apply to law enforcement officials, the presumption of proportionality in punishment, and more.26 These moments have demanded that many of us rethink virtually everything we once believed about the system. These new revelations, and the movements that have risen up to challenge them, may be shifting the power dynamics and organizational culture within the juridical field, at least in certain courts, for certain judges, in ways that could give Smith’s argument room to affect judicial reasoning.
Through his proposed exception to Younger, Smith indirectly deals with the problem of how to find legitimated legal language that would permit judges to set aside “Our Federalism” to deal with “Our Ferguson.” Smith’s doctrinal carve-out would give space for judges to draw upon expanded cultural toolkits that have emerged from this moment in thinking about whether the federal courts may exercise their jurisdiction over so-called “criminalization of poverty” cases.
II. “Criminalization of Poverty” in the Time of Ferguson
“No one should be in jail or punished because she is poor,” Smith asserts.27 He makes this declaration as if it is an irrefutable maxim on which there is wide consensus. But another hidden law with which reformers must reckon is that the overwhelming majority of people under penal control — people who are not contemplated in the litigation surrounding rights to counsel and fines and fees — are punished because they are poor. They may not be incarcerated because they cannot pay a fine or bail, but they are still punished because they are poor.28 While these numbers cannot support a direct causal link on their own, it is likely no coincidence that, as of 2014, 57% of incarcerated men aged 27–42 and 72% of same-aged incarcerated women had preincarceration annual incomes less than $22,500 in 2014 dollars, compared to 23% of nonincarcerated men and 48% of nonincarcerated women with such a low income.29 The current “criminalization of poverty” framework tends to focus on jail incarceration due to bail, fines, and fees, but prison and poverty (and race) are also inextricably linked. This is true in part because prison is the frontline response to many problems associated with deprivation and deep poverty.30
The “criminalization of poverty” framework is helpful at points because it sheds light on a set of carceral processes of which many people are unaware.31 Before Ferguson, there was no widespread recognition that financially struggling cities might try to fund their survival by charging residents steep fines and fees and incarcerating them when they could not pay. These processes may need particular labeling to be understood, and this framing might arouse certain empathies that are frequently withheld from persons incarcerated for drug crime or violent crime, for example.
Yet I worry that centering particular forms of the “criminalization of poverty” obscures the myriad pathways through which poverty and involvement in the carceral state are linked. “Criminalization of poverty” in the current framework is reminiscent of the emphasis on decarceration for the class of offenders who Professor Marie Gottschalk calls the “non, non, nons” — “nonviolent, nonserious, and nonsexual offenders.”32 As others have explained, in order to significantly reduce mass punishment, reformers will have to wrestle with the blameworthiness of violence, noting that violent acts often emerge out of morally complex situations for which there are few easily identifiable culprits.33 Social welfare policy, which has long implicitly distinguished between the “deserving” and “undeserving” poor,34 provides another analogy. “Criminalization of poverty” reformers must be careful not to rely too heavily on implicit distinctions between the blameless and blameworthy incarcerated poor, and should instead take a more systemic and institutional approach to framing the issue of poverty criminalization.
To step back, what does poverty mean from Smith’s perspective? It seems obvious that when Smith discusses poverty, he does not just mean the state of having an income below the federally determined threshold.35 Smith also means something beyond low income,36 as indicated in the quote from Baldwin, which describes a perpetual state of economic victimization,37 and from Lorraine Hansberry, featuring Walter Lee’s lament about “always getting ‘tooken.’”38 Smith’s understanding seems more similar to that of many sociologists: poverty is a social condition that reflects not only reduced income, but also low status, minimal political power, distinctive and sometimes fragile social networks,39 and (more controversially) “culture” — or heterogeneous and dynamic modes of engaging in the world that emerge in part in response to entrenched segregation, discrimination, and other characteristics of social structure.40
If Smith merely means technocratic poverty or “low income,” he is right to center state laws that send indigent defendants to jail or prison because they are unable to pay bail, fines, or fees. On the other hand, sociologists and criminologists have long examined economic victimization and feelings of “getting ‘tooken’” as potential basic explanations of many types of criminal behavior.41 On this view, crime occurs in part because of the gap between the goals that society has set forth (in many Western nations, the capitalist “American Dream”) and its failure to provide equal opportunity to fulfill those goals.42 To respond to the criminalization of poverty, and not merely the criminalization of low income, would require a deeper shift in juridical understandings of the relationship between poverty, criminal behavior, and criminal punishment.
