NORTHWESTERN UNIVERSITY the Hidden Sentence: Understanding the Rise of a Broader, Lesser Known Form of Penal Control in the Unit

NORTHWESTERN UNIVERSITY

The Hidden Sentence: Understanding the Rise of a Broader, Lesser Known Form of

Penal Control in the United States

A DISSERTATION

SUBMITTED TO THE GRADUATE SCHOOL

IN PARTIAL FULFILLMENT OF THE REQUIREMENTS

for the degree

DOCTOR OF PHILOSOPHY

Field of Sociology

Joshua Kaiser

EVANSTON, ILLINOIS

December 2017

ABSTRACT

In recent decades, scholars and activists have written extensively on the immense growth of

America’s penal system, its origins in fear-based, racially coded politics and neoliberal reformations, its distressingly ineffective and unjust outcomes, and its central place as a social institution in the contemporary United States. Yet this dominant discourse almost exclusively privileges imprisonment while overlooking less visible penal practices—especially those that this project names “hidden sentences.” “Hidden sentences” are all punishments imposed by law as a direct result of criminalization, but not as part of a formal, judge-issued sentence. When the discourse does recognize hidden sentences, it is ubiquitously in the frame of “collateral consequences” of convictions and of mass incarceration itself—approaching those legal punishments as “inadvertent” side-effects of judicial sentencing that all “naturally” appeared within legal codes after the War on Drugs began. There are, however, about 45,000 hidden sentence provisions across U.S. jurisdictions that policymakers have purposively enacted into law. They apply to about 1 in 3 American adults, they can apply well before conviction or even indictment, and they last for far longer than do formal sentences. Yet, this expansive arm of the penal system, its true historical origins, and its deep, institutionalized functions in the contemporary United States remain hidden.

The goal of this study is therefore to delve into the inner workings and historical origins of hidden sentence law in order to better come to terms with the hidden aspects of punishment as a social institution in the contemporary United States. Through more than one hundred case studies combined with national-level statistics, this project will (a) deconstruct assumptions that 4 hidden sentences are secondary side-effects of contemporary changes in the penal system, and

(b) construct a more critical, historical perspective of what role hidden sentences have played in

American history in order to inform our current knowledge about what punishment actually is and does. Archived legislative, judicial, and media histories from California and the federal system will trace the development of key hidden sentences since long before the War on Drugs officially began to identify policymakers’ goals, the assumptions and paradigms they used, and the key contextual factors that informed their actions in creating hidden sentence laws.

Additionally, a unique dataset of all state and federal hidden sentences policies today provides further evidence of political, economic, and social conditions underlying such decisions.

The results show that the hidden penal system is a particularly modern iteration—in a

Weberian sense—of a millennia-old practice of labeling and excluding criminals that was transformed through the abstract, color-blind and status-blind frame of modernist rationality into projects of racialization, essentialization, and criminalization. Hidden sentences developed between the mid-1800s and early 1900s as formalized, bureaucratized kinds of classification technologies steeped in the (elite, typically Anglo-Saxon) logics of achieving policy goals through means that are, above all else, objective, calculable, standardizable, and efficient. By focusing on their policy goals and only looking for means that intuitively fit that rationalist model, policymakers systematically created hidden sentences without anticipating or analyzing their penal-criminal character, their predictable consequences on criminalized people, and their basis in shared assumptions about race, political identity, and other essentialized forms of identity. In the end, this project shows that the hidden penal system has functioned for more than a century to reify cultural stereotypes of racialized and essentialized others in the law, distribute 5 those biases throughout society through repeated rituals of inclusion and exclusion, and continually reconstruct lines of privilege and marginalization around criminalized identities. The hidden sentence in the United States has long been an unrecognized tool of legally demarcating and naturalizing forms of belongingness.

ACKNOWLEDGMENTS

The following product of years of research and work are not truly mine, nor are the theory and the perspective, the sweat, tears, and joy that went into it, or even the original idea for the whole project. It gets published under my name and credited to me, but it belongs to the village of people who contributed the ideas, formulated my thinking, and supported me along the way. It would take more pages than the entire project to truly thank and credit all of you, so I will try to limit these acknowledgments to a few, without whom this entire project would not have been possible.

John Hagan deserves much of the credit—and, of course, all of the blame. His belief in me was unwavering, and he continually offered me thoughtful engagement, inspiration, room to grow, and just enough of a pull back to earth when I needed it. If he had not immediately welcomed me as a fellow scholar and simultaneously provided such unassuming guidance, I could have never found the academic space in which to even imagine this project, much less put it together in what I hope is even a little bit Hagan-like. I could not ask for a better mentor, colleague, role model, and friend. I also could not have asked for a better academic family than those wonderful people John has mentored and brought together over the years. Many of them have been just as crucial to supporting me, welcoming me into the academic world, and helping me value my own contributions to it.

Laura Beth Nielsen and Bob Nelsen have held me up when I needed it most, offered me some of the most critical (i.e., thoughtful and crucial) feedback on this project, and also just made my time at both Northwestern University and the American Bar Foundation downright 7 enjoyable. I cannot imagine having completed this project or even having managed to get through the professional and existential dilemmas of graduate school without either of them

(assuming, as I probably should not, that those dilemmas are anywhere near over). They also, without imposing them, provided two very distinct and yet complimentary ways of viewing the socio-legal world and doing law-and-society scholarship that have shaped this project in unquantifiable ways.

Heather Schoenfeld and Jonathan Simon have done the same from the penological perspective, offering me different but deeply complimentary models of studying punishment along with essential feedback and simply enjoyable camaraderie. It is impossible to list the ways in which they have provided directions for this project and made me rethink my own assumptions—even when I thought I already had, and even during just casual conversation about ideas. I cannot imagine where this project would be, or if it even would have succeeded in the end, if both of them had not seen value in it and contributed to it.

The graduate community in Northwestern sociology—too many to name—are responsible for creating the space in which a project like this one could take shape. The genuine collegiality and companionship, the interdisciplinarity and mixed methodological perspectives, the professional training and intellectual freedom all came together to invite me to create what I hope is an engaging but crucially important study. Brittany Friedman, David McElhatten, and

Zach Sommers helped me realize how important the project was, how impossibly huge it was, and how many years we may all be working on it in the future. Ann Orloff, Jim Mahoney, Bruce

Carruthers, Wendy Espeland, and Chas Camic all formulated my sociological thinking at a core level, so that many of the arguments in this project are at a fundamental level informed by their 8 perspectives and guidance. They also, along with Jeremy Freese, Alberto Palloni, and Lincoln

Quillian, helped me figure out the complexities and sometimes glaringly obvious simplicities of the many of the research methods in the project. And, of course, I would have never made it through without the constant friendship and support of Fiona Chin, Daphne Demetry, Claire

Forstie, Melanie Race Forstie, Anna Hanson, Jeff Kosbie, Marcel Knudsen, Armando Lara-

Millán, Alka Menon, Jaimie Morse, Liz Onasch, John Robinson, Ricardo Sánchez Cárdenas, and

Talia Schiff, Nicole Van Cleave, Rob Vargas, and Jill Weinberg; how often we help and save one another without even realized we have done so.

The likewise collegial and engaged community at Northwestern Law deserves much thanks. Jim Lindgren and Alan Mills deserve credit for the initial ideas for this entire project.

Through their “Prisoners’ Rights” and “Criminology” courses at Northwestern Law, I learned about the hidden penal system, developed the term and frame of “hidden sentences,” and began to realize the potential importance of the project (though I am still constantly surprised at all of the dimensions it is still taking). Josh Kleinfeld and Andy Koppelman provided invaluable feedback on and engagement with the concept of hidden sentences, its legal and theoretical importance, and many of my specific writings on the subject, and they have both offered selfless support over the years, often when I needed it most. Shari Diamond has offered a center for my interdisciplinary presence in the legal field, constantly pushed me to rethink the idea of this project and others in different, more productive ways, and provided yet another source of welcoming collaborative scholarship at Northwestern.

As if those two communities were not amazing enough, it was uniquely wonderful to join the American Bar Foundation for my years as a pre-doctoral fellow, and the ABF deserves just 9 as much credit for providing me the time and intellectual resources in which to conduct this study—and for building and maintaining the amazing community in which it could thrive.

Likewise, the Law & Society Association generally and all of the prominent members of the

Punishment & Society collaborative research network within it have both fashioned engaged, critical communities that have shaped this project for many years. Nicole Kaufman, Reuben

Miller, Chez Rumpf, and Megan Welsh all become cherished friends and colleagues, thinking through similar ideas and going through the same kinds of young scholarly angst together. Traci

Burch, Ben Fleury-Steiner, David Garland, Phil Goodman, Santhi Leon, Josh Page, Michelle

Phelps, Daniel Rothenberg, and Jeremy Travis all contributed essential points to the theory and critical perspective of this study and, whether knew it at the time or not, have really helped me feel like I am welcome in the law and society world. I am also eternally grateful to the ABF,

LSA, the National Science Foundation, the Institute for Humane Studies, and the Alumnae of

Northwestern for providing the funding needed to conduct the research.

Amy Berenson, Herman Berenson, John Robert Kaiser, and Ruth Kaiser are responsible for this project in more ways than they know. The saying goes that academics are all researching ourselves, to the point that we are often asked everywhere from casual conversation to official interviews what it is that makes us care enough about a topic that we devote so much of ourselves to it. When asked, though, I am forced to say that I am not researching myself. I am driven instead by a combination of empathy, compassion, determination, critical thought, and selflessness that can only be attributed to my parents and grandparents. It is no platitude to say that their view of the world fundamentally shaped mine, and their unwavering faith and support in me when I needed it helped it come to fruition. 10

Finally, Diana Kaiser deserves far more credit than I do for the thought and the work that went into this project. There is literally no significant idea in this entire project that she did not engage with and shape at a fundamental level. She has been there with me every step of the way, telling me what I am doing wrong, telling me what I am missing, and telling me how much she believes in me all at the same time—while somehow also doing her own job. It is no stretch to say that none of this would be possible without her love, her support, and her own contributions to the ideas. There are just not enough words.

TABLE OF CONTENTS

ABSTRACT ...... 3

ACKNOWLEDGMENTS ...... 6

TABLE OF CONTENTS ...... 11

LIST OF TABLES AND FIGURES...... 12

INTRODUCTION ...... 13

CHAPTER 1

ATTAINDER: A LOST WORD FOR A FORGOTTEN PRACTICE ...... 49

CHAPTER 2

EARLY SIGNS: LABELING THE OTHER IN THE MODERN AGE ...... 84

CHAPTER 3

ONSET: A RATIONALIST TOOL OF LEGITIMATING BOUNDARIES ...... 130

CHAPTER 4

ESCALATION: A MECHANISM OF COLOR-BLIND RACIALIZATION ...... 180

CHAPTER 5

PERSISTENCE: HIDDENNESS AND RITUALS OF CRIMINALIZATION ...... 232

APPENDIX: DATA AND METHODS ...... 277

NOTES ...... 283

REFERENCES ...... 356

LIST OF TABLES AND FIGURES

Figure 1.1: Types of Penalties in Hidden Sentence Law ...... 67

Figure 1.2: Types of Criminal Offenses in Hidden Sentence Law ...... 73

Figure 1.3: Methods of Execution in Hidden Sentence Law ...... 75

Figure 1.4: Duration of Hidden Sentences ...... 76

Figure 1.5: Relief from Hidden Sentences ...... 77

Figure 1.6: State Variation in Hidden Sentences ...... 79

Figure 1.7: Hidden Sentences per Year ...... 81

Figure 2.1: Growth in Initial Types of Penalties in Hidden Sentences ...... 101

Table 3.1: Hidden Sentencing as Unanticipated Consequences of Policy Actions ...... 134

Figure 3.1: Annual Rate of Initial Hidden Sentencing per Jurisdiction ...... 148

Table 3.2: Annual Chance for Jurisdictions to Enact Hidden Sentences ...... 150

Figure 3.2: Growth in Initial Types of Crimes in Hidden Sentences ...... 156

Table 3.3: Examples Hidden Sentences as Erroneous Recodification ...... 167

Table 4.1: Change in Predicted Numbers of Hidden Sentences Annually per Jurisdiction ...... 192

INTRODUCTION

In today’s United States, where crime and punishment are ubiquitous throughout social and political life, most Americans think they have a good grasp of the penal system. The War on

Crime, the War on Drugs, and the consequent mass imprisonment of about 1 in 150 American adults have put the penal system into the political front-and-center for half a century.1 Following suit, scholars have written extensively on the immense growth and exceptionalism of American punishment, entertainment and news media are dominated by policing and punishment stories, and penal reform has now become a hot-button issue for groups as diverse as the Black Lives

Matter movement and the Right on Crime project.2 Parole, probation, and fines are recognizable topics, and certainly facts about prisons, jails, and the death penalty abound. In this political and academic environment, it is easy to take punishment and the penal system as commonplace, mutually understood ideas with accepted goals, recognizable examples, and assumed importance—even if we disagree on how they ought to work.

But what if what we know about the penal system itself is at best incomplete?

There are actually tens of thousands of laws across the nation that impose penalties on people beyond imprisonment, community supervision, criminal fines, and death. Each state has an average of about 950 legal provisions that inflict punishments ranging from civil fines and forfeitures to exclusion from governmental contracts or public housing, and even restrictions on marriage or parenthood. Most states abridge the rights to vote, carry firearms, maintain privacy, serve on juries, drive automobiles, or own and operate businesses, and they limit access to employment options ranging from lawyering to barbering to wool-dealing. On top of that, 14 federal law contains about 1,150 provisions that apply additional sanctions to persons in every lower jurisdiction, ranging from denial of social security benefits or food stamps to bans on holding public office or remaining in the country at all. Together, there are about 2,100 of these kinds of penal laws in each state that, collectively, can restrict every aspect of a person’s life.

This body of law demarcates a particular kind of penal practice that directly applies to more people in more ways than the more obvious kinds of punishment that typically come to mind when talking about the penal system. The specific terms of these laws vary quite a bit, so that some apply only to felonies, while others apply to violent crimes or sex crimes or specific violations of professional codes or motor vehicle laws, while still others apply to any misdemeanor or offense of any kind. Some apply based on a conviction or on release from imprisonment, but many are also activated only by indictment for a crime, by detainment while awaiting indictment or trial, by arrest even without subsequent charges, or by the mere existence of a criminal record of any kind, regardless of what it contains. Although some of these penalties last only for a period of time (say, five years after conviction or ten years after release from community supervision), the vast majority have no expiration. Because most of these laws last until death, and because many can apply without a conviction at the moment an arrest is made or a criminal record created, at least 1 in 3 American adults are currently subject to these kinds of penalties.3

What I find is most curious about this array of punishments, however, is not simply its breadth and its depth. Rather, its most remarkable feature is that, as vast as it is and as many

Americans as it impacts, it remains hidden. As a political subject, it is habitually neglected and has no obvious or stated goals. As a body of law, it has no universally accepted name, no 15 recognized area of expertise, and no easily identifiable boundaries. As a field of knowledge, it is held by only a handful of experts, obscured or unknown to most legal professionals and academics, and virtually inaccessible to the public. For that reason, I find it most appropriate to call these kinds of punishments “hidden sentences,” contrasted with the more visible sentences of community supervision, fine, prison, and death.

The hidden nature of these sanctions is their most unique feature, and it invites a certain kind of analysis. The most obvious questions when faced with the size and scope of this arrangement of penal sanctions juxtaposed against the lack of knowledge about it are historical:

Where did this hidden penal system come from? How did it get so large without us noticing, even when Americans are so focused on crime and punishment? From either a social-scientific or a public-policy perspective, however, the more consequential questions concern the role such a hidden configuration of legal sanctions plays. What social and legal functions do these hidden penal practices perform in contemporary American society, both individually and as a system of related laws? How do those functions relate to or differ from those of visible sentences? And what role does hiddenness itself play in those functions?

In the course of this study, I develop and address each of those questions to varying extents. My ultimate goal is to delve into the inner workings of hidden sentence law in order to better come to terms with punishment as a social institution in the contemporary United States: to inform our current knowledge about what punishment is and does. A comprehensive understanding of every aspect of any penal practice or body of law, much less such a large and complex one, is an impossibility for a single study. My hope, though, is that the following pages can begin to fill a gap in our knowledge about hidden sentences, reveal some assumptions we all 16 tend to make in our mutual understandings about the American penal system, and expand our ideas about punishment’s role in the social order of the contemporary United States.

HORSES, CARTS, COLLATERAL CONSEQUENCES, AND MASS INCARCERATION

Perhaps the best way to situate this study of hidden sentencing and orient the reader to its perspective is to clarify what this study is not. This is not the first study to name or identify laws that impose punishments beyond death, prisons, and other visible sentences. One of the best known examples is Michelle Alexander’s New Jim Crow,4 in which she levies a scathing and thorough criticism of mass incarceration in the United States from a legal and civil rights perspective. In the process, Alexander dedicates an entire chapter to bring most if not all hidden sentences into her critique, and they are ultimately the key to her argument that mass incarceration is distressingly similar to the Jim Crow system: because they are both systems of civil rights deprivations that legalize discrimination. She continues from there to argue that the racial bias and rhetoric that helped to form the mass incarceration and the racial disparities that resulted implicate mass incarceration just as much as Jim Crow as serving to “define the meaning and significance of race in America.”5 Mass incarceration, she argues, is a contemporary, color-blind racial caste system that includes hidden sentences as a key mechanism of racial discrimination.

Other studies and critiques of mass incarceration also sometimes reference hidden sentences as an offshoot or extension of imprisonment policies. In David Garland’s Culture of

Control,6 one of the orienting points of the contemporary penological field (i.e., the one that first coined the term “mass imprisonment”), hidden sentences are mentioned in passing as additional evidence of an expanding penological field that privileges control of crime and criminals above 17 all else. Garland’s ultimate point is that mass imprisonment—meaning both an excessive number of people being imprisoned and an unprecedented use of prisons to hold a “mass” or group of marginalized people—arose in response to a cultural shift toward social order and crime control, along with other punitive policies. Hidden sentences also make appearances in other analyses of mass incarceration from Clear and Frost’s new scholarly critique of the so-called punitive turn to the policy-oriented advocacy of the Sentencing Project and the Urban Institute.7

Nor is this the first study to analyze these kinds of punishments in a meaningful way.

There is a small but discernible literature on the “collateral consequences of criminal convictions.” Collateral consequences are conceptualized in two ways: first, as the same set of formal social controls (i.e., laws and policies enforced by the state) that are the subject of this monograph, and second, as a collection of informal social controls (e.g., stigma) and social effects of imprisonment or other visible punishments.8 Putting aside the second meaning for the time being, concern about collateral consequence laws dates back to a reform movement in the last years of the 1960s. Since then, various scholars and reformists analyzed both individual examples of hidden sentences (e.g., felon disfranchisement or employment restrictions)9 and the overall collection of hidden sentence laws.10

By and large, this literature approaches collateral consequence laws as the name implies: as unintentional side-effects of criminal punishment that are as undesirable as collateral damage on civilians in military combat. These laws are thus widespread but underrecognized obstacles to reintegrating prison releasees back into communities, regardless of whether the goals of reintegration are full rehabilitation or merely reducing reoffending.11 The cycle of offenders from prison to communities and back to prisons via technical violations of parole or probation, 18 minor infractions, or even more significant criminal behavior that could have been prevented if hidden sentences were not a bar to employment, housing, and welfare options is repeatedly identified as a prime driver of imprisonment rates.12 In this vein, collateral consequences are identified as counterproductive to any purpose of punishment and a financial drain on resources,13 the primary problem of reentry.

This study is thus not the first to identify and analyze hidden sentences, but it does take a distinct perspective. What these examples all have in common is that their primary target of analysis or reform (or both) is contemporary trends in imprisonment, not on hidden sentences themselves. Some of them explicitly identify mass incarceration as the most pressing theoretical or social problem, while others, especially Alexander, expressly use the term “mass incarceration” as a single idea that encompasses the entire system of imprisonment, probation, parole, fines, and hidden sentences.14 Still others implicitly or instinctively take imprisonment as the true starting point of the analysis: the term “collateral consequences” in itself refers to a different idea as the true mechanism at work, the one that causes the collateral effects. The focus of the reentry literature is hence on the goals and effects of the visible penal system and mass incarceration, the after-effects of imprisonment itself.

The problem with centering the analysis on mass incarceration, even as a rhetorical shortcut or a way to draw interest, is that each of these examples conceptualize their key problem as a holistic entity, making mass imprisonment equivalent to the entirety of the American penal system and positioning the inquiry around one key operationalization: imprisonment rates.15 By collapsing the unit of analysis in such a way, both author and reader are left to assume that trends both in other types of punishment (e.g., community supervision or collateral consequences) and 19 in non-numerical dimensions of imprisonment itself (e.g., prison or reentry conditions) track those of a single concept. When hidden sentences appear in either of these literatures, either as an aside or a subject of some attention, it is not common for authors to claim that the rise of mass incarceration also marked a (presumably identical) increase in the number and severity of hidden sentence laws. Many authors make this claim without any proof or reference at all, simply accepting the field’s discursive dystopian assumption that “everything just got worse” after the punitive turn.16 In the most complete attempt at claiming hidden sentences are simply the collateral consequences of mass imprisonment itself, Jeremy Travis outlined some examples in the early 1990s of prominent examples of expanding collateral consequence policies.17 The problem is that, to date, there is no clear evidence that there was any increase in hidden sentence laws or their severity after mass incarceration began—or that if there is such an increase, it did not begin before mass incarceration did.18 In fact, there is good evidence that other penal forms have not always become tougher and harsher alongside mass incarceration.19

Perhaps more importantly, using only mass incarceration as the one and only unit of analysis presumes a single set of causes and effects.20 The most consequential example in this vein (because of its clarity and forcefulness) is The New Jim Crow, which explicitly claims that the causes of high imprisonment rates, the causes of racial bias in imprisonment rates, and the causes of increases in hidden sentences are all one and the same.21 The volume of evidence

Alexander presents for the argument that the War on Drugs and its historical origins in white elite backlash against the successes of the Civil Rights Movement are responsible for mass incarceration, and the cogency with which she presents her case, are impressive. If there is one gap in her case, it is the assumption that the theoretical origins of mass incarceration are the same 20 as the origins of or an increase in hidden sentences22—and the consequent implication that reversing the mass incarceration trend will also reverse hidden sentence trends. The result of collapsing down all penal forms into a single category—either explicitly as Alexander does or implicitly as Garland does by making “mass imprisonment” the centerpiece of Culture of

Control and subsequent works—is the development of theories and solutions based only on that one category. In simple terms, there is a tendency throughout penological and criminological writings to presume the answer to what is ultimately an empirical question: Is mass incarceration

(or the forces that caused it) responsible for a concomitant increase in hidden sentence policies?

This is the first study of which I am aware to approach hidden sentences as a distinct penal form or legal type, and takes the whole category or body of law that establishes that form seriously as a subject of empirical inquiry in its own right. My starting point is not hidden sentences in light of the eminently disturbing, racialized War on Drugs and the resulting rise of mass incarceration, nor is it hidden sentences in light of the difficulties of reintegrating released prisoners back in to society while avoiding recidivism. Instead, my starting point is hidden sentences in their own light: nothing but a theoretical vacuum with no preconceived relationship to any other penal forms or practices—or at least as few preconceptions as a human researcher with a critical orientation can muster. In other words, rather than take hidden sentences as what they may appear to be, I approach a) what hidden sentences are and (b) what relationship they have to visible sentences as empirical questions that have yet to be answered.

This project thus has two essential goals. First, at a minimum, I hope to dispel the increasingly popular myth that hidden sentences are merely the accidental side-effects of “real” punishments 21 like community supervision or imprisonment. This argument can be stated in both “micro” and

“macro” terms. At the level of individual persons, hidden sentences directly target subjects to whom formal criminal labels are applied, and they do so as the express result of deliberately enacted constitutions, statutes, judicial precedents, and administrative rules—none of which can exist entirely by accident. Laws do not have to be thoroughly planned, properly executed, or even well meaning, but they are deliberate (we will return to the subject of intentionality later in this chapter). From the perspective of actors in the business of applying or enforcing formal criminalization, it may sometimes appear that some of the consequences of their actions are unintentional when they do not have complete discretion over all of the legal penalties—hidden or visible—that can be applied. In fact, those actors may find it necessary or useful to frame hidden sentences as collateral damage in order to make sense of the social and legal context of their decision-making. Yet such framing does not determine the deliberateness of the legal context itself. We do not call imprisonment an unintentional side-effect of conviction because mandatory sentencing guidelines are in place or because corporal punishment is no longer a legislatively prescribed option provided to judges. As an empirical matter, a sanction that is expressly provided for by a law or policy is simply not accidental.

Likewise, at the level of American society, the hidden penal system itself derives neither from mass incarceration nor its proximate causes, including the War on Drugs. The rise of hidden sentence law was rooted in and shaped by modernizing changes in cultural assumptions, bureaucratic structures, and political actions in last years of the nineteenth century and the early years of the twentieth. Its historical basis can be traced back to medieval British and ancient

Roman law. Although hidden sentence law in the United States experienced various changes 22 and developments over the course of the twentieth century, neither imprisonment trends nor the

War on Drugs can be said to have a proximate impact on the character or trajectory of the hidden penal system. If anything, many of the changes that scholars typically cite as responsible for the punitive turn—especially cultural backlash against racial threats and shifts from informal to formal mechanisms of control23—predate mass incarceration by decades or more. The focus of this study is not to make strong, definitive claims about the causal relationship between mass incarceration and hidden sentence law (such claims would require a different sort of evidence with, at a minimum, counter-factual cases). It will, however, provide enough evidence to suggest at least a reasonable inference that cultural assumptions and stereotypes reified in hidden sentence law prior to mass incarceration contributed to the successful political framing of the unrest and turmoil of the 1960s as a problem of crime and punishment.

My second, and more ambitious, goal is to outline a new framework for understanding the social form and function of the hidden penal system. In other words, this study is at its core an investigation of what the hidden penal system really is as a social institution: how it is organized and constituted; what cultural, political, and economic conditions underlay it; how in particular it fits into the social order of American society.

Such an analysis makes use of what social scientists might call a genealogical approach: a history of a social practice.24 This kind of analysis does not, as a typical historiography would, seek to construct a complete narrative of events, actions, and motives; nor does it, as many social science histories might, ultimately seek to isolate the key factors in various cases so as to construct a causal argument. Instead, this monograph is a historical lineage of a social and legal practice, a narrative of from where that practice came and in what direction it is headed. 23

Genealogy does for historical work what grounded theory does for ethnographies: allows the evidence to speak for itself rather than having the researcher approach the problem with a predetermined set of theories to test.25 Events, actions, motives, causes, and effects will hence be relevant only to the extent that they help isolate the structural and cultural arrangement of hidden sentencing over time or the social processes that helped shape that institutional configuration.26

In my case, this study uses a kind of genealogical method focused on where a social practice comes from with a specific, sociological purpose in mind: in order to answer what that social practice is.

Because this study investigates the social conditions that currently underlay hidden sentencing as a social institution, it will at times approach the same narrative and use similar kinds of evidence as a more causally oriented analysis. It therefore also analyzes the lawmaking process and the culture of lawmakers, provides room for interrogating the role of mass incarceration as a social condition (or not), and will speak to many of the contemporary debates about the origins and effects of the visible penal system. Its ultimate aim at all times, however, is an attempt to come to terms with what the hidden penal system is and what function it serves in the contemporary United States.

HIDDEN SENTENCE: AN INDUCTIVE CONCEPT

In beginning this project, I eschewed the idea of collateral consequences, because it immediately but subtly implies a causal, unidirectional relationship between the laws we are investigating and conviction, imprisonment, or even mass incarceration itself. Approaching a study of these laws without presupposing the relationship between them and other penal practices seems to me to require an accurate term that implies nothing more than the subject of inquiry. 24

In searching for another term, I found a host of attempts to label this kind of law:

“collateral consequences,” yes, but also “collateral sanctions,” “civil disabilities,” “incidents of imprisonment,” “indirect punishments,” and others.27 There were also a few definitions, some that focused on a conviction activating penalties as an automatic operation of law, some that focused on the “indirect” application of these laws by a decision-maker other than a judge, some that focus on a loss of civil rights, and some that defined them based on their application through civil law rather than criminal law. To my read, though, none of those terms or definitions wholly captures this body of law without accidentally excluding some of what the law or scholarship recognizes as the category of collateral consequences: some of them can be applied directly by judges and some of them are not mandatory and automatic, some do stem from criminal statutes and some deal with restrictions beyond civil rights, and many can apply without a conviction.

The majority of the literature, though, skips a definition and simply presents some examples. Starting with key illustrations, as this chapter did, does orient a reader to the category at hand: those things that are like felon disfranchisement, background checks, prohibitions on serving in public office, and whatnot. Virtually every study that gave a definition also presented such a list, perhaps to account for the contestability of the definition. In other words, as a category, hidden sentences tend to be defined by negative induction rather than by positive deduction. There is no commonly accepted definition or even terminology, but there is an accepted category: those penal things that are unlike imprisonment and other “real” criminal punishments, those things that are “beyond the official sentence.”28

As Jeremy Travis in particular argued, however, the terms and categories listed above may get everyone on the same page, but they “miss the central point, which is that these 25 sanctions are intended to punish those who violate the law, and are experienced as punitive.”29

In fact, perhaps what is most distinct about these laws compared to other kinds of legal penalties is that despite also being penalties in response to a criminalized status, they are assigned less importance and given less notice and attention. They are hidden sentences.

“Hidden sentence” therefore refers to any adverse restriction or requirement imposed by law as a direct result of some formal, criminalizing label, and that is imposed by a process external to the criminal law or by a decision maker other than a sentencing judge. By formal and criminalizing label, I mean to include any official status applied by the state related to criminality: “felon” and “convicted offender” are the most obvious examples, but the category also includes arrestee, criminal-record holder, indicted defendant, ex-offender, released prisoner, current prisoner, pre-trial detainee, and so forth.30 As we will see throughout this study, that kind of negative definition is particularly appropriate because it is also how courts, policymakers, and others intuitively define the category of hidden sentence law when they come across it: something related to penality but outside of the category of “real” punishment. Likewise, it is at least one mechanism that explains how hidden sentences have become artificially separated to varying degrees from formally recognized sentences, and thereby obscured or ignored to varying degrees in public and professional knowledge.

Dimensions of Hiddenness

Travis coined the term “invisible punishment” to refer to the same set of laws I mean when I use

“hidden sentences,” and he too did so to emphasize the only meaningful difference between these laws and other punishments: their visibility. I prefer to use hidden sentencing for two main 26 reasons: (1) sentencing emphasizes the legal source and criminal character of these punishments, and (2) hiddenness is a more variable concept than is invisibility.31

An object or idea can be hidden to varying degrees to different actors, from different angles and vantage points, and at different times. Something that is hidden can be found and then forgotten again: technically “known” in that it was once learned, but simultaneously unknown in that it is no longer prominent in an individual’s consciousness and worldview.

Likewise, something hidden can be well understood but simply not salient to an actor in some social situation, so that it is not active and relevant knowledge brought to bear on purposive or reflexive action. It is possible to “know” and yet “not know” at the same time—especially when faced with others’ suffering.32 In simplest terms, what I mean by hiddenness can thus be a combination of ignorance, inattention, and perceived unimportance or irrelevance.

In addition, as Travis outlined, there are multiple dimensions on which these kinds of punishments can be hidden: legally, politically, and publicly.33 They can be said to be hidden legally because they are largely absent from the courtroom spectacle. Both judges and attorneys are exempted by law from having to inform criminal defendants of any hidden sentences, with the one exception of deportation.34 Likewise, no sentencing guidelines require judges to take hidden sentences other than fines into account. Unsurprisingly, then, the typical defendant is not informed of hidden sentences before pleading or after sentencing, and at no point in the penal process (not even at release from prison) do they tend to appear.35 Moreover, they are not part of the standard legal education for either lawyers or judges, so that many of them are not even aware of the extent and characteristics of hidden sentence law.36 27

We can say these laws are hidden politically because, as the evidence for this study will show, they tend to receive little to no attention in legislative debates, policy statements, speeches, or campaigns. They are only rarely the primary subject of legislative or administrative action, and rather appear as “pork,” riders and technical language added to a bill. Likewise, they are almost never included in bills actually designed to address crime control and criminal law.

Finally, they can be characterized as hidden publicly because neither laypersons nor criminalized people themselves tend even to be aware that such penalties exist. If they are, their knowledge includes very little understanding of the laws, how they apply, and to whom. Part of this hiddenness is a direct function of the lack of expert knowledge; for example, while statistical data on imprisonment, probation, parole, and fines exist to at least some extent in government databases, there is to this day no detailed information on people impacted by hidden sentences or even people having criminal records.37 Part of this public hiddenness, however, is simply an absence of these kinds of laws from news media, entertainment media, education, and daily conversation. Hidden sentences simply are not a matter of public concern, so that knowledge about and attention to them is fleeting and tends to fade quickly back into the shadows.

Two important caveats are in order. First, as the chapters of this monograph will show, all three dimensions of hiddenness can vary over time, and we are now in a particular moment where these laws are less hidden in some respects than they have been at other times. There is a critical mass of scholars and advocates addressing the issue right now, so that it may be true that they are less hidden than ever before. It is, after all, not a coincidence that a scholar can come along in this particular moment, see hidden sentences as a subject worthy of study, and conduct this study. Second, any given hidden sentence can be more or less hidden on each dimension. 28

Sex offender registries, for example, are fairly well known to the public eye and were certainly politically prominent in at least some cases, but they are legally exempt from any requirement for judges and attorneys to notify defendants of them. Felony disfranchisement laws are also somewhat well known (though I am constantly surprised at how many people have never heard of them), but were not a subject of much political debate when they were enacted. Deportation measures are the least hidden example legally (judges are still not required to take them into account at sentencing, but attorneys do have to provide notice before pleadings), but they are not publicly prominent and were also not a subject of political debate.

Intent, Motive, and the Meaning of Punishment

My basic objective is to analyze the social reality of hidden sentence law, not to enter into a debate about what punishment ought to mean. That being said, because the ontological meaning of punishment—and especially the role of “intent” in defining it—will play a key role in this history (especially through judicial case law), it seems appropriate to say a few words about the definition at the outset. In doing so, I will also take the opportunity to discuss the role that legislative, judicial, and administrative actors’ intentions play in this social history.

“Punishment” means the imposition of a deprivation or harm by an authority in response to some perceived transgression or wrongdoing. This definition corresponds with colloquial usage and conceptualizations developed by psychologists, philosophers, and lay dictionaries.38

Whether a condition is punitive thus depends on whether it imposes (positive or negative) injury, whether it responds to prior actions perceived as wrong or prohibited, and whether the decision maker has authority to impose it. Hidden sentences, by definition, all have these qualities: they 29 each impose a restriction or requirement, are in response to criminalized status of some kind, and are imposed, enforced, or sanctioned by law, making them authoritative.

Uncertainty tends to arise, however, when punishment is defined as something requiring an element of intent or purpose. This kind of definition tends to be found especially in the legal field, either in law review articles or judicial precedent.39 The critical but unrecognized problem with debating this point, however, is that both “intent” and “purpose” can have multiple meanings, radically changing what counts as punishment. The rule of law is largely premised on the idea that laws are made purposely (i.e., deliberately rather than by accident) and purposively

(i.e., with a particular motive in mind),40 so that when courts look for the “legislative intent” in interpreting a statute or constitution, they are searching for that motive. In defining an action like punishment, however, “intentional” actually means what it typically does in criminal law itself: a deliberate or willful desire to make an action happen, regardless of the maliciousness, benevolence, or even absence or a particular motive or rationale.41 For an act to constitute punishment, it does make sense that it must be done deliberately or purposely,42 but as the examples in Chapter Five will show, to require it to have a particular motive or rationale is to commit one of two logical flaws: tautology or definition by justification.43

In fact, we will often be confronted throughout this study with questions of purpose when faced with various policymakers’ actions, in both senses of the word. When considering legislative policymaking in particular, we must take note that any original motive of a bill is often obscured by the subsequent parliamentary process, wherein committees, individual legislators, and countless staffers change the language, add and remove provisions, and engage in the never-ending cycle of compromises, even though we can say that the resulting law was 30 enacted intentionally.44 In this business of “horse-trading,” bills can change dramatically, and often contradictory, tangential, or irrelevant “pork” can be added on to it, so that the overall legislative intent is a fictional conglomerate. It will often be difficult to discern clear motive or deliberative purposefulness from the chaotic legislative process, and it will be even more difficult to differentiate between what legislators say their motives are and what their actual motives may be.

Fortunately, my goal is not to tell a story about what policymakers meant to do and determine whether their motives in the end were insidious or well-meaning.45 My goal is to determine what hidden sentences are. In this genealogical perspective, unlike those that may appear in other historical approaches, intentions and motives do not serve an especially central role but are rather taken as any other piece of evidence of the cultural and structural figurations that constitute the hidden penal system.46 Just because actors may state or exhibit certain political intentions does not necessarily explain the function that the resulting penal configurations will have. Still, both explicit and implicit motives are good signifiers of the cultural and structural “rules of the game” within a social domain, including the ideologies and cultural assumptions that are present, the discourses and strategies that are available, the key players and organizational structures that are involved, and the amount of room there is for individual agency. Readers unused to this approach may be caught off guard and find themselves craving more direct inquiry into who was responsible and why they did what they did. That instinct may be particularly strong for readers approaching hidden sentences as a social problem. To those readers, let me say that I too approach this study with a critical perspective and an eye toward reform. Yet the differences between (a) the motives behind a law, (b) that 31 law’s social function, and (c) the social conditions that maintain it are crucial in coming to terms with the orientation and results of this study. The effects and impact of a policy depend only on its function, and the path to reforming a policy depends only on the conditions that maintain it.

By themselves, original motives are only good for placing blame. As a kind of empirical evidence, however, they are useful in uncovering social functions and conditions.

The relocation of motives from the research question to the level of empirical evidence is particularly salient in this history of a politically, legally, and publicly hidden set of legal policies. In studying a system of law that it enacted in obscurity, policymakers’ motives (both stated and actual) themselves will not always be apparent from the evidence that is available.

After all, lawmakers are capable of making fully deliberative decisions based on costs and benefits but, like other humans, often do so based on habit, reflex, assumption, and tacit agreement.47 As this project will show, such non-rational factors are particularly important for a system of law that is enacted in obscurity. In short, hidden sentences are often the result of unanalyzed, unrecognized cultural assumptions and stereotypes that occur in a policymaking process directed towards some end. The more general object of that process may have a purpose or motive, but the more specific explanation of how a hidden sentence came to exist within the policy is often without such express intentions. Even in laws that are passed with a conscious motive to exclude persons with a criminalizing label, we will find that neither individual hidden sentences nor the hidden penal system as a whole are typically the direct product of carefully reasoned plans.

CONSTRUCTING A NEW HISTORY OF A FORGOTTEN PENAL FORM

Even for a genealogy, this social history may strike readers as unusual. Throughout our search to come to terms with hidden sentencing as a contemporary social institution, we will be forced to contend with a rather rare empirical issue that is a direct result of the hiddenness of the phenomenon we are analyzing: what we can call an empirical absence of data. By that, I mean not simply a lack of empirical data to study but a predictable and expected gap in the evidence concerning a given hidden sentence. Precisely because this system of laws is hidden not only to the public eye but also to policymakers and legal professionals, we ought to expect a majority of the discourse surrounding hidden sentences not to notice them, much less come to terms with the intent and motives behind them. Rather than excluding these examples as unhelpful to our study as we might do with many other research projects, we will analyze this discourse for what it is: empirical evidence of a void in actors’ cognitive and discursive processes.

To make sense of this empirical absence of data, the analysis will often focus on the content of the hidden sentence laws themselves as evidence of the immediate discursive form alongside the context surrounding the enactment of the law that contains clues to the many incentives and assumptions that went into its formation (see the Methodological Appendix for more specific details in the analytical approach). Evidence will therefore be brought to bear from archival, doctrinal, scholarly, and statistical sources all at once in order to isolate important factors that appear to prompt hidden sentencing while searching for patterns of repeated discursive rules and habitualized action. Our focus will not be on methodological fidelity (the resulting analysis will incorporate kinds of evidence that are atypical even in similarly genealogical studies) but rather on the task at hand: interrogating the penal form of the hidden 33 sentence. Unfortunately, approaching an empirical analysis of an absence of data is not always so easy as it is sounds. As such, we should approach this analysis with a few important analytical rules:

First, we should tend away from “conspiracy theories” when there are other reasonable options. Although I am certainly not opposed to the idea that elite policymakers can plan and deal behind closed doors, especially with other elites throughout society (and there will be times in our analysis where this seems likely), it makes sense when analyzing this particular phenomenon to carry a healthy measure of doubt for conspiratorial explanations. The sheer number of hidden sentences and numbers of people it affects suggest that if all or even most of the 45,000 hidden sentences that exist today were the result of backroom deals, the secret would have gotten out at some point. Further, the length of time that a conspiracy would have to be maintained and kept concealed—for more than a century—makes it likely that word of an intentionally constructed system of punishments would have made it around society a bit more than it has, at least in current elite circles. I certainly will not cast aside any explanation at the outset, nor should a reader hold too tightly to preconceived ideas of what social forces gave rise to hidden sentences, but we will keep an eye out for explanations other than a grand, elite conspiracy.

Second, we should be careful in the face of an open analytical space not to impose our own assumptions of what hidden sentences do. It is a common error for historical analyses to fail to come to terms with the impetus to ascribe contemporary sensibilities onto past events, to unconsciously look into the past expecting to find the same sets of problems that characterize today.48 With penal laws that did not initially have a clear or prominent public objective, 34 motives are particularly likely to be constructed post hoc by jurists and others seeking to explain their contemporary existence—though such motivational red herrings ought to be a concern for any study of the policy process. For instance, it may seem “obvious” from our current social consciousness that banning criminals from certain kinds of employment makes sense from a public safety perspective, that denying felons the right to vote is justifiable retribution for breaking the social contract, or that taking a motor vehicle license after violations of driving laws serves a deterrent purpose. In fact, these explanations are repeatedly offered or simply presumed as the motivation behind hidden sentences without accompanying proof or analysis.49 We will need to be careful not to succumb to the same kind of inadvertent presentism. That being said, we are also in the unique position of analyzing a penal practice itself, rather than only its causes, so that post hoc justifications, ends constructed after the means are already in place, are important evidence of changes to the penal form.

Third, we will need to approach an empirical void systematically in order to draw conclusions from it (see also the Methodological Appendix). Perhaps the best analogy is the statistical treatment of missing data. Rather than simply resorting to listwise deletion, casting aside any cases that do not contain complete information, the most productive way to deal with missing data is to analyze it for patterns in itself and often impute meaning based on what information is available.50 In order to interpret an empirical absence of evidence methodically, we will use the information we do have for each case combined with the more complete information we have from other cases with similar patterns in content and context.

