Grad - Follis

Abstract

This article explores the legal exclusion of felons through civil death statutes, court decisions and voting laws in 19th century America.  Beginning with Schmitt's analysis of the political and Agamben's discussion of Homo Sacer it develops a theoretical model for the exclusion of convicts that seeks to move beyond a schematic insider/outsider framework.  I argue that civil death and similar forms of legal exclusion are part of the boundary-setting functions of law which are essential in constructing and policing social order. 

This aspect of law is connected to the State's monopolization of symbolic violence and its ability to dispense symbolic capital. I note that in the wake of the rise of imprisonment and the reform of penal law (and hence the curtailment of public punishments) the symbolic meaning of punishment lost much of its public force. Yet this also meant that meaning and stigma would now have to be managed over the life course of convict populations and would have to make their impact felt despite the fact that punishment was now meted out 'behind the scenes'. If one couples this with the 'patchwork' nature of the state and the decentralized manner in which it ran its prison system, an archaic practice like civil death begins to have a renewed purpose: (1) Setting the symbolic margins of a community moving from traditional forms of authority to more modern and distended forms; and (2) Extending the state's hold over symbolic and social capital through its negation in the persona of the criminal.

Relying on Mary Douglas's analysis of margins and social pollution and Patterson's discussion of extrusive forms of slavery, I then explore the cultural dimension of penal excommunication.  I elaborate a conception of the margins as a dangerous place whose denizens embody the combined traits of peril and vulnerability. The danger of the margins is linked to their role in cultural rituals: the margins are a state of transition between one status and the next.  For the prisoner who has been excommunicated by the social order, this transition lacks an end-point, effectively trapping him - qua synthetic slave - in a state of liminal incorporation.