Researchers have detected complex relationships between poverty and involvement in the carceral state at multiple levels of analysis (individual, neighborhood, municipal, state, and federal), types of offense (felony, misdemeanor), categories of punishment (incarceration, supervision, monitoring), and stages in the carceral continuum (police interaction, arrest, charging, pleas, sentencing, reentry, and so forth).
At several levels of analysis and across multiple settings, poverty and punishment are inextricably linked. As explained above, poor individuals are simply more likely to go to prison than are higher-income people. Poor individuals move about daily life underneath the gaze of the punitive state.43 Poor neighborhoods and institutions create conditions under which crime flourishes, and where crime-control institutions are omnipresent.44 Poor neighborhoods within cities are “incarceration’s ‘hot spots’” in places like Chicago and beyond, even controlling for crime rates.45 By reputation alone, when people envision high-crime neighborhoods, they often envision poor neighborhoods — specifically, poor predominantly black neighborhoods.46 Poor towns have often turned to the carceral system to propel their economies.47 As we have learned from Ferguson and from renewed scholarship and advocacy on penal fines and fees, poor cities may ratchet up ostensible crime control to generate municipal revenue.48 Many of the states with the least generous social safety nets use criminal justice to stand in for poverty alleviation and thus have had the nation’s highest incarceration rates.49 In addition, the slow-and-then-precipitous hollowing out of federal welfare corresponded with the rise of mass incarceration, which has led many scholars to envision the national expansion of incarceration and other forms of penal supervision as a specific strategy to make subjects of poor populations.50
Poverty colors the criminal justice experience at the felony and misdemeanor levels, under confinement and supervision, and from entry to reentry. Researchers focused on felony conviction and incarceration see poverty as both cause and consequence of involvement in serious crime.51 Scholars have widely argued that misdemeanor justice is bound up with the social control of marginalized people, including poor people.52 Studies of community corrections, such as probation, parole, and supervised release, largely follow a similar line53 but also suggest that there is a “bifurcated” system of supervision that disadvantages poor people while granting greater privilege to those who are already relatively privileged.54 At the front end of the carceral spectrum, the use of police to manage the poor — and increasingly today, to deliver social services — is well documented.55 At the furthest end, people returning home after prison generally go home to poor neighborhoods and struggling families, and have a very difficult time raising themselves out of poverty — especially if they are people of color.56 To be sure, the precise mechanisms linking poverty and punishment are complex and vary across these settings and units of analysis; it is critical that those interested in truly decriminalizing poverty take a nuanced and sophisticated look at these connections. Qualitative research reveals specific processes that link poverty with criminal justice involvement. For example, Professor Victor Rios explains how poor Latino and black boys growing up in Oakland come to be involved in a “youth control complex,” including school officials, community centers, parents, and other actors that construct a world that criminalizes these boys, essentially shuffling them into the carceral state.57
Poverty plays a master role in selecting who moves through this particular apparatus. Professor Forrest Stuart richly depicts how people living on Los Angeles’s Skid Row become “copwise,” developing cultural techniques to strategically engage with the police and to evade net-widening aspects of “therapeutic policing.”58 In an article on poor African American mothers in Washington, D.C., I describe how mothers sometimes report relying on the police despite their stated distrust of them.59 Their constrained circumstances and the retrenchment of the welfare state mean that sometimes, law enforcement is the only institution that offers ready access to needed services. When children are frequently misbehaving, it might be difficult to find therapists, but police officers are readily available and can be conduits for services.60 When children are truant, tracking them down can be difficult — but if parents do not make a documented effort, they could get stuck with an educational neglect charge.61 Seeking out a police officer or probation officer to make sure the child attends school protects the parent, but it also directly introduces the child to the carceral state.62 Poverty is a primary conduit toward criminal punishment generally, and separating the form of poverty criminalization that emanates from fines and fees from other forms of poverty criminalization obscures this social reality.