Fourth, we must make room for our own error. A complete and comprehensive history of the hidden penal system in the United States is simply impossible in a single volume. As such, 35 my conclusions will already be at the very least incomplete at times and inviting of further analysis. Interpreting a pattern of absent data will worsen this problem and make any causal inference tentative at best. Pure replication of historical studies is virtually impossible, but I am hopeful that future research will be able to use this genealogy to inform other histories that analyze other aspects of hidden sentencing and also present the chance to support or adjust many of my findings. The genealogical approach and aims of this study will help to offset errors in interpretation, however: what I aim to describe is what figurational qualities of hidden sentencing that I see over social space and time, so that even as a tentative interpretation of the evidence presented here, this study will offer readers the chance to deconstruction their own assumptions and draw their own conclusions about the hidden penal system.

Cases and Evidence

The primary sources of evidence I will present are archival sources—legislative committee minutes and floor debates, session laws, judicial rulings and transcripts, and occasionally media and scholarly articles—from the federal system and one state, California. California is central in many prior analyses of the visible penal system, consistently ranking as having the highest prison population in the country and being described as a bellwether that leads other states in policy diffusion processes.51 Likewise, California also has more hidden sentence provisions than does any other state (currently 1,723 as compared to an average of around 900; only California and

Ohio have more than 1,400), and it was one of the earliest states to begin enacting hidden sentences in the 1890s (notably, New York and Kentucky also have particularly early histories).

Using California as a case therefore offers the opportunity to analyze key factors in hidden 36 sentences besides policy diffusion (though it will still play a key role in our story) and to consider a state leader in both hidden and visible penal policy.

The federal system of hidden sentences is distinct in that it applies to all offenders regardless of sentencing jurisdiction (unlike in visible sentencing, where it is a jurisdictional alternative), so it offers a meaningful and distinct second case while also helping to offset some of the particular changes that were occurring in western states but not necessarily the rest of the nation. Again, federal policies are often hailed as leading visible penal policy throughout the nation,52 so this offers a useful starting point for analyzing hidden sentences.

It is important to note, however, that Californian and federal penal policies are also exceptional, and the tendency to focus on them throughout penological study can create overgeneralizing narratives that miss the inner workings of penal policy throughout the other 49 states.53 Like the visible penal system, the vast majority of laws containing hidden sentencing provisions are located at the state level, and while California is an important leader, it not representative (it may be impossible for a state to be both). Moreover, analyzing only a western state alongside the federal system will likely overlook regional differences in the character and social conditions of hidden sentence laws. I will attempt to acknowledge and partially account for these shortcomings throughout by including examples and references to other jurisdictions, but the true solution to this limitation is to rely on the scholarly enterprise as a whole: future research is sorely needed on hidden sentences.

Additionally, this project will use nationwide statistical data to supplement and ground the historical analysis, a common approach in comparative histories that can both help offset the shortcoming of focusing primarily on two jurisdictions and assist in interpreting patterns where 37 there is such a pervasive empirical absence of evidence.54 The National Inventory of the

Collateral Consequences of Conviction (NICCC) is a database of all post-release hidden sentences in each United States jurisdiction (including the District of Columbia).55 The NICCC was collected during 2010-2014 by the Criminal Justice Section of the American Bar

Association and the National Institute of Justice. The goal was to produce an online, publicly accessible database of all hidden sentences, searchable by jurisdiction, offense type, category of the penalty, and other factors. In constructing this database, however, the ABA and NIJ constructed a unique opportunity to measure hidden sentences; the NICCC is the only known dataset that comprehensively captures all hidden sentence legislation in the United States. I will use it throughout this analysis to provide useful statistical evidence of hidden sentence trends

(see also the Methodological Appendix).

The NICCC also provided an opportunity to deal with the conundrum of analyzing even two jurisdiction’s worth of hidden sentence laws: between Californian and federal law, there are

2,858 hidden sentence provisions, well more than a single study could hope to analyze in any depth. I began the analysis by selecting twenty nine cases (3%) randomly by decade (lest the analysis be disproportionately centered on recent years because of the highly skewed growth curve of hidden sentence laws).56 As I conducted archival research, these cases led to others by referencing other hidden sentence provisions passed in the same session law or by referring to significant social events or processes that pointed to a particular hidden sentence, so that the final analysis presented in this study contains substantive information on more than one hundred hidden sentence laws between the two jurisdictions.

RACIALIZATION AND CRIMINALIZATION

Our story about hidden sentences will begin with developments in the administrative bureaucracies and the visible penal field that led up to the first hidden sentences around the turn of the twentieth century. From that point onwards, the history of hidden sentencing is a history of othering in the United States. The character of hidden sentence laws and the stereotypes that they reify in every decade can be linked to the salient racial, political, and sexual others of the time, from East Asians to Soviet communists.

I did not set out to tell a story about race and inequality, not any more than I approached an inductive historical analysis with any particular theory in mind. Research on the visible penal system has uncovered links between race and criminality at almost every step of the way: mass incarcerations’ causes can be traced to cultural backlash in response to the successes of the Civil

Rights movement, political capitalization on (especially Southern) fears of racial threat, progressive legal limitations in order to reduce discriminatory sentencing, and economic shifts out of urban industrial centers that left especially black working class communities without a stable influx of resources,57 and its effects have left entire (urban, black) communities imprisoned in a cycle of unending poverty, unemployment, undereducation, and effective disfranchisement.58 Although some of the effects can better be traced to class-related than to racial disparities, the cultural linkages between race and criminality have become stronger than those between class and criminality.59 Many authors argue that, because of the deeply engrained cultural association between the War on Drugs itself and unconscious racial stigma, “the stigma of race has become the stigma of criminality.”60 The prevailing discourse in both academic and reform-oriented circles today is therefore that the visible penal system has evolved into a system 39 of controlling blacks. The story of hidden sentences, however, begins long before the expansion of the visible penal system, the Civil Rights movement, and the freeing of blacks from prior systems of racial caste like Jim Crow laws and the urban ghetto.61 I therefore had an open analytical approach but did not expect the hidden penal system to (need to) add additional racial controls in the era of Jim Crow discrimination.

Yet racialized stereotypes, the meanings derived from them, and their significance for social interactions are not, as we often assume, durable and unchangeable. Americans often tend to forget or ignore much of the nation's history of inequality, remembering instead a patriotic story of progressive equality—of free speech and assembly, religious inclusion, freed slaves, women's suffrage, quota-free immigration, civil rights for all races and colors, affirmative action, etc. That optimistic history is in some ways true, but focusing on accomplishments while denying mistakes is a good way to avoid learning the lessons of the past. The fact is that the

United States has a long history of racism, xenophobia, nationalism, ethnocentrism, imperialism, and sometimes even a perverse nativism—not to mention sexism, homophobia, elitism, religious and political prejudice, and other kinds of intolerance—and those kinds of intolerance have waved, waned, and shifted over time in important ways.

Likewise, while blackness and non-blackness in particular has been an overriding racialized concern at some times and places throughout American history, it is neither the only dimension of race nor the only dimension that relates to criminality. Part of the pull to essentialize in that way is the United States’ history of the “peculiar institution” of slavery that causes so much of its exceptionalism—including the mass incarceration that exists now and is disproportionately filled with poor, urban, black men.62 Yet if we look only at a single 40 dimension of race throughout a historical endeavor (even while allowing for shifting meanings and significances of race), we are likely to overlook race in some instances and overemphasize its disparate causes and effects in others. For example, because of the particularly strong cultural framings and disparities between mass incarceration and blacks today, it is easy to overlook the concomitant stereotypes and severe disparities (though less than those for blacks) for Latinos and the visible penal system.63

In the following analysis, I therefore approach race as a socio-legally constructed and shifting system of cultural meanings, as a process of racialization rather than a static list of boundaries and resulting disparities. Race is a continually evolving complex of cultural meanings and assumptions, a process that shifts and develops throughout American history.64 At any given moment, it is an uneven collection of discursive frames and meanings that center on politically contested and contestable categories. Once upon a time, “race” was not even a recognizable concept to either Europeans or the rest of the world.65 It was not until European imperialism confronted Asian, African, and Native American peoples that it came to the forefront, and it has been changing ever since. In today’s United States, racial bias itself has coalesced into a less explicit and less noticeable form (though covert racial bias is also not new), instead manifesting most often as an implicit or unrecognized set of cultural justifications, biases, and relationships: “colorblind” racism.66 As such, in order to make sense of the complicated history of hidden sentences that spans the following pages, we will need to approach the idea of race, the categories it includes, and the meanings those categories entail with an open mind. 41

Additionally, in the particular history of othering that we can see through the lens of hidden sentencing, we will sometimes come across other categories—especially Soviet communists and homosexuals—that are important to the analysis and also have shifting meanings and salience over the American history. This is not the place to argue whether communists and homosexuals were treated by hidden sentences in ways similar enough to distinct race-like categories that terms like “racialization” are applicable; that would be a own

(quite worthy) book-length project of its.67 Similarly, I do not devote time to debating the lines between ethnicity and race as separate concerns, especially concerning white immigrants.68

Although I am agnostic on none of these points, I attempt to address these issues in a way accessible to multiple points of view so that each side of the debate can approach and make use of this history of hidden sentence law. As such, this analysis will treat not just racialization but all forms of essentialized othering as processes that develop and shift cultural meanings over time. Likewise, I will interchange terms like “status-blind” and “colorblind,” “essentialism” and

“racism,” “otherization” and “racialization,” using each of them to refer to roughly similar kinds of essentialized stereotyping and boundary-making.

THE EXCLUSIONARY ASSUMPTION

When we approach the history of America’s hidden penal system through this kind of lens, what is most remarkable about this particular history of American othering is that it is a history of status-blind othering, long before the contemporary era of “post-racist racial bias.” The most pressing concern for racial inequality today is almost certainly grappling with the deep, systematized racial disparities that exist seemingly without explicit racial biases and racist intentions.69 The same nation that enacted the Civil Rights Act of 1964, elected its first black 42

President, and has a majority of its citizens who claim to be unprejudiced maintains startling levels of educational and economic inequality along racial lines and has the largest, most racially biased imprisonment system in the world. Much of the source of this remaining inequality can be found in the liberal privileging of meritocratic over racial concerns, the tendency to normalize racial differences as the result of individual and cultural choices, and other informal social practices.70 Together, these norms form a palpable ideology of color-blindness that holds that if people learn not to look for race, they will no longer discriminate based on it.

When a status-blind ideology enters into legal and political discourse, whether it is a well-meaning attempt to rectify inequalities or a surreptitious attempt to hide overt biases that are not acceptable to express publicly, it can create policies and practices that reify structural inequalities and cultural assumptions. Lawmakers have a long history of adopting an ideology that equates racial equality with anti-discrimination and, as a result, enacting technically race- neutral (and class-neutral, gender-neutral, etc.) policies that in practice have disparate impacts along group lines.71 By enshrining discriminatory sorting practices in the law, these kinds of policy decisions can legitimize and solidify group differences by giving them a formal mechanism of enforcement and endorsing them through the eyes of the state itself. Because the law is not just a set of rules but also a system of ideological enforcement, this kind of legal reification or reinscription of inequality actually serves a race- or status-making function.72 The cultural assumptions and stereotypes that form the grounds for such policies survive in an official, sometimes sacrosanct way—the language of the law—which is then a covert source for jurists, policymakers, and the public to practice, learn about, and ultimately absorb those assumptions through the uniquely legitimizing means of legal authority. 43

From their beginnings, hidden sentences were this kind of law. They are by definition laws that use the terminology and label of criminality as (apparently) race- and status-neutral reasons to exclude people with particular patterns of behavior from various activities, locations, rights, or benefits. More often than not, though, either the particular patterns of behavior or the particular legal spaces, or both, are based on discernible cultural stereotypes about racial, political, sexual, or economic others that are salient at that moment. Over time, hidden sentence laws have reified stereotypes associated with white immigrants, East Asians, Soviet communists, blacks, Latino Americans, and homosexual men—and each kind of othering is more likely in the period and place where the threat of that group is most salient.

Throughout the history of hidden sentences, then, we will be tracking the development of a particular cultural assumption: the assumption of legitimized exclusion of the criminal other, or what we can call for brevity, the exclusionary assumption. The exclusionary assumption is an unstated, discursive rule that a particular status group, in this case the criminal other, is justifiably, legitimately, or even naturally able to be barred or eliminated from a given set of relations, either temporarily or permanently. In this sense, that rule of discourse is a knowledge claim that initially can be contested, but as it normalizes into a cultural assumption over the course of this study, it will be less contestable and then even less recognizable over time.73 Also, although the exclusionary assumption is typically framed and can easily be stated in the passive sense, it also contains a relational claim, an implicit power relationship between the “other” at issue and the person or group of people agreeing on the identity of that other: elite policymakers, who tend to be white, Anglo-Saxon, Protestant, and non-criminal. Because only that one party in the equation has the power to impose an identity of otherness, and indeed because that elite party 44 needs no contrary identity but is merely a “self” that has the power to both label and exclude, the exclusionary assumption is not merely a knowledge claim but a claim of superiority.74

It is this particular assumption that makes criminality so powerful and popular as a tool of race- and status-neutral boundary-making, because it allows a decision-maker to substitute an acceptable category of exclusion—criminality—for an unacceptable one, and often to do so without notice or disagreement. When categorization based on Asianness, blackness, homosexuality, and other kinds of marginality becomes contested and increasingly unacceptable, decision-makers become more likely to resort to a less contested form of exclusionary categorization. Over time, as criminality is increasingly accepted as a normal mode of categorization, the rate at which hidden sentences are enacted increase exponentially.

TRACING THE DEVELOPMENT OF A SYSTEM OF MARGINALIZATION

Analyzing hidden sentences as a distinct penal practice or a distinct aspect of the penal system will ultimately allow us to answer a particularly important question in a novel way. In combining our knowledge of the social conditions that helped develop and transform this penal practice, the relationship between it and visible penal practices, its function in reifying and re- making boundaries as key moments in racialization and essentialization processes, and its function in making and re-making the criminal other as a unique relational category—in coming to terms with what forms and figurations hidden sentencing has taken in United States history and what role it plays the American social order—we will in due course have the opportunity to come to terms with what punishment actually is, or in sociological terms, what function punishment serves in our society. 45

We will begin in Chapter One by tracing the long line of historical predecessors to hidden sentencing in the United States. These precursors include the various kinds of exile, outlawry, and civil death traceable back as least as far as Roman law, but I will argue that the best analogy to characterize hidden sentencing’s social type, the kind of social thing it is, is the medieval

British practice of attainder. Attainder literally means the “taint” or “stain” of criminality that attaches, often permanently and irrevocably, to a person formally labeled as a criminal by the state. Then, we will outline the configurations of current hidden sentence law, and juxtapose them against the earlier systems, so as to provide a reference point for the reader and to draw out the distinctive features of hidden sentences as the modernist iteration of attainder.

Chapter Two will then delve more deeply into the theoretical models that can best describe the hidden penal system and its social functions. Although the theoretical “approach” of this genealogical analysis was developed inductively from the evidence (rather than in a hypothetical manner before the analysis), we can say that this study exemplifies a Weberian approach to the study of modernist penality, while incorporating significant elements of other approaches. Then, Chapter Two uses the Weberian-centered approach to outline a uniquely modernist precursor to hidden sentence laws: regulatory punishments, which can be described as special restrictions and requirements imposed within a zone of administrative law in response to wrongdoing defined and enforced entirely within that same zone. Regulatory punishments are penal in important respects but do not make use of labels of criminality, and they developed based on the modernist shift Weber identified toward increasing formalization, bureaucratization, and rationalization of the means of social control. 46

Chapter Three will then proceed to analyze the first kinds of hidden sentences that arose in American law, the cultural and structural changes that coincided with their rise, the discursive frames used to construct and deploy them as particular strategies of action, and the eventual form hidden sentences took between the 1890s and the 1950s. It argues that hidden sentences constitute a set of unanticipated or underanalyzed consequences of purposive policy actions that were developed within the increasingly overriding modernist frame of instrumental rationality.

Concerned only with their policy goals, policymakers simply neglected to analyze the penal- criminal means they chose in hidden sentences except to consider them as abstractly objective, calculable, standardizable, and efficient as possible. Within that expansion of the modernist logics of instrumental rationality, we can describe hidden sentence law as a system of classificatory attainder. Its function was almost pure classification, a rational-legal supplement to and later replacement of pre-modern and traditional sorting methods based on communal reputation. As traditional classifications increasingly lost their legitimacy with the proliferation of new technologies of communication and transportation along with the increasing impetus toward rationalization and bureaucratization, space was made for classifying based on a new, more standardized method.

Chapter Four then steps back and takes another look at the underanalyzed assumptions that permeated hidden sentence law as soon as it began expanding. It was in this moment that the exclusionary assumption was contested but eventually attached to criminality and hidden sentencing was established—and almost immediately, it was put to use as a race- and status- blind tool to adjudicate contested meanings of Asianness in the wake of Chinese Exclusion, of whiteness in light of the ethno-nationalist tensions in both the Progressive movement and the 47 increasing fears of socialist sympathizers, and of communism, both in relation to the those two racial identities and as an identity in itself. Chapter Four therefore elaborates on the relationship between hidden sentences and color- or status-blindness, and uses a racialization or racial formation perspective to elaborate the stereotypes and biases of those three groups of essentialized others that were first enacted into hidden sentence law through the frame of abstract rationalism.

Chapter Five then takes a step further, shifting the racialization perspective to a broader one of criminalization, which can be considered (a) a shorthand for status-blind essentialization through criminality that has essentially biases effects, (b) the consideration of multiple, intersecting kinds of essentialization all under the label of criminality, or even (c) a kind of othering in itself that interacts with race, political identity, etc., and yet exists on its own axis of identity. The chapter does not argue that one of those three rationales is controlling but rather focuses on the productiveness of using a criminalization perspective to elaborate the development of hiddenness itself in the making of criminalizing policies and criminalized others.

Hiddenness has throughout American history been increasing and becoming more and more routinized, so that the exclusionary assumption and the processes of boundary-making around criminality have both become deeper, harder to contest, and difficult even to recognize over time. It is, in the end, through that kind of obscurity that hidden sentences can function not just to exclude, but to produce a form of privileged inclusion.

The complex of hidden sentences revealing by the end of this study is difficult to make sense of as a rational system of punishment and can only be explained as serving some other social function. As a social institution, punishment can be seen as attributing meanings for 48 norms and action, the hierarchical power structure, collective solidarity, and cultural meanings.75

As a distinct aspect of that institution, the hidden penal system is above all a social practice that is concerned with the process and experience of belongingness. By the end of our story, the hidden penal system will have three key characteristics. First, it will be numerically large enough and simultaneously diffuse throughout enough societal actors (whether punisher, punished, or both) that it can be considered a series of individual interactions between punishers and the punished. Second, it will be normalized or hegemonic enough that these interactions can be considered social rituals capable of meaning-making. Third, the hidden penal system will remain hidden enough that these rituals and their ascribed meanings, even if individually important, will not become a salient feature of social life and can therefore be repeated for both the punishers and the punished indefinitely. Put simply, hidden sentences as a social practice today are diffuse, repeated rituals concerned with the everyday experience of belongingness, with producing and reproducing privilege and marginalization.

CHAPTER 1

ATTAINDER: A LOST WORD FOR A FORGOTTEN PRACTICE

In today’s America, writings on prisons, the death penalty, and most other kinds of punishment can dive right in with a common ground between researcher and reader, and the researcher need only explain the study’s questions and particular angle of inquiry. The first chapter of an investigation like this one—one that searches for historical patterns in order to better understand the current configuration of the penal field—would lay out a starting point in the recent past that is recognizable to most readers’ sense of the world: prisons before the War on Drugs, the gallows, the guillotine, or some kind of corporal punishment From there, the chapter would outline the institutional arrangements of that idea as a reference point to understand subsequent development.

Although my task is to analyze a penal form that is not well known or familiar to most of the professional world and the lay public, I will begin in much the same way. To come to terms with the current configuration of hidden sentencing and the social conditions that underlay it, much of the subsequent analysis will root through changes in hidden sentencing over time in order to isolate institutional continuity. It will, in other words, seek durable sets of cultural assumptions, ideological framings, strategic resources, and incentive structures that constitute and maintain hidden sentencing as a distinct aspect of a social institution (punishment).76 To do so, we will need a historical reference point from which that penal practice developed.

Unlike most normal penological projects, however, this first chapter will also need to provide two additional reference points. First, we will need to put a name to the historical 50 category or concept we are analyzing. Hidden sentences were new in the late nineteenth century, but they did not emerge from the ether. Just as imprisonment and lethal injection can be considered the newest iterations of ceremonial punishment,77 hidden sentences must be the newest iterations of something. In setting the stage with the precursors to hidden sentencing, this chapter will also provide a name for that concept: attainder. Although attainder was not the first word used in hidden sentences’ lineage, it is the most apt description of this category of penal practices overall. “Attainder” literally means the “taint” or “stain” of criminality, the metaphorical pollution of a person that occurs when the state issues a formalized label of condemnation. At any point in Western history, an attainted person would lose some or all rights, privileges, honors, and regard that would otherwise be granted to peer citizens, and would do so as an inseparable element of their label of criminality.

Second, we will need not just a historical reference point but a contemporary one. It is next to impossible to identify the key features of a social phenomenon by examining it only in one time and place, replete with the discursive rules and assumptions of that moment. It is far more productive to try to explain variation, to look at the same phenomenon at divergent moments in order to break free of our own assumptions and see what fundamental characteristics of that phenomenon remain constant throughout multiple times and places. Given that requirement, the reader will benefit from beginning this historical endeavor in an unusual fashion: with the lay of the land today. This chapter will therefore proceed by tracing the lineage of attainder from Rome to Britain and ultimately the American colonies, and it will then outline the most salient features of hidden sentence law today, including the types of penalties it can impose, the types of offenses that can activate such punishment, and the varying methods they 51 can be applied. The most noticeable features about attainder even from this brief and secondary history are that, for millennia in Western legal systems, it was a known, accepted penal practice that exacted consistent, predictable (depending on the era and the kind of criminality) kinds of punishment based on certain criminalizing labels. Only today has attainder become legally separated from visible punishment, split into varied and piecemeal combinations of penalties, and forgotten to most of the legal, political, and public worlds.

LEGAL PERSONHOOD, COMMUNITY MEMBERSHIP, AND CRIMINALITY

The Accursed: Divest of Public Citizenship

The history of hidden sentencing stems back at least to the punishment practices of ancient

Rome. In the latter two centuries of the Roman Republic, the formal penalty for various crimes from treason to incest to the practicing of magic was technically public execution, but officials rarely enforced it.78 Instead, when sentenced to death, criminalized people were given the option to submit to an alternative penalty of banishment or exile from Rome entirely, and if they voluntarily did so, officials would commute the death sentence.

Such exiles were known as homo sacer, meaning “the accursed man,” and were required to forfeit all civil status under Roman law and permanently leave the boundaries of Rome.79 As infrequently as once per year, the plebeian tribune (the assembly of the common people of

Rome) would publicly issue an interdicere aquae et ignis, an administrative “interdiction to forbid water and fire” that forbade all citizens from providing such exiles warmth and sustenance.80 The interdiction also applied an attendant status of infamia, or “infamy,” taken from the Greek practice of atimia that banned the accursed from voting or holding public office, 52 from attending assemblies or making speeches, from serving in the army, and from having any civil standing in court.81 Roman law was notoriously separated into degrees of citizenship, applying different degrees of protection and standing to Roman citizens (with differences by aristocratic lineage and gender), to Latins from other states, to other allies, to slaves, to freedmen, and to foreigners, so that the effect of stripping an “accursed” criminal from their citizenship status was to set them beyond the civil law, provide them no access to its protections, and even allow them to be killed or injured without any legal consequence. Exile in early

Roman law was thus an early precursor to hidden sentencing that applied a holistic kind of legal exclusion on top of—or more accurately, as an integral part of—a sentence of banishment.

Later, the Senate and various magistrates also allowed convicted persons to elect such exile over a sentence of death, and in the later years of the Republic and early years of the

Empire, officials started imposing interdiction not as an administrative alternative to death but as a penalty in itself. Julius Caesar in particular worried that capital crimes could be committed with impunity under that system and so enacted a rule that exile include forfeiture of half of their property, or all of their property if the crime at issue was murder of a lineal benefactor (fines and forfeitures are now common types of hidden sentencing).82 Courts also began exacting specific kinds of forfeitures that stripped infamous criminals of their current offices and professions.

As the imperial years advanced and capital sentences were issued more frequently, both because convictions for treason against the Emperor became common and because new crimes like forgery were added to the list of capital offenses, Roman law began differentiating between types of diminished citizenship and meticulously differentiating between types of criminality and types of citizenship. Capitis deminutio media was a medium relegation of status that stripped all 53 familial rights and citizenship rights, often from exiled criminals, but capitis deminutio maxima was a greater loss of status that also included the loss of liberty: called metallum, the enslavement of a criminalized person (often to the state, but sometimes to an injured bondsman) along with the concomitant deprivation of citizenship and familial rights, was the most severe penalty beside death that could be imposed.83 In addition to public and administrative announcements of changes in citizenship status, officials also accompanied these kinds of citizenship losses with brandings and, in the case of those sentenced to metallum for life, with permanent chains—creating prominent methods of labeling citizenship penalties that pervaded public and legal life in Rome. Bureaucratic records were also kept as part of the imperial census and disseminated throughout the provinces.

Less severe crimes could, at the discretion of officials, be punished with capitis deminutio minimus, a minimal reduction of status that only abrogated familial status and relationships (though a noble stripped of hereditary titles and property might not consider such a penalty “minimal”), or a temporary sentence of public laboring and service called opus publicum.84 Throughout Roman history, there are also examples of corporal punishment and monetary penalties, sometimes for lesser crimes but usually applied to persons of lower standing like foreigners and slaves,85 and these are notable from our perspective because they included no accompanying legal restrictions or even temporary relegations in legal status. Even slaves, however, could be labeled (by their masters) as a threat to the realm and punished by a form of banishment and status reduction to the level of dediticii, so that they could not only be killed with impunity if they returned to Rome but also re-enslaved. 54

The majority of criminal penalties in ancient Rome were hence explicitly concerned with reductions in citizenship rights, either as a penalty in themselves or as an inseparable change in legal status that was necessary for the penalty at issue: banishment, enslavement, and mandated public service all required and were defined by the loss of legal status in the Roman law. As part of the direct lineage to hidden sentencing, however, the various kinds of capitis deminutio and the label of accursedness were distinct in that they were inherently part of the penalty, systematically linked to degrees and severity of crimes, and conspicuously included into public and legal life. As a result, they were just as knowable and well-known as punishment in general was in Roman society.

The Outlaw: At the Mercy of the Mob

The basic structures of British law from the Middle Ages through the Renaissance (and also those of many other continental European systems) include a similar set of legal practices to those used in Rome, and they included the same elements of public prominence, predictability, and centrality to punishment. It was in this period of British law that the term attainder came into legal usage. It comes from the Latin “attingere,” meaning to touch, reach, or assault a person, especially in reproach, and it developed into an English term referring to a tainted or sullied reputation.86 As it developed a legal meaning, however, it became closer to that of homo sacer: a person attainted was a person accursed by a label of criminality. As Blackstone’s famous treatises on English common law stated,

When sentence of death, the most terrible and highest judgment in the laws of

England, is pronounced, the immediate inseparable consequence by the common

law is attainder. For when it is now clear beyond all dispute, that the criminal is 55

no longer fit to live upon the earth, but is to be exterminated as a monster and a

bane to human society, the law sets a note of infamy upon him, puts him out of its

protection, and takes no farther care of him than barely to see him executed. He is

then called attaint, attinctus, stained, or blackened.87

Attainder was meant technically to refer to the formal label of judicial condemnation, the intangible debasement itself that flowed from the issuing of a judicial sentence, and not to the concrete list of penalties that followed from it. In its most proper form, it should have referred to the status of being sentenced, like “conviction” refers to the status of being adjudged guilty.

Blackstone interpreted the distinction between conviction and the application of attainder as one more legal hurdle before the ultimate sentence, “for there is still in contemplation of law a possibility of his innocence. Something may be offered in arrest of judgment: the indictment may be erroneous, which will render his guilt uncertain, and thereupon the present conviction may be quashed.”88 For a time, before the term fell out of fashion, attainder was also used generally to mean any kind of tarnished reputation, whether or not it had to do with criminality and the law.89 There are, however, many examples both past and present of well-esteemed jurists conflating attainder with its attendant sanctions, especially the three penalties most associated with the legal terminology in British history: forfeiture of blood, corruption of blood, and civil death.90 The easiest explanation for the confusion is that there is no accurate term to refer to that set of sanctions together (because they were once considered an inherent and inseparable aspect of punishment, it made no sense to have a term more specific than

“punishment”), so that for convenience’s sake, many jurists referred to the status and the penalties that flow from it as a single “attainder”—much in the same way as we now do with the 56 idea of a sentence.91 To avoid some of the confusion, I will whenever possible throughout this project try to differentiate between the status of having criminality, or being attainted, and the penalties that flow from and make up that status, attainders.

The first two penalties associated with attainder in English law were forfeiture of estate and corruption of blood, the latter of which meant forfeiture of any hereditary titles (for the purposes of both inheriting and transmitting the titles and property to any heirs). The lands, goods, and personal property of any attainted person (i.e., noble) would hence revert back to the

Crown rather than being passed on to children or other heirs. Forfeiture of estate and corruption of blood were derived from certain versions of the Roman capitis deminutio minima that stripped a person of familial ties, and they were introduced to English law after the Norman Conquest.92

Afterwards, they quickly became frequently used tools of English kings and queens to divest their political enemies and their entire families of their presence in Parliament, and to take their holdings. Parliament was also known to use bills of attainder against its enemies, but as with other legislation, it had to do so with the consent of the monarch.93 Henry VII used attainder as a frequent weapon against nobles, rescinding their criminality if they gave promises of loyalty or submitted to his terms, and Henry VIII, who was known for his string of wives, even used bills of attainder to annul his marriage to two of them and then have them executed.

The third penalty emanating from attainder is perhaps the most important one (and also the one that existed for the longest period of history): an attainted person was considered to be civiliter mortuus, civilly dead. Much in the same way as its Roman predecessors, capitis deminutio media and maxima, a civilly dead person was divested at least in theory of all legal 57 rights and standing, and depending on the particular kind of punishment, could be subjected to slavery to the state.94

In English law, attainder and civil death were the result of three penal statuses: a sentence of (natural) death, a sentence of exile, and a sentence of outlawry.95 First, while a person was imprisoned and awaiting the exaction of a sentence of death, attainder acted as a legal shortcut that treated the sentenced person as already dead for most purposes, causing their property to be forfeit immediately, disallowing inheritance, and denying them legal standing for most kinds of claims.96 Civil death was never complete (some basic rights were still protected, and the attainted could still acquire certain kinds of property and contracts), but it remained a ubiquitous legal fiction for centuries that a sentence of death immediately killed the attainted in the eyes of the law.97

Second, banishment was an option for certain capital crimes, and it was procedurally identical to the punishment of exile used in Imperial Rome, carrying with it the same kind of abolishment of citizenship rights. Neither kind of sentence could be applied for less than treason or felonious conduct, so the attainted, like its Roman predecessor of homo sacer, were typically thought of as having been penalized only for the most serious of crimes. As more kinds of conduct were defined as felonious throughout the Renaissance period, however, banishment (or more innocuously termed “penal transportation”) was increasingly used to punish common citizens by exiling them to penal colonies where they were relegated to the status of indentured servants or slaves.98 Although some colonies created their own system of legal rights, allowing a form of second-class citizenship, the exiles would not regain their citizenship rights in Britain for as long as their sentence lasted. 58

Attainder and civil death could also be applied for a third kind of sentence, though: outlawry, also called abjuration and infamy. Outlawry was meaningfully different from Roman interdiction in that it was a kind of internal exile, not necessarily carrying with it actual banishment from the realm.99 It was not, as we imagine in stories of Robin Hood and other outlaws, a kind of heroic banditry; instead, an outlaw was literally set “outside the law,” without any access to legal rights or the protections of the law. Similar practices existed in other Nordic and Germanic nations.100

Part of the reason for this new form of internal exile was procedural; instead of only being a sentence for conviction of capital crimes, outlawry was an automatic legal status conferred upon any person who failed to stand for trial.101 Not submitting to the justice of the court (even by mistake) was assumed to be a tacit admission of guilt, so that outlawry was an automatic result. Even failure to appear in response to a misdemeanor charge technically resulted in a charge of contempt of court, which was a capital crime—and failure to stand for contempt of court would therefore result in the same kind of civil death as being convicted of a capital crime in the first place. The idea was that the community itself would enforce the law by wielding the power to punish in lieu of the state.

Writs of outlawry did not just rely on hidden or obscure knowledge of legalities but included explicit statements of civil death and property forfeiture, along with a palpable

“preoccupation with information and its distribution” to the public.102 It was commonplace at least by the fifteenth and sixteenth centuries for Parliament to enact Outlawry Acts and Outlawry

Bills condemning the practice of “clandestine outlawries” where public notice was not provided of pending outlawry judgments, giving the outlaw at least five opportunities to appear before 59 becoming attainted.103 After a person was outlawed, courts would notify one another and the relevant communities of the new criminalized status, and such public notice would specifically declare that infamous outlaws were caput iupinum, “as a wolf’s head.” In other words, outlaws were lone wolves or pariahs exempted from protections against community and mob justice, so that they could be killed and attacked with impunity, and so that it was actually a crime for anyone to aid them: the crime of “aiding and abetting” that we may still recognize in modern times. After the thirteenth century, English law also required anyone who witnessed a fleeing criminal to take up the “hue and cry,” so that all citizens were required to spread word from town to town and assist in the capture or killing of the outlaw, lest they be liable themselves for the damages of the crime.

Additionally, although attainder was focused on treason and felonious conduct, less serious crimes could also result in a loss of reputational status that bears a similarity to the idea of the stain of criminality—and they too were a matter of public concern. Repeated misdemeanors could result in a person being placed in “suretyship” to another private citizen, whereby the guarantor would assure a court that the misdemeanant would engage in upstanding conduct, and if the misdemeanant engaged in future disruptive behavior, the guarantor could be liable for hefty fines to the court.104 Likewise, untrusted members of a community (especially strangers) could be forced to pay a court recognizance bonds, the precursor to modern bail, that would be forfeit upon future criminal behavior. In neither case is the criminalized person fully attainted in the most common legal sense of the term, but the law does impose a lowered status of subjugation to either the court itself or to another, private citizen. It was not, in other words, a permanent legal taint but a temporary blemish. In addition, at least some European countries 60 used a less severe version of infamy, which imposed not full civil death but a more limited exclusion from public office, judicial testimony, and hereditary rights, in response to misdemeanors.105 For lack of an all-encompassing term, we will use attainder as a broader term in the original, colloquial sense that refers both to any degree of criminality and reputational taint, including penalties from a full civil death to temporary subordination to a bondsman.

The result of such public inundation with criminality and attainder was a dissemination throughout society of the state’s power to punish, and at times permissive and at others requisite wielding of sovereign force by private citizens. The state, through courts and laws, endowed all citizens with the authority to exact punishment from crimes against the populace, but also remained constantly present by imposing threats of criminal and civil action against those who failed to effectively brandish that power. The ubiquitous presence of the penal state can also be seen in the “frankpledge” system, which required small groups of people to mind one another and publicly report criminal activity to representatives of the court, and can therefore be seen as a dissemination of the state’s policing power.106 The explicit delegation to citizens of the state’s power to injure or kill attainted outlaws with impunity and its repeated requirements to turn in fellow citizens for criminal behavior required constant vigilance by and of every community member. Seen alongside the well-known spectacle of public executions, these penal practices can be seen as making punishment a central aspect of common English life.107 It is no wonder that, under such conditions, successful apprehension and execution against fugitives from the law became accepted and eventually heroic actions by cultural standards of the time, and the precursors to pure vigilante traditions in both European and American cultures.108 By the end of the Renaissance and into modern times, outlawry was used and enforced less frequently, largely 61 because it was increasingly difficult to enforce among communities as the population continued to grow, but the lowered status of convicted (and presumed) criminals had already become ingrained into the public consciousness.

A Glimpse of Citizenship—or, Room for a New Kind of Attainder

The American trend in dismantling attainder law had three key components. First, the federal constitution and most state constitutions explicitly outlawed both forfeiture of estate and corruption of blood except during the life of a person attainted for treason.109 Throughout the colonial period, both Parliament and the Crown continued to issue bills of attainder against

British nobles and American aristocrats, so that by 1788, the constitutional framers were both weary of the chaos they created and concerned with their threat to the rule of law. The

Americans were interested in constructing a nation subject to the strict rule of law as juxtaposed to the arbitrary rule they faced under England, and the vengeful, capricious, and instrumental use of bills of attainder to attack political enemies was seen as a key example of circumventing both due process and the proper separation of judicial power from the legislative and executive branches.110

Second, the U.S. Constitution banned the use of bills (i.e., legislative acts) of attainder themselves as a method of punishment, although not all of the founders agreed as widely upon the need for this change from English common law.111 What is most notable in the creation of the two Bills of Attainder Clauses is that despite that disagreement, no debate was recorded at the constitutional convention nor was any additional, clarifying language passed in the legal text itself: “No Bill of Attainder…shall be passed.” The only textual clue to the meaning of this phrase is its accompaniment to a ban on ex post facto laws, those that circumvented the rule of 62 law by creating new penalties for actions already done (another characteristic of the parliamentary bills of attainder that so affronted the framers). The practices of attainder, which were used throughout the colonial period, and the offensiveness of politicized legislative acts of attainder were so engrained in American society that little explanation was needed for most politicians, judges, and lawyers, and neither was a foreign concept to the lay citizen if not by name than by consequences. Due to that lack of clarifying language or debate, however, the meaning of the Bill of Attainder Clauses are to this day a subject of debate.112

Third, while constitutional conventions were focused (perhaps unintentionally so) on legislative and executive acts of attainder, American courts in various jurisdictions came close to abolishing the penalties of attainder altogether by refusing to apply the common law doctrine of civil death. By the beginning of the nineteenth century, Americans were already experimenting with new kinds of punishment; while England was solidly in its “Blood Code” phases with more than two hundred listed offenses that were all punishable by death or banishment, the United

States was shifting to imprisonment as a punishment for many severe crimes.113 Largely because the civil death doctrine of the English common law was based around the assumption of either permanent banishment or pending death (by either the hand of the state or the “heroic” act of a vigilant citizen), American courts refused to apply it to life imprisonment: permanent confinement within the boundaries of the realm with no imminent death was simply too different to apply without a new, statutory basis.114

Various state legislatures did indeed enact civil death for terms of imprisonment, and then eventually for all terms of correctional supervision or for life, and the courts deigned to apply them.115 The penalties of attainder persisted for the moment, and despite shedding the forfeiture 63 of property and title, remained much as they had been for the millennia since the penal practices of the Roman and Greek empires. Although they were practiced with decreasing frequency, the concepts of attainder and its consequent civil death remained as recognizable and central concepts in the operation of American legal systems throughout the early twentieth century.116

Still, a second chance at full citizenship rights for the attainted came near the turn of the century, with the rise of rehabilitative logics of punishment. The statutory civil death system was still tentative, having only been enacted in eighteen states by the 1930s, and the shift from retributive and deterrent logics of punishment to a more correctionalist mindset put those laws in jeopardy as well.117 Penological experts, politicians, and segments of the public came to believe that not only were vengeful punishments of the state ultimately ineffective, but also incongruent with and repulsive to the ideals a “civilized” society. The more “enlightened” approach to punishment was to remedy the problem: temporarily segregate criminals into institutions of correction (prison) where they will be educated and trained into model citizens, and then eventually reintegrated as productive members of society.118

In England, the new rehabilitative mindset was the impetus to finally abolish the punishments of corruption of blood and forfeiture of estate during the nineteenth century, and in the United States, it was the last push against civil death.119 Although other consequences of this penological shift are important to the beginnings of hidden sentence law in the next chapter, the rehabilitative discourse also included an inevitable criticism of lifelong civil death. A permanent loss of civil status was simply incongruent with the ideal of reintegration following temporary correctional control, so it is unsurprising that experts and officials began rejecting it. Courts, for instance, began treating civil death as just as offensive to the contemporaneous consciousness as 64 the long-abolished practices of banishment and outlawry: as barbaric, offensive, and inconsonant with the new, American ideals of free and equal citizens.120 Moreover, new political attention to civil death statutes (possibly because of the critical mass of civilly dead bodies that obtained as a result of the practice’s combination with lengthy imprisonment) prompted a new trend: the gradual repeal of the few existing civil death statutes.121 If not for a crucial gap in the constitutional end to attainder, our story would end here.

ATTAINDER PERSISTS

Those who cannot remember the past are condemned to repeat it. The American history of civil death, corruption of blood, and forfeiture of estate is filled with lapses and omissions, a series of absent discussions and reactionary repeals of ancient doctrine. The few pages above summarize most of the key points of discussion, which all follow the example of the U.S. Constitution’s formation in banning bills of attainder and two of its consequent penalties without elaboration or debate, either in the final text or in the constitutional convention. The practices of attainder were well known and clear enough that no embellishment was necessary: the offensive, lawless custom of legislative punishment without a trial was to be abolished in the new nation. Little thought was given to the idea or history of attainder itself, either at the nation’s founding or in subsequent changes in civil death law.

What remained, even after civil death was abolished, was a legal void. Constitutional and common law in early America, and soon statutory law, had banned all three penalties of attainder throughout Greek, Roman, and English traditions, but they had not banned attainder itself. In other words, while criminals could no longer be considered forfeit of all property, corrupted in title, or devoid of all civil rights, criminality was given no special status or 65 protections against new concomitants of attainder—even a loose conglomerate of penalties that had a similar or even harsher impact upon the attainted as did the ancient penalties. As attainder faded from attention and even legal vernacular, that void beckoned, awaiting new, innovative kinds of laws to (re)define the boundaries of citizenship and belongingness for the attainted.

Hidden sentences were that new legal form.

Until recent years, it was virtually impossible to come even close to understanding the contours of hidden sentencing as a distinct body of law. Unlike attainder and its consequent penalties, hidden sentences have throughout almost their entire existence been largely absent from legal education and texts, and there have been few or no experts on the subject (Chapter Five explores this legal hiddenness in more detail). Without such knowledge resources, as hidden sentence law grew to its current size of 43,931 legal provisions across 37,224 sections of state and federal code (97% of which impose various penalties as a consequence of formal criminalization), it became all but unknowable for most actors.

Only after July 2014, when the American Bar Association in conjunction with the

National Institute for Justice completed collection of the National Inventory of the Collateral

Consequences of Conviction (NICCC), did the boundaries of hidden sentence law come into sharper focus.122 The NICCC was designed to make collateral consequences law more comprehensible to legal professionals and public citizens alike, and although it was collected with a slightly different (less comprehensive) definition of what hidden sentences are, it is the only detailed, nationwide resource on hidden sentence law in present existence.123 The more detailed story behind the NICCC will also be relevant to later chapters of this narrative, but its 66 unique information on hidden sentence law itself is a primary source of national-level evidence for this entire analysis.124 Without it, a comprehensive effort to understand this new form of attainder would be all but impossible.

Pains and Penalties

Figure 1.1 shows the types of penalties hidden sentences can impose, along with the percentage each category represents within the body of hidden sentence law. Percentages and counts alone do not represent the severity and importance of kinds of hidden sentences; a nationwide ban on all drug offenders receiving food stamps will count as one hidden sentence, but so will a narrowly tailored restriction that strips beekeeping licenses for failure to comply with beekeeping regulations (and so would a single civil death provision).125 The relative sizes of these categories, however, are important to understanding how the hidden penal system functions as it does, and how it is developing over time.

Also, note that these categories are non-exclusive, because a given penalty can span across these categories (e.g., bans from public office are limits on both employment and political participation) and because a particular section of code can enact within it more than one hidden sentence (e.g., a ban on some class of offenders from holding public office can simultaneously exclude them from any kind of public or civic employment). Together, they encompass all dimensions of citizenship provided by United States law, and a number of restrictions and requirements go beyond was is typically included in social citizenship rights.126 In many cases, various combinations of these penalties can cause a kind of “internal exile” similar to that of ancient outlawry and infamy practices, but with the distinction of being a dense network of penalties rather than a single, overarching citizenship status.127 67

Figure 1.1: Types of Penalties in Hidden Sentence Law

Voting restrictions are perhaps the most widely known hidden sentences. Forty-seven states still deny felons the vote—either during supervision, for a time afterwards, or permanently.128 In addition, offenders lose other political rights, such as the ability to serve on juries, act as a lobbyist, or hold public office.129 Offenders also face severe limits on judicial rights. For example, they can be ineligible for indemnification or punitive damage limitations, and most states also use convictions as grounds to impeach witnesses’ credibility and to establish essential facts for subsequent civil actions.130 Together, restrictions on political and judicial rights comprise 14.1% of hidden sentences.

The most numerous kinds of hidden sentence by far are restrictions on employment and occupational licenses; when accounting for overlap between the two categories, together they 68 comprise 64.2% of all hidden sentences. Every jurisdiction bans or removes classes of criminalized people from a host of public offices and other public positions, from teachers and law enforcement officers to school bus drivers and garbage collectors.131 Many public agencies require background checks or maintain outright exclusions; Louisiana, for instance, bars certain criminals from the Lottery Corporation, its South Central Human Services Agency, and three

Transit Authorities, among other agencies.132 Additionally, most careers that require state- regulated licenses—including not only doctors and lawyers, but also barbers, bartenders, plumbers, and beauticians—now can or must ban people with a criminal record.133 Even some private, non-licensed occupations—such as burglar alarm agents or administrators of assisted living residences—exclude criminals, and others are free to do so through background checks.134

Moreover, many hidden sentences that do not expressly limit employment often do so indirectly; for instance, people who cannot possess firearms also cannot serve as security guards, private investigators, and so forth.135

A substantial quantity of hidden sentences (35.6% overall, or an additional 13.8% that does not overlap employment and occupational licenses) also limits licenses to sell or distribute goods, own or operate businesses, and other property rights. Colorado, for instance, denies licenses to handle or do business with fireworks, to run child care facilities, and to distribute alcohol, among others.136 Financial interests are also affected. Federal law, for example, revokes credit union status, removes control of credit unions, and denies securities exchange membership.137

In the NICCC, business licenses were coded in the same category as restrictions on other property rights. Property derived from, used in, or even related to punished behavior—even if 69 the property owner is not the criminalized person—may often be forfeit, vehicles may be impounded or given interlock devices, and civil fines may be imposed in addition to criminal fines, restitution orders, and other kinds of fines and fees.138 Failure to pay child support, in particular, comes with a host of liens, withholdings, and forfeitures.139 Between civil forfeitures and a host of civil fines, this category of hidden sentencing is one of the most financially impactful ones, creating a vast and often inescapable cycle of debt—which is likely worsened by hidden sentences that limit the ability to claim bankruptcy.140

A proportionately small (only 7.3% for the three categories combined) but vitally important set of hidden sentences limit government benefits, financial assistance through grants and loans, and participatory access to government programs and contracting. State or federal employees can lose retirement benefits and become ineligible for workers’ compensation or unemployment benefits.141 Immigration rights, including eligibility for admission and to petition for relatives’ status, can be sacrificed, and many offenses can result in deportation.142

Criminalized people may be excluded from educational lending like federal PLUS loans or awards like Wyoming’s Hathaway scholarship, from job training assistance, from small business loans, and so forth.143 Likewise, criminals are ineligible for government programs like financial assistance for drug-free workplaces or Nebraska’s Critical Incident Stress Management Program, and from contracting to provide services like Medicaid.144 Drug offenses have especially broad penalties here, denying all access to public housing and all federal benefits for between one year and life. Sometimes, federal policies even deny them state benefits that use federal funds— including, most notably, Social Security benefits and food stamps.145 70

An additional 1,240 sanctions affect housing (only 80 overlap with benefits restrictions), and 675 affect educational rights (84 overlap with funding restrictions). These are small but weighty categories in their encroachment on fundamental private rights. Criminalized persons can be barred from living in homes with foster or adoptive parents, in residences with respite or day care, and within certain distances of schools or other locations.146 Private landlords can be allowed or even required to evict based on certain crimes or penal status.147 Criminal statuses can lead to suspension, expulsion, and bans from K-12 schools, college campuses, and other educational and vocational programs.148

Hidden sentences also severely curtail familial relations. The vast majority of states allow termination of parental rights due to a conviction—sometimes of offenses directly related to the child’s welfare and sometimes of broader categories like crimes of violence.149 Offenders may also be ineligible to adopt, maintain adoption, and withhold consent from others adopting their own children.150 Even outside prisons, mere existence of a conviction can be cause for divorce.151

The NICCC also categorizes 8.0% of hidden sentences as limits on motor vehicle or recreational licenses. Motor vehicle licenses can be revoked in all jurisdictions for repeated or severe vehicular offenses, and sometimes for other (often drug- or alcohol-related) offenses.152

Insurance companies are allowed to cancel policies for various offenses, making it illegal to drive in states that require insurance.153 Other restrictions involve licenses to hunt, fish, own dangerous animals, and so forth (often for violating related laws), and they can even limit civil rights, especially firearm possession.154 71

Finally, the NICCC classifies three of the most restrictive kinds of hidden sentences together: registration or notification requirements and residency restrictions alone constitute

8.2% of all hidden sentence laws. After various labels of criminalization from arrest to release from prison, criminalized people may be required to notify various parties of their criminal status, and all U.S. jurisdictions require some ex-offenders—often sex offenders, but sometimes felons, violent offenders, or even persons in arrears for child support—to register with local law enforcement.155 The NICCC also classifies civil commitment statutes and GPS monitoring in this category, possibly because these restrictions are also likely to target sex offenders, and there is a fair amount of overlap between this category and housing restrictions for (presumably) the same reason.156 Although this final category of privacy and residency restrictions is somewhat amalgamated, it is especially notable because of how far into criminalized persons’ lives it reaches, affecting individual and personal rights that were taken for granted throughout most of

United States history.

Formal Labels of Criminality

For a law to be considered a hidden sentence, it must include not only a restriction or requirement but some formalized label of criminality. In English and Roman law, attainder itself was this status, but I am aware of no hidden sentence that applies upon issuance of a visible sentence, and there are only a few examples that apply based on the actual status of being imprisoned or placed under community supervision. Hidden sentences also rarely take effect upon release, instead being triggered at conviction, sentencing, or by other criminal statuses.

The only kinds of hidden sentences likely to activate at release are registration and notification requirements, but even those can occur as early as arrest or indictment. Hence, although 72 collateral consequence law is often conceptualized as a reentry problem, hidden sentences are essentially equivalent for probationers, parolees, and ex-offenders—except probationers and parolees may also be required to find and maintain employment among the scant options left to them.157

The status that most frequently triggers hidden sentences is a court’s determination of guilt or conviction. Yet, hidden sentences may also apply upon imprisonment, probation, or other visible sentencing.158 Still others actually activate before or without conviction, for instance, at arrest or indictment.159 The existence of any kind of criminal background, even just an arrest record, is enough to activate a startling number of hidden sentences. Given the

NICCC’s unfortunate focus on the collateral consequences of conviction, though, it does not include coding for the kinds of criminalized label that activate a given hidden sentence.

The NICCC does include information on the types of crimes and offenses that make a given penalty active. Figure 1.2 provides an overview of these categories. Again, the common discursive assumption—both in academic and policy circles concerning the collateral consequences of conviction—that hidden sentences are largely a consequence of felonious convictions, is on unstable ground. Although the plurality of hidden sentences (41.0%) can be activated based on a felony, when we combine the other categories, the vast majority (90.9%) of hidden sentences can be activated for some other kind of offense. Only 9.1% of hidden sentence laws today depend solely on a felony label, and not all of those depend on a felony conviction.

The attainder of felony and attainder of treason that were found in earlier legal systems are not in contemporary times replaced with a vast array of differing kinds of criminality, each activating different penalties in different jurisdictions. 73

Figure 1.2: Types of Criminal Offenses in Hidden Sentence Law

Some other hidden sentences apply broadly based on all misdemeanors or even “all offenses” (together, 29.7% of hidden sentence laws or a total of 12,669 legal provisions across the United States). The latter category includes felonies, misdemeanors, and even minor infractions and violations that are not always considered a prominent part of criminal law.

Sometimes statutes that use such broad language qualify it slightly, clarifying that penalties apply based on all crimes besides “minor traffic offenses,” but many statutes simply say “any offense” within its language.160 The legal implication of including the limitation of “minor traffic offenses” in some laws but not others is that in the latter group, a hidden sentence can apply even based on speeding, parking illegally, and other virtually ubiquitous offenses. 74

There are many hidden sentences that apply for more specific classes of criminal labels.

Some can accrue based on violation of a single (often closely related) law or set of laws; employment and licensing restrictions are most likely to be narrowly tailored in this way.161

There are a number of other categories, too: some hidden sentences (especially welfare restrictions) apply to drug offenses, others to child support arrearage, and others to corruption or fraud. The most severe hidden sentences are often applicable based on “sex offenses” and

“crimes of violence.”162 Most importantly, however, the typical hidden sentence (54.3%) is activated by multiple offense categories at once, so that a truly narrowly tailored hidden sentence is quite rare in the contemporary distribution.

Finally, an important segment of hidden sentences may activate upon a so-called “crime of moral turpitude,” but the term and therefore the boundaries of this category are often unclear or variant depending on the jurisdiction and sometimes even the context within a jurisdiction.163

Crimes of moral turpitude typically involve fraud, dishonesty, and some severe offenses—but every jurisdiction also has hidden sentences that apply to crimes involving fraud, dishonesty, and various severe offenses in addition to crimes of moral turpitude, making the latter category dependent almost entirely on the judgment of individual decision-makers.

This discretionary judgment will be crucially important because, as Figure 1.3 shows, just under half (49.6%) of hidden sentences allow for the discretion of some decision-maker.

Discretionary hidden sentences most often allow a public or private decision-maker to decide whether to impose the punishment, though a small number apply automatically and grant a decision-maker the ability to waive the penalty (for instance, granting a professional license to a felon based on “special circumstances”). Actors with such discretion include civil law judges, 75 administrative law judges, administrative officials, civil and criminal law clerks, administrative employees and clerks, prosecutors, law enforcement officers, corrections officers and officials, private employers, private benefit administrators, landlords, lenders, educational administrators,

Figure 1.3: Methods of Execution in Hidden Sentence Law and various other private actors. Almost 10% of hidden sentences do not apply automatically or grant explicit discretion to a decision-maker; instead, they simply allow or require a decision- maker to run a criminal background check and do not limit what the decision-maker may do with the resulting information. 98.0% of those background-check provisions also include the language of “any offense” or “any crime.”

Figure 1.4: Duration of Hidden Sentences

The Permanent Stain

Many even brief overviews of hidden sentencing (especially those focused on their injustices) will focus on their tendency to be lifelong penalties, though there have not yet been any systematic investigations of that claim.164 Figure 1.4, however, provides clear evidence of such permanence of status—one of the few historical continuities from infamy, outlawry, and similar statuses. There are a few hidden sentences that apply only briefly; 7.2%, for instance, apply for three or fewer years. Yet more than four fifths (80.5%) of hidden sentences either explicitly state they last until death or, much more frequently, contain no specified time limit or condition (such 77 as completion of community supervision) upon which they expire—which has the legal effect of perpetuity.

Similarly, Figure 1.5 shows that most hidden sentences carry no specified option for relief (such as expiring if a criminalized person successfully appeals via a hearing). A full 68.2% of hidden sentence laws offer no specified relief and no durational or conditional expiration.

General relief provisions in hidden sentence law, such as certificates of rights restorations or expungement procedures, are also vastly outnumbered by sanctions (a ratio of 1:33), and they are widely recognized as ineffective in respect to most kinds of penalties.165 Moreover, such general relief depends on state and local decision makers’ discretion to expunge or seal—discretion

Figure 1.5: Relief from Hidden Sentences 78 which is exercised extremely rarely. In many cases, then, the only way for punished persons to relieve themselves of hidden sentences is to seek a gubernatorial—or presidential, in the case of federal offenses—pardon, and pardons are granted even less frequently.166

Variation over Time and Place

Even the features of hidden sentence law enumerated above, however, are subject to notable variability over jurisdiction and over the course of American history. As Figure 1.6 shows, jurisdictions today can have as many as 1,723 hidden sentence laws (in California) or as few as

315 (in Vermont). Further, there is no apparent pattern in which jurisdictions have the greater or fewer numbers of hidden sentences. States as different as Ohio, California, Illinois, and New

Hampshire are all in the upper fifth of the distribution, each having more than 1,000 hidden sentence laws in their current code. There is a contingent of upper Midwest states that have fewer than 600 hidden sentences, but they are not the only states with low distributions, and not all of them are similar to one another in anything but region.

Most importantly for the historical patterns upon which we are focused, there is also not a clear relationship between the total number of hidden sentences in a jurisdiction and the order in which states began enacting hidden sentences. Although California and New York were both early movers in hidden sentence law and both are currently in the upper quintile of total hidden sentences, there are many counterexamples. Connecticut and Minnesota, which are in the lowest quintile, were also early movers, while Ohio and Oregon are also in the upper quintile but began passing hidden sentences notably later.

There is also a great deal of jurisdictional variation for every other dimension of hidden sentence law discussed above. For example, specific relief built into hidden sentences ranges

Figure 1.6: State Variation in Hidden Sentences

80 from less than 1% of provisions to almost 7%; general relief provisions vary similarly. Felonies trigger 41% of the average jurisdiction’s hidden sentences, but this figure can vary from 32% to

54%. Some jurisdictions focus more on crimes of violence (up to 35% of hidden sentences) or sex crimes (up to 31%), and others have more broad penalties affecting all misdemeanants (up to

36%) or all offenders (up to 21%). It is also difficult to predict the percentage of hidden sentences per jurisdiction that activate automatically, the percentage that are permanent, and the average length of time that non-permanent ones tend to last. In short, hidden sentences for various offenders in different jurisdictions can “range from losing virtually no rights, to losing rights only while incarcerated, to losing all rights unless pardoned, and everything in between.”167

Most importantly for the subject of this analysis, hidden sentences also vary significantly over time. As Figure 1.7 shows, hidden sentences did not begin a linear growth pattern as soon as legal space was made for them. Instead, it was almost a century after the Constitution and courts ended the ancient penalties of attainder that the growth curve of hidden sentence law began climbing, and it was not until the 1950s that it began increasing at a more rapid rate. As we will see throughout the following chapters, that development also varied for every dimension of hidden sentence law discussed above.

CRIMINALITY IN MODERN AMERICA

Our task is therefore to come to terms with hidden sentence laws as a new but historically abnormal kind of attainder. From Roman banishment and enslavement to English outlawry and executions, the legal label of attainder was, by varying names, a publicly prominent status that was intimately connected to other kinds of punishment and that carried with it a distinct set of

Figure 1.7: Hidden Sentences per Year penalties. A person sentenced for any serious crime was considered attainted in the same way, so that in all of these situations, the stain of criminality made a person dead or diminished in the eyes of the law. Attainder was thus a well-recognized, lower form of legal personhood that forfeited all property, hereditary rights, and citizenship rights in a manner congruent with and constituent of whatever other sentence was issued. Even minor crimes could result in a similar reduction in status that we can consider a lesser degree of attaintedness. Those key features of attainder remained essentially unaltered throughout two millennia.

It was only in early American history that the attainting aspect of punishment itself fundamentally altered, so that the longstanding kinds of penalties associated with a label of criminality were also in question. By the end of the nineteenth century, the stage was set for this 82 new kind of punishment. The rehabilitative era in American punishment was beginning, civil death laws (the last vestiges of the traditional attainder practices) were in decline, and there was room for a new penal form.

As a result of this legal shift, the penalties of attainder became for the first time in the lineage of American history artificially separated and distinct from other kinds of punishment, forming a set of hidden sentences and a set of visible sentences. Likewise, the modern period was the first to witness a form of attainder that is not a finite set of holistic and well-recognized concomitants of criminality, but instead an amalgamation of tens of thousands of sanctions that encompass virtually all areas of state and federal law, that vary so widely in kind of penalty, type of criminality, and procedural details that they are nearly unknowable, and that are so obscured are seen as mere side-effects of punishment. What remained constant in the face of this drastic change, however, was the underlying core of attainder. Throughout history, attainder has been the label of criminality that came with it a certain set of statuses, and although those statuses are more complex and cryptic in the modern era, they still come together to define the criminal’s place in the social order, to define the kind of legal person or citizen a criminal is in respect to other members of society.

The question for the next two chapters, and indeed the remainder of this monograph, is what function this shift in attainder served in respect to changes in American society. Put more directly, we will continue an eye toward what new role the label of criminality needed to serve in the modern United States that it did not need to serve, or that it needed to serve differently, in earlier historical moments. To say that criminality and penality have become in this time central to everyday life is almost to give an empty platitude, but an analysis of how the label of 83 criminality works—what attainder does in this time and place differently than before—will be to critically question what that centrality means.

CHAPTER 2

EARLY SIGNS: LABELING THE OTHER IN THE MODERN AGE

The modernizing and industrializing trends in the United States during the late nineteenth and early twentieth centuries set the stage for a new iteration of attainder—a penal form that has throughout Western history served to label and define the stain or “attaintedness” of criminality—in the form of hidden sentence law. The older iterations had long been declining as the states repealed or minimized their civil death statutes in the perpetual quest for more

“civilized” means of punishment, leaving behind a kind of legal void: a means without an end, a label of criminality without any concomitant consequences. The label of attainder sat idle for most of the nineteenth century, until the particular demands of modernity found use for such an official, legally defined status. The path from that legal void to a new modernist use for attainder therefore involved a second kind of development: the need to formally identify good moral character in a systematic, rationalized fashion.

This chapter addresses an important, modern precursor to hidden sentences: “regulatory punishments,” adverse restrictions and requirements imposed by civil or non-criminal legal authority in response to some defined but non-criminal form of wrongdoing within a non- criminal, typically administrative area of law. As closely related precursors to hidden sentences, they look quite similar; examples include loss of an occupational license due to professional misconduct, denial of the right to conduct certain kinds of business due to ethical violations, or forfeiture of personal property due to its obnoxious interference with others’ rights. The difference is that, even though adverse consequences can be imposed in direct response to them, 85 none of those kinds of conduct are legally defined as criminal actions. This chapter focuses on the development of such regulatory punishments throughout the latter half of the nineteenth century, while the immediately following chapter picks up where this one leaves off to interrogate the turn-of-the-century transition from regulatory punishment to hidden sentencing proper.

This pre-onset phase of hidden sentences involves the confluence of three key modernizing processes, and those same three processes will be key to its later development as well.168 First, the hidden penal system arose as part of a tendency toward professionalization and bureaucratization throughout American society. The clear trend in both public and private sectors of the turn-of-the-century United States was to create organizational structures that claim exclusive authority over a sphere of activity (whether it be agricultural pursuits or the practice of medicine) and that enforce both permissible actions and acceptable membership through ordered regulation. As state and federal governments created both new administrative agencies and new, state-sanctioned professional boards, however, they granted them delimited authority within their own, distinct spheres of administrative law. The challenge for these new areas of law was to develop legitimate enforcement mechanisms within that area; neither an administrative agency nor a professional board had the power to convict, imprison, or otherwise impose visible sentences. Instead, if the new bureaucracies were to enforce through punishment, they would have to do so by denying particular rights and privileges within their legal authority: restricting employment access, applying non-criminal fines, confiscating related property, or otherwise denying the ability to participate in that sphere of activity. Such regulatory punishments were the kinds of penalties that would morph into hidden sentences. 86

Second, regulatory punishments and hidden sentences both became particularly useful in the face of the increasing replacement of informal with formal means of social control—of traditional, customary, community-related methods of enforcement and boundary-making with prescribed, tangible, state-sanctioned methods.169 The first hidden sentences were, like the regulatory punishments that preceded them, laws that used criminal histories as a proxy for moral turpitude, a legalized category for unacceptably poor character. In earlier times, it was unheard of for police departments to keep records of criminal histories (much less make them available to the public), and it was unnecessary for the law to document “good moral character” or other qualifications because communal reputation served that function. The informal judgments and knowledge of local communities, however, became less complete in the face of expanding communication and transportation technologies, growing concentration in urban economic centers, increasing quantities of specialized knowledge, and other expansions in the scope of the social world. Express boundaries based on formalized certifications—credentials— of trustworthiness, integrity, wisdom, specialized knowledge, and other traits thus came to supplant many informal measures, and among those new methods of classification was the return of attainder: this time, as a documented, negative credential that was a uniquely accessible category for formalized social control.

Third, regulatory punishments and soon hidden sentences found a broader fit with the intensifying legitimacy demands of a uniquely modernist frame that privileges instrumental rationality above all other logics. Although there are varied facets of both rationality and rationalization, I mean to refer specifically to the logics of calculability, standardization, and efficiency that characterize “rational” means of decision-making—instrumental logics that 87 increasingly came to dominate judgments about the legitimacy of state (and non-state) policies as the nineteenth-century United States continued toward the twentieth. Ethereal feelings and opinions about good moral character were replaced by quantifiable measures of criminality based on documented arrests and convictions, individualized decisions about acceptable kinds of behavior—and later, acceptable kinds of people—were replaced with systematized listings of identifying regulations, and in order to achieve both consistency and ease of expansion, these systems of rules increasingly mimicked one another and disseminated between areas of law and across jurisdictions. The regulatory punishments that soon spawned hidden sentencing were at their core responses in the modern era to the newly rationalist demands of legitimated boundary- making, a discursive set of rules they would pass on to hidden sentences.

AN AMENDED THEORY OF MODERN PENALITY

Sociological theories of punishment have a long history of engaging with the shift to modernity.

The rise of the prison as the essential penal form in the United States, its corrective and rehabilitative rationales, their replacement of more brutal forms of corporal and capital punishment, and the concomitant expansion of community supervision is specifically tied to some version of modernization in every key theory of punishment. Although none of the key theories engage with either pre-modern attainder or contemporary hidden sentence laws, they can usefully position the key arguments and assumptions of this chapter about the relationship between modernization and punishment.

Likewise, outlining existing perspectives on (visible) modernist penality will further the underlying goal of this analysis in interrogating the social function of hidden sentencing as an aspect of modern punishment. The conclusions existing theories make about the role of 88 punishment in contemporary society are based largely on theoretical and empirical analyses of shifts in the penal landscape between medieval times and today. In omitting a whole segment of punishment in their developmental analysis, then, existing theories overlook a key facet of the penal system’s operation as a social institution. By theoretically engaging in a purposive manner with the development of hidden sentences, it becomes possible to see that while visible punishment may serve to reaffirm and enforce societal norms of action and behavior, attainder represents ritualized reinforcement of collective beliefs and labels of belongingness.

Visible Punishment and Normalization

Perhaps the most famous and consequential conception of punishment and modernization comes from Michel Foucault, especially his Discipline and Punish, from which follows virtually all contemporary analyses of the visible penal system—especially those, like this one, that interrogate penal forms themselves for their role in modern society. Punishment, for Foucault, is at its core an experience in power, coercion, and control.170 Put a different way, punishment in any given era is a technology or set of mechanisms designed to control the body of punished individuals either through physical coercion—such as in the pre-modern spectacles of public confession elicited by torture—or through disciplining the mind’s habituated responses—such as in the modernist vision of the corrective prison. As a repeated exercise of power over individual bodies, Foucault claims, punishment is ultimately an exercise of behavioral control over the body politic. In Foucaultian eyes, then, the (visible) penal system and its practices are instrumental, utilitarian methods of directing and disciplining individual conduct, and thereby creating social order.171 89

The aim of Foucault’s genealogical approach is in explaining the transition from pre- modern punishments to the more rationalized, more knowledgeable, and ultimately more controlling penal form of the prison.172 The decline in more brutalizing, pre-modern punishments was, according to Foucault, related to a shift in public sensibilities about acceptable forms of punishment, an increasing threat of failure to maintain order by the sovereign, and most importantly, a growing need for consistent, efficient law enforcement rather than periodic spectacles by a capitalist society. Where before was a public demonstration of sovereign power designed to exhibit guilt and exact revenge, came in modernist punishment an emotionless exercise of power through constant surveillance and correction, designed (much as rehabilitationist theory would propose) to train and eventually habituate the deviant into more normal behavior. The closed, continual setting of a prison provides a uniquely suitable environment for this normalizing process. The key example of Foucaultian disciplinary control comes from his well-known use of the Benthamite panopticon: a prison in which inmates can never escape the gaze of the guards, can never see the guards, and so are kept under unending surveillance to ensure perfect conformity.

Still, the efficiency and orderliness demands of modernized society cannot be met only through the relatively rare experience of imprisonment but must instead be met through a more systematic, pervasive kind of control. Foucault’s explanation is essentially twofold: first, that the disciplinary practices of prison are emblematic of expanding discipline throughout societal life, so that the panopticon becomes his metaphor not just for an ideal-typical prison but for the disciplinary society; and second, that part of the prison’s function is to create a contingent of criminals that serve to impose control upon all of society, especially the working class.173 The 90 criminal, and indeed the criminal class, is indeed created by and becomes part of the technologies of power in the Foucaultian account. The criminal’s tendency to reoffend can be used to rationalize a constant police presence and the expansion of surveillant record-keeping and knowledge production; the criminal’s presence can economically remind members of society of the perils of deviance when law enforcement are not present; and the criminal’s existence ensures the working class will remain divided against itself and willing to call upon the protection of the state against its more dangerous members. The draw of the Foucaultian view of modernizing punishment is apparent in view of the contemporary expansion of criminal law, mass imprisonment, and penal-like disciplinary control throughout society, and in its partial explanation for the massive class- and race-based inequalities of our current system.174

Visible Punishment and Mechanical Solidarity

Émile Durkheim was the original sociologist of punishment, and his theoretical approach to punishment is as crucial to penological thought as it is to the instant project. For Durkheim, unlike Foucault, punishment has very little to do with somehow controlling the harmful or undesirable behavior of the punished—with pursuing the rational and instrumental penological goals as they are commonly expressed (including rationalizations for both visible and hidden sentencing). Instead of insisting upon a more utilitarian function of punishment in society as

Foucault does, Durkheim approaches the functionalist question from a more thoroughly sociological angle.175

Durkheim’s view of punishment treats the punished as even more of an irrelevant object than does Foucault’s, being instead concerned almost exclusively with the third party: the societal audience to the punitive spectacle. At its core, visible sentences is a social ritual 91 concerned with the vindication of societal emotions, passionate outbursts directed at perceived violations of collective norms and values. That conscience collective is a core element of

Durkheimian society, a deeply held belief system that approaches a sacrosanct level such that violations of it provoke a visceral response among members of the society. The result therefore must be a violent, expressive reassurance to the “honest” and “upright” members of society that their moral order remains strong. The most ready examples are the pre-modern public spectacle of corporal or capital punishment around the stocks, the whipping post, or the gallows.

Penal ceremonies are, for Durkheim, a necessary social activity oriented not toward the punished or even the punisher but rather toward the societal audience. This holds true in modern societies, as well, though punishment is less frequently a society- or community-wide ritual gathering around a punitive act and more frequently a publicly available courtroom spectacle of adjudicating sanctions.176 In both cases, societal beliefs are reaffirmed and reconstituted by the act of punishment, an act which has the concurrent effect of strengthening the social bond itself.

In Durkheim’s view, then, a functional social solidarity is not actually threatened by crime but is instead strengthened by rituals of punishment that repeatedly validate social sentiments; punishment is necessary for society, and crime is defined in the end by punishment.

Yet, contrary to Foucault, Durkheim was a firm advocate that penal law and expressive punishment are in general more characteristic of simple, pre-modern societies than of advanced, modern ones.177 The former are characterized by repressive systems of penal law that enforce a transcendental, intense, rigid conscience collective into what he calls a “mechanical solidarity,” in which social cohesion is achieved through the (typically religious) homogenization of individuals.178 As societies develop toward a more “organic solidarity,” however, they are 92 characterized by a more flexible and less demanding (secular) conscience collective, and they are made cohesive instead by the division of labor between and therefore mutual interdependence of individuals. In such advanced societies, penal laws based on visceral outrage become less prevalent and less severe (Durkheim views imprisonment as a functionally more lenient kind of punishment than those that characterize pre-modern societies) compared to restitutive ones that impartially restore and make whole non-normal social relationships. He did leave room for less morally offensive crimes against the state, but even those, he argued, provoked an expressive response because the state became a symbol and arbiter of the conscience collective—and hence should be expected to decline throughout modernization in favor of regulatory behavior.179

Likewise, as a result of the same processual shift to a more advanced society, punishments based on detention and deprivation of liberty alone (i.e., prisons) are the direct result of increased individualism and social mobility. The modernization process, for Durkheim, is therefore characterized by a decrease in the frequency of expressive penality, a decline in visible sentences’ severity, and a concomitant increase in civil and regulatory laws.

Visible Punishment and Capitalist Ideology

Both the Foucaultian and Durkheimian traditions in penological analysis are concerned almost single-mindedly with how the modernist penal system is functional, how it is successful in maintaining the social order even in the face of its apparent failings to meet its crime-reduction goals. Neither approach takes seriously the questions of which social order punishment maintains and whom the exercise of state power benefits, and neither of them take seriously the role of political and economic conflict in penal change. The Marxian tradition, however, does offer the beginnings of such an approach. 93

Although Marx himself never theoretically engaged with penality, Rusche and

Kirchheimer’s Punishment and Social Structure has offered a foundational Marxist view for much of radical and critical penology.180 In their perspective, punishment is not an instrumental means to achieve crime control or some other behavioral end, nor is it a functional process that constitutes both crime and social cohesion. Like other apparent social institutions in the classical

Marxist perspective, “punishment as such does not exist; only concrete systems of punishment and specific criminal practices exist,” and such modes of penality are driven in the end like other segments of society by the economic mode of production. Historically contingent penal practices are therefore oriented toward reinforcing the economic structure—or, in less determinative accounts of Marxist reasoning, to providing the illusion of security while in the end benefiting the ruling class and reinforcing the dominant power structure.181

According to this class-conflict perspective, modernist penality in particular (again, captured in the stereotypical form of the prison182) is the result of various economic and ideological shifts. First, where pre-modern punishments were free to destroy excess laborers because of an abundance of supply, prisons are designed in part to preserve proletarian bodies in an excess of demand, especially in urban centers. Second, prisons and convict labor systems can serve the dual purpose of making use of laborers and training them into the proletarian workforce, so that the new rehabilitative and correctionalist paradigms in penology were actually an offshoot of ruling-class ideology.183 Third, the practices of modernist punishment and penal law are closely related to the structural and cultural forms of capitalism (for instance, the increasing logics of proportional, measured sanctioning are reminiscent of transactional relations, and the prison itself mirrors the factory and the workhouse), and therefore surreptitiously 94 reinforcing of the dominant ideology.184 Fourth, modernist penal practices have the particular characteristic of masquerading as treating all subjects equally and thereby receiving support from the working class, while actually silently reinforcing structures of class domination (such as protecting all forms of “property” as though they are equal, whether they are personal items or business ownership of the means of production).185 In essence, modernist punishment in the

Marxist conception is one of many state institutions that are structured to subordinate and manage the working class, and to reinforce the ideological basis of that subordination.

Hidden Punishment and Rationalized Domination

To come to terms with the apparent social functions of hidden sentencing as a modernist penal form, we will need to draw upon the strengths of each of those somewhat conflicting perspectives—and we will also need to construct what may be considered a fourth perspective, which may already be apparent to the sociological reader. Despite being considered a foundational figure in sociology, and despite spending a great deal of time and energy on analyzing law and legalism in the shift to modernity, Max Weber offered no clear analysis of punishment as a subject of inquiry, and there are no directly Weberian analyses of punishment as there are Marxian ones.186 The irony of this omission is that Weberian theory seems to be the best situated to deal with a dense system of penal rules constituted partially by administrative law that serve as uniquely legitimate boundary-making tools in the modern world—the precise form in which attainder reemerged near the turn of the century. Moreover, the key advantage of a Weberian approach (and the reason authors so infrequently think to credit it as such) is that it allows use of deeply sociological and symbolic themes without a commitment to either a microsociological level of analysis or preordained, foundational assumptions about societal nature. 95

Instead of being exclusively focused on successful order-making, economic subordination, or oppressive disciplinary power-knowledge, we can be alert for and at the same time remain skeptical of each.

The central concepts in Weber’s view of modernity are the processes of bureaucratization and rationalization of society and social life.187 As societies modernize, in the Weberian account, the legitimate forms of domination or authority will increasingly become “rational- legal” through impersonal systems of codified rules rather than “traditional” through the sanctity of custom, and social action throughout spheres of life will progressively become substantively rational (aiming toward a valued end) and especially formally rational (based on self-reflexive calculation of consequences) rather than affectual or traditional. As part of this shift, modernity is characterized by an increase in both public and private organizations with highly specialized, hierarchical structures governed by written, impersonal rules of conduct and oriented toward instrumental achievement and efficiency: the epitome of rational-legal domination. Although bureaucracies are capable of previously unattainable productivity and control of the social world,

Weber’s fundamental concern is with individuals’ own (capacity for) understanding of their social experiences, their meaning-making. As such, he also sees rationality and bureaucratic organization as oppressive, demystifying, and depersonalizing: creating a loss of self- determination and individuality, of the ability to make meaning for oneself. His greatest fear is that society as he saw it was headed down an inescapable path of ever-increasing rationalization wherein people will be little more than a “cog in a machine,” trapped in a “shell as hard as steel,” a crushing rationality that cannot be cast aside.188 96

Although often unrecognized in their lineage, many of these themes are present throughout contemporary analyses of visible sentencing. The rehabilitative push toward corrective institutions went hand in hand with the creation of criminological science, the professionalization of penological experts, and the bureaucratization of penal administration.189

Reforming the criminal became a systematized project with a theoretically calculable success across increasingly uniform models of imprisonment, based upon expert knowledge and the detached, dehumanizing logics of treatment and correction. When sufficiently bureaucratized, prisons thus found they had an unprecedented capacity to house prisoners that was only tested at the height of mass incarceration.190 Penality after the 1970s is likewise often characterized as taking an emotionless turn to internal validity and teleological goals, seeking only to manage criminals in custody rather than to achieve broader goals.191 The end result is was to increasingly separate the public from the exercise of punishment itself, obscuring the inner workings of the prison—and also community supervision, for that matter—except to the extent they are (inaccurately) portrayed in politics, the news, and entertainment media.

Likewise, those same Weberian themes are also integral to constructing a theoretical approach to hidden punishment that adequately captures attainder’s reemergence into a new role as part of the modernization process. It should be noted that my theoretical “approach” was developed inductively through the genealogical analysis, derived from the historical evidence rather than initially employed as a tool of sorting and analyzing the evidence; explaining the findings of this study adequately all but requires the inclusion of Weberian sociology alongside the penological insights of the other dominant and critical perspectives. As such, the following theoretical tenets are in the end only an approach for the reader to engage with my findings and 97 the structure of my argument. Although I will add and elaborate theoretical arguments about the social function of both visible and hidden punishment throughout, much of the general rules of my analytic approach (i.e., theoretical extrapolations) can be said here:

First, evaluate the development of hidden sentencing as the reemergence of attainder within the modernization process. Hidden sentences are at their core a peculiarly modern iteration of attainder, and they are constituted more than anything based on the trends Weber identifies as characterizing the modernizing process: rationalization, bureaucratization, and formalization of social control. This approach will at times be similar to a Foucaultian analysis, both in its analytical method and in the use of these themes, but it will be less constrained at the outset by a predetermined theory of punishment as a tool of power-knowledge.

Second, resist the impulse to treat all penal forms as what they appear to be: normative control of behavior. Both the Foucaultian and Durkheimian approaches—and therefore most of modern penology—treat visible sentencing as concerned with norms of action: either as a disciplinary production of normal, non-deviant modes of behavior or as an emotional reassertion of collectively shared, deeply held moral imperatives. No room is made for considering punishment as a boundary- or meaning-making tool in the first instance. Our task will therefore be to keep a more Weberian open mind to whether hidden sentences are concerned with social action, values, life, others, or the self.192

Third, critically scrutinize penal forms as serving a social function, especially as they expand and persist. This rule is essentially Foucault’s unstated mantra in Discipline and Punish, 98 and it needs little alteration. For a penal practice to arise and last for long in a genealogical account, it must have some explainable role in the social order.

Fourth, insist upon punishment as a social practice potentially concerned with underlying social functions rather than only stated, instrumental goals. Although Durkheim’s conception of modernist punishment has been criticized both theoretically and historically (especially by arguments that instinctively rebel against the suggestion that crime and punishment are necessary for social order rather than contrary to it), and although much of it runs contrary to the

Foucaultian account, his theoretical approach is foundational for a sociological account of punishment. Even the Foucaultian approach insists upon an underlying, utilitarian function of modernist punishment beyond its express goals.

Fifth, interrogate the social function of punishment as it relates to a dominant social order. The Marxist view roundly admonishes Durkheim’s uncritical, overly functionalist conclusions on punishment as re-constitutive of “the” social order, but for all its differences in findings, their approaches are in many ways identical: searching for an underlying reaffirmation of order. The crucial divergence is in critically questioning the hegemonic ideology of a social order that may benefit one group over others. Thus, when we are searching for a social function, the role punishment plays in society, we are by no means requiring it to be exclusively functional in any desirable, laudatory manner.

Sixth, actively consider the role of the punished. Neither Durkheim’s nor Foucault’s conceptions of punishment truly consider the penalized criminal as anything more than an object, a vehicle for moral sentiment or disciplinary control. In fact, both of those accounts treat punishment as ultimately aimed at the sentiments and behavior of the members of society at 99 large. The Marxist view of punishment, however, actively considers whether the function of punishment directly relates to (the subjugated role of) the punished.

Seventh, actively consider the role of the punisher. None of the three dominant theories of punishment engage with the role of the punisher, even as an object. This is another strength of incorporating Weberian theory into the theoretical approach: it leaves room for subjective meaning-making for all parties to social action. Indeed, Weber is crucially concerned with the impact rationalized action has on the parties involved and whether it is ultimately dehumanizing, disempowering, or, to put it in terms aligned with Marxism, alienating from society and the self.

Eighth, appreciate the repeated, ritualized nature of hidden sentencing as an integral part of its social function. Although the origins of this idea are certainly in Durkheim’s approach, both Weber and Foucault consider the routinization of activities to be key to their performance or experience. In the end, hidden sentences are ritualized and routinized social actions, both in the enforcement of exclusionary boundaries and in permitting decision-makers throughout society repeated, normalized opportunities to wield legitimized state power to punish and exclude—and thereby quietly reaffirm their own social inclusion.

FOUNDATIONS OF A NOVEL PENAL FORM

Almost without exception, the first hidden sentences in state jurisdictions were restrictions on public and private employment for various subsets of criminalized people, either directly through automatic prohibitions, directly through optional bans under employers’ discretion, or indirectly through grants of employer access to criminal history records without specification on how that access can or should be used. The first federal hidden sentences were likewise all occupational limitations, except for the addition of a large class of penalties used to deport or exclude 100

“undesirables” from national borders. In California, hidden sentences in the early 1900s regulated who could be public officials from legislators to municipal park commissioners, medical professionals from physicians to midwives to veterinarians, other professionals from civil engineers to barbers and cosmetologists, and business owners across especially the agricultural sector. Federal law used hidden sentences in the same time period to control licenses for private occupations like customs brokering or agricultural sales, public positions like meat inspectors and tax collectors, and various public offices. Even obscure occupations like nautical vessel brokers, furniture inspectors, and pest control operators were regulated via hidden sentences.

Throughout this onset period, employment restrictions were the most commonly enacted kind of hidden sentence, though it remained rare for any jurisdiction to pass a law containing a hidden sentence. Figure 2.1 shows the trend in all hidden sentences enacted across all 50

American jurisdictions (Hawaii and Alaska were not annexed until 1959), and it makes clear that new hidden sentences were a rare event in any given year—and all but unheard of before the turn of the century. The first hidden sentence in Californian law that retained constitutionality was not created until 1905, with the advent of the Board of Pharmacy. Additionally, a cursory glance at Figure 2.1 gives the impression that hidden sentences initially were less rare than they actually were; an additive count of these categories will be inflated because a single hidden sentence can occupy multiple categories (e.g., restrictions on serving in public office are counted as impacting both employment and political participation). By 1950, however, hidden sentencing was an established penal form and growing at an exponential rate, so that there were already 2,500 101

Figure 2.1: Growth in Initial Types of Penalties in Hidden Sentences hidden sentence laws across the United States, the majority of which were limits on public or private employment.

These hidden sentences that policed occupational access based on past criminal status were derived from (and later, largely replaced) a prior set of occupational regulations: those based on lack of “good moral character.” The earlier, character-based qualifications were in essence a modern formalization in administrative law of customs and conventions about community reputation. Before modern rationalization, trustworthiness and moral uprightness were locally shared judgments, as were the extent to which such traits were relevant for an individual’s continued occupational standing. Afterwards, they morphed into tangible rules of enforcement and access controlled entirely within bureaucratizing administrative agencies and 102 professional boards: a semi-penal practice that we can usefully call regulatory punishment, a direct precursor to hidden sentencing in which an administrative agency or professional board enforces rules and exacts penalties entirely within its own, narrowly defined legal purview.

Character Regulation before the Twentieth Century

Integrity, principle, and morality in early American society were traditionally monitored not through laws and regulations but through informal, traditional controls. Patterns of social action were created by customary, largely unquestioned routines alongside more value-laden social conventions that carry with them communal disapproval and sometimes more tangible consequences.193 To the extent that there were constraints over who practiced medicine, law, and other occupations that required substantial public trust, it was done through measures of reputation and public opinion among members of local communities.194 A failure of trust significant enough to impact social standing in the community simply meant fewer clients, a lower chance of claiming elected office, and so forth. In effect, the conventional punishment for poor character was the creation of a new communal custom: the habitual avoidance and stigmatization of the disgraced, ignoble individual.