Smith’s article makes an important contribution by supporting a federal court response for those whose claims have been made somewhat more cognizable through the current “criminalization of poverty” framework. Yet scholars who study criminal justice through the lens of poverty should also read Smith’s article as a challenge to expand this framework by drawing clearer connections between the conditions of poverty and criminal justice control. The time of Ferguson is not just a time in which the public has learned about nondiscretionary money bail, fines, and fees, but also a time in which the entwinement of poverty, punishment, and race have been laid bare. We must be ever more precise about those connections.
III. Race-Class Subjugation63 in the Time of Ferguson
A curious aspect of Smith’s article is its very subtle — perhaps too subtle — engagement with racially framed social movements and, more importantly, race as a constitutive process. It is notable that a rich article that foregrounds Ferguson mentions Michael Brown only once and never references the Movement for Black Lives, or indeed, any contemporary nonlegal movement for criminal justice reimagination. Unlike other recent scholars who situate their work in this moment,64 Smith also omits reference to the movement’s central organizations, such as Campaign Zero or Black Lives Matter. Yet race is embedded into Smith’s background framework for understanding Ferguson. He cites the 2015 Department of Justice (DOJ) investigation report on Ferguson, which draws out how race colors the city’s funding scheme.65 He references the public scholarship of Professor Dorothy A. Brown, who describes the city’s “perfect storm of racism” reflected in the severe racial imbalances present in, among other things, political representation, the police force, and citizens implicated in arrest warrants and traffic stops.66 In his discussion of “Reconstructed Federalism,” Smith writes movingly about the pain of remembering the brutal context of the Reconstruction Amendments.67 Smith acknowledges that “the burden of America’s mass incarceration and its criminalization of poverty disproportionately falls on the backs of descendants of American chattel slavery.”68 Moreover, as I note above, Smith frames his article with Baldwin and other black prophetic voices. He is aware that the criminalization of poverty has something to do with race. But recognizing that race is a background condition for Ferguson and carceral phenomena like those observed there and acknowledging their disparate impact are not equivalent to situating race as part of the process that creates and legitimizes those phenomena. While race cannot tell the entire story of mass punishment or overcriminalization, it seems difficult to deeply engage those phenomena without an explicit and analytical discussion of race.
One of the still-hidden laws of America’s carceral regime is the constitutive relationship between race, poverty, and justice involvement, such that structural and systemic constitutional violations related to criminal justice cannot be understood without a serious racial analytic frame. Poverty and race operate together in ways that construct and are constructed by the carceral state,69 and the racial structure of poverty feeds into the carceral state through distinct pathways.70
“Our Ferguson” demands interrogation and reckoning with race, not as a variable or static condition, but as a process. Ferguson, Missouri became “Our Ferguson” when Darren Wilson killed Michael Brown on August 9, 2014.71 Shortly after Michael Brown’s death, ArchCity Defenders, a small nonprofit civil rights firm in St. Louis, released a report on the local municipal court system.72 It pinpointed the courts in Bel-Ridge, Florissant, and Ferguson as particularly troubled.73 The ArchCity Defenders report weaves together the roles of race and poverty in exploitative municipal court practices, concluding that “the current policies adopted by the municipal court system lead to the impression of the courts and municipalities as racist institutions that care much more about collecting money — generally from poor, black residents — than about dispensing justice.”74 The DOJ Ferguson report searingly indicts both the racial bias of policing in Ferguson and the exploitation of poor people through the municipal court system, recognizing that they operate in concert with each other.75 The Ferguson Commission, a diverse and independent group of regional leaders tasked with studying the broad social conditions that led to the Ferguson crisis, made racial equity the centerpiece of its report.76 The Commission expressed skepticism of approaches that center on economic reform rather than directly confronting racial marginalization.77 These analyses suggest that Ferguson demands ideas and approaches that are race-centered, not race-neutral and not even merely race-conscious.