Not until the late nineteenth century was “good moral character” formalized and widely regulated by the state, and not until the early twentieth century did the compulsion to

“objectively” determine status measures become strong enough that a criminal history was first used as a proxy for poor character. It took until the 1940s and 1950s for the trend to catch on so that a history of convictions—or sometimes arrests, indictments, or even suspected violations of law—is now standard evidence that serves to justify exclusion from public office, civil service, private professions and occupations, some regulated activities, and even the country itself. 103

In fact, a few early attempts by legislatures to enact occupational exclusions based on moral character became contested and categorically rejected by the courts, as in the 1866 U.S.

Supreme Court cases of Cummings v. Missouri and Ex parte Garland.195 In the wake of the

American Civil War, Missouri’s legislature had banned persons who served in the Confederacy, supported it, or had otherwise been disloyal or sympathetic with a cause “inimical to the government of the United States” from being teachers, priests, public officers, or qualified voters—while the federal Congress instituted a similar ban on being attorneys. We might remember them as cases of impermissible bills of attainder (edicts of punishment by legislatures rather than judges) and ex post facto laws (those that penalize actions that have already been committed and were not punishable when they were committed).196 Such retroactive, legislative punishment was so unacceptable to the framers of the U.S. government that their disapproval had made its way into constitutional bans in the federal and most state constitutions.

The cases of Cummings and Garland, however, were not simply issues of ex post facto lawmaking and bills of attainder. They are some of the first recorded instances of attempts at regulatory punishment or even, to the extent that disloyalty was considered a criminal act, hidden sentences. Additionally, they are some of the rare instances when any legal authority has been forced to explicitly define “punishment” and determine whether a law fits that definition— because the Supreme Court declared that the relevant constitutional proscriptions only applied to laws that inflicted punishments. The lawyers for Missouri and the United States, and various amicus curie (“friends of the court”), argued that the bans on certain occupational and political participation were not really punishments because they were enforced through oaths rather than criminal-law proceedings, because they were not proportionally harsh or unreasonable, and 104 because constitutional law permitted Congress to determine qualifications for the occupations under its purview and reserved the states’ power to police all other occupations.

The Court vehemently disagreed. “Any deprivation or suspension of any [civil or political] rights for past conduct is punishment,” it declared, regardless of how and why they were deprived (note how consistent this definition is with the one we more carefully delimited in the Introduction).197 And any “legislative act which inflicts punishment without a judicial trial” is unconstitutional.198 At the time, the Court was simply unwilling to entertain the idea that past acts, even those defined as criminal or disloyal, were acceptable measures of occupational and political character fitness.

As time advanced, however, informal means of control like reputation were rapidly becoming less effective in the face of an expanding social geography.199 New innovations of communication technology like the printing press, manufactured paper, and the telegraph rapidly shrunk the social distance between locations across the nation and expanded the scope of especially rural communities. At the same time, the rapid influx of outsiders from new means of transportation—the railroad and the steamship—multiplied the numbers of people cycling through communities and contributed to the increasing trend toward urbanization that began with the onset of the industrial factory.200 The stranger—the unknown outsider—became a newly salient potential threat. In that proto-globalizing world, with the membership of communities becoming larger and less stable, identifying moral character based on reputation and common knowledge was becoming a cultural difficulty.

One of the most prominent examples of formalized replacements of informal reputation and character judgments is in one of the areas of law most obviously concerned with 105 globalization and vetting the stranger: federal immigration law, in which “good moral character” has been a naturalization requirement since 1790, and in which crimes of “moral turpitude” have been excludable offenses since 1891 and deportable ones since 1907 (making the latter two hidden sentences).201 Even before those two hidden sentences, though, a poignant example of the perceived need for legalized control of moral character can be found in one of the earliest hidden sentences enacted into federal law in response to the Gardiner Investigation: the 1853

Frauds Act that imposes forfeiture and disqualification of public office for concealing, destroying, or falsifying public records.202 While serving in the Senate, Thomas Corwin had simultaneously served as legal counsel for George A. Gardiner, a land surveyor and former dentist, for a claim before the current Mexican Claims Commission (on which Corwin’s cousin was commissioner) based on a mine supposedly destroyed in the Mexican–American War.203

After Corwin sold his share for over $80,000 to take office as Secretary of the Treasury and

Gardiner won $428,750, however, it made national headlines that the existence of the mine and

Gardiner’s title were both elaborate forgeries.204 Despite a public and political outcry, Congress found its hands tied; the Commission had as part of investigation already inquired into both

Gardiner’s and Corwin’s “character” and “honesty,” and there was no law preventing or punishing Corwin’s betrayal of public trust.205 Within the subsequent two years of congressional investigations and reactive lawmaking, then-Congressman Andrew Johnson gave an impassioned speech on the House floor (concerning the bill that contained the hidden sentence) that summed up the contemporaneous impetus to formalize deeply shared moral wrongs:

The great object in making laws should be to sustain, develop, and carry out what

is admitted to be morally right. We find more or less violation every day of what 106

we in our minds and hearts consider sound morals, and we find no law to prohibit

the violation of those morals. Now, I think, where there is moral wrong, there is

political wrong, and it should be made legally wrong. The object of this bill is to

prohibit what is considered in one sense political wrong, and to carry out what is

morally right.206

The crisis in informal social controls on occupational access was worsened with an increase in specialized knowledge—and then even greater social mobility in the era of the radio and the automobile. For instance, a determinative 1923 court case in Louisiana first permitted licenses for certified public accountants based the idea that such professions were so skill-based and unknowable that public welfare could not be ensured any other way:

It is true that neither morals, health, nor safety [sic] of any one is jeopardized by

the practicing of [the accounting] profession, however incompetent a person may

be, but the power of the state in matters of this sort is not confined to professions

involving such consequences. It may also act whenever the general welfare

requires to protect the public in the skilled trades and professions against

ignorance, incompetence, and fraud.207

Then, in the 1940s, when California and other states organized to register two classes of non- certified and certified public accountants—and at the same time instituted a hidden sentence that allowed the board of accountancy to suspend or revoke permits based on certain crimes and acts of misconduct—one of the most important factors was a “geometric increase” in the numbers of private, unregulated accountants in each state that could not be monitored or controlled without designating official boards and professional societies with mandatory membership.208 Between 107 the widening social world and the widening scope of human knowledge, then, there seemed an almost irresistible momentum carrying policymakers toward codifying requirements of educational qualification and good moral character as a replacement for traditional social standing.

That pressure was increased by the turn-of-the-century context of an almost unprecedented level of social, economic, and political turmoil in the United States—and new, modernist kinds of solutions presented in response to the social chaos. The industrial age had begun, and in the span of a few decades, the nation went through two world wars and numerous smaller conflicts, unprecedented periods of rapid economic growth and two massive economic crashes, severe health crises, intense conflict between capitalists and workers, globalizing communications and transportation technologies, dramatic increases in and panics about immigration rates, agrarian expansions, urbanization, and some of the most volatile race relations in U.S. history. Modernity had taken hold with a bang, and the very fabric of society seemed threatened. In response to those pressures, several distinct political crusades formed and gradually found their foothold under a united banner—the Progressive movement—that can be generally defined as a recurrent call for government-sponsored morality, efficiency, and order as replacement for the ostensibly inept approaches of the past.209

Manufacturing an Order Problem

This progressivist shift in modernization can be seen as a reflexive, rationalist reaction to the perceived problems of industrialization, urbanization, globalization, and republican government that were (ironically) created by capitalistic modernity.210 The thrust of the progressivist crusades that in the mid-to-late 1800s eventually coalesced into the Progressive movement of the 108

1890s–1920s led to the contested establishment of the American professions and administrative state, organizations which were designed by federal and state governments to exercise exclusive, legal control of specific areas of economic and social activity. Within the rationality frame that drove this bureaucratization process, though, it fell upon policymakers to diagnose the commotion and the resulting moral panics as social disorder rather than some other kinds of social problems, creating a self-fulfilling prophecy. If the problem is one of disorganization and loss of control in various economic and social fields, then the “obvious” solution is to reinstate law and order—rationalized management—of each one. In turn, those discursively created conditions for successful order-making demanded a particular enforcement method that was predictable, efficient, and concentrated within a zone of law: regulatory punishment.

Step one: Reframe the problem as regulatory

Neither social change nor chaotic moments nor moral panics were anything new to the late

1800s. There exists a long history of publicly defined threats to societal values and interests that are the subject of exaggeration by media or public officials, followed by apparently disproportionate reactions by the public (and eventually a sudden disappearance from public concern).211 Witches, cross-dressing, Roman Catholics, and forgery are but a few examples that predate national independence of the United States,212 and there is a sheer multitude of examples of social changes throughout history that provoked unsettled conditions.213 Because moral panics in the age of mass media are more frequent and more severe, especially when the media are intentionally campaigning on an issue, there is good reason to suspect that the moral panics of the turn of the century relate somewhat to the strategies of Progressive-era muckrakers, who were known for investigative journalistic crusades about (among other topics) public health 109 crises, pharmaceutical fraud, meat-packing conditions, political corruption and misappropriation, insurance rate-setting, prison conditions, and gambling and alcohol abuse—all of which resulted in directly associated hidden sentences.214 Still, moral panics alone are not determinative of social patterns and can result from without clearly impacting subsurface social change.215

What did change by the late nineteenth century was the advent of moral entrepreneurs who framed public panics in a particularly modern way: as urgent failures of integrity and character that can only be fixed by government control and regulation. At first, these claims were made in respect to local and state issues.216 For instance, pharmacists first faced regulatory punishments and hidden sentences in response to the opiate crisis, veterinarians in response to panics in an outbreak of foot-and-mouth disease from beef sales, steamboat businesses to a slew of public deaths on steamboats, and barbers to a panic about communicable diseases being passed through barber shops and unsanitary barbering schools—but in each case, advocates framed the problem as one of state-enforced, rationalized order-making.217 A useful example of this frame in California can be found in the rhetoric used in the construction of the Barbers’

Sanitation Law of 1927, which instituted (among other rules) “good moral character and temperate habits” requirements for licensing, sanitation inspections for barbering schools and shops, visible sentences for practicing without a license, and license revocation in response to felony convictions, “immoral” conduct, or barbering while knowingly having an infectious disease. When lobbying for the bill, master and apprentice barbers specifically characterized the bill as “a protective measure along sanitary lines” that pinpointed the problem in current barbers colleges that had “no regulation, nothing to govern their business, and nothing to protect the student who may enter their institution,” and offered a solution that “inaugurate[d] decent and 110 efficient colleges…based on scientific educational requirements” and measures of “mental, physical, and mechanical fitness.”218 In the case of the first workmen’s compensation laws in

California in 1915, which instituted a hidden sentence on insurers for rate-setting, it was even simpler for Governor Hiram Walker to phrase the case as one requiring government regulation:

“It had been learned from bitter experience that the rapacity of some insurance companies from whom employs might obtain protection could be curbed only by the State, and in the workmen’s compensation law.”219

In the early 1900s, it also became increasingly popular for Progressive reformers to aim such modernist demands toward the federal government. One of the earliest federal hidden sentences, which discharged from employment any federal meat-packing inspector who was found accepting bribes, came directly out of the most famous piece of muckraking of all: The

Jungle, by Upton Sinclair. The Federal Meat Inspection Act of 1906 and the accompanying Pure

Food and Drug Act—which together formed the foundations for what would become the U.S.

Food and Drug Administration—were the combined result of a steady attack by muckrakers on the conditions in the stockyards that led to public alarm about widespread disease and an empowered contingent of Progressive Republicans who consistently defended the power of regulatory government to solve such problems.220 Although The Jungle was meant to expose

“the inferno of exploitation” of impoverished (especially immigrant) workers in the midst of networks of political and capitalist corruption, the political and public response was consumed by the public health concern; Sinclair himself saw the book as inciting such outcry “not because the public cared anything about the workers, but simply because the public did not want to eat tubercular beef.”221 Even more importantly for explaining the role of the hidden sentence 111 enacted in 1906, politicians and various lobbying groups framed those public health concerns as a series of regulatory failures to impose order.

President Theodore Roosevelt read The Jungle and, despite criticizing its socialist tendencies, found its description of the stockyards dire enough that he sent James Reynolds and

Charles Neill to investigate the situation. The resulting Neill–Reynolds Report is widely considered the driving factor behind the vast increase in funding and regulations for the

Department of Agriculture within six months of The Jungle’s publication. Describing the Report in a special message to Congress, Roosevelt framed the entire situation as a dire need for increased federal regulation:

The conditions shown by even this short inspection to exist in the Chicago stock

yards are revolting. It is imperatively necessary in the interest of health and of

decency that they should be radically changed. Under the existing law it is

wholly impossible to secure satisfactory results…no method of stopping these

abuses if they should be discovered to exist. Legislation is needed in order to

prevent the possibility of all abuses in the future. If no legislation is passed, then

the excellent results accomplished by the work of this special committee will

endure only so long as the memory of the committee's work is fresh, and a

recrudescence of the abuses is absolutely certain.222

Likewise, Secretary of Agriculture James Wilson, in testifying before Congress, specifically described the public health concerns as a bureaucratic legitimacy problem in need of expanded regulation: 112

We have charges now against the integrity of our work in the inspection of meats.

… The whole world just now has its attention drawn to the quality of American

meats…[and] our inspection. … If you want to have the very best work done in

the packing houses that ought to be done for the health of the American people,

we have not inspectors enough to do that work.223

No thought was given to solutions other than expanding administrative infrastructure and financial resources. In addition, Wilson and his Chief of the Bureau of Animal Industry, Alonzo

Melvin, both admitted that one of the most important reasons that the Department of Agriculture had been called upon in 1903, 1905, and 1906 to institute inspections on meat product was because the packers themselves had requested it. The packers located their own economic difficulties in the need for state-sanctioned, formally documented quality standards, but before

1906, the Bureau of Animal Industry had nowhere near the funds to conduct all of the requested inspections.224 Responding to the dual demands of the public and the capitalists, the so-called

Beveridge Amendment (authored by Roosevelt’s close ally Senator Albert Beveridge) to the

Federal Meat Inspection Act designed an inspection regime with multiple visible punishments for non-compliance by meat packers and a hidden sentence for corruption by the inspectors themselves, and did so explicitly “to enable the Secretary of Agriculture [through the newly empowered Bureau of Animal Industry] to more effectively suppress and prevent the spread of contagious and infectious diseases of live stock.”225 The forceful, proletarian advocacy of The

Jungle was thereby translated into the modernist, bureaucratizing frame.

113

Step two: Demand bureaucratic self-containment

In this new progressivist frame, however, standard government solutions were also no longer enough to address these kinds of regulatory problems; the generalized knowledge of legislators and judges could never achieve the most effective results. What was needed instead was the specialized, often scientific knowledge of subject-matter experts, and rather than resorting to consulting or other options, federal and state governments created official positions that endowed the experts themselves with legal powers to regulate their fields.226 Professional boards made up of esteemed medical professionals, accountants, barbers, etc., present a ready example, but there are many others throughout administrative law. The Federal Meat Inspection

Act of 1906, for instance, clearly empowered the U.S. Secretary of Agriculture to appoint

“experts in sanitation” to inspect meat-packing establishments, because the Secretary Wilson testified that he desperately needed inspectors but his current officials were insufficient because they were “not trained in doing that kind of thing.”227 Still, the idea of full-time, federal inspectors appointed for their subject-matter expertise was at least 50 years old at that point.

The Steamboat Act of 1852 is one of the most important but least recognized prototypes for the modern regulatory system: the Steamboat Inspection Service it created was the first

“downright modern” administrative bureaucracy to wield the federal power to regulate private industry or interstate commerce, to do so through an independent board of subject-matter experts with delegated rulemaking, licensing, and enforcement powers, and to create regulatory rules based specifically on scientific expertise.228 Although it is less recognized, that regulatory scheme also effectively professionalized steamboat operators before most other professions formed and created the first federal regulatory punishments (and later, in the 1870s 114 recodifications, hidden sentences) that applied to non-elected positions, stripping licenses and employment as an inspector in response to dereliction of duty or bribery. The acts were prompted by hundreds of publicly prominent deaths from boiler explosions every year of the

1820s–1850s, but Congress was forced to act slowly and cautiously (even with prompting from

Presidents Jackson and Van Buren) because of massive public resistance to “government interference with personal affairs.”229 At first, in 1838, Congress allowed for only temporary, local inspectors without demonstrable expertise who were paid per inspection, attempted to devise its own rules for operating boilers (requiring the safety valve to be manually opened any time a steamboat was stopped, requiring rudders and tillers to be linked by iron rods or chains rather than ropes, and making steamboat operators presumptively negligent for any explosion), and neglected to place any enforcement powers in the hands of the inspectors or other federal officers.230

The 1838 law was hailed as a disaster largely because of its top-down standards imposed upon congressional whim, rather than more bottom-up, bureaucratic standards devised by subject-matter experts—in addition to other flaws discussed below. It turned out Congress’s ideas of operating boilers were not up to scientific standards of the day (manually opening the valves actually tended to prompt explosions, and iron steering devices turned out to be detrimentally rigid) and imposed a harshness that (because of the presumptive liability) actually led to fewer responsible steamboat operators.231 The consensus by the 1850s was that, “[i]f constructors and engineers could be made competent and careful, there would be no necessity for minute directions” like the ones Congress previously made.232 Instead, any legislation “must look for the prevention of these disasters from another quarter, and that is from the knowledge, 115 care and attention of those only, whose character and standing in their profession will warrant their being placed in so important a charge”; the solution was to empower a panel of experts and to make every party involved, from inspector to engineer, licensed as an educated, responsible expert.233

In the Steamboat Act of 1852, Congress therefore based its regulations on the scientific consensus for boilers and delegated powers to a board of experts to create its own rules based on the evolving consensus, to appoint its own salaried experts as inspectors, and to require steamboat engineers and pilots to demonstrate their knowledge and experience (and character) to obtain a license.234 Largely because of the revised approach in explicitly placing steamboat regulation in the hands of an insulated bureaucracy of subject-matter experts, the Steamboat Act greatly shifted public opinion on the usefulness and appropriateness of government regulation of certain spheres of economic and social activity.235

The perceived need to place specific economic and social areas under the control of elite experts was hence one of the most cited reasons for the creation of new administrative bureaucracies and other independent, administrative zones of law. From a sociological point of view, it is also noteworthy that the establishment of professional communities coincided with the marked decline in local community bonds, so that professional and other societies can be seen as society’s way of creating new social bonds and reestablishing solidarity in a globalizing world.236

Moreover, many of the crises that characterize the historical trend at issue were framed as failures of regulating not just behavior within an economic or social field, but also as failures to regulate and close access. Congress’s concern in the wake of the Gardiner Investigation in the

1850s was therefore not with exacting ex post facto punishment on Thomas Corwin (who had 116 just in any case retired from public office) or even with ensuring future instances of fraud against the United States government would be better punished, but rather with calming the public outcry for assurances that it would never happen again.237 The Frauds Act of 1853 therefore did not just remove public officials for falsifying or destroying evidence but also instituted an unprecedented ban on them ever serving in office again. Similarly, the solutions presented to the

1906 public health panic in the wake of The Jungle relied specifically on a federal regulatory scheme and federal inspectors not just because it was a nationwide panic (which often led to a series of state-by-state measures), but because the Neill-Reynolds report and testimony before

Congress revealed close relationships and widespread bribery between local officials and the meat packers.238

Likewise, it was common across the state for all kinds of medical professions to become closed by stoking public fears of health crises caused by unqualified, fraudulent medical practitioners.239 Physicians, especially, had a nationwide tendency to mobilize in response to proletarian-sponsored moves toward social health insurance and to co-opt legal frameworks before those other (even “more” progressivist) groups could do so by relying on public fears of health crises. In common fashion, California’s League for the Conservation of Public Health formed specifically to defeat a 1918 public referendum for social health insurance, and it continued using the threat of “quacks,” “fakes,” and “cultists” to influence health care policy for decades. Wallace Terry, head of the surgery department at the University of California medical school and a key supporter of the League, threaded the needle between “socialist” progressive moves in the medical field and more classically liberal, market-based approaches to make the 117 case that continued government control of a closed profession is the only way to ward off

“quackery” and protect public health:

The progress of medical science…and all agencies of scientific health work are

becoming more and more dependent upon the education of the public, the action

of legislatures and the co-operation of communities.… Without information

[provided by medical experts], without the facts, the public has no way of

distinguishing the true from the false, the counterfeit doctor from a genuine

physician. … The officers and personnel of the League, on the whole, constitute a

body of men and women in whose ability and integrity the public and the

profession can place trust and confidence.240

Of course, closing access to a professional or political sphere does not completely protect it from public scandal. Nonetheless, especially in regard to certain occupations, framing moral panics in terms of who was permitted to act in a given sphere of activity, rather than only what actions persons may take, provided the illusion of control needed to assuage public hysteria.

Thomas Corwin, for instance, even went on to become U.S. Minister to Mexico in the 1860s, but the public attention span had long since shifted.

All told, because moral entrepreneurs in the late 1800s relied on discursive claims that the only way to effectively end (or at least manage) social disorder was for the state to both legally delineate precise social or economic fields and grant monopolistic control of those fields to their own specialized experts, new regulatory organizations were created with predetermined structural limitations. Agencies and professional boards were designed to operate entirely within their narrowly defined purviews, which included new rights or privileges, like licenses. Some 118 commentators have even looked on this phase as the development of a new form of property in the form of occupational and other licensing.241

Carving out legislative or executive authority and partitioning it as an independent sphere of legal control left these new bureaucracies in their own, totally unsupported and undefined zones of law—and thus virtually required that any methods of social control originate and be contained within those regulatory zones of law. In many cases, agencies and professional boards were structurally prevented from resorting to outside legal enforcement or control; within these newly defined zones of administrative law, they could not create or prosecute new crimes without overstepping their grants of legislative or executing power, nor could they exercise the judicial powers of imposing imprisonment, fine, or other visible sentences.242 More importantly, calling upon the external authority of the penal law in the face of such strong claims to bureaucratic superiority was in many ways to sacrifice organizational legitimacy. For the discursive claim to stand that specialized, bureaucratic control is the most effective method for the achievement of instrumental goals, resort could not be had to the pre-existing, generalist methods of the penal law.

Instead, new professional boards and administrative agencies could exercise legal control by removing the new rights contained in (and therefore limited by) their zone of law: the right to practice a profession, the right to sell a product, the right to engage in recreational activity, and so forth. As various trades and spheres of activity were organized into bureaucratic control, then, key members had the discursively created legitimacy requirement of claiming exclusive prestige and technical expertise within their respective zones of law—of instituting hierarchical demarcations and monopolistic closure to so-called amateur outsiders.243 Hence, a crucial part of 119 that boundary-making process is credentialing.244 “Credentials” are formalized certifications that offer standardized, official proof of some quality or standing. When we think of credentials, we most commonly think of educational markers—high school diplomas, bachelor’s degrees, medical degrees, law degrees, and the like—and it was these kinds of educational credentials that first found their way into professional requirements.

For instance, West Virginia in 1882 passed a new law that created a board of general medicine, restricted practice of general medicine to persons licensed by that board, and delegated legal power to the board members to regulate access to licensure and enforcement of the newly legalized rules of the profession by revocation of licensure.245 As a result, the Supreme Court was again called to adjudicate the acceptability of regulating occupational access, and this time, it unanimously agreed that the medical profession was so important to the public and required such careful training that even requiring education from a “reputable” school was acceptable.

Other states on the East Coast then passed similar laws, and California issued regulations for the practice of veterinary medicine in 1893, osteopathic medicine in 1901, and pharmacology in

1903.246 Many other professions, like accountancy or law or cosmetology, then followed suit in the first half of the twentieth century. Across the states in the 1920s–1940s, for instance, calls were made specifically for the state to restrict accountancy to licensed practitioners and to “set forth conditions under which registration or permit may be suspended or revoked” in order “to protect the public interest.”247

Step three: Permit only rational logics of deterrence

Alone, the discursive frame of order-making and the structural aspect of the push for formal, bureaucratic control may not have led as inevitably toward regulatory punishment (or eventually, 120 hidden sentencing). The extent to which professional boards and administrative agencies must enforce through punishment is certainly an open question. The discursive emphasis on clearly separated zones of legal authority could have led to non-penal or even non-rational solutions based in organizational cultures, socialization, and situational controls, and the educational credentialing already instituted across the nation went a long way toward such non-punitive, bureaucratic social controls.248 Nevertheless, the moral entrepreneurs committed to progressivism did not only call for a specifically formalized, bureaucratic structure for reform; they also insisted upon a modernist cultural frame of instrumental rationality. Together, these discursive arrangements of the emerging administrative and professional systems created a legitimacy requirement that could not be met by any extant means of regulation, a new problem that required an innovative solution that parallels those dual logics of rationalization and self- containment.249

In the logic of the progressivist reformers, it was not enough merely to isolate a sphere of social or economic activity and place it under expert control. True social order, in the modernist frame, required meticulous planning, standardization, and powerfully efficient results. For instance, the Federal Meat Inspection Act of 1906 and the Steamboat Acts of 1838 and 1852 were all justified as “necessary” federal impositions in the face of state-by-state inefficiencies; hierarchically arranging an economic area and legally empowering only a centralized authority to create and enforce regulation within it is the most “economical” method of ensuring that all members of the field meet uniform standards.250 In similar fashion, soon after the creation of professional boards for much of the medical profession, barbers, independent contractors, accountants, engineers, and others, California instituted an overarching Board of Professional 121 and Vocational Standards in 1929, which oversaw each of the other boards, replaced many of their procedures in hearings, licensing, etc., with uniform ones, and essentially became a

“businesslike arrangement for the direct supervision of the affairs of all of the professional and vocational licensing boards in the State government…the clearing house for the financial and administrative problems of the boards.”251 The end result of these kinds of calls for administrative and professional control was to create a legally constructed community devoted to rationalized order-making.

Complete order was, of course, unattainable in each of these examples. As such, to

(seem to) comply with the rationality demands of muckrakers and other progressivist moral entrepreneurs, including a panicked public concerned with social disorder, a bureaucratizing agency or profession did not only need to police the training and competency of those who practiced within its delegated zone of law; it also needed to ensure as far as possible that no further incidents of disorder would emerge. How else would the public “know” order was reestablished?

In responding to the public panic incited by The Jungle, Congress therefore empowered the Bureau of Animal Industry to appoint its own expert inspectors, to “prescribe the rules and regulations of sanitation under which such establishments shall be maintained,” and also to exact a hidden sentence of summary discharge on any inspectors found to be accepting bribes from the meat-packing industry.252 The focus of public ire was not just on the safety of beef products but on the failure of not one but two prior federal schemes to alleviate the corruption and state– capitalist collusion portrayed in Sinclair’s account. Testifying before Congress, Alonzo Melvin hesitantly admitted that expressly qualified federal inspectors were needed because, “[i]n fact, 122 not much dependence can be placed in the work of those local inspectors, generally speaking.”

When pushed a couple of times, Melvin confessed, “[They l]ack the education, and…they are subject to the influence of local politicians and others in the State or in the district, and they do not and can not enforce the regulations as they should be enforced.”253 The reason for the massive expansion of federal oversight, and the immediate purpose of a hidden sentence that summarily discharged inspectors caught receiving bribes, could be found in pervasive reports that meat packing plants were inducing local inspectors to endorse their products as meeting quality standards: they provided a method of internal enforcement and legitimacy. Mechanisms to avoid and respond to public misconduct in any bureaucratic area—administrative or professional—were therefore crucial to legitimating the grant of state power that allowed the organization to police itself; without both the need for rules to govern a sphere of action and the demonstrated ability of its leaders to enforce those rules, it was difficult to justify giving over state power to regulate.

In this rationality frame, the nearly inevitable result is a system of punitive, exclusionary sanctions. In spite of the organizational potential to control without penal measures, bureaucratization based on instrumentally rationalized justifications created a legitimacy problem: in order to justify their creation of rationally oriented professions and agencies legally empowered to replace informal oversight of a sphere of activity, policymakers had almost exclusively to use rational-legal means of control and instrumentally rational standards of success. That effectively leaves educational credentials and punishment. Assuming then, as they had to in response to the rules of discourse, that social actors act via a purely rational calculus, policymakers found punishment to offer the most efficient and objective kind of control, because 123 it can be uniformly applied and requires the fewest resources. Reinforcement, socialization, situationally focused prevention, and even physical coercion all require actual resources be devoted to each actor, whereas the mere threat of punitive sanctioning is supposedly sufficient to create a deterrent incentive structure whereby most social actors conform to requisite standards.

The changes made in the Steamboat Inspection Service between the 1838 law and the

1852 one, which included a series of new regulatory punishments (one of which would become later become a hidden sentence), provides a useful example of this rationalist trend toward punitive deterrence. At first, the 1838 law was minimalist and apparently efficient: it regulated steamboats and boilers by authorizing federal district judges to appoint ad hoc, local inspectors with no specific requirements of expertise or character, it established a non-salaried pay structure for those inspectors based on raw number of inspections and number of successful inspections

(designed to give steamboat operators the benefit of the doubt), it made the inspections initiated and paid for by the steamboat owners themselves, and, instead of instituting new penalties imposed by the federal government, it relied on private persons to enforce the system as proxies for the state in libel and manslaughter suits.254 Likewise, when complaints about the law’s ineffectiveness surfaced—including pervasive reports of inaccurate, improper, or corruptly procured inspections, and steamboat captains tending to simply ignore the law because of the unlikelihood of it being enforced by private persons—the solution was not to change approaches, but to address the problems of the periodic inspection while multiplying the number and severity of the penal measures included.255

Hence, proponents of the 1852 reform to the Steamboat Inspection Service all agreed that voluntary, one-time inspections were ineffective because they provided no incentive for actual 124 behavior, and the new credentialing of expertise for steamboat pilots, engineers, and even inspectors was not enough to ensure compliance. The consensus was that “[t]he only practicable mode of reaching these causes of disaster, is by means of a compulsory, rigid, scrutinizing inspection [system]…, made by competent and sworn officers; not nominal and formal merely, as is too often the case under the present law, but an actual and faithful inspection” that includes tangible consequences.256 The same kind of argument was made in instituting permanent inspectors and subjecting them to fearful, penal sanctions upon being proven negligent or corrupt. Likewise, it seemed “only rational” for such a nascent administrative agency (and profession, for that matter) to have at its disposal multiple avenues of enforcement that included visible sentences, hidden sentences, educational credentials, and character requirements.

The eventual problem, however, is that in a novel, self-contained zone of law, penal measures are not always readily accessible. Educational and other competency credentials offered no solution, because their standardized form was designed only to police the line between amateur and professional actors, not the line between permissible and impermissible habits of conduct among the competent actors. Judicial punishment was only available to enforce the outermost boundaries of the zones of law that were delegated to professional boards and agencies (for instance, states did make practicing medicine without a license a criminal offense); within those zones, though, new bureaucracies had to find their own methods of enforcement that were not already claimed by other branches of government.

A NEW FORM OF LEGAL VIOLATION AND PUNISHMENT

What new administrative agencies and professional boards needed to fulfill the discursive requirements of rationality without exceeding their structured existence within a narrowly 125 delineated zone of law was a kind of punishment that related directly to that zone of law.

Because of the constraints of the discourse, the solution was self-evident: policymakers could institute punishments that seize the new kinds of “property” defined within their legal authority, the rights and privileges, like professional licenses, that are specific to their constituent zones of law. They could suspend or revoke licenses and employment status.

The creation of punitive measures within an administrative area of law in response to internal, administratively defined violations was an innovation in penal technology: “regulatory punishment.” These kinds of penal practices do not truly constitute hidden sentences, because they are defined by non-criminal offenses.257 They are, however, penal practices by ontological, functional, and critical definitions of punishment; regardless of how they are or were framed and legitimated, what they do is authoritatively impose adverse consequences in response to some defined form of wrongdoing. Moreover, they are key to understanding the onset of hidden sentences and the form they soon took: a formalized tool of policing new boundaries around distinct zones of law that were delegated by legislatures to the rationalized control of administrative agencies and professional boards.

Like all new technologies, there was a great deal of experimentation—some of which involved hidden sentences—before a standard of regulatory punishment was settled upon. One method of enforcement was licensure revocation in response to repeated violations. The first hidden sentence in California’s statutory law was also the first three-strikes law in the nation’s history. In 1905, long before the three-strikes laws that have been heavily criticized for causing mass incarceration after the 1970s by mandating long prison sentences for third-time offenders

(also traced to California law), the California board of pharmacy was required to permanently 126 revoke licenses for the third violation of the Pharmacy Act, which included regulations on handling and distributing prescription drugs.258 In 1915, a second California three-strikes law based discretionary loss of general medical licenses on criminal failure to report cases of ophthalmia neonatorum (a form of newborn conjunctivitis).259 Yet the pharmacy board quickly expressed concern that repeated revocations of licenses after multiple, public acts of misconduct would do little to protect the “integrity of the profession as a whole” (and simultaneously objected to the lack of discretion it had in the event of a third strike). California’s boards of accountancy and medicine likewise elaborated, decades apart, that the common concern in the earlier years of hidden sentencing and regulatory punishment was not with enforcement of specific crimes that were closely related to the trade, but rather with the “gross immorality” or violations of “the canons of propriety or the high ethics of [the] profession” of a single person or practitioner having damaging influence on the reputation of the professional entity itself.260

In order to enforce loyalty to a profession and its rules efficiently and effectively, the key was to promote internalization of the profession’s goals and values, to exercise “normative control” (rather than excessive coercion) over its members—the kind of normative control that until contemporaneous times had been implemented through community reputation, through social judgments about honesty, integrity, and trustworthiness.261 Good conduct cannot “be attained so much by regulation and bye-laws, as by the moral influence which members of a chartered body will gradually exercise amongst themselves.”262 Even though the Supreme Court in 1866 indicated in Cummings and Garland that it was not yet acceptable to use criminal acts as a proxy for poor character, it did not object to the growing idea that formalized character regulations could be used as a boundary-making tool. Its ruling was concentrated on the 127 legislative imposition of punishment based on criminality, but it left room for bureaucratic control through regulatory or administrative law.

Thus, a vital means for budding professional and administrative agencies to successfully exercise normative control over members’ behavior was to only recruit members already committing to its standards—especially when the problem was framed, as it was as early as the

1850s steamboat explosions, as one of access to “careless and incompetent men [and women]” rather than certain behaviors.263 In the final 1852 Steamboat Act, then, engineers were required to demonstrate good “character, habits of life, knowledge, and experience in the duties of an engineer” to receive certification; pilots were required to demonstrate that “he possesses the requisite skill, and is trustworthy and faithful” to receive a license, and the license could be revoked “upon proof of negligence, unskilfulness [sic], or inattention to the duties of the station”; and inspectors similarly had to demonstrate “knowledge, skill, and experience” (though not character or integrity) to be appointed, could be dismissed (and also civilly fined) for negligent or intentional dereliction of duty, and could also be dismissed for receiving bribes, completely apart from any criminal indictment and visible sentence for receiving bribes.264 As one of the inspectors submitting a report to Congress claimed in pure rationalist fashion, without further elaboration, “[b]esides, it is believed, that holding such a security [of potential revocation of an operating license] over the engineer,” and for that matter the inspector, “would be more likely to induce him to be watchful and attentive than penal statutes, which could still remain.”265

Similarly, when policymakers across the nation created medical boards, in addition to instituting the familiar requirements that medical doctors demonstrate competency through educational credentials and an examination, they also ubiquitously empowered the boards to 128 police professional boundaries through character requirements.266 In order to be deemed fit to practice medicine—and later law, accountancy, independent contracting, nursing, barbering, and countless other examples—a person had to provide actual evidence of “good moral character,” such as letters of reference or actual testimonials of community members. By relying on demonstrated integrity as a gate-keeping mechanism, an agency or profession “need not be fully responsible for the moral development of its members, rather it need only admit and retain those persons exhibiting ‘proper’ character.”267

It was this new kind of rationalist, formalized, bureaucratically enforced way of determining social status—or in Weberian terms, rational-legal domination—that built the modernist foundations for hidden sentencing. While attainder still existed as a legal form, it was no longer officially attached to any consequences, including civil death, corruption of blood, or forfeiture of real or personal property. Those consequences had been abolished as the remnants of a less civilized, traditional age of penality, and the legally enforced category of attaintedness had become largely forgotten. For it to rise again—for modern policymakers to conceive of that legal label and imagine using it for a modern purpose—it needed to resonate with a new set of appropriately modernist discursive rules rather than with the traditional domination of the past.

Regulatory punishments were the beginnings of those new penal rules.

Regulatory punishments identified traditional boundaries of acceptable moral status in a uniquely modern, rational-legal way. In the past, individual and common judgments about vocational, governmental, and business qualifications were based upon traditional, affective determinations of communal reputation, and the invitation to participate in a closed sphere of 129 economic, political, or social activity granted with it a level of honor, prestige, social identity, or social status—a distinct kind of stratification in Weberian terms.268 In the modern age, the honor of inclusion within membership of a professional, business, and other kinds of legally prescribed communities still carried with it a measure of prestige and social privilege (not to mention any associated economic and political benefits), but to maintain the legitimacy of such constructed, bureaucratic communities in the age of modernity, those boundaries of inclusion and exclusion now had to be measured in modernist, rational-legal ways.

Because punishment based on acts of misconduct is the most ostensibly efficient means of control, and because new bureaucratic communities could not punish through traditional, criminal means in their isolated zones of legal authority, regulatory punishment was born: “good moral character” was transformed from a traditional, affective standard to a formalized, uniform one. But the rationalist impetus continued to push: character standards and misconduct are more definite, efficient and uniform than are traditional informal controls, and they are enforceable through bureaucratic, legal control, but they are not as efficient and uniform as they could be.

What standard of conduct could be enforced without further bureaucratic resources, without further effort on policymakers, and with a distinct measure of standardization across legal fields?

What available category of exclusion could be used to construct the boundaries around bureaucratic zones of law without the costs of regulatory punishment? The legal void surrounding the criminal label beckoned. 130

CHAPTER 3

ONSET: A RATIONALIST TOOL OF LEGITIMATING BOUNDARIES

The gap between regulatory punishment and hidden sentencing proper is a small one, both in terms of their developmental path and their social function. Both are in essence formalized measures of character, replacements in the modern era for the declining power of community reputation. Within the bureaucratic structure and rationalist discourse that established regulatory punishment, though, hidden sentences were for professional boards and administrative agencies even more compliant with the rationality requirements of efficiency, standardization, and calculability. They were also, in a genealogical sense, a more readily available idea in nineteenth century America (as the circumstances of the 1866 Supreme Court cases of Ex parte Garland and Cummings v. Missouri indicate) because they were more similar to established penal practices. Regulatory punishments were newly constructed technology of control based on innovative standards of conduct, whereas punishments based on the attaintedness of criminality had existed for millennia, had appeared in multiple iterations, and had been through most of the nineteenth century sitting idle, waiting until the particular demands of modernity found use for such an official, legally defined label. Hidden sentences were that new iteration of attainder, and the particular modern need to which they were directed by American modernity was one of classification: the need to formally identify good moral character in a rationalized fashion.

Policymakers found this innovative use for the label of criminality through four general kinds of processes, only one of which involves conscious decision-making aimed at replacing an existing regulatory punishment with a corresponding hidden sentence. This chapter theoretically 131 outlines all four processes, but because its focus is on the relationship between hidden sentences and regulatory punishments, it then focuses only on that sort of multi-stage modification of penal policies and leaves the other processes for later chapters. What the direct lineage from regulatory punishment to hidden sentences reveals most of all is not therefore a particular causal sequence that was in the end quite rare throughout American history; especially after the initial onset, policymakers enacted hidden sentences into most areas of law through less conscious, less analytical decision-making processes. Instead, the details of this development are most useful in expounding the initial form and function of hidden sentences laws as a hyper-rationalized version of regulatory punishments.

The foundational function of hidden sentencing in the age of bureaucratization, professionalization, and rationalization was as a legitimating means of classification, no more and no less. Very few of the boundaries that hidden sentence law was designed to enforce were new demarcations between inclusion and exclusion; those adjudged to have poor moral character already tended to be excluded from political office, pursuits that required significant trust, select social and communal activities, and so forth. What changed was the tendency to identify and label unacceptably poor character not based on individual or community-based judgments, but on tangible measures that are systematically defined and enforced through the official power of the state: negative credentials of criminality. The first phase of hidden sentencing in the United

States thus marks the replacement of poor reputational status with the taint of a criminal record as a means of identifying the targets of social exclusion.

132

INSTRUMENTAL POLICYMAKING AND THE CONSTRUCTION OF A HIDDEN

PENAL SYSTEM

The progression from regulatory punishment to a new, experimental penal technology and then to an established, virtually unquestioned one is not dissimilar to the dissemination of physical technologies. The hidden penal system did not suddenly pop up as a component within every area of American law. The process was more similar the telephone’s progression from an uncertain, new communicative device referenced in terms of the telegraph and the letter, to a rare but commonly recognized device in certain (more elite) areas of society, to a common fixture in every household and a daily part of American life. What is distinct in the development of that new penal technology, though, is that almost without exception, its inventors (i.e., policymakers) constructed it with little conscious recognition and almost no critical reflection. Hidden sentences were from their beginnings politically hidden.

In almost no case throughout hundreds of hidden sentence laws did I find tangible evidence that American policymakers actively anticipated the penal-criminal character or penological results of classifying based on hidden sentences, even though criminality and punishment form the core elements of such policy programs. Policymakers often discussed or debated the consequences and legality of other policy means and categorization schemes in respect to their general goals, or even explicitly had them vetted by legislative counsel’s and attorney general’s offices—but not hidden sentencing itself. Despite post hoc challenges to hidden sentences’ constitutionality over the years (e.g., in Ex parte Garland, Cummings v.

Missouri, or several cases discussed in Chapter Five), policymakers simply do not question ahead of time whether such policy means are punishment in a practical or legal sense, and, 133 especially after the initial onset period, they only rarely and tangentially question whether criminality is an acceptable standard of classification and exclusion.

Instead, based on the pattern of the historical evidence, it is most useful to consider hidden sentences’ development as (a) a set of unanticipated or unanalyzed policy outcomes that

(b) evolved from regulatory punishments and earlier iterations of attainder into their own, entrenched policy paradigm, and that were (c) created through something less than the kind of

“fully” deliberative, reflective agency that social theorists often contrast with habitual actions.269

Table 3.1 displays an inductive typology that maps these factors through the lens of Robert

Merton’s well-known elaboration of the unanticipated consequences of purposive social action.270 One axis shows the (less-than deliberative) degree of purposivity or cognitive engagement policymakers use in respect to the policy means, and the second shows the relationship those means have to earlier penal technologies in terms of ideational arrangement, while each mode contains at least one key factor that Merton identified as inviting unanticipated results.271

The first mode of policymaking that gives rise to hidden sentences in American history is the conscious replacement of an existing regulatory punishment by a hidden sentence, either within the policy process for a newly proposed law (e.g., as an amendment to a bill or a new proposal made in a committee writing the first bill) or as part of the revision of an already enacted law (e.g., to make it more uniform or less costly). This mode is therefore characterized by a palpable lineage to regulatory punishments and by some sort of active notice or attention to the means of achieving a policy goal.272 Yet even though policymakers in this mode may be cognizant of altering the policy means and may even discuss the changes to some extent, their 134

Table 3.1: Hidden Sentencing as Unanticipated Consequences of Policy Actions

Ideational Development

Emergent Entrenched

Rationalization of means, Diffusion and mimicry, with Conscious with immediacy of interest efficient ignorance Instrumental

Deliberation

Recodification and Unquestioned, routinized Automatic restatement, with error “common sense”

actions in respect to enacting hidden sentences are characterized by what Merton calls an

“imperious immediacy of interest” wherein policymakers are so absorbed with their immediate goals that they fail to critically engage with other consequences or implications of their actions.