In the age of mass punishment, the carceral state gives meaning to race in America.78 The consequence of punishment is part of what makes race “real.”79 This is to say, we would not have “criminalization of poverty” if a particular type of poverty — urban, segregated, related to the withholding of structural opportunity — were not so closely associated with race.80 Criminal fines and fees in the United States originated in convict leasing and the punishment of free blacks during slavery.81 As many scholars have pointed out, the nature and context of poverty vary by race such that even if a young black man and a young white man have the same income, the effect of income on each young man’s likelihood of experiencing incarceration will be different.82 In 2012, 12.3% of young white men in America aged 20–34 had less than a high school education.83 For young African American men, that number was 35.5% — more than one-third.84 As sociologist Megan Comfort has poignantly remarked, “prison has become the college of the poor and the dark skinned.”85
To think of this issue as merely a matter of racial disproportionality or disparate impact overlooks the fact that the aspects of poverty that are criminalized are the aspects thought to be most associated with black communities. This is why, for example, employers regularly assume that certain subsets of African American men who apply for jobs have criminal records, even if they have ostensibly “banned the box.”86 This is why, to avoid liability for racial steering under the Fair Housing Act, landlords and realtors should be wary of sharing information about a neighborhood’s crime rate or crime history with potential clients: marking a place as criminal is to mark it as black.87 This is the reason that the racial composition of an area is a better predictor of whether police officers and laypersons will describe an area as “high-crime” than are actual crime rates.88 In terms of social meaning: race means income; race means class; race means perception as criminal; race means status before legal institutions. And, in each case, the reverse is often true.
To be sure, some poor whites, too, are disadvantaged by the penal system.89 However, to say that poor whites are also targets of the penal state is not to say that race can be understood separately from class in this domain. We need not pit race and poverty against each other in a macabre battle over which is the most explanatory variable for mass punishment.90
Smith does not ignore race, but he deemphasizes it. Perhaps his choice is strategic: it is almost certainly more useful politically to envision Ferguson as a place where poor people have been oppressed rather than a place where poor black people have been oppressed.91 Perhaps Smith deemphasizes race because the plaintiffs or some class members in the cases discussed are indigent whites.92 Alternatively, it might have seemed more straightforward to envision bail, fines, and fees as issues of poverty and not primarily of race because the classes of defendants affected by these state laws are racially diverse. (Of course, this would be an insufficiently systemic way of thinking about the impact of race, and I suspect that the latter was not Smith’s reasoning.) Instead, I return to the purpose of the article from Smith’s perspective. Smith’s intellectual project is to improve federal jurisdiction doctrine and to reveal how Younger abstention is used to bar access to federal courts from indigent defendants seeking freedom from harsh state laws. His invocation of Ferguson might be better understood as an entry point for broader discussion about measures that criminalize low income rather than the beginning of an inquiry that would confront the full set of issues that Ferguson raises, including the nature of the carceral state. Even if I would not take the same approach, I do understand it. Thus, I am ambivalent about the article’s treatment of race, not condemning of it.
IV. Legal Estrangement in the Time of Ferguson
Finally, as I read Smith’s work, I thought a great deal about what abstention might mean to the indigent criminal defendants who had been thrown out of court on those grounds. Federal courts scholars debate the legitimacy of abstention, but the litigants in “criminalization of poverty” cases likely do as well. Federal courts scholars are primarily focused on the legal legitimacy of abstention — its compatibility with other tools, vocabularies, and power relations in the juridical field.93 I join Smith in worrying about the sociological legitimacy of abstention, and of the legal system, particularly in the populations most vulnerable to the penal state.
But more than legitimacy — whether people like these litigants believe that law and law enforcers are authorities worthy of obedience94 — I worry most about whether and to what extent these indigent litigants understand the law as a signal of the exclusion of their social group from the polity. What do these uses of abstention doctrine mean for how indigent litigants and their communities see their place within our democracy?
A law that remains surprisingly hidden to many is that institutions of justice, through which groups are meant to be meaningfully equal before the law, have an immense group-exclusionary capacity and tendency. Even when race-class-subjugated people yearn for the respect and protection of justice institutions, their social worth frequently goes unrecognized.95 In other works, I have referred to this cultural understanding96 and set of related processes as legal estrangement,97 and it is of particular salience in the time of Ferguson. Indeed, one might say that — perhaps along with the time preceding the Kerner Commission report98 — the time of Ferguson is the time of legal estrangement.
The idea of legal estrangement is partly rooted in Émile Durkheim’s vision of social order.99 A traditional way of thinking about the importance of social order would support harshly punishing people who violate collectively agreed-upon law. However, I think about anomie as a way of connecting Durkheim’s concern about strong norms with his observations about the division of labor. The purpose of modern punishment, in his view, was to maintain the division of labor;100 restoring people to their security and usefulness was critical to this mission. A related way to think of the purpose of punishment is that it should restore people to their usefulness to the democratic order.
This reframing of the purpose of law allows us to think differently about how to evaluate its justness and rightness. In the past several decades, interdisciplinary scholarship has offered new ways of evaluating the law. Aside from the traditional balancing of rights and interests and concerns about equity, fairness, and justice,101 broadly defined, scholars interrogate whether and how a law is Pareto optimal or Kaldor-Hicks efficient,102 whether a law or policy maximizes individual utility,103 whether law and law enforcement comport with how individuals react to the world,104 whether law is consistent with the functioning of human brains,105 whether law advances informedness,106 whether law changes aggregated public behavior,107 whether law changes how governments behave,108 whether law is consistent with this or that conception of morality,109 and more.
From a law and sociology perspective, one way of evaluating whether a law is just or right is to assess the degree to which it signals to groups that they are included within the polity. This implicit signaling of a group’s worth is not merely a heartwarming value — from this vantage point, maximal group inclusion is necessary for societal stability and advancement. There are real social costs for everyone when inclusion is disregarded. One worthy research program might seek to answer some of these core questions in federal courts scholarship with legal estrangement and legitimacy concepts and empirical methodologies, exploring how courts’ invocation of jurisdictional and procedural barriers relates to the social meanings of law and courts to various social groups and members of the public. Although Smith could have written even more directly about the potential consequences of estrangement, cynicism, and illegitimacy, that is not his core project. Smith’s article makes an innovative contribution by forcing federal courts scholars to reckon with the social meaning of abstaining from certain types of cases in their analyses of Younger abstention’s legitimacy.
“Abstention in the Time of Ferguson” proposes useful jurisdictional tools that could clear more pathways to justice for the criminalized poor. To be sure, the article’s conceptualization of poverty criminalization could be richer. The race-class nexus could be more fully theorized. The positioning of different actors on the juridical field in these Younger abstention cases could be better articulated. But in the end, we who are inspired by Baldwin must create change, in our own ways, to the structures and ideologies that produced “Our Ferguson.” Smith’s proposal is emblematic of a broader program of research that seeks to unseat structural barriers, deeply embedded into the doctrines and traditions of federal courts, in service of palpable justice — for Michael Brown, for Sandra Bland, for Philando Castile, for so many others.110 I applaud this effort and eagerly anticipate Smith’s future scholarship.
Throughout the article, Smith juxtaposes “Our Federalism” against “Our Ferguson.” But what does it mean for Ferguson to be “ours”? To whom does the town and its story belong? We all bear responsibility to witness and respond to the injustice that Ferguson came to represent in late 2014 and beyond. Yet in the end, Ferguson truly belongs to the people who have made their homes and lives there. So I close this Response with the words of one of Ferguson’s residents — Michael Brown’s mother — in hopes of shedding light on a hopeful, and hopefully no longer hidden, law of our society.
After Mike Mike died, I believed we would have justice. I waited for the police to right the wrong, I waited for the county to bring justice to Mike Mike, I waited for the DOJ to discover the truth. The system has failed my son. It has failed me and it has failed all of us. But, now, I know that I can’t wait for anyone else to make change. I must make change, myself, that will be Mike Mike’s legacy; that will be his justice. That’s the truth of it.
— Lezley McSpadden, Tell the Truth & Shame the Devil111
* Associate Professor, Yale Law School. Thanks to Asad L. Asad and Yaseen Eldik for feedback.
Recommended Citation: Monica C. Bell, Response, Hidden Laws of
the Time of Ferguson, 132 Harv. L. Rev. F. 1 (2018), https://harvardlawreview.org/2018/10/hidden-laws-of-the-time-offerguson/.