In other words, when the policymakers in this study actively considered the change from regulatory punishments to hidden sentences, they did so only in relation to the narrow interests of their policy ends or (more frequently) the rationalization of the means of classification within policies into more objective, uniform, or efficient ones; they failed to consider the nature and results of the new classification schemes as punishments in response to criminality.273 Merton observes that such failures to engage in deliberative action are often the result of urgent, intense situations like the moral or economic panics that characterized many of the cases wherein hidden sentences first arose in the United States. As the maxim says, “hard cases make bad law.”

We can consider these kinds of “merely” conscious or quasi-reflective action as a category that exists in between the two extremes of fully purposive action—which only exists in

Table 3.1’s outline as an imaginary or omitted category—and habitual, automatic action—which forms the basis of the second mode of policymaking made in direct reference to regulatory 135 punishments.274 The difference between the two is located in the amount of conscious attention given to the change from a regulatory punishment based on a non-criminal standard of classification to a hidden sentence based on a criminalized one. In the first, policymakers notice the change or even purposefully justify it, but not with critical reflection on the penal-criminal standard; they use what Giddens calls pre-reflective action and what Merton treats as partially rational action.275 In the second, they make the change to hidden sentencing without noticing it or realizing that the superficial change in language has meaningful legal effects. In other words, they engage in another of Merton’s factors that tend to yield unanticipated consequences: error, which often results from habitual action. To put policymakers’ actions in the terminology of criminal law and mens rea, they rarely enacted hidden sentences purposefully and almost never did so knowingly; if we take the historical evidence seriously, hidden sentences are typically the reckless (conscious) or negligent (automatic) result of policy actions aimed at other ends.

The third mode of action through which policymakers tend to create hidden sentences is, like the first, a conscious effort to select a means for achieving a policy goal, but it includes no overt reference to earlier penal technologies; instead, hidden sentencing is prominent enough that policymakers simply import or emulate it from other, extant policy schemes. The operative

Mertonian factor in this mode is economical ignorance, wherein decisionmakers often choose a readily available course of action without devoting scarce time and resources to analyzing the potential consequences of doing so. Based on such efficiency rationalizations, policymakers frequently derive specific legal language and bureaucratic structure based on examples from other jurisdictions or related areas of law.276 In many cases, such templates for policy solutions can become so established that they become part of a policy paradigm: a limited range of 136 ideational alternatives that policymakers even recognize as useful, available options.277 Hidden sentences therefore became institutionalized and entrenched across various areas of law, appearing sui generis rather than in reference to preexisting prototypes.

The fourth mode involves not only an entrenched policy paradigm but also an automatic, non-reflective kind of decisionmaking that takes the penal-criminal character of hidden sentences entirely for granted. Hidden sentencing in this mode is simply a kind of political “common sense,” wherein penal exclusions based on criminality are paradigmatic means of policymaking that are consistent with broader, accepted norms—so normalized that they are questioned as infrequently as is the telephone. In one sense, this kind of action incorporates Merton’s factors of ignorance, error, and immediacy of interest all at once to yield unrecognized consequences. In another, it has become a fourth factor, wherein fundamental cultural values (e.g., the need to exclude criminals) are so important that they override the importance of any unforeseen results.

In another, it transcends Merton’s analysis, and enters the realm of established “public sentiments,” “shared understandings” of social reality, or deep, subsurface “cultural assumptions.”278 Especially as hidden sentencing became more established, as we will find especially true in later chapters, criminality turned from a useful, habitual tool of instrumental classification into its own, intrinsically valid category, into an unquestionable assumption that criminals are naturally to be excluded.

This brings us to the most important point of this typology. It is recognizably ideal- typical and therefore does not cover every example of hidden sentences (some hidden sentences, for instance, were simultaneously adapted from regulatory punishment and transplanted from other areas of law)—but it shows (a) the hidden penal system’s general developmental pattern 137 over time and (b) the ways in which the exclusionary assumption has been built into it from the beginning. Every factor Merton identified as associated with unanticipated consequences can be rephrased as failures to question certain assumptions of a plan of action. Another way of explaining the earliest and least frequent mode of policymaking that gave rise to hidden sentences (addressed primarily in this chapter), rationalized policy action with an imperious immediacy of interest, is to describe it as failing to address key assumptions involved in classifying and labeling based on criminality. Another way of describing the transition to later and more frequent modes, which is shown generally by the direction and darkness of the dashed line in Table 3.1 (and addressed primarily by subsequent chapters), is to describe those key assumptions as becoming less noticed and therefore less contestable over time, transitioning from important, overlooked details about a novel penal technology to ingrained, unnoticeable facts of life. In the case of enacting hidden sentence laws, the most pervasive and consequential was the exclusionary assumption: an unquestioned, often unstated discursive rule that a particular status group—in this case the criminal other—may be justifiably, legitimately, or even naturally barred or eliminated from a given set of relations.

It is therefore important to note from the outset that the exclusionary assumption has existed in stronger or weaker form throughout American history, likely developing from the

Western history of attainder and the United States’ origins partly in penal transportation. Later chapters are more focused on historical examples of hidden sentences based on mere presumptions that exclusion of the criminal other is the norm, and on the exclusionary assumption in relation to hidden sentences’ social functions. Yet even in the historical evidence presented in this chapter, which approaches hidden sentences as direct advancements on 138 regulatory punishments, whether conscious or habitual, the exclusionary assumption plays an underlying role: policymakers throughout the onset period reflect upon and deliberate whether hidden sentences are instrumentally better suited to certain rationality demands—especially the overarching discursive requirement of efficiency—than are regulatory punishments, but they rarely take the chance to even tangentially question the acceptability of using criminality itself as a classification tool. Instead, when the opportunity to reflect upon that attainted label arises, there is a distinct tendency for discussion to end, for policymakers to immediately move on from whether criminality might be an appropriate means of classifying to whether it is a more efficient, more objective, or more standardizable one. It is in these gaps in the discourse, these patterned empirical voids, that we find the most evidence of the exclusionary assumption within modernity’s new means of classification.

AN ARCHETYPAL EXAMPLE: THE BOUNDARIES OF PROFESSIONAL POLITICS

The clever reader may have already considered whether the first hidden sentences in U.S. history originated not in the administrative state but in fact in federal and state constitutions, in the form of impeachment and removal from elected office for “high crimes and misdemeanors” by public officials. Although I have yet to mention qualifications for elected officials (we only touched on qualifications for some non-elected ones), they are an important though exceptional set of hidden sentences that were purposefully ratified by the nation’s framers to ensure the legitimacy of the new democratic republic through rational-legal means. They are outliers because they were enacted more than a century before hidden sentences began noticeably expanding in the bureaucratization process, and because their particular zone of law is so integral to the state itself 139 that it is especially difficult to differentiate between regulatory punishment and hidden sentencing.

Yet the process by which the nation’s framers constructed them makes them both a microcosm of the evolutionary process from regulatory punishment to hidden sentence and an important prototype for both kinds of penal technologies later in the bureaucratization process.

The history of the 1787 Philadelphia Convention contains rationalized explanations for instituting regulatory punishments on public officials, debates about the efficiency and efficacy of regulatory punishments compared to hidden sentences, and early examples of the exclusionary assumption in action: nowhere in the history of the convention or key documents used in the democratic ratification process (such as The Federalist Papers) did anyone object to the idea that the taint of criminality was a problematic standard by which to classify and exclude.279

The United States Constitution declares that all officers must be removed from their positions based on impeachment proceedings for “Treason, Bribery, or other high Crimes and

Misdemeanors.”280 That clause did not, however, originally mean what contemporary sentiments lead us to think it did. What the framers imagined in that provision was not an additional sanction for violations certain “severe” penal laws but rather, as Benjamin Franklin put it, a way for the federal government to protect its own legitimacy from “obnoxious” executive officials, including the President.281 Just as Progressive reformers later worried that new professions and administrative bureaucracies would not be able to retain legitimacy unless its highest authorities were explicitly empowered to enforce character standards within their sphere of social or economic activity, the framers engaged in a debate that amounted to a calculated evaluation of 140 which model for the new executive branch would best avoid the failures of the Articles of

Confederation while still remaining subservient to the legislative branch.

Their approach was a demonstrably rationalist one: while “all men of sense” could see that “a government ill executed…must be, in practice, a bad government,” the necessary

“energy” of a strong enough executive branch must “be combined with those other ingredients which constitute safety in the republican sense.”282 Under an instrumental frame, it just made

“sense” to measure success based on efficacy balanced against safety, rather than ultimate principles, custom, or emotional appeal. Some of the delegates therefore argued that instituting a single head of the executive branch would be to recreate the tyranny of the British monarchy, but the majority argued that empowering two or more executives would create a weak incentive structure. As Philadelphia Delegate William Davie put it, legislative oversight required “the more obvious responsibility of one person” rather than the diffuse responsibility of a plurality.283

The obvious solution in this rationalist frame was, as it would be when policymakers later delegated bureaucratic control over specific spheres of economic or social activity, to find a negative punishment specific to that zone of law: to make the President removable from office.

As delegate Edmund Randolph argued in a particularly order-oriented frame, “The Executive will have great opportunit[ies] of abusing his power…Should no regular punishment be provided it will be irregularly inflicted by tumults and insurrections.”284

Consistent with that logic, the ways the delegates discursively approached the problem of

Congress’s enforcement power over the executive branch was to frame the removal power as regulatory punishment. Alexander Hamilton, among others, forcefully argued that a single executive is necessary because a plurality undercuts “the two greatest securities [the people] can 141 have”: the abilities to impose “censure and…punishment.”285 The presence of multiple executives, he argues, tends to (1) obscure blame and dilute censure, and (2) complicate the capacity to prove professional misconduct “either [concerning] their removal from office or

[concerning] their actual punishment in cases which admit of it.” In one sense, Hamilton was ambivalent (and uncareful) in his use of “punishment” in this argument; on one hand, he included “removal from office” in his second, punitive category of enforcement mechanisms, and on the other, he distinguished it from “actual” punishment. A more careful interpretation, though, is that Hamilton did indeed recognize removal from office as a punitive measure (i.e., one that punishes) but at the same time distinguished it from the kinds of punishment characteristic of criminal law: his intent was to create a professionalized punishment specific to the political sphere, suitable to identifying and removing those who do not belong.

The language of “high crimes and misdemeanors” that the framers settled upon in the federal Constitution is also consistent with the idea of regulatory punishment. “High” crimes and misdemeanors did not mean to the framers what might be expected according to common parlance today; it refers not to notably serious crimes but is rather a “technical term” used since the twelfth century English Parliament to refer to misconduct by officials of “high” rank, from whom a higher standard of conduct was expected.286 It is a term that has specifically referred for centuries to political instances of misconduct committed by politicians who were endowed with public trust.287 For example, James Wilson argued, like Hamilton did, that when “that [single] officer is placed high,” it ensures that, “far from being above the laws, he is amenable to them in

[both] his private character as a citizen, and in his public character by impeachment.”288 Private citizens were subject to criminal laws, while public officials were in addition subject to 142 regulatory punishments: a specific kind of enforcement “confined to political characters, to political crimes and misdemeanors, and to political punishment.”289

Likewise, the delegates approached impeachment powers through the same rationalist frame in which regulatory punishments were created and later evolved into hidden sentences: the removal procedure on which they settled was one they imagined would best balance the problems of disorder, responsibility, and efficiency. The first proposal was to make allow

Congress to remove executive officials “at pleasure,” but that suggestion was forcefully condemned as making the President completely ineffective, a “mere creature of the

Legislature.”290 Instead, the framers had to construct a distinct set of conditions upon which officers could be removed. Their solution was an independent, two-step removal procedure: first, the House of Representatives must vote to impeach the official (an impeachment is actually only an accusal of wrongdoing), and second, the Senate must oversee a trial concerning the issue.291 Only after the House votes to impeach and the Senate votes to convict is the official removed. Although the procedure mirrored an indictment and conviction by grand jury and jury, respectively, it was purposefully designed to be independent of judicial oversight and the criminal law, because neither one was the purview of specifically political acts of misconduct, of

“high crimes and misdemeanors.”292

Yet even with so many examples of the framers’ discourse approaching impeachment as a matter of internal legitimation akin to regulatory punishment, the standard of categorization that they ultimately chose made the removal power into something they did not consciously apprehend: one that included hidden sentences. The process by which impeachment proceedings morphed from only regulatory punishment to one that included hidden sentencing (alongside 143 some regulatory punishments) revolves around the same concerns that later characterized the shift from regulatory punishment to hidden sentencing in other political, economic, and social arenas: the modernist impetus to find the most instrumentally rational, efficient means of boundary-making.

At first, the Convention unanimously adopted “malpractice or neglect of duty” as a standard of impeachably poor public character, based on a plethora of political offenses about which delegates expressed concern, including also “maladministration,” “malversation,” corruption, and general misconduct.293 The general consensus was that there were any number of offenses, each beyond the realm of general crimes, that would demonstrate a mistaken placement of trust in the official by the public. “Impeachment,” in common parlance, did and does still refer to an attack on a person’s (especially) a witness’s character and trustworthiness.

Then, suddenly, the Committee of Eleven narrowed the standard specifically to the criminal offenses of treason and bribery, neither of which had been mentioned before, turning a regulatory punishment into a hidden sentence without explanation.294 That empirical gap in the evidentiary record—the abruptness of the change and automaticity by which it was accepted—are both hallmarks of an unrecognized assumption that criminality is a valid or better legitimating standard than the (less rationalized) one that came before.

In its early years, however, the exclusionary assumption was not aa powerful as it has come to be, so that it was still contestable—if not directly, then certainly indirectly. George

Mason later noticed the change and objected, though on grounds other than criminality’s acceptability as a classificatory standard.295 In response to fears that treason and bribery alone were not broad enough to reach many offenses that would threaten the republic, Mason argued 144 that the impeachment power should apply generally to “maladministration.” James Madison, however, then raised an objection similar to the one levied against initial removal proposal: “so vague a term [as maladministration] will be equivalent to a tenure during pleasure of the Senate.”

Mason responded by introducing a new standard, “high crimes and misdemeanors,” and combining it with the restrictions on treason and bribery, again fashioning the removal power into a hidden sentence. The Philadelphia Convention then, with no further discussion of its meaning—a sign of an uncontested assumption—adopted the new standard.296

The new language did resonate with the well-known “high misdemeanors” that essentially meant “official misconduct” in English parliamentary law,297 but the principle case of a high misdemeanor in Parliament’s history was “maladministration,” so Mason’s change was thus both a “legal sleight of hand” and actually a generalizing one that should have made it even more susceptible to Madison’s critique.298 Why then would the entire convention agree that it was the most rationally tailored standard? The apparent answer turns on one word that Mason innovatively added: “crimes.” Deep within the discursive frame of rational-legal control, it apparently did not occur to anyone to question whether crime was a clear, narrowly defined term that would create an ordered system of impeachment-based control. The only real recognition of the shift from a solely character-based standard to one that included the language of criminality and two defined crimes (treason and bribery) came from a single acknowledgement in John Jay’s later writings. Jay wrote that although the federal Constitution was carefully crafted from every angle to encourage that elected officials be “men of talents, and integrity,” the impeachment provisions were designed toward another end: deterrence to coerce good behavior “so far as the fear of punishment and disgrace can operate.”299 In the delegates’ debate itself, however, 145 nobody questioned that “high crimes and misdemeanors” is a more objective and measurable standard of qualified officials than are non-criminal measures of character.

Because the zone of law in which professional politicians operate is, unlike those for other professional boards and administrative agencies, an integral part of the state itself, formal removal from political office has throughout even its medieval history in English law been associated with not just official misconduct based on the higher standards of public character but also with crimes against the state among the disqualifying acts.300 As such, the founders of

American constitutional law approached removal from office in the same discursive frame in which later regulatory punishments were created in administrative and professional law—as a matter of internal, bureaucratic legitimacy—even though they were creating exclusionary punishments based on criminality and doing so without clearly coming to terms with that reality.

They were constructing hidden sentences.

It is worthy to note that nowhere in the history of the Philadelphia Convention was there any proposal to disqualify individuals from running for or being elected to office due to past acts

(criminal or not)—only discussions of how to remove already elected officials. The nation’s founders were firmly committed to the idea that the electorate should be free to choose whom should govern it, and because of the history of the nation’s founding, they were deeply suspicious of any status of attainder or prior conviction.301 The sole qualifications they instituted for federal elected office were therefore requisite age, years of citizenship, and residency. The courts have repeatedly ruled that Congress may not add any new qualifications, including any related to criminality.302 The only change made in this state of the law was by the Fourteenth

Amendment, which after the American Civil War constitutionally mandated that persons who 146 had previously been public officials and since had treasonously engaged in or aided rebellion could no longer hold office.303 To this day, even felons and current inmates are otherwise free to take federal elected office—but elected officials are impeachable not just for violating the high standards of public character but also for treason, bribery, and (through misinterpretations based on contemporary vernacular) other serious crimes.

The result of that innovation in the federal constitution was to create an important penal technology that was available for new state constitutions throughout the next century and later to professions and agencies looking for more rationalized methods of labeling and classifying based on poor character. Although hidden sentences remained rare and almost completely exclusive to the realm of electors and elected officials until the end of the nineteenth century, the technology did spread from there. One hidden sentence emerged as early as the first Congress in 1789, without meaningful debate, in a federal statute that allows any revenue officers of the Treasury

Department to be removed from office for trading in the funds or debts of the United States.304

Hidden sentencing soon extended into the realm of voting rights, apparently also without purposeful reflection, appearing in amendments to state constitutions as early as 1818 and original constitutions as early as 1846 (including California’s in 1849).305

As such, there is also good reason to expect that such political restrictions influenced the available penal knowledge structures upon which later moral entrepreneurs and policymakers could rely near the turn of the twentieth century for legitimating formal classification schemes.

Even though I found no direct evidence in the cases I analyzed that policymakers consciously recognized such a lineage, they did not have to make unprecedented innovations in penal technology in response, for example, to the publicly prominent boiler explosions of the mid- 147

1800s or to Upton Sinclair’s and other muckrakers’ attacks on meat packers in the early 1900s.

They simply had to apply the formal control strategies already present in the law of elected officials to the law of appointed public employees—and the technology spread from there.

ATTAINDER REEMERGES

By the end of the nineteenth century, regulatory punishments were becoming prevalent in new administrative agencies and state-empowered professional boards, so that the kinds of discursive shifts that occurred in the debates of the Philadelphia Convention would also be characteristic throughout state and federal law. The modern impulse toward formal rationality first propelled the innovative creation of regulatory punishments throughout public and private employment law, and it would continue to induce even more efficient, more uniform, and more objective standards within an instrumentally rationalist frame. The predictable result was hidden sentencing.

Figure 3.1 helps to show the timing of the shift from regulatory punishment to hidden sentencing. Each curve represents the annual risk or hazard of a jurisdiction enacting more than two hidden sentences of a particular type for the first time, excluding the year that state or nation was founded.306 Although Chapter Two locates the timing of regulatory punishments largely in the Reconstruction Era and later years of the nineteenth century, the curves in Figure 3.1 show state and federal governments were most likely (rising to a 0.05–0.15 rate per year) to begin establishing their hidden penal systems proper decades later, after about 1930. It is noteworthy that the rate at which jurisdictions enacted penalties having to do with political participation remains lower over time than do the risk rates for other kinds sectors of employment, so that 148

Figure 3.1: Annual Rate of Initial Hidden Sentencing per Jurisdiction some jurisdictions enact more than two political restrictions in one year quite early while others do not do so until the 1980s or early 1990s.

The political, economic, and social factors that predict those annual risks or hazards for each jurisdiction are displayed in more detail in Table 3.2 (including the same four models shown in Figure 3.1 alongside an overall model for any two hidden sentences enacted within one year for the first time). The models in Table 3.2 will be relevant at different points throughout the following section. From the outset, though, they reveal a distinct pattern that the rationalist political pressures of progressivism—both in the actual Progressive party and in the increasingly progressive wings of the Democratic party—were significantly related to the initial wave of 149 hidden sentences across the federal and state governments. Based on these models, we can say that a given jurisdiction would have been almost seven times more likely to enact any two hidden sentences for the first time with a legislature completely composed of more Progressive members than with a legislature with no Progressive members, about 6½ times more likely to establish restrictions on business ownership with a completely Progressive legislature, and more than twice as likely to create penal occupational licensing measures with a Progressive governor than with a non-Progressive one.

We can also see in Table 3.2 that a decline in informal social controls and a rise in formal control likely played a key role in the initial onset of employment restrictions and occupational license restrictions. The measure of proto-globalization used in this table to capture shifts in transportation (and likely communication) technologies and urbanization is a rate of persons living in metropolitan areas. For every annual increase in the metropolitan rate per tens of thousands of Americans, each jurisdiction’s odds of enacting more than two employment restrictions in that year increased by almost ten times, while its odds of enacting more than two occupational license restrictions increased by almost 4½ times. Likewise, for every hundred pages in the annual Federal Register (the national recording of all federal agency rulemaking, and a popular statistical measure of pre-1980s growth in the administrative state307), a jurisdiction had an increased chance of reaching that threshold for hidden sentences in general by

1.54 times, of reaching it for business and property ownership by 1.06 times, and of reaching it for political and civil rights by 1.01 times.

The initial onset of hidden sentencing in each jurisdiction was greatly impacted by a decline in informal social controls and the concomitant pressure to bureaucratize and rationalize 150 from Progressive politics. Thus, soon after progressivist moral entrepreneurs of the late 1800s and early 1900s established regulatory punishment through a discursive frame that demanded formal, self-contained, efficient responses to their representations of social disorder, that penal technology quickly became obsolete. The transition from regulatory punishment to hidden

Table 3.2: Annual Chance for Jurisdictions to Enact Hidden Sentences (discrete time, event- history models)

Model I Model II Model III Model IV Model V (Any hidden (Business/property (Employment) (Occupational (Political/civic sentence) rights) licenses) rights) Progressive political power: Liberal governorship -.238 .135 .318 .778# .149 (.426) (.446) (.447) (.420) (.499) Liberal legislature 1.920* 1.880# 1.400 .612 .083 (.814) (.982) (.897) (.852) (1.038) Bureaucratization: Pages in Federal Registera .435# .057# .009 -.012 .009# (.240) (.031) (.016) (.016) (.005) Proto-globalization: Metropolitan rateb .856 1.241 2.284* 1.489# .459 (.816) (.899) (.941) (.897) (.617) Visible sentencing: Inmate rateb -.008 -.004 .018** -.001 .000 (.005) (.005) (.006) (.006) (.002) Racialized panics: Imprisonment rate, whiteb .017 .013 -.017 .025 .013 (.011) (.012) (.013) (.016) (.012) Imprisonment rate, blackb -.001 -.001 .001 -.001 -.002 (.001) (.001) (.001) (.001) (.002) Black-to-white population ratio .077 -.412 -1.749 -1.426 -.447 (.119) (1.086) (1.156) (.883) (.810) Latino-to-white population ratio -1.871 -.761 -4.377 -3.196 1.468 (2.083) (2.471) (2.944) (2.878) (2.007) Asian-to-white population ratio -1.582 -14.951 -1.626 -.392 -1.792 (1.655) (34.568) (3.929) (.573) (2.606) Economic panics: Economic contraction -.324 -.498 -.318 .555 .036 (.409) (.532) (.517) (.541) (.642) Unemployment rateb 8.684 17.564 34.847# -29.588 1.132 (17.215) (19.759) (20.977) (27.227) (28.170) Gini coefficient -1.084 1.679 8.413* 8.320# 1.868 (3.190) (3.018) (3.923) (4.758) (6.773) Log likelihood -122.498 -116.568* -118.727* -117.236# -105.955 Chi² 18.792 27.646 26.334 21.703 14.574 N 3497 4307 4558 5036 6953 # p<0.1, * p<0.05, * p<0.01 a Pages in the Federal Register are measured per hundreds of pages b Population rates are measured per hundreds of thousands of people 151 sentencing is based on those same overarching rules of instrumental rationality, which soon demanded an even more objective, uniform, and efficiency mode of classification than punishments based on administrative standards of character. In that fashion, the traditional, informal systems of classification based on reputational character would morph into new standards of classification that were legitimate according to the rules of modernist discourse: those based on formalized, rationalized measures of criminality.

If You Give an Inch…

The key problem with regulatory punishments as they stood throughout administrative zones of law is that they were primarily based, as Chapter Two showed, on a “good moral character” standard within a bureaucratic system of credentialing. Yet “moral character” is difficult to represent as a credential that can be “fairly administered” (read: judged based on uniform, emotionless calculation) across social and economic zones of law. Education and competency are difficult enough to credentialize, but what tangible proof could demonstrate disposition or temperament in an objective, standardized fashion? Some kind of test? A formula? A “morality degree”?

Because there was no obvious standard that would fit the rules of rationality, when New

York amended its laws on the medical profession in 1893, it included only a vague requirement for applicants to demonstrate “good moral character” before being admitted to practice, and federal law did the same for customs brokers—just as it had in the Steamboat Act of 1852 that served as a prime example in the last chapter.308 Wisconsin also instituted a character requirement for attorneys to be admitted to the bar since 1885—and that mandate quickly made its way into court after a lawyer was disbarred for his non-criminal but allegedly dishonest 152 handling of clients’ funds.309 The Wisconsin Supreme Court unhelpfully declared that good moral character “include[s] all the elements essential to make up such a character. Among these are common honesty and veracity.”310

California’s approach in amending its osteopathic medicine regulations in 1907 to cover all general medical practice was to include new requirements that applications include

“testimonials of good character,” and other administrative agencies and professional boards soon followed suit.311 Over time, good moral character requirements have remained part of some professional requirements and can often be met by letters of reference in addition to direct testimony. Yet even with such evidentiary sources, they constantly face criticism for being incoherently, unenforceably, and even unconstitutionally vague largely because there is no standardized credential that can objectively “prove” good moral character.312 As the U.S.

Supreme Court stated in review of California’s disbarring of an attorney for being affiliated with the Communist Party,

the term, by itself, is unusually ambiguous. It can be defined in an almost

unlimited number of ways for any definition will necessarily reflect the attitudes,

experiences, and prejudices of the definer. Such a vague qualification, which is

easily adapted to fit personal views and predilections, can be a dangerous

instrument for arbitrary and discriminatory denial of the right to practice [an

occupation].313

The California Supreme Court made similar observations when faced with the part of the state’s Civil Rights Act of 1905 that forbade racial discrimination in public places like racetracks but made exceptions that allowed exclusion based on intoxication, boisterousness, or “lewd or 153 immoral character.”314 Morey Orloff, an Italian American who at the time was a well-known bookie in Los Angeles, had been ejected from Santa Anita racing park without any evidence of criminal or obnoxious conduct, solely on his “reputation as a man of immoral character, … a known undesirable.”315 The California Court struggled with the murky definition of “immoral” as a term that generally covers “that which is hostile to the welfare of the general public and contrary to good morals” and is hardly limited to a clear standard of conduct, attitude, or reputation.316 Faced with the possibility of such unlimited discretion in the hands of racetrack owners (and other proprietors of public places), the Court concluded that the legislature simply

“could not have…intended that the proprietor [of Santa Anita] should be confronted with the impossible task of determining who among its patrons were sufficiently moral to be permitted to attend and there to engage in lawful on-track gambling and who were sufficiently immoral because of suspected unlawful off-track gambling to justify exclusion from the course,” so it granted Orloff’s request to be allowed back into the racetrack.317 Based on similar logics, a number of state courts in recent years have completely invalidated “good moral character” requirements because they are so vague and conferring so much discretion upon enforcing officials that they are unconstitutional.318

In other words, even good moral character as a boundary-making tool does not live up to the political pressures of the Progressive movement and the symbolic advance of rationality in modern life.319 The term was indeed official and enforced through bureaucracy, but it was impossible to calculate, objectively measure, and standardize —the key aspects of rationalist policy programs. Character requirements were ultimately a formalization of traditional, affective concerns that could not be rationally justified without an additional step. 154

Rationalizing Character, Formalizing Criminality

What the new bureaucracies and professions needed to legitimize their boundaries was a credential that demonstrated not good moral character but the lack thereof. “Moral turpitude,” or the quality of depravity and moral baseness, could be demonstrated through a rational (i.e., calculable and emotionless) standard; all it took was a single, incontrovertible act that was publicly offensive and could be tangibly documented to shatter any claim of good character. The solution presented itself in the form of a new kind of documented proof: a criminal record.

Police departments have not always kept records on convictions, arrests, suspected criminal behavior, and interactions with suspected or past offenders—and they certainly have not always made criminal history records available to the public. In the late 1800s, local police departments, if they kept records on particular people at all, maintained registers only of names, photographs, and identifying information.320 It was not until 1896 that the first national criminal record system was created in Chicago by the International Association of Chiefs of Police, and it was not until 1908 that fingerprint identification started to be widely used.321 Even so, these records were typically for law enforcement use only, and it took the better part of the twentieth century for full public access to be commonplace. Yet certain state laws did begin granting narrow classes of designated citizens, including professional boards, access to specific types of criminal history information in the early 1900s, and the first documented example of a publicly accessible criminal record system was in Los Angeles in the 1930s, in response to a rash of terror that gangsters from Chicago, New York, and Philadelphia were anonymously traveling across the nation and mobilizing to invade more western cities. At the same time, Table 3.2 offers some evidence that trends in visible sentences did have a demonstrable impact at least on hidden 155 sentences concerned with private, less prestigious kinds of employment. As rehabilitationist policies continued to spread, the perceived need to exclude criminals became stronger as parole practices released past offenders into the community in a salient way (we return to the topic of the newly salient “criminal” in the next chapter). As a result, the criminal record became an available tool for to formally identify certain types of people.

Devah Pager has theorized the criminal record as the archetype of a negative credential,

“official markers that restrict access and opportunity rather than enabling them” by conveying

“generalized assumptions of untrustworthiness and undesirability.”322 Its power is as an official and legitimized tool of boundary-making, a marker of exclusion. Contemporary attention to the use of criminal records to control occupational access has been linked to the mass incarceration policies of the 1980s and 1990s, but the practice actually originated and began proliferating almost a century earlier, when the logics of “highly formalized status distinctions, granted or imposed through a bureaucratic process of selection or classification” first arose.323 In the face of modern emphasis on meritocracy and objective markers of qualification in the early years of the 1900s, the use of documented criminal histories to demonstrate character fitness rather than a vague, unenforceable requirement to demonstrate moral character was easily legitimized as the negative counterpart to educational degrees and qualifications.

Hence, the old classification of “good moral character” (which had rationally developed from informal identification of social standing) in turn developed into more rationalist formalizations: a documented record of what we might call “character crimes.” As Figure 3.2 shows, of the five most prominent kinds of crimes that activated hidden sentences in this initial period, three are clearly related to poor moral character: economic kinds of crimes specifically 156

Figure 3.2: Growth in Initial Types of Crimes in Hidden Sentences involving fraud or dishonesty, public corruption crimes (the public equivalent of fraud or dishonesty), and so-called “crimes of moral turpitude.” These three kinds of character crimes, taken in concert, make up the large majority of the earliest kinds of hidden sentences and most clearly show the transformation of informal, reputational controls into formalized, legal classifications of poor character. In Weberian terms, they are rational-legal formalizations of traditional domination, a quality which explains their presence in this period of early rationalization—and in Mertonian ones, also helps explain how policymakers’ “immediacy of interest” in rationalizing laws allowed them to overlook the importance of a change to a penal- criminal standard of classification. 157

For instance, in 1929, California created an overseeing board and licensing requirements for all independent contractors, including painters, builders, plumbers, electricians, and other kinds of contractors not included in other statutes. The immediate basis for bureaucratizing contractors was apparently the intentional expansion of public works and street improvement projects to combat the impending Great Depression; although the state was able to employ thousands through such means, the positions were still limited so that a number of bills were proposed that included gatekeeping functions for who could serve as contractors.324 Initially, the only requirement for obtaining a license was a five-dollar fee.325 As positions became more contested, however—especially because of the increasing numbers of East Asian and white immigrants who were bidding on contracting jobs—the legislature instituted a requirement in

1931 that the registrar only issue licenses to applicants who have never previously had their licenses refused or revoked and who were “of good reputation.”326 No further details were provided of what good reputation entailed or how it could be established. Because the standard was so nebulous—and as a somewhat transparent effort by certain interest groups (especially the

Master Plumbers Association) to further close the boundaries of independent contracting—the legislature made the standard more specific in 1933: only persons “of good character” could receive a license, and the newly specified grounds for lack of good character included misappropriation of funds, various kinds of fraud, and any act “involving dishonesty, fraud or deceit.”327 Nowhere in discussions of the need for a more rational-legal standard for contractors licenses did any policymaker or interest group recognize the ramifications of using criminality as that new classification tool, but they did so nonetheless. 158

Likewise, the 1907 laws that regulated general medical practice in California therefore included new mechanisms to allow the organization to expel members for “unprofessional conduct,” conclusive evidence of which was demonstrated by fraudulently obtaining a medical license (also made a crime by the act), by conviction of a crime of moral turpitude, and by conviction of criminal abortion.328 The same year, the laws for veterinary medicine introduced hidden sentences that allowed revocation of a license for crimes of moral turpitude, chronic inebriety, and similar reasons, and the board of optometry was created with powers to regulate via similar hidden sentences.329 In 1937, two provisions mandatorily removed California port commissioners guilty of conflicts of interest.330 Federal law soon followed suit in one of the only professional spheres under its control, with a 1915 revocation of licenses for pharmacists in consular China convicted of crimes of moral turpitude.331 Even earlier federal hidden sentences, such as the Federal Meat Inspection Act of 1906 that was enacted in direct response to Upton

Sinclair’s The Jungle, prescribed removal procedures for public officials based on public corruption offenses like misappropriations of funds and acceptance of bribes.332 In none of those cases did policymakers directly discuss the implications or constitutionality of applying such additional penalties for criminal labels; the rationality of codifying moral turpitude as an exclusionary boundary was simply apparent.

Moreover, in practice, penalties for fraud, corruption, and crimes of moral turpitude also serve to formalize not just the idea of a character and morality, but also the personal, relativist, traditional judgments associated with them. The meaning of “crimes of moral turpitude,” even in contemporary law, is remarkably unclear for a legal standard, being sometimes defined by statute and sometimes by judicial interpretation, depending on jurisdiction and even context within 159 jurisdiction, and always “on a subjective evaluation of the public’s morals.”333 They are typically defined in reference to fraud, dishonesty, or some kinds of severe offenses, categories which are redundant with other kinds of crimes that activate hidden sentences and sometimes even redundant within hidden sentences that can also activate upon fraud, corruption, and so forth.334 And it is widely recognized that various kinds of fraud are some of the most difficult kinds of conduct to identify or prove in legal proceedings. Such character crimes are thus formalized versions of moral reputation but subject to some of the same flaws of non-objectivity and non-uniformity—qualities which respectively explain the other two prominent kinds of crimes in Figure 3.2.

A fourth sizeable category of hidden sentences identified in Figure 3.2 encompasses offenses based on specific, narrowly defined acts such as violations of the California Pharmacy

Act, as opposed to broad, nebulous categories like crimes of moral turpitude that are difficult to define and subject to personal judgments. Furthermore, the kinds of specific crimes that appeared in the hidden sentences of the nineteenth and early twentieth centuries tended to enumerate precise kinds of morality- or character-based offenses (rather than, say particularly harmful or dangerous ones) that represented the explicit concerns of the moral panic that gave rise to them.

When faced with the massive defrauding of the Guadalupe Hidalgo Claims Commission by George Gardiner and Senator Thomas Corwin, for instance, the focus of the public and political outcry was on the immorality of Corwin’s actions in public office and the failure of the

Commission’s inquiries into Gardiner’s character to reveal the fraud (not on, say, the approximately $12.5 million value of the reward, accounting for inflation).335 Congress, 160 however, had no power to sanction Corwin or remove him from office (by then, Secretary of the

Treasury), so that its recognized focus in enacting the 1853 Frauds Act was to created a “law to prohibit the violation of those morals.”336 The primary piece of evidence supporting Gardiner’s and Corwin’s claims was an elaborately forged title for a mine that was supposedly lost in the

Mexican–American War, so the Frauds Act created a hidden sentence that removed public officials for destruction or forgery of public documents.337

Similarly, in 1939, California legislators provided for removal of public officials guilty of intoxication on duty, and then in 1945 enacted a hidden sentence that banned persons guilty of touting (the practice of providing betting information on horse races in exchange for a share of the gambling winnings) and related crimes from racetracks for life—and also made it a new criminal offense for such persons of criminal character to refuse to leave racetracks when ordered to do so.338 Although the legislators did not explicitly recognize it, the hidden sentence within the Horse Racing Law of 1945 is directly emergent from the regulatory punishment in the

1905 Civil Rights Act that was used to ban bookie Morey Orloff from the Santa Anita racetrack for having an “immoral character”; the most noteworthy differences are that the newer touting exclusions are specific to racetracks and that they are based on more calculable, uniform (i.e., criminal) character measures. Both were focused on poor character.

Interested parties, including a number of muckraking journalists, explicitly framed the narrowly defined exclusion for touting within the Horse Racing Law was as rationally designed to remedy moral character problems within one of the state’s largest industries.339 California’s

Horse Racing Board was formed in the 1930s as a progressivist effort to centralize pari-mutuel betting practices in the growing racetrack business, but perhaps as a consequence of 161 bureaucratization, the next decade witnessed increased public concerns about “unethical and devious” touts and bookmakers organizing betting outside of official channels take advantage of the “honest and honorable” majority of betters.340 Public attention to especially Italian, Jewish, and other white immigrant bookmakers (rumored to be connected to various organized crime networks) also increased following the famous “Black Sox Scandal,” in which eight members of the Chicago White Sox supposedly colluded with Jewish mob kingpin Arnold Rothstein to fix the 1919 World Series—and were, despite their acquittals from criminal charges, subsequently banned from ever playing professional baseball again by ex-Judge Kenesaw Mountain Landis, the first Commissioner of Baseball. When the California racetrack industry faced public concerns of race fixing in the 1940s, and when muckraking journalists worsened those concerns by connecting pari-mutuel betting to “public demoralization” and a consequent decline in essential war industries near the end of the Second World War, the outcry took a predictable turn.341 In 1944 and 1945, there was a massive political push to empower horse racing officials as “a sort of ‘Judge Landis’ with a firm, clearly defined authority” to ban anyone of questionable character from the racetracks “for all time to come.”342 The California legislature’s solution was to specifically define touting as a crime in itself (which had previously fallen under petty or grand theft) and empower racetrack officials with the ability to exclude persons that had a criminal record of touting, resolving the issue without granting the wide range of discretion used by Judge Landis or against Morey Orloff under the broad, subjective heading of “immoral character.”343

While those kinds of specific, narrowly defined crimes served as particularly determinate measures of moral turpitude, the final category of activating crimes that are particularly prevalent 162 in Figure 3.2 can be considered an even more rationalist kind of character crime in this period.

Felonies were the most frequent kind of crime to appear in hidden sentence laws before the

1950s, and they remain the frequent kind in today’s hidden penal system. We should not be surprised that policymakers originally relied on felonies as a basis for classifying and excluding through hidden sentence law for the same reason that contemporary criminologists and penologists almost exclusively rely on them to study the visible penal system today: felonies were and are the kind of crime that are best documented by police departments and other criminal history information systems.344 Similarly, felonies are clearly and consistently defined within jurisdictions (though not always between them), so that they are more uniform and even more objectively calculable than are other crimes that could signify poor character.345 Other classes of crimes, including broader classifications like misdemeanors and more harm-based classifications like violent crimes and sex crimes (all shown together in the slowest-increasing line in Figure 3.2), were not prominent in hidden sentence law until later periods because they were not as easily referenced in formalized, documented records or because they did not fit the driving impulses of the time to objectively and uniformly identify persons of poor character.

By taking just the seemingly simple step of altering a “good moral character” requirement into a more “rational” measure of character based on criminality, whether through specified crimes, broader character crimes, or simply felonies, policymakers transformed the model of regulatory punishment into true hidden sentences. In no case that I studied did I find evidence that policymakers directly recognized or deliberated about the appropriateness or impact of creating a new penal-criminal standard, but in pursuing increasingly rationalized policies without considering the salient consequences of their actions, they did so nonetheless. 163

As the practice of agency-administrated sanctioning continued into the twentieth century, laws were emerging that were in fact punishments for criminal behavior in addition to those imposed by the courts. Instead of rules and enforcement mechanisms entirely within a narrowly designated area of administrative law, these new hidden sentences were administrative exclusions due to a criminal violation of law on top of any judicially issued punishments.

Streamlining Boundary-making

Although the greater part of the available evidence concerning the hidden sentences I studied shows that various fields transitioned from regulatory punishment to hidden sentencing because criminality is more objective and uniform than are character requirements, there were also other, similarly rationalist reasons for such a shift. From the perspective of policymakers establishing a new bureaucracy and concerned with its effectiveness and legitimacy, a standard of criminality is not just objective and standardizable; it is also more efficient than both character requirements and any novel, bureaucracy-specific rules of conduct the policymakers can invent—precisely because it would have to take the time and energy to invent and enforce them.

Specialized, context-specific administrative procedures and standards of professional character (such as revocations of pharmacists’ licenses due to failure to comply with prescription procedures) certainly have their place and are more “rational” from one point of view: they are more calculated and balanced. Nonetheless, to the extent that a standard based on general criminality can achieve an acceptable level of success, policymakers will find it easier to refer to relevant, preexisting classifications from criminal law than to spend the time and resources necessary to carefully enact and promulgate new standards. In empowering new agencies and 164 professions, policymakers found this impetus particularly true for fraud, embezzlement, and other issues of internal, economic control—one of the fastest growing categories in Figure 3.2.

The best examples of that kind of (often exclusively) efficiency concern guiding the construction of hidden sentences as a means to reach policy goals comes in the form of periodic recodification efforts in the late 1800s and early 1900s. Throughout this chapter so far, we have been discussing more conscious efforts at enacting hidden sentences in respect to regulatory punishment models (the first category identified in Table 3.1). As early as the 1870s, however, a significant group of hidden sentences evolved from regulatory punishments by mistake (a second category), through codification and recodification efforts.

Before the end of the nineteenth century, there were no collected and consolidated state and federal codes as we recognize them today, just a series of statutes enacted by legislatures and published on an annual basis. Legal research and knowledge could only come from reviewing each and every one of these session laws (or by using secondary sources to assist in such a search), combing them for provisions on a certain topic, and comparing the results across the years to arrive at the most recent laws on a subject. It was not until 1866 that Congress first authorized a code commission to put together the first Revised Statutes of the United States as a positive legal code, and it was not completed and enacted into law until 1874, after which many states would follow the example (though many do not actually publish their codes except through private publishers like Deering or West).346 Continuing throughout the twentieth century, federal and state governments would periodically appoint ad hoc code commissions to rearrange their statutory codes by subject matter, abolishing or creating new titles, chapters, or codes.

California’s Political Code, for example, was repealed entirely in 1872, so that its provisions 165 could be arranged into its Civil Code, Code of Civil Procedure, and Penal Code; the Penal Code was then revised entirely in 19xx, and the Government Code was not created until 1943 (and significant portions relating to local governments were added to it in 1947 and 1949).347 Every

U.S. jurisdiction’s legal codes have similar stories with countless rearrangements and revisions over the years.348

The mission of these code commissions, however, was not simply to restate the positive law of each jurisdiction, but to collect provisions dealing with the same subject matter, combine them into sensible chapters and sections, and to collapse all items dealing with the same issue to make the codes as efficient as possible. The federal Revised Statutes, for instance, were created as an effort to “revise, simplify, arrange, and consolidate all statutes of the United States.”349

The point of every recodification effort was to “consolidate[] and codif[y]” the existing law to make it as efficient as possible, “but as is the case with all the work of the Code

Commission,…not make any substantive changes,” only “technical” ones.350 Recodification efforts across jurisdictions are repeatedly based on that claim: no (or only minor) substantive changes, only more efficiency.351 The change from a non-criminal to a criminal standard of classification, however, is in virtually every case a meaningful one for legal procedure and substance.

Yet minor changes in word choice and grammatical structure can have colossal impacts on actual meaning, especially in statutory language. Such errors are especially likely when the revisions are made as part of repetitive, habitual process within a large-scale project like the tedious, one-by-one simplification of every provision within an entire code, and when made through the divided, bureaucratic efforts of a large number of revisers.352 As California’s Code 166

Commission was forced to admit a number of times, “time [does] not permit[] a detailed comparison to check this codification with existing laws,” so that only “test” and “sampled” checks are made, sometimes of the efforts of more than five hundred persons.353 Still, they can sometimes happen even in one-off recodifications of provisions within a section of law, when some parts of the section are purposively altered and others a theoretically subject to only minor, technical changes; recodification efforts are merely the most prominent example of the error process in hidden sentences’ origins.

The predictable result of placing efficiency of language as the first priority in legal recodification efforts, large-scale or not, is that mistakes will happen, and they will tend to reflect unrecognized or unanalyzed assumptions about the intent or meaning of the original statutes— such as the assumption that criminals are a legitimately excludable class and the idea that criminality itself is a more objective, uniform, and efficient standard than are more traditional standards. Table 3.3 provides only a few examples that appeared in my research of hidden sentences that were created by that kind of erroneous recodification of regulatory punishments.

The first column contains an extant legal provision immediately before recodification that can be characterized as a regulatory punishment, while the second contains the same provision afterwards, transformed into a hidden sentence even while the stated intent of recodification was to avoid substantive changes. Because the change was made through error, in none of those cases did policymakers engage in anything resembling conscious or deliberative decision-making aimed at a new policy means.

It is also worth considering one key example in depth: the Steamboat Act of 1852. The reader may have noticed that I have to this point occasionally avoided mentioning the precise 167

Table 3.3: Examples Hidden Sentences as Erroneous Recodification

Original Statute Recodified Version (Regulatory Punishment) (Hidden Sentence) Steamboat Act of 1852: Revised Statutes of 1874: Any inspector who shall, upon any pretense, receive any fee or reward Every inspector of steamboats who, upon any pretense, receives any for his service rendered under this act, except what is herein allowed fee or reward for his services, except what is allowed to him by law, him, shall forfeit his office; and if found guilty, on indictment, be shall forfeit his office, and be otherwise punished by a fine of not otherwise punished, according to the aggravation of the offense, by fine more than five hundred dollars, or by imprisonment not more than six not exceeding five hundred dollars, or imprisonment not exceeding six months, or by both. 1875 R.S. 5482. months, or both. 10 Stat. 67. Workmen’s Compensation, Insurance and Safety Act of 1919: Insurance Code of 1935: Whenever the insurance commissioner ascertains that any company Any insurer wilfully violating any provision of this article is guilty of engaged in insurance business in this state is conducting its business a misdemeanor and is punishable by a fine not exceeding five hundred fraudulently, or is not carrying out its contracts in good faith, and dollars for each violation thereof, or the commissioner may suspend habitually and as a matter of ordinary practice and custom compels the certificate of authority of such insurer for the remainder of the claimants under policy contracts to either accept less than the amount term thereof. Cal. Stats. 1935, c. 145. due under the terms of such contract, or to resort to litigation against such company to secure the payment of the amount due, the insurance commissioner may revoke or suspend the certificate of authority of such company, such suspension to be for a period of not exceeding one year, as may be prescribed by the commissioner in the order of suspension. Cal. Stats. 1919, c. 608. Pharmacy Act of 1907: Business and Professions Code of 1937: The state board of pharmacy shall have power: (a) To make such by- The board shall not reissue any certificate without the payment of the laws and regulations, not inconsistent with the laws of this state, as may fee required by this chapter and the payment of all annual fees that are be necessary for the protection of the public, appertaining to the practice delinquent at the time that the application is made. … The board may of pharmacy and the lawful performance of its duties. (b) To regulate provide by proper rules and regulations for the temporary or the practice of pharmacy. … Every person holding a certificate from permanent revocation of certificates issued under the provisions of said shall renew annually their registration with said board; and every this chapter upon the grounds provided by this article. … The registered pharmacist, and every assistant registered pharmacist who conviction of the holder of any certificate of a felony or desires to retain his registration on the books of the board of pharmacy embezzlement or larceny subsequent to the procuring of his certificate in this state shall annually, after the expiration of the first year's in any court having legal jurisdiction constitutes a ground for the registration and on or before the first day of July of each succeeding temporary or permanent revocation of his certificate by the board. year, pay to the secretary of the board of pharmacy a renewal fee, to be Cal. Stats. 1937, c. 656. fixed by the board. … In case any person defaults in payment of said fee his or her registration may be revoked by the board of pharmacy on sixty days' notice, in writing from the secretary, unless within said time the fee is paid, together with such penalty not exceeding ten dollars, as the board may impose. Cal. Stats. 1907, c. 423. Legislative Testimony Act of 1857: Government Code of 1943: Any person summoned as a witness, by the authority of either House of Every person who, being summoned to attend as witness before the the Legislature of California, to give testimony, or to produce papers Senate, Assembly, or any committee, refuses or neglects, without upon any matter before either House, or any Committee of either House lawful excuse, to attend pursuant to such summons, and every person of the Legislature, who shall wilfully make default, or who appearing, who, being present before the Senate, Assembly, or any committee, shall refuse to answer any question pertinent to the matter of inquiry in wilfully refuses to be sworn, to answer any material and proper consideration before the House or Committee by which lie shall be question, or to produce, upon reasonable notice, any material and examined, shall, in addition to the pains and penalties now existing, be proper books, papers, or documents in his possession or under his liable to an indictment as for a misdemeanor, in any court in the State of control is guilty of a misdemeanor. Every member of the Legislature California having jurisdiction thereof, and on conviction, shall pay a fine convicted of a misdemeanor under this section, in addition to the not exceeding one thousand dollars, nor less than two hundred dollars, punishment prescribed, forfeits his office and is forever disqualified and suffer imprisonment in the common jail not less than twelve from holding any office in the State. Cal. Stats. 1943, c. 134. months, nor more than eighteen months. Cal. Stats. 1943, c. 134.

year in which a hidden sentence was created for steamboat inspectors. In 1838, the first

Steamboat Act contained no regulatory punishments or other qualifications for inspectors, and

the 1852 version instituted character requirements, exclusions based on incompetence and 168 accepting bribes, and a number of visible sentences.354 The key provision in the first column of

Table 3.3 shows that steamboat inspectors in 1852 could be removed from office based on receiving fees or could be independently prosecuted for such acts, or both, depending on various actors’ discretion; the removal of office was kept completely separate from a determination in criminal law and its visible sentencing by virtue of a semicolon and phrases like “if found guilty” and “otherwise.” In the second column, based on the Revised Statutes of 1874 that supposedly changed nothing substantive, the removal from office was changed into an additional hidden sentence dependent on the same proceedings and determination of criminality that the visible one did.355

The Steamboat Inspection Act is so illuminating because the session laws show the gradual commission of numerous errors that transformed a regulatory punishment in 1852 to a hidden sentence in 1874. The key is a third session law, the Steamboat Act of 1871, which cannot be displayed in Table 3.3; in other cases, we only have two data points. In the Steamboat

Act of 1871, a few changes were made to other parts of the act, but the section containing the regulatory punishment was supposedly reenacted without any change (not even simplification of the language), but through some typos, the meaning did in fact change. The new law read as follows, with the erroneous changes italicized:

Any inspector who shall, upon any pretense, receive any fee or reward for his

service rendered under this act, except what is herein allowed him, shall forfeit his

office, and if found guilty, on indictment, or otherwise, [be] [sic] punished,

according to the aggravation of the offense, by fine not exceeding five hundred

dollars, or imprisonment not exceeding six months, or both.356 169

The first error, a change from a semicolon to a comma after “office,” removed the strong grammatical separation between the regulatory punishment and the visible sentence. The second, a change from “be otherwise punished” to “or otherwise, punished” to “of otherwise,

[be] punished” in the final version, muddles the meaning of the phrase to a nonsensical point.

The 1874 Revised Statutes were heavily criticized for errors and changes in meaning during the recodification (it went through at least two full drafts before Congress approved it, and afterwards, Congress authorized an entirely new recodification that was published in 1878).357

Even so, it is not difficult to see how the code commission had trouble grasping the original meaning of the 1871 provision and translated it into what seemed reasonable. Of course, as later chapters will emphasize, what seems reasonable depends on the accepted cultural assumptions of the moment, so that it is by no means obvious outside of a moment in modernist America that one punishment (removal from office) ought to stem from the same determination of criminality that do others (fine and imprisonment).

In other cases, in Table 3.3 or otherwise, the error that transformed regulatory punishment into hidden sentencing could have been a single mistake based on an unanalyzed assumption or the result of a series of mistakes like those that occurred in the Steamboat Acts of the late 1800s. We have no direct evidence of their inner mechanisms. What we do know is that

(a) all of the recodification efforts that yielded hidden sentences aimed only to rationalize, simplify, and make efficient a set of laws to which it inadvertently made substantive changes, and that (b) even if the change was based on a series of small mistakes rather than one larger, unanalyzed assumption, the exclusionary assumption likely played a key role, as it did in the 170

Steamboat Acts, in translating the final version into something “sensible” and “rational,” according to the cultural assumptions of the moment.

Economizing Classification Mechanisms

Hidden sentences also appear more efficient from the financial point of view. Internally specified qualification standards require a new agency or professional board to spend significant resources proving, policing, and judging character through administrative law judges, ethics boards, licensing boards, and similar adjudicative bodies that all require human and financial resources. It is less costly to base bureaucratic standards on criminal violations that will already be enforced and prosecuted without any additional expenditures. In short, the “purpose of a conviction clause in a disciplinary statute is to avoid the necessity of redetermining administratively guilt which has already been established judicially.”358

An early example of this sort of efficient enforcement can be found in one of California’s earliest and most unusual hidden sentences. In 1925, the state’s Fish and Game Commission sponsored an initiative measure that created within the state constitution the Klamath River Fish and Game District and also an associated hidden sentence.359 According to the provision, any business or person who builds a dam on the Klamath River within the districted area is not only guilty of a criminal offense but also forfeits the damn as a public nuisance. The initiative measure was part of a continuing battle by the Fish and Game Commission to prevent the damming of northern California rivers by corporate power and irrigation companies, who had by

1925 placed dams on most of the Sacramento and upper Klamath River basins and were severely threatening the lives of entire salmon and trout species in California and Oregon.360 When

Electro-Metals Company applied for two more permits to construct dams on the Klamath River, 171 and when the Commission’s objections were overruled, the Commission appealed directly to the

Californian people for a constitutional amendment that prevented further dams.361 Within the context of this battle, however, the idea of a hidden sentence that automatically declared dams in the new fish and game district to be public nuisances was tied to the economic resources and efficiency of enforcement. For years, the California Fish and Game Commission reported that its legal department had been diverting most of its work to criminally prosecuting violations of fish and game laws, but that “[c]riminal prosecutions under the law have seemed ineffective…[so that] it was deemed advisable to proceed against such persons, firms and corporations by way of injunction.”362 Still, even applying to the courts for injunctive relief every time a company sought to violate the sanctity of the new Klamath River Fish and Game District would be costly and slightly risky, so that the “obvious” solution was to automatically declare injunctive relief any time a company criminally violated the new constitutional provision (so obvious, of course, that there is no record that anyone questioned the penal-criminal character of the new law).

Similarly, the federal restrictions on steamboat inspectors in the 1850s–1870s and on meat-packing inspectors following the publication of The Jungle in 1906 were both enacted in a context of economical efficiency and cost distribution concerns. The creation of the Bureau of

Animal Industry within the U.S. Department of Agriculture and its meat-packing inspecting powers is traceable not just to the publication of The Jungle, but also to requests by the packers themselves for the federal government to take control (and responsibility) of testing and certifying meat products—because the international market demanded certification to alleviate health concerns, because American states each charged exorbitant fees for inspections whenever the products crossed intra-national borders, and because state and local inspectors too often 172 worked within expensive systems of commission and implied bribery.363 In some ways, that story is identical to the one that created the federal Steamboat Inspection Service half a century earlier: steamboat inspections were essentially required to alleviate public concerns about faulty boilers and irresponsible operators, but state and local officials charged too much, charged at each side of every border crossing, and were too liable to be run on commission and bribery.364

In both cases, the businesses themselves requested federal regulation that ended up including provisions that removed inspectors guilty of accepting bribes.365

These kinds of economic efficiency concerns go a long way to explaining the last two important trends in Table 3.2, which we have yet to address. Much of contemporary penology treats trends in penal practices as susceptible to if not primarily caused by popular feelings of economic or racial threat.366 The table does not show any measure of racial threat as significant in predicting the initial onset of hidden sentencing, and although Chapter Four will return to this seeming puzzle, it is clear that at least for the limited, very first set of hidden sentences, rationalist and economical classification concerns were more predictive than racialized ones.

Indeed, the third and fourth models of Table 3.2 lend some confirmatory evidence to more

Marxist and neo-Marxist kinds of conceptions of modernist penality, which predict that fluctuations in the market will impact punishment rates, with the prison especially stepping in during times of high unemployment to warehouse excess labor and other kinds of punishment spiking in times of dire economic threat in order to contain or distract from the threat of proletarian resistance.367 Although measures of economic booms and recessions are not significant, in years when unemployment and inequality (as measured by the Gini coefficient) in a jurisdiction are particularly high, that jurisdiction is far more likely than otherwise to enact 173 more than two hidden sentences that punish employment rights or occupational licenses for the first time.368 Economic threat and capitalist-worker competition was also an important concern in many of the specific examples of hidden sentencing policy used thus far (e.g., in the meat- packing restrictions enacted after The Jungle was published, or in the touting restrictions following journalistic attacks on immoral race fixing and betting practices), and we will return to those examples in the next chapter’s discussion of the racialized and essentialist concerns that controlled the direction of the growing hidden penal system.

Still, while class conflict may have played a role in the onset of hidden sentence law, it does not appear to cut in a clear direction; hidden sentences are about as likely to classify and exclude in furtherance of capitalists’ interests as they are to do so in furtherance of workers’.

Sometimes, as with the professionalization of barbering in California, laws containing hidden sentences are framed explicitly as “not a labor, not a capitalistic measure, but one that will perform civic benefit.”369 Even if such claims are made within a capitalistic hegemony so that those making them are oblivious to the real effects of such hidden sentences, that rationalistic frame itself constructs meaning and therefore has its own social effects. A more nuanced analysis of hidden sentencing therefore focuses on professional and other communities’ efforts to insulate and legitimate their own, exclusion measures of social prestige and character and on the overriding, modernist need in all of those cases to be as efficient and economical as possible in creating and enforcing such classification schemes.370

Legitimated Exclusion of “The Bad People”

In 1866, the U.S. Supreme Courts ruled in Cummings v. Missouri and Ex parte Garland that occupational exclusions based on past criminal conduct were unconstitutional bills of attainder 174 and ex post facto punishments.371 By 1898, when the Court was again called upon to judge the constitutionality of a hidden sentence that restricted occupational access, the justices were ready to accept the idea.372 Hawker v. New York addressed a second New York law that declared it a crime for any person previously convicted of a felony to practice medicine; the question was again whether the law was an unconstitutional, ex post facto punishment.373 The majority held that the statute was an appropriate exercise of the state’s police power, specifically its power to regulate the professions in order to ensure public health and welfare. In doing so, it declared, a state is permitted to require evidence of good character—and to use a past conviction as conclusive evidence of present bad character. The logic of the decision is succinctly summarized:

Though not an ex post facto law, [this hidden sentence] is retrospective in so far

as it determines from the past conduct of the party his fitness for the proposed

business. Felons are also excluded from obtaining such a license, not as an

additional punishment, but because the conviction of a felony is evidence of the

unfitness of such persons as a class.374

The remarkable feature of the Hawker opinion is its drastic yet unrecognized shift from forty years earlier.375 Cummings and Garland had explicitly stated that the question of the scope of a state’s police power was irrelevant to the question of punishment, and explicitly rejected the argument that the hidden sentences in question merely prescribed evidence of good character to practice a profession without punishing. Even though the statute at issue in Hawker said nothing about character requirements and instead created a new crime based solely on evidence of a past conviction (and even though a separate statute already required “good moral character” for 175 physicians in New York), the Court decided that any such statute should be read as though it imposes a character requirement and only uses past convictions as evidence of poor character:

“The state is not seeking to further punish a criminal, but only to protect its citizens from physicians of bad character.”376

The Hawker opinion then distinguished Cummings and Garland by declaring (without support) they were based entirely on the idea that oaths of loyalty had no rational connection to professional qualifications. Cummings did mention the issue of qualifications, but the opinion explicitly stated that prior crimes bore no relationship to fitness to practice a profession; instead, it was clear to the 1866 Court that such statutes were punishment because they deprived persons of their rights as a sole consequence of prior acts. The 1898 Court, however, reversed course without acknowledging it to construe the question of unconstitutional punishment as one of the permissiveness of state regulation of character, whether through criminality or not. Worse, the

Court neglected to state a clear rule that defined either “punishment” or “regulation”—a mistake that would haunt subsequent cases discussed in Chapter Five.

By rationalizing a criminal record as evidence of poor character and moral turpitude, the

Supreme Court had embraced negative credentialing as a tool of occupational boundary-making, opening the gates for laws like the ones discussed above. Using criminality as a symbol of poor character had now become acceptable, and other states soon followed suit throughout vocational, economic, and political fields. For example, when faced with the question of whether the

Federal Commerce Commission can deny business licenses based on findings of monopolistic practices, the District of Columbia Court of Appeals asserted, 176

The ultimate matter in question was not whether [the business licensee] was

innocent or guilty, but whether qualified or unqualified, and the appellant's

conduct was considered only in that regard. Nor does the withholding of a

privilege, granted by the Government only to fully-qualified applicants, amount to

a penalty, when there is sound basis for finding the applicant unfit.377

After the turn of the century, it simply became “obvious” that past criminality is an acceptable and effective way to identify and exclude persons of poor character, even when policymakers like judges are forced to not only recognize but deliberate on the issue and its constitutionality.

As the majority opinion in Hawker expressed, it was now common sentiment that “[i]t is not open to doubt that the commission of crime…has some relation to the question of character. It is not, as a rule, the good people who commit crime.”378

CLASSIFICATORY ATTAINDER

The transition from the nineteenth century to the twentieth was a time of remarkable upheaval in

American society. The unchecked development of the capitalistic, industrial age culminated in a massive confluence of economic, political, and social instabilities and conflict, and the societal solution was in effect to enter a new phase of modernity, one characterized by Weberian bureaucratized, formalized, and instrumentally rationalized control of social disorder. The many facets of the national Progressive movement of the 1890s to the 1920s, and also the similarly dispersed segments of the earlier, more localized progressivist reformers, could come together under the same identity based only on their agreement that increasing levels of calculated, efficient, uniform, rational-legal control was the solution to the disarray around them. It was 177 under these distinctively modern conditions that a new kind of attainder became prominent in every American jurisdiction.

That original model of hidden sentencing, which focused on negative credentialing, can be usefully characterized as classificatory attainder, attainder that expresses or signifies a type of personhood through the label of criminality.379 Hidden sentences came to be a type of formalized boundary-making through an objective symbol where before existed only formal, individualized assessments of “good moral character,” and before that informal, socially enforced boundaries based on community reputation. In essence, this kind of hidden sentence was a proxy within a proxy: a documented criminal record signified past criminal activity, which in turn signified a depraved, base moral character.

This kind of objective, standardized logic would have never appeared in early American society, not least because of its potential inaccuracies and injustices. The existence of a record of convictions did not guarantee actual criminal behavior in the past, and as the 1866 Supreme

Court indicated, past conduct was simply not a guaranteed measure of present character or future action. Yet with the spread of the modern administrative state and the associated imperative to justify relations via objective and standardized measures rather than informal, community-based ones, proxies for moral turpitude became not only acceptable but requisite for justifying exclusion.

Classificatory attainder did not in itself add further dimensions of change to the fundamental relations of exclusion; it was not a new end but rather a new means of boundary- making. The professions and agencies of the administrative state were designed to instill orderliness within the legally bounded zone of an occupational, economic, or social sphere, and 178 hidden sentences symbolized and legitimated one of those boundaries—between the good, qualified people and the others—in a way that was consistent with modern rationality. Instead, hidden sentences initially served merely to identify and legitimize exclusion as part of the peculiarly modern project of rational classification and order-making.

Together, these characteristics begin to elucidate the role that hidden sentences play in modern

American society. Sociologists, criminologists, and jurists have long discussed punishment as a tool of social solidarity, of signifying collective feelings about acceptable and unacceptable actions by publicly condemning the breaking of a strongly held social norm. But this conceptualization of punishment focuses on the overt proclamation by a judge or other state actor of guilt and punishment. When this practice becomes separated from the covert exclusion of offenders during the early twentieth century, however, it becomes easier to isolate the more subtle function of attainder as a component of punishment.

Hidden sentences in this period served as a classification tool for moral turpitude or wrongdoing, and to therefore legitimate the kinds of exclusion those categories enforced in traditional times. That kind of boundary-making is not clearly a Foucaultian sort of disciplinary power designed to instill norms of action, nor is it the kind of restitutive law that Durkheim imagined would characterize modern society.380 Similarly, primordial hidden sentences apparently were not a simple response to racial threat, as some unsophisticated theories or assumptions taken from modern times might suggest they were. Table 3.2 uses multiple measures to detect racialized feelings of threat throughout American jurisdictions, but none are statistically significant.381 Instead, the initial kinds of hidden sentences imposed a kind of 179 oppressive control more akin to that theorized by Marxist scholars, enforcing hierarchical divisions in the political and economic sectors and materializing more frequently in times of class instability.382

Yet to strip hidden sentencing of its discursive qualities and leave it as only a tool of class marginalization is to strip it of the singular rational-legal legitimacy it claims in an American modernity. From the tools of a more Weberian but avowedly hybrid perspective then, it becomes possible to see that while overt punishment may serve to mark and reinforce deeply held beliefs about actions, attainder is the affirmation of collective beliefs about social citizenship, about belongingness.

The question, then, becomes what kind of belongingness. From the rationalist frames they were enacted under, hidden sentences seemed to hold the potential that rationally calculated means of boundary-making always appear to have at first light. Even without yet delving into the less calculated discussions and crafting of the hidden penal system, though, it is already apparent that the kind of boundaries hidden sentencing enforced were tied to some kinds of inequality. And even a Marxist perspective suggests that if class inequality is involved, there is a deep, hegemonic ideology at work that likely perpetuates that inequality by resorting to (i.e., distracting and dividing the workers from themselves with) other dimensions of inequality.383

Our task, then, is to critically interrogate the discursive frame of rationalist classification upon which the hidden penal system was based to question who it was including and who it was excluding.

180

CHAPTER 4 ESCALATION: CRIMINALITY AS A MECHANISM OF COLOR- BLIND RACIALIZATION

In today’s United States, racial bias is no longer as explicit and easily identifiable as we once considered it to be. Instead of the overt racism we attribute to the slavery and Jim Crow eras, racial bias today more frequently manifests as deep sets of stereotypes, cultural assumptions, and structural relationships that are expressed, especially in law and policy, through “color-blind” or

“race-neutral” terms.384 Because such racial practices are implicit and often unrecognized even by actors themselves, they are hard to detect or critique but nevertheless result in pervasive, systematic racial inequalities. Mass incarceration itself derives from laws couched in the seemingly egalitarian terminology of crimes, but because those seemingly race-neutral criminal laws are more frequently and more harshly enforced against black and Latino Americans, they simultaneously serve to construct one of the most racially disparate institutions of contemporary

America.385 Color-blind racial bias is arguably the most pressing concern for racial justice today.386

Yet color-blind policies that hide racial bias are nothing new. In the heart of the Jim

Crow era when overt discrimination was more salient than was covert discrimination, at least some laws were already enforcing racial stereotypes and inequality through the ostensibly race- neutral language of criminality. The history of the hidden penal system provides numerous examples of such falsely color-blind policies—and also policies that are ostensibly but falsely blind toward other kinds of essentialized statuses. Throughout every era of America history since their initial onset, hidden sentences have remained an important source of racial, political, economic, and sexual inequality that legalize and legitimate discrimination through the 181 seemingly status-neutral language of criminality. By the time the War on Drugs and mass incarceration were being put into action, it was already common practice for lawmakers to create and rationalize divisions through the hidden penal system.

Chapters Two and Three argued that hidden sentence laws originally came about through a policy shift toward increasingly formalized and “rational”—meaning seemingly objective, standardized, and efficient—means of pursuing policy goals. As communal judgments of reputation and integrity shifted into legalized standards of “good moral character” and then into criminalized standards of “moral turpitude,” hidden sentences emerged as a modernist means of classifying who belongs and who ought to be excluded. When we look closer, however, the moral turpitude targeted by hidden sentences is startlingly and inextricably linked to shifting stereotypes of the essentialized others of the era.387 American history is replete with periodic moral panics focused on various racial, ethnic, political, and sexual others, and once hidden sentences were adopted as a method of social classification and control, they were quickly used as a tool of these boundary-making processes. Between the later years of the nineteenth century and the beginning of the Civil Rights Movement, hidden sentences were based on implicit and explicit stereotypes of white immigrants, East Asians, and Soviet communists. These race- and status-blind reifications of essentialized stereotypes therefore “objectively” linked essentialized boundary-making to criminal exclusion well before the War on Drugs replaced Jim Crow as a means of racially segregating Blacks. The history of the hidden penal system is a history of othering in the United States.

Moreover, because hidden sentences are race- and status-blind codifications of essentialized biases in law, they are not simply outcomes of othering processes but an integral 182 part of them. First, hidden sentences are endowed with the sanctity and force of legal authority, so that they express rules and relations in ways that invite dogmatic acquiescence and impose them onto the public through the coercive power of the state.388 Second, hidden sentences are static and formalized reifications of certain biases and stereotypes, so that they transform nebulous cultural beliefs and assumptions into systemic racial inequalities: definitive, settled, and naturalized language and relations for the public at large to interact with and (at least those elite members of society with access to the law) understand.389 Third, hidden sentences are by definition hidden from political, legal, and public attention, so that those kinds of penal-criminal relations are rarely debated and almost never repealed after they are established. Instead, they are effectively permanent reifications of essentialized beliefs and assumptions that continue to hold, express, and enforce them in static, naturalized form, sometimes for long after they were salient in the nation’s cultural consciousness. Hidden sentences are therefore not only an example of falsely color- and status-blind policies long before the current era of mass incarceration, but an important example of how covert kinds of inclusion and exclusion can, by virtue of their hiddenness, take on functions of their own.

The initial and continuing functions of hidden sentences as a form of punishment are therefore not simple, innocuous modernizations of traditional classifications schemes, as policy designers may have imagined. They are about specific kinds of belongingness. As the last two chapters showed, hidden sentences are rationalist proxies of moral character that use the attaintedness of a criminal label to imperfectly classify those who belong in certain social, political, and economic spheres and those who do not. As this chapter argues, those seemingly neutral and objective punishments are so far removed from the moral character they supposedly 183 measure that they leave a great deal of room for policymakers to redirect their boundary-making functions toward a uniquely legitimating, uncontestable kind of essentialized othering.390 Long before the color-blind policies of the War on Drugs and mass incarceration used covert, penal- criminal standards to essentialize and exclude black and Latino Americans, those same kinds of hidden sentences appeared in the midst of the Jim Crow era as essentializations and exclusions of other groups.

PROCESSES OF OTHERING IN AMERICAN PENALITY

How could it be that the racial categories Americans recognize as important to crime and punishment today are not the same ones they saw only a century ago? How could it be that the qualities and traits that signify those divisions have shifted, or that their meanings have changed?

And how is it possible in the face of such stark differences that the kinds of divisions we think are new in U.S. penal policies and everyday interactions today can still be found within that previous system of penal relations?

Race is socially constructed.391 It is not a system of natural and automatically known divisions. Americans are taught as they grow up to notice certain physical and behavioral traits, associate them with biological and ancestral patterns of people, and then associate those patterns with complexes of cultural meanings, resulting in perceived racial differences. When non-

Americans immigrate into the nation, they are introduced and socialized into the American racial order, what for them may be an entirely new way of understanding and interacting with others based on skin color, phenotype, linguistic patterns, etc. Even so, there are constantly individuals and groups that do not fit within the established system of racial divisions (e.g., those who have mixed ancestries or who can “pass” as more than one race). This is not to say that race is unreal 184 or entirely imaginary, but to claim that whether or not there is some ontological reality to race,392 the “race” that humans have heretofore experienced is altogether real in its experience and consequences, but has invariably been contingent upon structural conditions and cultural meanings in a given society.

More importantly for our purposes, both racial meanings and racial categories have been constantly fluid and changing throughout all of United States history. Before conquest was justified in respect to Native Americans and slavery was directed particularly toward black

Africans, “race” was not even a recognizable concept to either Europeans or the rest of the world.393 Until the end of the nineteenth century, “white” commonly referred only to Anglo-

Saxons, so that Germans, Jews, Italians, the Irish, and various other “ethnic whites” from especially southern and eastern Europe all achieved whiteness at different times.394 The subsequent battles over classifying people as Asians, Latinos, Malaysians, Native Americans, or

Africans—and which of those were white “enough” to be eligible for U.S. citizenship— demonstrate particularly tenuous and contestable racial standards.395 As World War II came to an end and the Civil Rights movement progressed, scientific schemes of human races and their importance were steadily disproven and condemned, so that disparate racial outcomes today are popularly explained based on cultural rather than evolutionary differences.396 Throughout

American history, racial meanings—and the hidden sentences based on them—are always dynamically shifting, morphing, and adapting into new and temporary iterations.397

It is also key for the study of the hidden penal system that race is not the only socially constructed axis of inequality. To take some key examples, political identities, religion, sexuality, and even criminality itself are all socially constructed classifications that are 185 throughout American history associated with discernable and lineal (sometimes genetic) differences that are considered relatively immutable and are associated with significant cultural meanings that legitimate inequalities. Likewise, the characteristics, meanings, and marginalizations of Communists, Muslims, gays, criminals, etc., are all mutable and changing over time. The most salient difference between any of these categories and race is that they are not always viewed phenotypically while race is (though, especially when associated with race, even such non-racial identities can carry phenotypical elements). What is perceived as real is certainly real in its consequences,398 so I am not arguing that race is only one of many, indiscernible kinds of social identity and inequality. I am arguing that the tools and mindsets of racialization perspectives, which view race as a constantly developing and changing social construct, are remarkably useful for studying related kinds of essentialization—especially when those kinds of othering overlap with race, which in America, they almost always do. Because of the cultural significance of essentializing in the process of constructing and reproducing social inequality, it is not a stretch to say that all patterns of othering are all socially constructed through historical processes and all present in various formations throughout American history.

In some cases, changes in racial and essentialist formations can arise based on purposive efforts oriented toward expressly racial or essentialist projects.399 The onset of the War on

Drugs, for instance, and the criminal law policies that created and perpetuate mass incarceration today are repeatedly impugned as strategically designed, racially coded framings.400 Reacting to the successes of the Civil Rights Movement and seeking to reinvigorate the Republican party with white, Southern votes, elite, white, often Republican policymakers framed harsh drug sentencing, three strikes laws, targeted broken-windows policing, and other strategies of the War 186 on Drugs through a coded “law and order” rhetoric aimed to activate mental images of the “stark and staring face” of the “enemy within”: blacks.401

As previous chapters showed, though, hidden sentence laws tend not to be born of careful, deliberate attention. Instead, the policymakers who craft them are usually concerned with various non-penal political goals, so that the hidden penal system can be characterized as the result of systematically unanticipated consequences of inattentive policy actions.402 The elite, typically white policymakers who enacted the initial waves of hidden sentences only gave conscious attention to those policy means insofar as they found punishment based on criminality to be conveniently efficient, more objective-seeming, or more standardizable than are traditional kinds of exclusion based on community reputation or individualistic judgments of good or poor moral character. As we might expect, then, this chapter will show that policymakers tended to approach the racial and essentialist dynamics of their policy actions through a similar kind of inattention, so that the changes they wrought in formations of otherness can be characterized as color- and status-blind not just in their terminology and outcomes, but also in their framing and assumptions.

Policymakers are distinctly elite, often white members of society with a remarkable amount of political power, social privilege, and often economic wealth, but they are nonetheless social, culturally embedded actors like everyone else. Policy action is therefore constrained not just by the availability of social, economic, and political power—in the sense of Weberian domination or authority—but also by the rules of the discourse, the power to even imagine available options for social action and frames by which to justify them—in the sense of

Foucaultian power-knowledge or Gramscian hegemony.403 As such, policymakers are subject to 187 the same kinds of color-blind and status-blind assumptions in their thinking that pervade the rest of society.404

Color-blind policy actions, like color-blind thinking outside of the policy sphere, are based on various kinds of ostensibly nonracial premises, often institutionalized cultural assumptions, that simultaneously disregard the significant role of race.405 The primary frame and set of assumptions that guide color-blindness can be called “abstract liberalism”: beliefs that center on the ideas of individualistic meritocracy within a system of equal opportunity defined by nonracial factors.406 Three others are also important, both in the alternative and in combination: the naturalization of racial difference (e.g., just “the way things are”), culturally (as opposed to scientifically) based arguments, and the minimization of racial bias. Like the “law and order” politics of the War on Drugs, expressions of such logics can sometimes be “race talk,” strategically coded language that allows a claim to legitimate color-blindness but also signifies to certain people, especially whites, that the message is actually a racially biased one.407 It is this insidious intentionality in the origins of the War on Drugs combined with the deep, systemic patterns of racial inequalities in imprisonment rates that leads The New Jim Crow and similar analyses to conclude, implicitly or explicitly, that the entirety of the visible and hidden penal systems are designed as the newest iterations of racial caste in America.408

Racially biased penal policies can also, however, be ostensibly race-neutral in the minds of the elite, white policymakers. In terms of isolating the social function of visible or hidden penal practices, it may be more difficult to isolate racialized processes when they cannot be traced to expressly stated racialized motives (though it also fallacious to assume intentionally coded racial policies always end up functioning to perpetuate racial divides). As the Introduction 188 argues, however, the conclusion remains substantially the same: such penal policies function to

(re)produce racial hierarchies in ways that are remarkably difficult to detect and change. Despite being official and formalized, however, even well-meaning attempts at ending racism, sexism, etc., through status-blind classification can have the effect of solidifying inequality. By failing to account for institutional systems of privilege that impact other systems of classification within

American society, purposive attempts to reduce status privilege through neutral sorting can instead entrench it by providing it with a measure of legitimacy.409

For example, some scholars trace the origins of mass incarceration not to intentional,

Republican reframing of political rhetoric to court Southern white votes, but to the well- intentioned interventions of progressivist reforms of indeterminate sentencing schemes.410 Near the end of the Civil Rights Movement, those reformers focused some of their efforts on racially disparate sentencing patterns, and they framed the problem as one of intentional and unintentional bias of unregulated decision-making by state and federal judges, who tended (and still do) to be elite, white men. The (abstractly liberal) idea behind the mandatory minimums and sentencing guidelines was to make visible sentencing more formalized, standardized, and objective so that judges could not help but be “rational” and “fair.” The result of such color- blind policies, though, is a system of determinate sentencing that produces unparalleled racial inequalities in imprisonment rates wherein the actual biases are remarkably difficult to isolate and detect. The most prominent example cited in the literature is the vast, decades-long disparities between sentencing for crack cocaine (characterized as more dangerous and typically used by blacks) and powder cocaine (characterized as less dangerous and typically used by whites) at a ratio of 100:1. The relevant point here is not whether such color-blind differences 189 are correct, justified, etc., in any case, but that it is difficult because of the denial of the role of race within their logics to even figure out that they are racially biased and how best to correct them.

Although research on such color-blind policy practices and systemic racial inequalities is often derived from current racial disparities in visible and hidden penal systems, and in other areas of contemporary race relations in the United States, this chapter uses a racialization perspective to show that hidden sentence laws are a system of color-blind yet racially biased penal policies that predate World War II and the Civil Rights Movement. The same kinds of cultural assumptions and framings that characterize contemporary theories of color-blind policy actions shaped hidden sentencing almost as soon as it emerged as a distinct kind of penal practice in the mid-to-late 1800s, so that the history of the hidden penal system challenges our assumptions about the newness of color-blind racial bias in general and the novelty of the racialized policies underlying mass incarceration and the War on Drugs. Likewise, because hidden sentences were not initially focused on blacks but rather furthered inequalities in relation to Soviet communists, white immigrants, and East Asians, the history of hidden sentencing provides a useful opportunity to apply theories of color-blindness and racial formation to related kinds of essentialization, as developing kinds of status-blind othering.

THE RACIALIZATION OF THE HIDDEN PENAL SYSTEM

In Chapter Three, we saw statistical models that showed racial inequality and racial threat were not connected to the initial onset of hidden sentences in a given jurisdiction. In that respect, the very first set of hidden sentences were better explained as related to progressivist reform movements in the face of bureaucratization, modernization, and economic changes in societal 190 structure between the nineteenth and twentieth centuries. The underlying, modernist logics were of formalization and rationalization: the replacement of traditional, affective methods of social control like community reputation with rational-legal means of control like legal punishment based on criminality.

By broadening the scope of our analysis, Table 4.1 presents a slightly different picture.

In this table and chapter, we will attend not to factors that measure the initial risk that a given jurisdiction will enact hidden sentence laws for the first time, but rather broader trends of all hidden sentences during the period from initial onset to the beginning of the Civil Rights

Movement. Table 4.1 therefore presents Poisson models that measure the influence of various factors (the same variables used in Chapter Three) in predicting the number of hidden sentences a given jurisdiction is likely to enact in all given years within the model.

When we treat the years from statehood or nationhood through 1950 as a period of development for the hidden penal system, many of the factors tell a similar story to the earlier models that measure initial onset. Progressivist presence in a jurisdiction’s legislature or executive branch is often significantly predictive of the number of hidden sentences that jurisdiction will enact in a year (though Model II indicates that progressive governorships predict fewer hidden sentences per year, likely relating to the broadening—and therefore more difficult to measure—agendas and other identities of progressivist groups as time went on). The growth of administrative bureaucracies remains significantly predictive of both hidden sentences overall and occupational licenses restrictions in particular, and urbanization (a key aspect of the shift to modernist logics) also predicts an increased number of hidden sentence laws overall and restrictions on business licenses and property rights in particular. Patterns in visible sentencing 191 still remain at best tenuously related to patterns in hidden sentences, only appearing significant in relation to business or property restrictions. In short, the quantitative patterns in hidden sentencing’s development suggest that the logics of formalization, bureaucratization, and rationalization continue to influence the growth of hidden sentence law following its initial onset.

To the contrary, the patterns related to economic and racial inequality, threats, and panic tell a different story than they did in the last chapter. Economic inequality and class conflict are not clearly related to the continued growth of hidden sentence law in a given jurisdiction, despite indications that they were related to its initial onset. Economic depressions and recessions are only slightly related to increased numbers of occupational license restrictions, high unemployment rates are actually predictive of fewer hidden sentences relating to business licenses and property, and no other patterns in hidden sentencing up the 1950s are significantly related to economic factors. These results further indicate, in continuation of the arguments in

Chapter Three, that a Marxist analysis of hidden sentencing is useful but incomplete.

Racial inequality, however, is the new story of hidden sentences’ growth following their initial onset. Although Table 4.1 indicates that they continue to be related to the abstract logics of formalization, bureaucratization, and rationalization—which bear important similarities to the examples of abstract liberal framing that theorists associate with color-blind racial bias—but that hidden sentences’ growth also depends greatly on racialized patterns in a given jurisdiction. The ratio of East Asian to white population in a jurisdiction during a given year is perhaps the most important factor predicting numbers of hidden sentences that jurisdiction will enact during that year. The results indicate that if the East Asian to white ratio were ever 1:1—completely equal—in a jurisdiction, then it would be predicted to enact more than 50,000 times as many new 192 occupational license restrictions than it otherwise would (p < 0.05), almost 300,000 times as many new employment restrictions (p < 0.05), and more than eight million times as many new hidden sentences of any kind (p < 0.1). They also show, however, that increases in the black to

Table 4.1: Change in Predicted Numbers of Hidden Sentences Annually per Jurisdiction (Poisson count models) Model I Model II Model III Model IV Model V (All hidden (Business/ (Employment) (Occupational (Political/ sentences) property licenses) civic rights) rights)

Progressive political power: Liberal governorship -.034 -.185* .157* .426* .094 (.071) (.059) (.077) (.194) (.135) Liberal legislature .260# .086 .095 .872* .165 (.139) (.249) (.134) (.268) (.181) Bureaucratization: Pages in Federal Registera .001# -.000 .001 .001* .001 (.000) (.001) (.001) (.000) (.001) Proto-globalization: Metropolitan rateb .309* .509* .105 -.034 .138 (.125) (.185) (.108) (.161) (.302) Visible sentencing: Inmate rateb .000 .002# -.000 -.000 -.001 (.001) (.001) (.001) (.001) (.002) Racial panics: Imprisonment rate, whiteb -.002 .001 -.002 -.001 -.003 (.002) (.001) (.002) (.002) (.009) Imprisonment rate, blackb -.000 -.001* -.000 -.000 -.001 (.000) (.000) (.000) (.000) (.001) Black : white ratio -.163 -.044 -.335* -.255* -.450# (.182) (.237) (.160) (.119) (.269) Latino : white ratio .004 -.931 -1.099* 1.396* 11.048* (.434) (.570) (.499) (.472) (5.131) Asian : white ratio 18.229# 1.902 12.558* 10.839* -24.674 (9.973) (2.737) (3.244) (2.187) (16.659) Economic panics: Economic contraction -.047 -.019 -.036 .108# .087 (.046) (.076) (.043) (.061) (.037) Unemployment rateb -4.075 -8.481* .022 1.457 1.639 (3.765) (2.136) (2.346) (2.327) (3.684) Gini coefficient .130 .606 -.518 .761 -.062 (.609) (.852) (.739) (.503) (1.030)

Constant 1.149* .983* 1.411* 1.055* 1.118* (.276) (.448) (.331) (.229) (.513)

Log pseudolikelihood -533.218* -65.154 -191.082 -50.239 -47.091 Chi² 23.532 2.607 4.809 2.957 6.798 N 292 41 115 32 30 # p<0.1, * p<0.05, * p<0.01 a Pages in the Federal Register are measured per hundreds of pages b Population rates are measured per hundreds of thousands of people 193 white population ratio predict fewer hidden sentences; if the black to white ratio were ever 1:1 in a jurisdiction, then we could expect it to enact only 0.70 times the number of employment restrictions than it otherwise would (p < 0.05), 0.77 times the number of occupational licenses restrictions (p < 0.05), 0.64 times the number of restrictions on political and civic access (p <

0.1). An increase in the black imprisonment rate (which shows as nearly as possible an increase in the black crime rate) significantly predicts fewer hidden sentences related to business and property rights. The figures for Latino to white population ratios generally indicate a positive relationship to hidden sentence counts except that higher ratios predict lower numbers of employment-related hidden sentences, and the only measure available of ethnic white threat (an increase in the white imprisonment rate) shows no significant relationship.

The models in Table 4.1 therefore indicate that the growth of hidden sentences in each jurisdiction up to the Civil Rights Movement is significantly related to racialized panics related to East Asians, and to a lesser extent Latinos, but that racialized panics about blacks actually redirected policymakers’ focus away from hidden sentences. In the midst of the Jim Crow era, where overtly racial discrimination against blacks was not only acceptable but increasingly prominent, it makes sense that color-blind restrictions through hidden sentences may not have been necessary for policymakers to respond to white panics about black threats. Still, the clearest bottom line from the statistical analysis presented in Table 4.1 is that the numbers tell an unclear story that begs for a more nuanced, historical analysis. The evidence available through this study’s data on California and federal law, however, cannot explain the statistical patterns of hidden sentencing relating to Latino and black inequality, because none of the cases I analyzed in depth relate clearly enough to either racialized group to provide a useful, empirical extraction. 194

Table 4.1 therefore draws out the strong racialized patterns in the development of the hidden penal system and also provides an important caveat that the findings of this analysis are useful but incomplete, or rather a call for further analysis of other jurisdictions where white panics about blacks, Latinos, and for that matter, Native Americans during the late nineteenth and early twentieth centuries were more prominent.

YELLOW PERILS, RED SCARES, AND WHITE BOUNDARIES

It should not be surprising that an historical analysis of penal policies in the United States turns up important patterns of othering. One might be tempted to say that moral panics, especially in the United States, are regularly about essentialized others—or even that racialization and essentialization are so pervasive throughout American history that it is meaningless to say some legal or political thing derived from conflicts and cultural assumptions about othering. It is well documented, for instance, that the leadership elite of both the political and legal professions in the nineteenth and early twentieth centuries were dominated by white, Anglo-Saxon Protestants, so it ought to come as no surprise that the laws and policies they created were steeped with at least some examples of essentialized othering, color- and status-blind or otherwise.411 Likewise, it is well established that “racial meanings pervade U.S. society, extending from the shaping of individual racial identities to the structuring of collective political action on the terrain of the state.”412 Obvious as such patterns might seem when presented, though, they are crucially important from a critical point of view interested in the current arrangements of the penal system and the American social order. It may therefore be both unsurprising and crucial to acknowledge that, in terms of their social functions, hidden sentences are, like many other classificatory policy figurations in American history, reifications of racialized and essentialized cultural constructs. 195

It is also not altogether surprising that racialized and essentialized policies created any time within the modernist age, in the Weberian sense of the era of bureaucratization and rationalization, might be based on color- and status-blind language, framings, and assumptions.

The onset of the modern age marks a trend toward formalized policies of exclusion and inclusion, the means of which are increasingly legitimated exclusively through abstractly rationalist frames. Lately, we have found color-blind policies more salient and problematic than ever, but the ostensibly race-neutral ideals of “equal protection of the law,” “equal opportunity,”

“reasonable” restrictions, and individualistic meritocracy can be traced to the Reconstruction era and earlier. In other words, the color-blind frame of abstract liberalism, which is the most important color-blind frame, is quite old.413 And to put it in context of this study so far, we could just as easily call that frame “rationalist” liberalism, since the kind of abstractness that characterizes it is consistent with (if not always an example of) modernist ideals of uniform, calculable, emotionless, and at least superficially efficient logics and assumptions. Put another way, American society has long been moving towards a system where exclusion based on ascribed, essentialized statuses is questionable except through supposedly status-blind terminology, like that of criminality.

Throughout the nineteenth and twentieth centuries, the United States experienced the end of slavery, the women’s movement, an end to race-based immigration policies (both for Asians and for non-Protestant, non-Anglo whites), the civil rights movement, the LGBT movement, and other social changes around racial, sexual, political, and religious minorities. The result is a system of laws, political practices, and social beliefs that question or reject exclusion based on these statuses as illogical, subjective, and unscientific—as inconsistent with the modern 196 principles of rationality.414 In place of that kind of boundary-making, systems of classification and hierarchy based on mutable characteristics now maintain a much higher degree of legitimacy—especially standardized, seemingly neutral measures of qualities like educational achievement, occupational merit, developed skills, financial success, and of course, criminality.

Success and failure, exclusion and inclusion, good and bad are determined in the modern age according to race-, religion-, and other status-blind policies that focus on so-called objective measurement.

Despite being official and formalized, however, even well-meaning attempts at ending racism, sexism, etc., through status-blind classification often have the effect of solidifying inequality. By failing to account for institutional systems of privilege that impact other systems of classification within American society, purposive attempts to reduce status privilege through neutral sorting can instead entrench it by providing it with a measure of legitimacy.415

Educational achievement, for instance, depends in part on geographic location and economic resources, which are connected to social class and inheritance, which are in turn connected to race, so that seemingly neutral measurements of educational achievement often fail to account for the disparate starting points of various racial groups and thereby legitimize disparate outcomes by attributing them solely to meritocracy. Indeed, social scientific research has long shown both positive and negative credentials “are often highly correlated with other indicators of social status or stigma (e.g., race, gender, class).”416 In addition, legitimized status-blind credentials can in fact multiplicatively compound and naturalize unwanted forms of inequality; a criminal record, for instance, more severely limits employment prospects for Black men than for white men because it confirms status-consistent stereotypes of Blacks as criminal. 197

As a form of negative credentialing and legitimized boundary-making, hidden sentences are no different. Because the policy actions that created hidden sentences can almost never be characterized as deliberative and fully attentive to relevant consequences (see Table 3.1), there also exists little blatant evidence (explicit or coded) of purposefully race-based, politics-based, or otherwise essentialist oppression.417 Indirect evidence of policymakers’ shared assumptions can sometimes offer confirmatory evidence but the content of hidden sentence laws combined with the context of their enactment can often alone show that the boundaries drawn by hidden sentences are frequently associated with or driven by stereotypes of the salient racialized and essentialized others of the time. The simple application of an assumption that certain kinds of criminals are legitimately and unquestionably excludable from a certain sphere of social, economic, or political activity—the exclusionary assumption that is so central to our analysis— can reveal racialized and essentialized patterns when those certain kinds of criminality within an assumption are closely linked to the salient others of a moment in U.S. history.

In the end, these patterns are so pervasive that it is difficult to ignore the rationalization and essentialization patterns in the types and methods of exclusion involved in hidden sentences and therefore the role that the hidden penal system plays in the American story of othering. In the classificatory attainder phase, those essentialized others included white immigrants from especially Southern and Eastern Europe, East Asian immigrants, and communists; only afterwards did the stereotypes of Blacks and Latinos that we recognize as part of the War on

Drugs enter into the hidden penal system.

198

East Asian Exclusion, the Color-blind Way

In the late nineteenth century and through the mid-twentieth century, Western countries indulged in acute, racialized panics about increasing immigration from East Asia. American fears and hatred of Chinese immigrants first spiked in the 1870s and 1880s, simmered until after the First

World War, and then spiked again, this time centered on the Japanese threat. These two “Yellow

Perils” (sometimes referred to as yellow “terrors,” “menaces,” or “spectres”) influenced many political and legal outcomes during the late nineteenth and early-to-mid twentieth centuries. In the context of a budding regulatory state, politics that were now especially subject to interest groups, and rationalized pressures to use status-blind standards, it is unsurprising that state boundary-making after the peaks of these anti-Asian panics died down took the form of hidden sentences—both in federal immigration law and in other areas of state and federal law. The timing of these laws, their particular crimes and penalties, and the rhetoric surrounding their enactment provide unmistakable evidence that they were tools of boundary-making linked to cultural stereotypes and perceived threats of East Asians.

Despite being a nation of immigrants and proclaiming a “melting pot” philosophy, the

United States sadly been plagued by nativist sentiments since its beginnings. Until the 1860s and

1870s, xenophobia was directed toward German, Irish, Italian, and other non-Anglo, non-

Protestant immigrants, but that changed with the California Gold Rush and after the Burlingame-

Seward Treaty of 1868, which removed immigration restrictions on China.418 The resulting influx of Chinese immigrants combined with their willingness (or need) to work at lower wages than working class whites led to immense blowback, especially in California—including racialized stereotypes of hyper-sexuality and a propensity for immoral prostitution, and 199 popularized rumors that all Chinese laborers were slaves or involuntary servants: “coolies” and

“female coolies.”419 The California legislature passed a number of anti-Chinese laws, including for example “An Act to Protect Free White Labor Against Competition with Chinese Coolie

Labor, and to Discourage the Immigration of the Chinese into the State of California,” which levied taxes of more than 50% on Chinese workers.420 Even afterwards, anti-Asian sentiment continued to proliferate, leading to the one of the worst race riots in American history, the

Chinese massacre of 1871. Hundreds of white men destroyed and pillaged blocks of the

Chinatown ghetto in Los Angeles, attacked and robbed most of the Chinese residents, and captured, tortured, and hanged at least eighteen of them—making it largest mass lynching in

American history.421

The first Yellow Peril grew from there. With the economic collapse of 1873 (at the time, called the “great depression”), Chinese immigrants were increasingly blamed across the country for the troubles of white, working-class laborers.422 Paranoia spread that an ever-increasing surge of East Asian immigration would overrun the United States, lower standards of living, and threaten the moral foundations of Western civilization itself.423 More race riots broke out during the 1870s and 1880s in the Chinatowns of San Francisco, across California, in Washington

Territory, and elsewhere.

As the panic progressed, it became a full-fledged, anti-Asian racialization movement.424

In the face of a history of slavery, segregation, and mass incarceration of blacks alongside gradual acceptance of Asian Americans as a “model minority,” we tend to forget how serious fears of East Asian immigrants were, how rigid and strong the prejudice, and how severe the discrimination (and how often they are still invoked against non-native immigrants and foreign 200 nationals). This is not to make any hierarchical comparison between marginalized and victimized groups, but to draw attention to the different but still powerfully essentialized nature of Asian exclusion.425 While blacks were the salient others in the South and controlled by Jim

Crow segregation, East Asians were the salient others in the West and controlled through different means. Both made their way into national policy discussions, but whereas Jim Crow laws made hidden sentencing based on blackness unnecessary (for now), the combined threats of yellowness and contested whiteness (elucidated below) invited the neutral, race-blind legitimacy of hidden sentences.

At the root of the moral panic was the image of lesser men and women who were exceptionally primitive, volatile, filthy, and even innately evil:

[T]he vision of the menace from the East was always more racial rather than

national. It derived not from concern with any one country or people in particular,

but from a vague and ominous sense of the vast, faceless, nameless yellow horde:

the rising tide, indeed, of color.426

These tropes, like other racialized stereotypes, were supported by scientific evidence of racial inferiority and cultural narratives of essentialized difference. Eugenicists published “proof” of innate hierarchies between the white Caucasian race and the yellow Mongolian race (and of course, between the black Negros and sometimes others, including Native Americans and

Malays ians), while racialist newspapers and journalists warned that the “colored,” “diseased” peoples of the world were banding together to infect and destroy the western, white order. The widely circulated magazine, The San Francisco Wasp (yes, blatantly a publication for White

Anglo-Saxon Protestants) began publishing caricatures of the political and economic threat of 201

“Chinese menace.”427 Even popular fiction followed suit, using Asian characters based on amplified physical traits and cultural stereotypes from the amiable, dainty Charlie Chan to the diabolical, mustached villain, Fu Manchu, whose plans varied from outright invasion to turning

American citizens into opiate addicts.

In fact, it is safe to say that the salient, racialized other of the times in California was the essentialized Asian. Blacks were largely concentrated in the southern and northeastern states,

Mexican immigrants largely stayed in New Mexico and Arizona (and sparked very little national panic compared to the Yellow Perils428), and conflicts with Native Americans were focused in the Midwest, so that western states remained focused on the divisions within whiteness and the deeper divide between whites and the Asian other.429

A Foundational Exception: Deceptive Color-blindness as a Legitimating Tool

The ultimate result in this period of bureaucratization, formalization, and rationalized logics was a number of hidden sentences based on the East Asian other. Until the latter half of the 1800s, the states were essentially in complete control of immigration policy, and they retained significant powers to regulate immigration until the last decades of the century. At first, then,

California policymakers blatantly limited Chinese immigration, imposed taxes directly on

Chinese laborers, and instituted prison-like quarantine measures on them.430 Yet between the federal Passenger Cases, the California Supreme Court’s own rulings in Lin Sing v. Washington, and other cases, the courts made it clear by the 1860s that although states were empowered to regulate immigrants, they had to do so through their police power—and therefore not through overly racist or nationalist limitations.431 202

California legislators predictably responded not by giving in, but by looking for a loophole, a way to regulate Chinese immigration without expressly saying so. The Anti-

Kidnapping Act of 1870 and the accompanying Anti-Coolie Act of 1870 were both designed expressly to limit Chinese immigration for women and men, respectively, through color-blind exclusions based on standards of criminality that circumvented the courts’ rulings.432 The Anti-

Kidnapping Law treated Chinese women as “presumptive prostitutes to achieve its aim” of excluding them: in order to gain entry, they had to prove that they were immigrating

“voluntarily” (i.e., were not being forcibly kidnapped) and that they were “good person[s] of correct habits and good character” (i.e., were not being “duped” into prostitution).433 The Anti-

Coolie Act, enacted on the same day, imposed identical requirements on immigrating Chinese men, but its express purpose was to prevent “a species of slavery” among (male) laborers rather than to combat forced prostitution.434

Because those two laws turned on “good character” standards rather than express restrictions in response to criminality, they are by a technical reading regulatory punishments rather than hidden sentences. They “only” implied—by the express language of their preambles and legislative history—that the “good character” for which they were looking was connected with non-criminality; the Anti-Kidnapping Act framed its provisions as designed to prevent

Chinese women from immigrating “for criminal and demoralizing purposes,” and the Anti-

Coolie Act framed male Chinese slave laborers as “criminals and malefactors.”435 In 1874, though, when California policymakers merged those two laws into the state’s overall immigration restrictions, it is no wonder that they found it simplest to just add “convicted 203 criminal” and “lewd and debauched woman” as excludable classes (among other “undesirables”), transforming those regulatory punishments into hidden sentences.436

Policymakers’ choice of framing (and its success virtually without disagreement) was not coincidental in either law and fits into the overarching narrative of hidden sentence law’s origins.

First, it was already becoming commonplace in the face of expanding administrative bureaucracies at both state and federal levels for law to formalize character and reputational standards; as Chapter Two showed, with regulation comes the need to control access and enforcement with new, rationalized rules.437 Second, as Chapter One showed, worries about criminals emigrating to the United States in exchange for commutation of a sentence predate the nation itself; the British Crown had a habit of deporting felons to the colonies, and concerns about Western and Southern European nations “dumping” their undesirables in America had surfaced as recently as 1874 in the form of urgent correspondence between Congress and

President Grant.438

Third, policymakers’ particular choices in separately regulating men and women, basing the original regulation of the unacceptability of certain unstated habits and character standards, and the hard-to-miss implication of criminality in both standards were all designed as racial coding within ostensibly color-blind laws. Fears that the “horde” of Asians would overrun whiteness, like many racialized stereotypes, were highly sexualized.439 At the center was the dreaded “dragon lady” who would ensnare white men into miscegenation alongside the primal, polygamist Asian man who would steal and rape white women. Perhaps the most famous line from “The Mask of Fu Manchu” is the caricatured villain proclaiming, “Conquer and breed! Kill the white man and take his women!” Various newspapers made these stereotypes even more 204 prominent in a 1930s attack on “tiger woman” Elaine Black for marrying the Chinese communist, Karl Yoneda. Sexualized fears of the Asian other were thus key to the immigration exclusions enacted throughout the yellow perils—and in the lead-up to the 1875 law, Grant’s report on commuted felons overlapped with his call to control involuntary immigration of

Chinese laborers in general (i.e., men) and “particularly of Chinese women, who he said were

‘brought for shameful purposes, to the disgrace of the communities where they settled and to the great demoralization of the youth of these localities,’” and went on to call them “evil practices.”440 What Californian legislators did, then, to circumvent judicial limitations on its immigration power was to create two hidden sentences based on purposefully race-neutral terminology that were to become foundational to the trajectory of immigration restrictions.

A year later, twenty-two detained Chinese women sued to question the 1874 act’s constitutionality, and the U.S. Supreme Court agreed, henceforth invalidating any state control over immigration.441 As a result, in March of 1875, Californian Congressman Horace Page convinced Congress to pass the first restrictive federal immigration act, popularly called the Page

Act after its author. The Page Act is a clear example of policy diffusion with the express intent of taking over immigration control from the states: based without acknowledgement on

California’s laws, it designated just two excludable classes in seemingly race-neutral language:

“persons undergoing a sentence for…felonious crimes” and “women ‘imported for the purposes of prostitution.’”442 This first federal immigration law—containing the first federal hidden sentences—was passed without any floor debate or written report, “apparently because of its uncontroversial nature.”443 This lack of debate or even discussion of hidden sentencing would become typical throughout the twentieth and twenty-first centuries, and therefore key evidence 205 of the exclusionary assumption at work. It also allowed the purposeful use of deceptively color- blind terminology in Californian immigration law to seep into federal immigration law as an unrecognized, implicitly legitimate measure of color-blind belongingness.

Even after the new exclusions, pressures on the federal government continued from all angles, and as Chinese immigrants spread to midwestern states and New England, new conspiracy-like stereotypes surfaced that Chinese laborers were being coerced to immigrate and work for lower wages, so that labor movements across the country demanded more solutions.444

In 1878, the Senate responded first by attempting to abrogate the Burlingame-Seward Treaty and was only thwarted by President Hayes’s veto.445 In 1879, though, California amended its constitution to explicitly exclude Chinese laborers from corporate, public office, and civil service positions—though these provisions were shortly challenged in court and changed.446 In 1882, the federal Chinese Exclusion Act flatly prohibited any further Chinese immigration, ending the peak of the first Yellow Peril.447 Within that same month, Congress enacted a new immigration law, this time excluding not just felons whose sentences were commuted but simply

“convicts”—while maintaining exclusions for prostitutes, adding some additional exclusions, and adding extensive regulations about immigration control.448 Once again, however, the race- blind penal restrictions remained hidden from their racialized overtones; even though the

Chinese Exclusion Act and the first “general” immigration law were passed so close together

(and through the same committee), “the Congress that passed the two measures sensed no connection between them.”449

Referring to racialized and nationalist sentiments through neutral-sounding, coded language was even then nothing new. For instance, the so-called American Party was a semi- 206 secret nationalist political movement in the 1850s that sought to “purify” American politics from

Catholic and non-Anglo influences; it came to be called the Know Nothing movement, because its members were specifically instructed to tell others that they “know nothing” about the organization’s inner workings and plans.450 Perhaps the most well-known trait of the Ku Klux

Klan that emerged after the Civil War is its practice of having members disguise their identities through hoods, secret registers, and fraternity-like code words. It is possibly due to these intentionally covert, Anglo-Protestant supremacist movements that more well-intentioned attempts to find race-neutral and status-neutral standards that help eliminate discrimination face so much criticism and failure. Not only are there many examples throughout history of coded racism, but Americans are simply used to having seemingly neutral standards correlated with racial disadvantage, so that it is easy to explain away or ignore.

The Pattern Spreads

It was in the lull after the first Yellow Peril and again after the second when most hidden sentences surfaced with a link to Asian racialization—the times when anti-Asian sentiments were not at panic level but still salient and well developed. When the panic was in full force, it was easier to justify overt, non-neutral exclusions against “Orientals” and immigrants from certain counties, but when it was subsiding, ostensibly race-neutral classification became more appropriate and salient.

The 1891 Immigration Act was the one that added to the list of excludable persons both

“felons and infamous criminals” and “misdemeanors of moral turpitude”—taking a leaf right out of New York’s and other Eastern states’ developing playbook of occupational restrictions.451 In some ways, this recodification marks a shift from concerns about excluding undesirables being 207 involuntarily emigrated to “sifting through” voluntary immigrants for their quality, and this shift occurred when the largest and most salient category of immigrants was coming from Europe.452

As one congressman put it,

We have now before us race problems which are sufficient to tax to the utmost the

fortunate conditions with which nature has blessed us. I do not, for one, desire to

see these face problems multiplied or complicated. I do not want to see the

quality of American citizenship decline beneath the effects of an unrestricted

immigration, and I am utterly opposed to a system which is continually dragging

down the wages of American labor by the introduction or the importation of the

cheapest, lower, and most ignorant labor of other countries.453

Yet East Asian immigrants (even the most ignorant who were stereotypically “coerced” through offers of employment to provide such cheap labor) were in the voluntary category, and the kinds of salient moral turpitude that were salient for immigration discussions almost invariably related to the simmering Yellow Peril. This new recodification marks the first time crimes of moral turpitude made their way into immigration law, and in typical hidden sentence form, it was adopted without debate, comment, or dissent—meaning it was passed instead based on shared assumptions of exclusion.454 In the same breath as the moral turpitude exclusions, the new law also included prostitutes and “polygamists,” the sexualized and threatening stereotype of Chinese men, to the list of excludable persons.

Then, the major administrative recodification of 1907 added the first deportation laws, which were hidden sentences.455 Even if immigration exclusions are arguably not hidden sentences because they are based on crimes labeled by other nations, deportation due to an 208 offense within the United States certainly is, and the development of deportation provisions mimicked the earlier pattern of exclusion provisions: the 1907 law first provided only for deportation for prostitution “or other immoral purposes,” and only later laws in 1917 expanded the deportable category to include crimes of moral turpitude.456 Additionally, the 1907 deportation provisions included “contract laborers,” a term the law used for persons (men)

“induced” to immigrate by contracted employment. In 1915, federal law began instituting its own occupational restrictions on the medical profession—but managed to target only the licenses of consulate pharmacists in China who were addicted to opiates or convicted of crimes of moral turpitude.457

Hidden sentences targeting East Asians then spread outside of laws that expressly or implicitly regulated immigration. More than fifty years before President Nixon and then–

Governor of California Reagan declared an official “War on Drugs,” the United States began actively escalating the conflict, at first targeting the drug associated with the Chinese: opium.458

The first skirmish was a local San Francisco ordinance in 1875, banning the smoking of opium, because smoking (as opposed to taking it orally or other methods) was particularly associated with Chinese usage patterns—and there were rising fears of Chinese men luring white women into opium dens for lurid purposes. The conflict spread from there, giving life to all the recognizable tools we might associate with the War on Drugs today, including hidden sentences.

The first hidden sentence in California’s statutory law was also the first three-strikes law in the nation’s history. In 1905, long before the three-strikes laws that have been heavily criticized for causing mass incarceration after the 1970s by mandating long prison sentences for third-time offenders (also traced to California law), the California board of pharmacy was 209 required to permanently revoke licenses for the third violation of the Pharmacy Act, which included regulations on handling and distributing prescription drugs, especially opioid

“poisons.”459 When hidden sentences diffused from pharmacist regulations into other professions in California, they were largely based on a law that was based on a race-neutral regulation of Chinese drug usage. In 1906, when The Jungle prompted hidden sentences on meat-packing inspectors in the Federal Meat Inspection Act, the accompanying Pure Food and

Drug Act instituted regulations about the labeling and usage of opium, along with cocaine and cannabis (which were already stereotypically associated the blacks and Latinos).

President Theodore Roosevelt then appointed Hamilton Wright as the United States

Opium Commissioner in 1908, leading in 1909 and 1911 to the International Opium

Commissions and the International Opium Convention in 1912, the first international drug control treaty.460 Wright publicly expressed the impetus for a national “Opium Fight”: “Of all the nations of the world,…the United States consumes most habit-forming drugs per capita.

Opium, the most pernicious drug known to humanity, is surrounded, in this country, with far fewer safeguards than any other nation in Europe fences it with.”461 Congress, responding to the demands of the treaty and the national call to action, passed the Harrison Narcotics Tax Act in

1914 and a second part of the act in 1915.462

The second part of the Harrison Act, contained a hidden sentence that allowed revocation of pharmacists’ licenses for “crimes of moral turpitude.”463 Entitled “An Act to regulate the practice of pharmacy and the sale of poison in the consular districts of the United States in

China,” it appears in many ways to be a typical example of bureaucratization, formalization, and rationalization of the pharmacist profession. It was, after all, directly modeled after the District 210 of Columbia’s pharmacist regulations, which in turn diffused from various states’.464

Nevertheless, it exclusively applied to pharmacists in consular districts in China (not in, say, any consular district under U.S. jurisdiction), its most detailed provisions concern the sale of

“poison” (opium and cocaine), and its explicit purpose in the congressional record is to further the Opium Fight along with the rest of the Harrison Act. When legislators, American missionary societies, temperance organizations, and other supporters of the act lobbied for it, they argued that it was the duty of white Americans to “save” the inferior races—and also that those drug- riddled inferior races were a threat to white men and women.465 In addition to spreading the rumor that Chinese men were luring and corrupting white women in opium dens, the drafters of the law added restrictions on cocaine to every part of the Harrison Act (even though there was no evidence of it in Chinese consular districts) in order to overcome Southern, states-rights resistance by stoking fears of the “cocaine-crazed Negro” that developed “superhuman” strength, instinctively resisted law enforcement and authority, and went on murdering rampages against whites.466

When the second Yellow Peril struck by the 1920s, its target was largely the Japanese rather than the Chinese. In the wake of Japan’s victory in the Russo-Japanese War, fears of

Eastern societies combined under a shared leader to march toward conquest of western nations reached new heights, and eugenicist Lothrop Stoddard stoked those fears of impending doom with his widely read book, The Rising Tide of Color Against White World-Supremacy.467 The panic died down a little in the 1930s and during the Sino-Japanese War (when the Chinese suddenly became the “good” Asians in popular American sentiment), but reemerged in full force with the advent of World War II and the bombing of Pearl Harbor. The Japanese menace, like 211 the Chinese menace before it, was composed of subhuman, threatening primitives, but it also included a distinct element of treachery, trickery, and amorality. The Japanese were “known” to not understand or even feign truce in order to make surprise attacks, to slaughter prisoners of war after their surrender, to fight recklessly and viciously (likely a stereotype from kamikaze attacks), and thus to deserve no mercy or sympathy.468

It was in response to this essentialized moral corruptness and sub-humanness that the nation managed to justify two of its most panicked, paranoid, and unforgiveable racist moments: the subsequent internment of all immigrant, naturalized, and even native-born ethnic Japanese in concentration camps (focused overwhelmingly in California), and the nuclear bombing of

Hiroshima and Nagasaki. Afterwards, President Truman justified it, “When you have to deal with a beast you have to treat him like a beast. It is most regrettable but nevertheless true.”469

Within this second Yellow Peril, the Asiatic Barred Zone Act of 1917 flat out prevented immigration from all East Asian countries and simultaneously imposed literacy tests (after three presidential vetoes), and it justified these restrictions through the earlier, race-blind language of

“undesirables” applied to entire nations instead of individuals, but it made almost no changes to immigration hidden sentences.470 The next major changes to hidden sentences came in 1952 as the second Yellow Peril died down. The McCarren-Walter Immigration and Nationality Act of

1952 was partially a recodification and collection of all existing immigration law provisions, but partially a concerted effort to “deracialize” immigration policy.471 This act was promoted and lauded as doing away with all remnant of exclusions and qualifications based on race, but it retained more legitimate, “neutral” restrictions based on national origins (which President

Truman attempted to veto). 212

As before, though, the form of the consequent hidden sentences were also based on race- neutral versions of stereotypes and rationales that had existed at the height of the prior racialized panic—and with the implicit threat of the previously detained but possibly “still amoral”

Japanese within national boundaries. The new law added new exclusions for not just prostitutes and procurers by all persons intending to engage in any “immoral sexual acts,” and for immigrants attempting to enter through false and fraudulent means: the hyper-sexuality and trickery of the Japanese other.472 It also remarkably changed the language of exclusionary provisions in an effort to shore up enforcement;473 it did not just allow for exclusion based on seditious beliefs and past crimes of moral turpitude (in addition to the 1907 allowances for deportation based on these and other excludable grounds that occur within five years of arrival), but instead allowed exclusion for any “reasonable ground” to believe that the immigrant

“probably would, after entry” engage in subversive and treasonous behavior—i.e., based on unproven criminal acts. In the same vein, a new, race-blind provision allowed immigration officials to determine whether the essential elements of a crime of moral turpitude existed, with or without a conviction of such a crime. Perhaps most notably, the immigration law that supposedly removed racist references was the one that introduced a “neutral” hidden sentence that allowed revocation of citizenship for crimes of treason, directly reflecting the feared treachery of the (newly reintegrated) Japanese.474

Even with the shift of focus from the Chinese to the Japanese “menace,” and with the spread of East Asian fears to the national stage, state regulations in California consistently centered returned to the threat of “alien laborers” and “foreign-born workers” to the hard- working, “bona fide residents of California” (i.e., all racially coded references to the threat of 213

East Asians to lower-class whites).475 When the Great Depression prompted state legislators to design public works projects to promote employment, and then to categorize precisely who had access to that employment by creating professionalized regulations for all independent contractors (plumbers, painters, etc.), the real battle was the same one California had been fighting since fears of “coolie” laborers.476 From 1929 to 1933, the years when independent contractor regulations were being formed, some policymakers also attempted to pass more blatantly racialized laws to “prohibit the employment of “certain” aliens who were “ineligible to citizenship” (i.e., based on racially biased federal restrictions) as contractors or subcontractors.477

Even the lobbying efforts on these bills came to use race-neutral language that served to hide the exclusive concerns about East Asian laborers:

It is generally known that the contractors and subcontractors doing public work

employ foreign-born workers who have not become citizens of the United States

in preference to American citizens; and…[t]he alien laborers are employed by

contractors principally for the reason that they work for less wages than American

citizens are willing to work for. … The practice of employing aliens on public

works tends to lower the standard of living of American workers and citizens.478

Still, when those more blatant but still ostensibly race-neutral attempts to exclude East Asian workers from the public works programs failed in those years, legislators were successful in passing both measures that prevented “collusion” between public works programs and contract laborers and hidden sentences that allowed revocation of contractors’ licenses for lack of “good character,” “fraud,” or “deceit.”479 214

Finally, now that hidden sentences were becoming more frequent, others that emerged in this period were directly related to fears of the “treacherous and cunning” Japanese and the hyper-sexualized Asian predator. For instance, California passed regulations on its port commissioners (i.e., the officials most immediately responsible for vetting arriving immigrants and imports), stripping them of their positions if they were found accepting bribes or making contracts with their district, and later did the same for park commissioners.480 Then, in 1947,

California used the Los Angeles convict registries as a basis to enact the first sex offender registration statute, almost half a century before the Megan’s laws of the 1990s.481 The particular sex crimes included not only forced rape and prostitution but also rape through narcotic drugging, “enticing a chaste” female minor or “tricking” any female into intercourse,

“sex perversions,” “seduction” of a “chaste” female through promise of marriage, and “lewdly influencing” a person under twenty-one.482 Although couched in neutral terms, the form of the restrictions are closely connected to the hyper-sexualized fears of East Asian men and women threatening the white race through seduction, trickery, and polygamous reproduction.

Nationalist Fears and Essentialist Responses

Moral panics in the early-to-mid 1900s were not, however, limited to the Yellow Perils, nor even strictly to racial groups. In certain moments, the defining other was certainly not the “mongol” or even the “negro,” but rather the “subversive.” Even before the Cold War, both national and local politics were rife with fears of “anarchist” and “socialist” agendas that were perceived as advocating violent overthrow of the U.S. government and complete conversion of the western way of life. At their height, these anxieties solidified into the two, well-known Red Scares of the mid-1910s and late 1940s. In between and after these panic attacks, however, concern about 215 seditionists remained while Americans remembered their principled objections to political persecution. At least one of the predictable compromises came in the form of hidden sentences: seemingly neutral restrictions that policed political and occupational access for the public good, but nevertheless covertly concentrated on stereotyped threats of the red menace.

The othering of socialists and anarchists in the early-to-mid twentieth century bears striking similarities to the racialization of Asians, blacks, and other groups in U.S. history. The

Communist was portrayed in essentialized form through propaganda magazines and films and in popular culture like the television show “Adventures of Rocky and Bullwinkle” or novels like

One Lonely Night, so that paranoiac stereotypes of the Communist threat abounded for the majority of the twentieth century: they were imagined as robotically unemotional, weak and threatening of the nation’s “moral fiber,” feminine and primitive, and (ironically, given actual data on the subject) uneducated, ignorant, and unqualified for more than manual work.483 They were even associated with the ethnic identity of Soviet, though the traits of the Soviet

Communist were in reality no more static or definitive than are other essentialized identities.

Nonetheless, apart from stereotypical associations to particular ethnic and national origins, there were not typically phenotypical distinctions drawn between anarcho-socialists and others, nor was there a slew of pseudo-scientific evidence that justified hierarchical relationships between them. Thus, although these political groups were heavily othered to the point of more than one fit of essentialized panic, they were not per se racialized.

In some ways, it is therefore artificial (and even reductivist in itself) to separate laws targeting racialized immigrants from those that initially sought exclusion of essentialized communist threats. Communism was largely associated with the politics of revolutionary 216 movements in (and therefore excludable emigrants from) Imperial China and Imperil Russia— and Western societies at the time of the first Yellow Peril largely perceived even Russians more as members of the Asiatic races than the European ones.484 In fact, many of the first racist warnings of the “spectre” of Eastern emigration into European countries largely referred to

Russian immigrants that were perceived as more “Mongol” than “Caucasian.” It is also reasonable to attribute much of Western societies’ instinctive, essentialist revulsion about socialist politics as an innate threat to the democratic way of life to the simple fact that many of their strongest and most successful adherents had non-Western origins. After all, it is somewhat strange that American history contains two red scares and a host of anti-communist laws but no correspondingly severe responses to fascist movements derived from continental Europe, when fascism is at least as anti-American (if not more so) as communism ever has been.485

Exclusions based on socialist and anti-American beliefs can also be seen as race- and status-neutral attempts to exclude both Asians and non-Anglo Europeans. For example, the

McCarren-Walter Immigration and Nationality Act of 1952 mentioned above was not only passed in the wake of the second Yellow Peril but also in the context of strengthening enforcement against “subversives” and included a number of new enforcement provisions designed with language targeting socialists and anarchists, such as the revocation of citizenship for treasonous crimes. Such a provision can be seen both as an overt exclusion of socialists and a covert exclusion of East Asians based on an overriding stereotype of treachery and amorality.

Additionally, as the next section will show, the stereotypical anarchist was a white, non-Anglo

European (who has possibly been “seduced” by the lure of Eastern socialist teachings). 217

It is notably difficult to separate out the motives of legislatures in passing such laws and perhaps more useful to recognize that multiple kinds of essentialization are likely overlapping and operating at once, both through separate legislators and multiple, complimentary views of individual legislators. This is especially true given that the evidence within the legislative record is often couched in the same race- and status-neutral terminology of the hidden sentence laws themselves, sometimes revealing underlying stereotypes and sometimes not—and likely never revealing the entire story. Hence, for analytical purposes, it is useful to identify trends in hidden sentences that are based on identifiable stereotypes of socialists and anarchists even when other stereotypes may not be visible, with the important caveat that the presentation of separate findings on forms of othering should be read as complimentary and inextricably overlapping.

As with the Yellow Perils, the hidden sentences that arose from the Red Scares tended not to arise at their peak moments. The Immigration Act of 1903, for example, introduced exclusionary grounds for immigrants who were “anarchists, or…who believe in or advocate the overthrow by force or violence of the Government of the United States.”486 This law thus

“penalized newcomers for their opinions for the first time since [the Alien and Sedition Acts of]

1798.”487 The so-called Anarchist Act of 1918 then removed the provision that persons who had resided in the United States for five years were not subject to deportation—while expanding the definition of “anarchist” to include those who advise or teach anarchy (including property destruction or sabotage), those who write, publish, distribute, or possess anarchist materials, and those who are even tangentially affiliated with anarchists or those who advise, teach, publishes, or displays anarchist ideas. 218

One exception to the pattern of non-peak hidden sentencing, however, was the Smith Act of 1940, also known as the Alien Registration Act.488 The Smith Act was a publicly prominent law that made advocating overthrow of the government or affiliating with anti-government groups punishable by fines and imprisonment, and required all immigrating persons and current alien residents to register with the federal government. Its less public provisions, however, also imposed hidden sentences on top of the visible punishment: persons convicted of subversive activities could not hold federal office for five years, and any foreign person (naturalized or not) convicted of being a member of subversive groups “at the time of entering the United States, or

…at any time thereafter” could be deported. It was “hastily passed” by Congress in a “spasm of fear” aimed at the looming Second World War, rather than a carefully crafted response to tangible threats, and it was adopted with little discussion (none outside of committee on the hidden sentences) and only four nay votes in Congress.489 The latter hidden sentence, allowing deportation for conviction of associating with subversive groups “at any time,” was explicitly crafted by Congress to avoid courts’ interpretations of the 1918 Anarchist Act; judges had ruled that Communist and labor organizer Harry Bridges could not be deported under the 1918 Act, because at the time, he was not “currently” advocating overthrow of the government.490 The former hidden sentence, however—the one removing and banning persons from serving in federal office for five years—simply seemed an unconscious reflex, appearing in an early version of the bill with no deliberation or reasoning at all.

A wide variety of hidden sentences relating to “subversive,” “anarchist,” “anti-American”

Communists were also enacted outside of immigration law, most of them designed specifically with essentialized threats in mind, and none of them with explicit acknowledgement of the 219 hidden sentences at issue. In 1917, Congress passed the Trading with the Enemy Act that allowed an appointed Office of Alien Property Custodian to impose forfeitures of any property connected with criminal violations of engaging in business or commercial transactions with persons, citizens, governments of any nation at war with the United States.491 It was passed, along with the 1917 Espionage Act, in response to President Wilson’s repeated urgings for

Congress to (allow him to) control “creatures of passion, disloyalty, and anarchy” who have

“entered into conspiracies against the neutrality of the Government.”492

Later, Congress enacted the Communications Act of 1934, which is the federal law that created the Federal Communication Commission, gave broadcasting rights to private radio and television companies with certain limitations, and also allowed regulation of telegraph and telephone companies in the same way.493 Among the provisions of the Communications Act was a hidden sentence that applied civil fines and forfeitures in response to any criminal violation of the law’s provisions, including intercepting or divulging information broadcast over wired or wireless sources—a common fear associated with “subversive activities” and foreign propagandists.494 In 1942, Congress added a little known amendment to the Foreign Agents

Registration Act, which is well-known anti-propogandist act, mandates deportation of any immigrant acting in a “political or quasi-political capacity” on behalf of foreign governments or persons.495

When Red Fears appeared in California (often before spreading nationwide), hidden sentences likewise popped up in state law. The most prominent examples both appeared without explanation in the 1943 Government Code, which was ostensibly a recodification of existing law like others mentioned near the end of the last chapter: removal and disqualification from public 220 office for refusal to testify as a witness before the legislature.496 These laws were created in the legislative session immediately following California’s creation of its Senate Factfinding

Subcommittee on Un-American Activities, the state’s equivalent of the federal House Committee on Un-American Activities. Under California Senator Jack Tenney (and therefore sometimes called the “Tenney Committee”), the Committee had already engaged in a slew of investigations of suspected “subversives,” failed to convict anyone of un-American activity, and was engaged

(unsuccessfully) in 1943 in attempting to force George Knox Roth, who had been broadcasting public support for interned Japanese over the radio waves, to testify that he had been paid by

Japanese persons to make such broadcasts.497 It is not difficult to imagine why new visible and hidden penalties for refusing to comply with the legislature’s (i.e., the Committee’s) orders, but it is also instructive that no express effort was made to explain or argue for such new restrictions in the “only” recodified Government Code.

Shifting Whiteness and Messy Contests over Racial Inclusion

The last prominent category of essentialized othering that characterizes hidden sentences between their onset and the 1950s is that of white immigrants or “ethnic whites.” For centuries in American history—from the colonial period through the early years of the twentieth century—

“white” did not refer to the same grouping of phenotypical, national, cultural, or other traits as it does today; it referred primarily to white, Anglo-Saxon Protestants and groups that were “most like” them, often to the exclusion of others.498 Throughout the eighteenth and nineteenth centuries, Germans, Irish, Jews, Italians, Eastern Europeans, and other groups had to contest and earn their whiteness, to prove their ability to be assimilated and eventually their belongingness in 221 a broader “Caucasian” race that was constructed as part of the scientific racial projects of the early 1900s.

Essentialized stereotypes of non-Anglo whites, both as phenotypical identifiers and consequential traits, abound throughout U.S. history. Throughout the nineteenth and early twentieth centuries, for example, the Irish were marked by a low brow, upturned nose, “black tint of the skin,” etc., and characterized as, among other traits, depraved, brutish, impulsive savages of inherently “poor stock” that were ultimately in terror of law and therefore subject to terrorist criminality.499 Italians were also ascribed with criminal-like traits, but in a more sneaky, treacherous, conspiratorial (i.e., mafia-like) way. Jews, with their “sensual lips,” “satyr eyes,” and “animal jaw,” were essentialized as greedy, lustful, perverted, and contemptuous of the law.500 Anglo-Saxons, to the contrary, are everywhere throughout the historical narrative portrayed as noble, dignified, and preeminently “civilized” compared to all those “savages,” often in ways that are calculating, measured, and “naturally” logical—adding a unique twist to the hidden penal system’s dual stories of rationalization and racialization.

The processes by which non-Anglo whites were gradually merged into an overarching category of white Americans are almost ubiquitously characterized by economic struggle within the working class, either by workers who leveraged their similarities to elite Anglo-Saxons to gain advantage over “more racialized” others (especially Blacks) or by those elite whites who actively pitted workers against one another to maintain a racial-economic order in ways straight out of Marxist theory. Even before nationhood, for instance, colonial slaveowners consciously constructed a “white” identity in order to distance themselves from non-European slaves and legitimate their oppressive superiority.501 Only later, in the face of increasing rebellious 222 tendencies from both European and African bondsmen, did they deliberately drive a dividing wedge into the lower class by extending that whiteness as a shared capitalist-worker identity.502

In the middle of the nineteenth century and routinely throughout the early years of the twentieth as the worker’s movement picked up force, Irish race riots emerged targeting the blacks with whom they were competing for economic and political resources.503 Again, there was evidence that elite whites purposefully enlisted white immigrants into the system of black oppression in order to distract and keep the working classes divided against one another.504 Perhaps most importantly in the context of analyzing a pattern of race-blind policy actions, the “invisibility” or

“transparency” of the white identity itself makes it even more likely that essentialized difference will be naturalized, phrased in terms of meritocratic (class) conflict, and otherwise used in ways that are difficult to disaggregate in the historical record.505

In our story of hidden sentences, there are likewise key examples of overlap between racializing whiteness and essentializing other groups. For example, Congressman Howard

Smith, author of the prominently anti-Communist Smith Act of 1940, was also a key anti-labor organizer in Congress and an outspoken xenophobe.506 The public works projects developed in

1930s California to combat the Great Depression by creating employment opportunities for independent contractors was aimed at lower-class white workers, but color-blind efforts to exclude “certain” (i.e., East Asian) foreign-born workers largely failed, leaving anti-alien advocacy to target East Asian, European, and other immigrants equally, white or not.507 The medical “quacks” and “fakes” who were repeatedly presented as publicly threatening by

California’s League for the Conservation of Public Health and other groups of progressivist medical professionals (see Chapter Three), and who were targeted by repeated hidden sentences 223 within the movement toward “rationalist” professionalization, were actually practitioners of spiritual healers, prayer-based medicine, and other practices that were especially common in

Southern European and East Asian medical practice.508 The 1917 Trading with the Enemy Act, while couched in the terminology of “unpatriotic” anti-Americanism, was passed during the First

World War and quickly used to strip almost half a billion dollars of funds and property from

German Americans who were relocated en mass to internment camps.509

Even more so than with other racialization stories, then, it is difficult to disaggregate the separate roles of race and class in hidden sentences that were based on essentializations of white worker identities. As I elaborate in different light above, with the messy divisions between

Communist and East Asian essentializations, it is not necessary or productive for our analysis of hidden sentencing to disaggregate some “true” target of essentialized othering for each hidden sentence law, or for hidden sentencing overall in particular moments. Our focus is on the social function of hidden sentences as furthering essentialization of all sorts through the status-blind language of crime and punishment. Significant overlap between othering processes, then, is simply further evidence of the increasing relevance and power of criminalization as a legitimating standard, and the reader can take my “separate” analysis of essentialist categories in this analysis merely as a convenient means of relaying my findings. After all, the Progressive and workers movements that are central to political change around the turn of the twentieth century, the Communist and anarchist identities that were leverages against them, and the East

Asian and African identities against which they were juxtaposed to define whiteness are all part of the complex story of American othering in that one moment, so that one kind of racial formation is in the end simply one facet of the overall story of American othering.510 224

For example, educational credentials that were prominently used across medical, legal, and other professions have repeatedly been shown to be a legitimized means of selecting employees from white, Anglo-Saxon backgrounds—to the exclusion of all racialized others, regardless of which group was “targeted.”511 By 1946, for instance, seventeen states (including

California) led a trend toward regulating the accountancy profession, limiting its practice to registered or certified public accountants, and instituting a number of controls, including hidden sentences, on who could register and keep their licenses.512 Part of the reason that accountancy professionalized later than, say, medical and legal professionals was that the courts had trouble seeing why regulation of accountants was crucial for “public welfare” (as issue we to which we will return in Chapter Five), but part of it was that until the 1940s, accountancy was the

“whitest”—in this case, meaning the most Anglo-Saxon—profession for the longest time.513

Accountancy professions only started closing or partially closing their boundaries to unqualified outsiders through educational, character, and criminal standards after the New Deal and the end of World War II, when there was a palpable surge in East Asian, Southern European, and Black accountants.514 The point of requiring licenses or registration is that it

creates a guild system, in which an industry or occupational group can police

itself. By these means an [elite, Anglo-Saxon] oligarchy dominates, competition

is suppressed, and minority behavior restrained. It need hardly be added that the

concept of “good moral character” takes its content from majority values.515

The professionalization of accounting in California followed that pattern. Massive numbers of newcomers entered the profession as World War II ended through special exemptions to the entry requirements for veterans returning from the war—so that the backlash 225 from the elite, Anglo-Saxon leadership of the accountancy profession was intense.516 The accounting elite objected strongly to allowing veterans access to the profession “regardless of qualifications” and also to the delegation of powers away from the central board of accountancy, which would lower tiers of accountants to police their own qualifications. In the end, though, the existing tiers of accountants agreed on a compromise that allowed all existing members of the practice to register (either as “certified public accountants” or simply “public accountants”) so as to permanently close the profession to any other new members of lesser qualifications— especially veterans from lower-class, ethnic white backgrounds.517 Included in the compromise but predictably (at this point) unmentioned by any party or analysis of the bill was a hidden sentence that allowed the board of accountancy discretion to revoke licenses in response to any crime “substantially related to the qualifications, functions and duties” of an accountant.518 In the face of large influxes of immigrants, then, the expansion of educational, criminal, and other credentials were “used both as a means of control and monopolization by the Anglo-Protestant bourgeoisie, and eventually as a path of creating positions and to occupational mobility by many immigrant groups themselves.”519

Californian legislators also had a number of racially coded economic concerns in mind when they created Horse Racing Law of 1945, which granted officials the power to ban persons guilty of touting from racetracks.520 The public’s overwhelming expressions of morality concerns about touts were also connected to the rumor that racetrack betting was detrimental to the industrial side of World War II efforts. California’s racing associations were hence not only required to apply for licenses from the state-controlled horse racing board, which was not so dissimilar from other boards that oversaw businesses or professions, but also to pledge high 226 percentages of their profits to the state.521 Combined with public concerns about bookmaking and race fixing, however, this state-created monopoly came under fire from progressivist journalists as a collusion scheme between the state and the racing associations, which raked in unprecedented amounts of profit even while donating some to charity, all at the cost of the “little fellow who makes all this possible.”522 By the end, the public and the media were convinced that the racing association managers were even cooperating with the feared bookmakers and touts to defraud the middle and lower classes of millions of dollars.523 As Chapter Three repeatedly mentioned, however, all of touts and bookmakers that garnered public or political attention were

Irish or Jewish, and therefore connected without the need to expressly recognize or say so to stereotypes of bookies for the Irish and Jewish mobs. In case the message was unclear, though, those “unethical and devious” touts were repeatedly juxtaposed against the “men and women of the middle income group, married, [and] church members”: good, Protestant whites.524

Yet, even while acknowledging the overlap between essentialist categories, the racialization process through hidden sentences is still not neat and tidy for ethnic whiteness.

While some hidden sentences did indeed reify classifications based on the minority status of non-

Anglo, white immigrants, a distinct class of early hidden sentence laws were instead lobbied for by non-Anglo whites and largely targeted elite Anglo-Protestant businessmen. In 1906,

Congress enacted the Federal Meat Inspection Act and Pure Food and Drug Act in response to the public hysteria that followed from Upton Sinclair’s The Jungle, published earlier that year.525

The book’s key message was to expose the meat-packing industry’s raw and ruthless exploitation of white immigrant workers, to provoke public action against the elite, Anglo stockyard owners on behalf of the lower-class, ethnic white.526 It succeeded in provoking Congress to take action, 227 and although the restrictions it created in the end were most severe against meat-packing inspectors and served to benefit as much as hinder the elite owners (by providing their products with official, external certifications), it is an example of partial motivation by white immigrants against the “more white,” typically Anglo-Saxon capitalist class. Similar stories of mobilization against elite, Anglo business owners can be told with California’s 1925 Prop. 11, which declared any dam (i.e., owned by rapidly expanding power companies) built in the Klamath River Fish and Game District to be automatically removable as a public nuisance, or California’s 1919

Workmen’s Compensation, Insurance and Safety Act, which stripped elite, typically Anglo insurance carriers of their business licenses for the crime of insurance rate setting.527

In these ways, hidden sentences arose in a moment where the boundaries of racial inequality were contested, so that they were simultaneously reifications of stereotypical exclusions of white immigrants and a tool used to redraw the boundaries of middle-class

Americanism around whiteness instead of Anglo-Protestantism. Still, it is safe to say that the

Progressive “‘Reform’ movement of the turn of the twentieth century was above all a mobilization of the Anglo-Protestant middle class, reacting against the pressures of the new economy and culture, but its greatest successes were against the immigrants in politics and culture,” not against the upper-class trusts.528 The same can be said more specifically in regard to the development of hidden sentence law, wherein the overall pattern is increasing control of white and non-white workers rather than of the elite, Anglo-Saxon capitalists.

LESSONS FROM THE PAST, STRUCTURES OF THE PRESENT

We have a tendency to imagine either that things have always been exactly the way they are, or that they problems of the present are a radical break from the past. We imagine that mass 228 incarceration in today’s United States is exceptional in the number of people imprisoned and in the racial disparities of imprisonment rates, not only compared to other nations but also compared to any previous patterns in American penality.529 We imagine that color-blind racial bias is a unique problem of the modern era in the United States, in terms of law and policy but also in terms of everyday, cultural frames and assumptions.530 We imagine that the hidden penal system is merely a set of collateral consequences as new as mass incarceration—and also that the former simply appeared as a function of the latter.531 We imagine that the War on Drugs began when Nixon said it did, that its policies are just as new and innovative, that it is a pure reaction to the Civil Rights Movement, and that its coded racial intentions are responsible for each of these social problems.

Even when we recognize patterns, such as repeating systems of racial caste from slavery through the “new Jim Crow” that have remarkably similar functions and consequences, we view such patterns as problematic and remained focused on the exceptionally new features of the new iteration, like color-blind policies centering in the penal system.532 And perhaps most consequentially, we imagine therefore that change is simple.

The findings of this chapter, along with the chapters before it, throw doubt on many of these assumptions. It is by no means novel to argue that the societal structures we recognize the

United States today, or indeed in any spatial and temporal moment, are deeply and irrevocably linked to the institutional patterns that gave rise to them—especially when our subject is political structure and public policy.533 Social institutions resist change through the establishment of structural rules and incentives and the creation of deeply ingrained cultural assumptions, and even if change does occur, those systemic and institutionalized frameworks constrain available 229 options for new ideas, new policies, and new iterations of old institutions.534 It may not be true that nothing is ever new in human history, but it is true that change in the present is always dependent on the institutions of the past.

When we look at their history with a critical eye, hidden sentences are exemplary of each of those points. The hidden penal system is not a new system of color-blind racial exclusion that emerged from the race-coded beginnings or development of mass incarceration. They are part of a longer-term trend in racialization, essentialization, and belongingness that begins at least as early as the nineteenth century in the United States, and that since at least then has been primarily based in ostensibly race-neutral, status-neutral terminology.535 They do, as Chapter

Three argued, function as a rationalist, modernist system of classification, but the kind of classification that they engage in and kinds of inclusionary and exclusionary labels that they confer are based in essentialized othering.

This historical lens provides further evidence that race is socially constructed and has powerful cultural implications throughout its ever-shifting formations in American history.536

The War on Drugs, for instance, began not in the 1970s and 1980s with racialized notions of black and later Latino Americans, but near the turn of the twentieth century with racialized notions of East Asian immigrants. Its policies did immediately include hidden sentences of multiple (recognizable in today’s policies) kinds—from three-strikes restrictions on pharmacists’ licenses to mandatory deportation based on prostitution and polygamy—and it was initially based on purposive racial coding in falsely color-blind language. Still, hidden sentences also appeared before and unrelated to drug conflicts, also targeting Soviet Communists, and white immigrant groups like Jews and the Irish, being examples of multiple, related racialization and 230 essentialization processes—each of which was framed or assumptively imagined by policymakers in race- and status-neutral logics.

In the end, then, hidden sentences contribute substantially to a key aspect of America’s

“white racial frame.” Under this dominant frame that pervades many aspects of U.S. society and often serves to justify racial disparities, whites and whiteness are portrayed as and considered to be good, superior, and desirable while various kinds of nonwhites and nonwhiteness are represented in the opposite light.537 In one aspect of such framing, the precise one implied by the rationalist, netural language of hidden sentencing, whites can be correlated to “law-abiding citizens” while nonwhites can be correlated to the ever-feared, threatening criminals. The existence of color- and status-blind logics in hidden sentence laws well before the contemporary era—and in the time in United States history that is arguably most characterized by pervasive, overt racist and essentialist practices—provides important evidence for institutionalized racial bias and a key mechanism for systemic racial inequality’s functions.

The racial and essentialist formations in the history of the hidden penal system have greater permanence even than slavery and the exclusions of Jim Crow. Because hidden sentences are hidden, they are rarely noticed and almost never repealed, instead existing as deep, unnoticed structures that are steeped in the biases of the past. Hidden sentence laws are systemic reifications of essentialized othering, so that when they are used in social action, they reproduce those biases.538

Yet reifications are static, while other kinds of racial and essentialist formations are continually dynamic. When hidden sentence laws are put into action in the era in which they were formed, it may be likely that the meanings of inclusion and exclusion that their subjects 231 experience are closely linked to the meanings of otherness that gave rise to them. As the temporal (and likely social) distance between their creation and their experience increases, however, we are forced to ask what meanings of essentialized otherness, if any, might be salient—what kinds of classification and othering might now be at the heart of the hidden penal system’s social function. The next chapter in our story, which deals more directly with the hiddenness of hidden sentences, argues that those race- and status-blind essentializations reemerge as a reified, more legitimated form of boundary-making experienced not as status- neutral but as deeply focused on a newly salient essentialized target: the criminal other.

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CHAPTER 5

PERSISTENCE: HIDDENNESS AND RITUALS OF

CRIMINALIZATION

We began this study with two particular goals. We have in essence achieved the first: previous chapters turned a critical eye on the patterns of the past in order to question the increasingly popular assumptions of the present that hidden sentences in the United States are merely the accidental side-effects of “real” punishments like community supervision or imprisonment, and that the hidden penal system overall is an unintended consequence of the racially biased War on

Drugs and mass incarceration. Even while basing their actions on unanalyzed cultural assumptions, elite policymakers have deliberately used hidden sentences as policy means for more than a century now, and even while couching them in seemingly race- and status-neutral terminology and justifications, policymakers have throughout that time constructed them in patterned and recognizably essentialist ways. Hidden sentences are not “collateral consequences” but rather purposive punishments that are imposed based on legal labels of criminality, that have been increasing in size and scope since long before the rise of mass incarceration, and that have throughout almost that entire history been color- and status-blind tools of racialization and essentialization.

The second, more ambitious goal of this analysis is to use that same critical perspective to reconstruct our knowledge about what hidden sentences are and what social function the hidden penal system serves in American society. Previous chapters have made marked progress toward that goal, but there is at least one, key dimension of hidden sentencing that we have yet to 233 explore. The key frame through which I introduced and motivated this study was that the set of penal laws at issue is massive (almost 45,000 provisions across federal and state jurisdictions), applies to a vast segment of U.S. society (at least one in three American adults), is well established and longstanding (some from the 1789 federal Constitution, with roots stretching at least to ancient Rome), but despite all of that, is widely unrecognized and unknown by scholars, lawyers, policymakers, criminals, activists, and the public at large. Hidden sentences are by definition hidden. Moreover, as Chapter One showed, hiddenness is their defining trait as a modernist iteration of attainder practices; they are contemporary tools of exclusion based on the stain or taint of criminality that are historically unique because they are separated from visible sentences and relatively obscured.

Chapters Two and Three introduced a mixed theoretical perspective centering on

Weberian themes to show that the hidden penal system has at its core a classifying function.

Hidden sentences are in a Weberian sense, bureaucratic, formalized, rationalist replacements of traditional means of classifying; where before existed informal impressions of communal reputation now exist, in the modern age, legally expressed and enforced identification of belongingness based on seemingly objective, uniform, and efficient measures of attaintedness or criminality. Chapter Four went a step further to argue that such ostensibly neutral classifications, when put into the abstractly rationalist framings that characterize Weber’s modernity, often tended to include unrecognized cultural assumptions or intentionally coded expressions of racial, political, or otherwise essentialist biases, so that hidden sentence laws are key (status-blind) parts of racialization and essentialization processes throughout American history. This chapter continues using a Weberian-centered perspective to confront hiddenness more directly, 234 interrogating its dimensions, its persistence, and its most direct role in the hidden penal system’s social functions: as a productive kind of meaning-making, as a routinizing process of color- and status-blind criminalization that continually makes and remakes essentialized others.

The history of the hidden penal system can be analyzed not only as an overlooked part of many racial, political, sexual, etc., formations in the United States, but also as a holistic, hidden essentialization process in itself that is focused on the attainted, on the “criminal other.”

Mirroring a racial formation perspective, we can say that hidden sentences develop through a sociohistorical process, centered in law and policy, that create and transform criminal categories through various criminal projects that interpret, leverage, and represent criminality in order to redistribute resources along criminal lines.539 This is necessarily not to claim here that

“criminal” is a wholly distinct social identity, or that “criminality” is a completely distinct axis of inequality; such arguments are important but beyond the scope of this study. Instead, it is to argue that at the very least, a criminalized identity is palpable throughout the history of hidden sentences as a complex of status-blind, essentialized meanings (one of which may be a distinct criminal identity), and that those meanings are interrelated with mutually constitutive, non- criminalized meanings of otherness. Approaching the historical evidence through the lens of criminalization processes is at a minimum informative in that it provides additional, unique findings on hidden sentences’ social functions.

Hidden sentences are variously hidden—sometimes recognized, sometimes actively questioned, and sometimes entirely unnoticed in the habits and assumptions of social action—at different times throughout American history. Hiddenness is a dynamic quality. As Table 3.1 illustrated, though, hidden sentences tend to be more hidden as history advances, and this chapter 235 further elucidates the legal and political mechanisms that foster increasing hiddenness. During the initial onset of hidden sentence laws across jurisdictions, when penal-criminal classifications served a legitimating function, hiddenness served a key role in allowing abstractly rationalist logics and frames to pass through the policy process without being questioned too carefully. As the hidden penal system expanded, when penal-criminal standards were used as tools of othering, of essentialist classifications, hiddenness served a key role in allowing supposedly race- and status-neutral classifications to stand without critical interrogation. In both cases, the key factor furthering hiddenness, or more specifically, furthering policymakers’ inattentive approach to the penal practices at hand, is the exclusionary assumption, the naturalistic assumption that criminals simply can and should be labeled and excluded from a given social, political, or economic sphere of activity. Indeed, another way of describing the temporal trend in Table 3.1 is to view the practice of excluding criminals as becoming more frequent, less contestable, less noticeable, and more routinized over time.540 Race- and status-blind exclusion based on criminality has become profoundly normal.

Moreover, a Weberian-themed, criminalization perspective reminds us that meaning- making is neither a single moment nor a one-way street, but rather a mutually constitutive process involving not just the punished but also the punisher. Once hidden sentences are enacted by elite policymakers, they are continuously enforced and reenacted—not by those policymakers or even by law enforcement officers, but by administrative officials, low-level bureaucrats, employers, landlords, and other gatekeepers throughout society. Yet, even with their power to punish disseminated throughout American society and enforced though series of individualistic, 236 ritualized encounters, these penal practices remain hidden—providing us with our final piece of evidence of hidden sentences’ social function as a distinct kind of punishment.

Hidden sentences produce and perpetuate privilege. Every kind of essentialized otherness is associated with what authors call the “invisibility,” “transparency,” or “hiddenness” of its privileged category: the privilege of whiteness, masculinity, heterosexuality, etc., are all based in part on their unnoticed, naturalized dominance compared to their marginalized counterparts.541 The social function of hidden penal practices that repeatedly, ritualistically recreate criminalized identities—or rather, empower “ordinary” citizens with the agency to do so—can be located in their unique ability to routinize and normalize privileged identities. When exercising the power to exclude a criminalized person, an “ordinary” Americans can personally create an idealized, essentialized, privileged position as a member of the good, exemplary, qualified, authoritative people of the nation by juxtaposing her or his identity to that of the criminal—subtly and ritualistically furthering not a holistic, Durkheimian sense of social solidarity but a more divisive, exclusive sense of group solidarity.542 In the Weberian terminology of our theoretical perspective on penality, it is an identity that contains a particular kind of power, social prestige, and one whose inclusive–exclusive legitimacy is amplified in the modernist, rational-legal frame.543 Precisely because they are hidden, hidden sentences serve the distinct function among penal practices of continuously, ritualistically recreating the imagined inclusiveness of “ordinary” Americans by empowering them to exclude and by ensuring that their privileged position remains unnoticed, unquestioned, and normalized.

237

GOOD GUYS AND BAD GUYS

On the surface, it seems strange in the context of an analysis on racialized punishment to argue that it may be useful to analyze criminalization as its own, unique pattern of essentialization, subject to many of the same structural, cultural, and interactional patterns that we see in formations of race and other categories of difference. After all, race studies today link cultural bias toward black men to stereotypes of black criminality and theorizes much of the structural patterns of inequality in America today in relation to disparate patterns of black punishment.544

Imprisonment is now an expected event in black men’s life course, the structural inequalities and cultural distance black children often face are partially a result of their parents’ imprisonment, and black community life and resources are both defined by patterns of crime, policing, and punishment.545 The Black Lives Matter Movement, perhaps the defining race movement of our times up to this point, is centered on stereotypes of black criminality and New Jim Crow’s characterization of mass incarceration as essentially a racial caste system.546

Nonetheless, there are at least three reasons why we ought to expect a “criminalization” approach to provide useful analytical information on hidden sentences’ development beyond that of a traditional racialization perspective. First, because policymakers almost always enact hidden sentences—and even discuss, deliberate, and think of them—in race- and status-neutral language and framings, we can expect to reveal additional information on racialization and essentialization processes if we do not constrain our analysis to evidence that does in fact reveal underlying biases. In this way, a “criminalization” perspective can actually be a shorthand for

“color-blind racialization” or “status-blind essentialization” perspective without the wordiness: it builds upon the previous chapter’s conclusion that hidden sentences tend to be based on 238 essentialized othering to look at all developments in the hidden penal system’s history as potential examples of criminalizing (i.e., color-blind racial, status-blind essentialist) projects.

Even if we cannot find clear evidence that an episode in hidden-sentence history is directly connected to a kind of essentialization, we can include it as an important part of the construction of criminality in respect to essentialized others.

Second, because the essentialization processes involved in the hidden penal system are not of a single group of others or even a single kind (they involve East Asians and later blacks,

Soviet Communists, non-heterosexuals, and other groups), capturing the development of the criminal other can capture intersecting dimensions of those kinds of othering in various combinations. Social identities neither develop nor are experienced in a vacuum. They are often

“reciprocally constructing phenomena” that inform one another and come together to form a complex, “interlocking matrix of domination” throughout society.547 Virtually any social identity with its own experiential meanings and distinguishable consequences can be located within that matrix, and they can interact multiplicatively, transformatively, mediatingly, or otherwise, changing the relationship of an amalgam of identities in relation to the “mythical norm” against which otherness of all kinds are socially measured.548 In U.S. culture, that imagined ideal is a privileged construct who is white, masculine, heterosexual, thin, young, able,

Protestant, rich, American, and, among other qualities, law-abiding. Approaching policy projects that construct criminalized identities as subjects of sociohistorical analysis, then, allows us to address intersectional (status-blind) essentialist projects in a meaningful way.

Third, it is possible to consider the “criminal other” as a distinct social identity in itself that may activate its own dimension of inequality, so that using a criminalization perspective 239 may capture something entirely new and distinct from economic, racial, political, religious, sexual, and other kinds of essentialization. Devah Pager, for example, famously tested the roles of race and criminal history in the hiring process, and found that the two identities are intersectional and create multiplicative disadvantage for job prospects.549 Likewise, one of the longest standing and most important criminological theories is “labeling theory,” which is premised on the idea that a label of criminality itself can have powerful social effects, including an increased likelihood of committing deviant, criminal, or violent acts in the future.550 While neither Pager nor labeling theorists fully theorized criminality as its own social identity with its own axis of inequality, and while this study is not the place to make such a complex argument, it is possible to consider the power of the criminalization perspective in this chapter not only as evidence of status-blind essentialist projects but also as evidence of distinct, criminal formations.

No matter which of those three perspectives is controlling, however, a criminalization perspective is both useful to analyzing hidden sentence history and rather straightforward to lay out. The tools of whiteness theory, racialization perspectives, socio-legal constructivism, and other key components of race and inequality scholarship are easily and closely applicable to an analysis of criminality and criminalization—precisely because (a) criminality can be viewed as a color-blind kind of racial classification and because (b) criminality, like race, is socially constructed.551 Different societies criminalize different acts at different times, they define them differently, and they punish them differently.552 They also label criminals in distinct ways, keeping record systems that are more or less complete, permanent, and public, and they put different weights on criminal histories. More importantly, Americans develop shifting definitions of criminal and non-criminal behavior and learn reactions of fear of or association 240 with criminalized people.553 As with racialized and essentialized meanings generally, Americans are socialized (sometimes based on pseudo-scientific tropes) to associate certain characteristics like degeneracy, volatility, or primitiveness—or even patterns of gait and dress—to various categories of criminals.554 Needless to say, criminal behaviors themselves are also dependent upon a wide range of structural, cultural, and interactional factors.555 Like race, then, criminality is neither unreal or entirely imaginary, but has invariably been contingent upon structural conditions and cultural meanings in a given society.

Moreover, it is almost a redundant statement after the foregoing chapters—and certainly after the evidence in this one—that criminal categories and criminal meanings are always throughout United States history dynamically shifting, morphing, and adapting into new and temporary iterations.556 Sometimes, changes in criminal formations can be based on purposive efforts oriented toward expressly criminalizing projects. When President Nixon and then-

Governor Reagan activated the rhetoric of “law and order” politics, the “get tough” movement, and the “War” on Drugs, they were not only activating racially coded meanings but actively manipulating the fears of violent crime and making drug usage into a prominent issue of public safety.557 Later, President Reagan would continue stoking the fearful framing of street crimes with one hand while using the other to link his “trickle-down” economic theories to deregulation and decriminalization of white-collar, suite crimes.558

At other moments, however, criminalizing projects are not as carefully crafted and purposeful. Just as prior chapters show hidden sentences emerging based on unanticipated and underanalyzed consequences of policy actions, many of the examples also mention new definitions of crimes (e.g., destroying or falsifying public records, accepting bribes as a meat- 241 inspector, etc.) to which hidden sentences are connected; although the focus of the analysis is not on them, in every case where such new crimes and hidden sentences are created without direct legislative attention, visible sentences (ubiquitously imprisonment and fine) are also established and almost never actively considered. The upshot is that policymakers make and remake criminal categories constantly, and the structural and cultural meanings of criminality and law- abidingness shift commensurately.

Also, various kinds of criminality are apparently distinct, static identities that in reality refer to messy, overlapping categories that only manifest in social interaction through imagined boundaries and are connected to related categories of essentialized othering. Felon, ex-offender, ex-convict, delinquent, sex offender, drug offender, and infamous criminal are all examples of varying criminalized identities (all of which also appear in hidden sentences) that are all subject to unclear or varying definitions, similar to differences in cultural impressions of phenotypes or variations in legal markers of race (e.g., the famous “one-drop rule” that some Southern states used to define blackness in Jim Crow systems compared to the majority-ancestry policies that others used).559 In some definitions, for example, “felony” refers to any crime punishable by one year of imprisonment while in others, felonious crimes are listed individually.560 Needless to say, the crimes that jurisdictions include in lists of felonies, sex offenses, “dangerous sex offenses” (often an independent legal category), etc., vary widely. Because criminality is often defined in respect to legal rather than moral wrongdoing, these kinds of identity claims and any connection they have to related, status-blind essentializations are even more likely than are racialized categorizations like the “one-drop rule” to be reified in that law: endowed with the 242 sanctity of legal codification, the dominance of legal authority, and the coerciveness of legal enforcement mechanisms.561

Finally, criminality is symbolically powerful as a marginalized label that ubiquitously implies its negative converse: the privilege of the non-labeled, “ordinary” identity. In the same sense that “whiteness” is conceptually a category that is almost meaningless without its converse, a shifting category of not being identified as black, Latino, East Asian, Native American, or otherwise nonwhite, the status of non-criminal is a nebulous state of not being labeled criminal.562 The lack of a criminal label is also hidden, like the almost invisible identities of whiteness, masculinity, heterosexuality, cisgenderness, and other forms of essentialized privilege, all so normalized that it they are easy to overlook and harder to interrogate as

“naturally” preferred, “legitimately” advantaged loci of inequality.563 Because it can be intertwined with these unnoticed axes of privilege without disrupting their hiddenness, the status of being non-criminal can confers almost unquantifiable structural benefits and virtually unnoticeable cultural reverences, constantly reaffirming of moral “goodness” without being interrogated or diametrically noticed.564

In respect to virtually every aspect of inequality, hiddenness has been shown as reproductive if not integral to systems of privilege. In that sense, a widely hidden set of penal- criminal laws is easily, almost obviously connected to the production of such privilege, and the analysis of criminalizing projects throughout American history can be expected to reveal ways in which privilege is repeatedly made and remade. Although evidence of the role of criminalization is present in previous chapters through perspective on abstract rationality and status-blind othering, this chapter aims to provide clear examples of the development of criminality over 243 time, and to elaborate the ways in which hiddenness functions not only to routinely exclude the criminal other but to ritualistically ensure the ostensible normalization of the “ordinary,” non- criminal American.

THE FORMATION OF CRIMINALITY

The criminal was not always a salient identity in Western societies, nor was criminality always a recognizable quality of an individual. Crimes existed, and people were convicted of them, but as

Chapter One showed, they were either serious enough to result in removal from society entirely

(via death or exile) or they were misdemeanors (i.e., mis-behaviors) that may have resulted in some temporary punishment but then were essentially followed by a return to normal life.

“Attainder” was a component of felonious punishment that declared the sentenced person immediately dead and devoid of rights in the eyes of the law, but there was no socio-legally constructed status of criminality carried around by common citizens.

Likewise, in the early United States, crimes that did not result in capital punishment were associated with immoral acts rather than states of being, identity, and legal discrimination; hidden sentences were rare and contestable. Until the turn of the twentieth century, for example, courts flatly refused to allow penal exclusions based on past acts, instead conceptualizing non- capital crime and punishment as immediate events irrelevant to questions of personhood, qualification, character, and the like. The U.S. Supreme Court cases of Cumming v. Missouri and Ex parte Garland, examined more thoroughly in Chapter Two, are exemplary.565 Decided on the same day in 1866, the two cases together faced attempts by both Northern state and federal legislatures to enact hidden sentences that excluded persons loyal or sympathetic to a cause “inimical to the government of the United States” (a notable precursor to hidden sentences 244 that targeted “subversive” Communists throughout the 1900s) from being teachers, priests, public officers, qualified voters, or attorneys. Because the governments had instituted those bans after the Civil War and tried to enforce them against Confederate sympathizers, though, the question at hand was whether the hidden sentences were unconstitutional punishments for actions declared criminal after the fact.

The Supreme Court rejected the idea out of hand that past actions, criminal or otherwise, have anything to do with predictable future conduct, character, or fitness for performing a vocation. Throughout Garland and Cummings, the majority opinions methodically rejected each contention that some form of the penal-criminal exclusion rendered it non-punitive, a “mere” restriction on access, including arguments on behalf of both Missouri and the federal government that the exclusions were “only” attempts to set qualifications for fitness to serve in the vocations at issue. The Court, however, clearly stated that “[a]ny deprivation or suspension of any rights” was punitive if they were applied “for past conduct,” regardless of how and why those exclusions were imposed. Put in different terms, the Court refused to recognize past conduct, no matter how severe and apparently traitorous, as connected with a person’s qualities of character, fitness, or propensity to commit criminal acts in the future. Past acts were past acts, no more and no less.

How did the United States get from there to here? Today, courts almost never overturn hidden sentences, to the extent that the U.S. Supreme Court has recently ruled that neither

“civil,” indeterminate commitment of sex offenders nor mandatory, lifelong registration and public notification are “punishment” at all, much less unconstitutional penal practices.566 The story begins with the (color- and status-blind) creation of the criminal category.

245

Rehabilitative Rituals and a New Kind of Personhood

Amid the social, political, and economic commotion of the turn of the twentieth century, the prison and rehabilitative parole were taking their places at the center of American punishment.

They would remain there until the 1970s, when they would not be replaced but altered from tools of rehabilitation to tools of management and expressive control.567 Penological scholars and reformers today tend to idealize the rehabilitative era, remember it with more than a hint of nostalgia, and advocate a return to its clinical, corrective, and ostensibly compassionate approach: don’t just throw away the key, fix them, help them return as fully functional members of society.568 Most of the time, we refer to the “rehabilitative” today as though it is somehow an opposite of “punitive.” We forget that rehabilitation by punishment is still punitive, and that the roots of mass incarceration exist in its immediate precursor. The rise of the rehabilitative “ideal” marked the bureaucratic creation of the penitentiary and the rationalist construction of the criminal label.569

The overarching frame of the visible penal system during the late 1800s through the

1960s was the “civilization” of criminal punishment toward controlling crime and correcting criminals.570 The more “enlightened” approach to “the crime problem” was to identify the causes of criminal behavior, locate them in the individual, and develop state-supported methods to eradicate them so that individuals could be free and productive members of society. The abstract rationalism in that ideal is palpable, but even more importantly, so is the problematization of the individual actor who engages in criminal behavior. Criminology became a discipline in those years and based on those ideals, first proposed biological and psychological theories that focused on personal causes of crime, that identified criminality as a quality or 246 potential quality of individuals.571 Prisons were transformed from places of waiting for trial and sentence to systems of correctional housing, parole, and probation aimed toward punitive correction, discipline, treatment, and reform—all ways of processing individuals to remove or mediate those criminalized traits, and therefore all ways of further identifying and classifying

“the criminal,” even with benevolent intentions.572

Hidden sentences also play a key though underrecognized role in the development of rehabilitative strategies. Grants of parole, “certificates of rehabilitation,” pardons, and various

“relief” efforts from conviction and punishment are all markers of the time that we now forget were concerned explicitly with removing the attaintedness, stigma, and other consequences of criminality as various rewards for rehabilitation.573 Every year, the Californian legislative session began with “Restoration of Citizenship” requests alongside pardon requests, and these rituals of rehabilitation included letters of support (or recommendations against) by parole officers, wardens, and other correctional actors that made implicit and explicit claims about deportation, employment restrictions, business license restrictions, and “depriv[ation] of certain rights” by hidden sentences.574 Often, rehabilitative officials made these requests for reprieve with the claim that the criminalized person at issue “has been leading the life of a law-abiding…” or sometimes “…law-abiding and conscientious citizen” as a justification for the “reward” of

“having his [or more rarely, her] citizenship restored.” Those rewards were a key part of the rehabilitative process, ritualizing the reentry procedure and the return to “full citizenship”— which included a supposed return to full citizenship rights via freedom from hidden sentences.575

As part of the growth of the rehabilitative system, then, hidden sentences and relief laws for hidden sentences grew at complimentary rates. Questions of causality here are like those of 247 the chicken and the egg, but what is clear is that hidden sentences quickly arose or were purposefully designed to serve a distinct purpose within the rehabilitative apparatus, and that they filled a commensurate role in the hidden penal system of classifying criminals and non- criminals. The origin of the Governor of California’s power to “restore citizenship” came in

1907, only two years after the state’s first hidden sentence law outside of the realm of public office and political rights, and it was part of the newly created part of the Penal Code that explicitly governed state prisons, prison management, and rehabilitative efforts.576

By 1935, Californian policymakers enacted a statute that allowed probationers to change their pleas to nolo contendere (no contention) and dismiss charges after successfully completing their probation terms.577 Although nolo contendere pleas and dismissals are not equivalent to pleas and verdicts of “not guilty,” they are also not equivalent to the determinations of guilt and conviction upon which most hidden sentences at the time relied; the point of the change was to imagine the undoing of the criminal label—and to remove its consequences in hidden sentence law. By the next session of the state legislature, though, hidden sentences in California started explicitly applying to pleas of nolo contendere in addition to statuses of conviction.578 In 1939 and 1941, the boundaries between criminal and non-criminal shifted again; state legislators created a statute allowing relief from hidden sentences after completing a tenure with the Youth

Authority Board, then expanded the governor’s pardon powers, and then forbade the governor to pardon any person convicted of a second felony.579

The pattern continues from there, and it is perhaps unsurprising that full relief from hidden sentences in any one jurisdiction today is a virtual impossibility (it would likely take a pardon along with both expungement and sealing of a criminal record).580 In any case, what 248 these examples make clear is that the rehabilitative project was in actuality a criminalizing one that sought to define, frame, and delimit identities of inequality in particular ways. It was a contested project at many points, and its successes in reducing the legalized discrimination of hidden sentence law was tempered by its simultaneous encouragement of cultural assumptions about criminality, but it is clear that the rehabilitative project played a key role in some of the first criminal formations in American history.

The Essential Linking of Criminality, Poor Character, and Otherness

Despite the condemnations of the U.S. Supreme Court and the restorative efforts of rehabilitative experts, hidden sentencing became acceptable by the last decades of the nineteenth century, and it became exponentially more popular in the years and decades following. As cultural assumptions shifted along with that new means of formalized penal classification, a newly salient link formed between criminalized status and legitimate exclusion, propelling hidden sentence law into its own, independent kind of criminalizing process. Without an acceptable credential, classification—racial, criminal, moral, or otherwise—and consequent inclusion or exclusion had become questionable in the frames of the modernist world. Yet, a documented record of crimes of moral turpitude and other character crimes carry abstractly rationalist elements of objectivity, uniformity, and efficiency that simple reputational judgments or testimonials of moral character could not hope to achieve in the modernist context.

As this classificatory usage of attainder became more common over time, however, three complimentary trends made the link between legitimate exclusion and criminal records stronger.

First, elite policymakers’ practice of measuring bad character with criminal records became more common. The 1930s and 1940s saw a number of occupational restrictions based on the negative 249 credential of a criminal record in the fields of nursing, law, embalming, contracting, architecture, and energy distribution.581 By the 1950s, hidden sentences of one form or another were standard practice in virtually every new occupational regulation.

Second, measuring bad character through a criminal record normalized so that it became less common for policymakers to apply other character measurements. For instance, when

California fully regulated its accountancy profession in 1945, it did contain one, obscure clause that limited certified public accountants to persons “of good moral character” but with no elaboration.582 It did, however, extensively discuss refusal and revocation of licenses for conviction of any felony or other crime “an essential element of which is dishonesty, deceit or fraud.” Federal regulations in 1950 on insured banking institutions said nothing about character but rather simply excluded any person convicted of crimes “involving dishonesty or a breach of trust” from participating in them in any way.583 The trend culminated in California in 1974, when the state all but eliminated character requirements with the exception of proof of bad character through a criminal record.584

Third, it became less common for elite, typically white policymakers to use crimes of moral turpitude or other “character crimes” as boundary-making tools, because criminality had become its own category, implicitly encompassing poor character without needing to even implicitly refer to it. By 1950, it was rarer to see a hidden sentence for any crime of moral turpitude or other character crime; instead, there were simultaneous trends to specify particular bureaucratized crimes associated with an occupational position and to simply exclude all felons or all criminals rather than bothering to specify a type that was no longer salient. In 1940, the federal government restricted investment advising and brokering to persons who had not been 250 convicted of any securities violations.585 In 1943 and 1945, California added disciplinary action for all public offices and civil service positions in response to any felonies and also misdemeanors of moral turpitude—showing that felonies were presumed to involve moral turpitude.586 In 1947, California simply specified that “his or her criminal conviction record” was sufficient to deny a person’s application for automobile insurance, and in 1948, federal law simply excluded all felons from the draft.587

As a result of these three trends, a criminal record became the objective measure of poor character fitness, and poor character fitness was a quality of any criminal record. The rigidity of this form of boundary-making is essentializing in that it not only largely equates criminal history and moral turpitude, but it also delimits those ideas so they lose any other meanings, boiling them down to a single, assumed entity: the criminal other. Criminality had in the midst of the rehabilitative era become a quality of a person, and the essence of a criminal was bad character.

In turn, this essentialization of the criminal other contributed to the further expansion of hidden sentences themselves, by solidifying the exclusionary assumption in cyclical fashion.

The more established criminality is as a categorization of inherent badness, the less questionable it is as a cultural assumption—and the more hidden it becomes in a political process that incorporates law-abidingness in its overarching frames, its most powerful advocacy groups, and its privileged policymakers.588 Moreover, formalized character restrictions helped not only to form an assumption of exclusion due to criminality but to justify that form of boundary-making through the legitimacy of using a credentialized proxy for poor character—which in turn led policymakers to assumptively create new hidden sentences, furthering a cycle of assumptive criminalization. 251

Based on such exclusionary logics, the U.S. Supreme Court was able to reverse course from Cummings and Garland to declare in the 1898 case of Hawker v. New York that hidden sentences are “not seeking to further punish a criminal, but only to protect its citizens from physicians of bad character”—not even entertaining the possibility that criminalized people may also be citizens deserving of protection or that laws can simultaneously protect and punish (and often do).589 As Chapter Three shows in more depth, the Hawker decision transformed the question of the permissiveness of applying additional punishment based on past acts to using past acts as a (calculable, objective, formalized, and efficient) measure of character and qualification.

The remarkable feature of the Hawker opinion is its founding of a punishment doctrine that would increasingly leverage the exclusionary assumption to justify hidden sentences. As with the cases that will follow, the exclusionary assumption is so engrained in the logic of the

Hawker case that the Court and subsequent commentators have treated it as consistent with

Cummings and Garland, despite the drastic change in the scope of the question.590 Cummings had explicitly stated that the question of the scope of a state’s police power was irrelevant to the question of punishment, and it had explicitly chosen not to rely on the argument that the penal- criminal law in question merely prescribed evidence of good character to practice a profession.591

Even though the statute at issue in Hawker said nothing about character requirements and instead created a new crime that was based solely on evidence of a past conviction, the Court decided that any such statute should be read as though it imposes a character requirement and uses the past conviction merely as evidence of poor character.592 It then distinguished Cummings and

Garland by declaring they were based entirely on the idea that oaths of loyalty had no rational connection to professional qualifications.593 Through this kind of assumptive logic that ignores 252 the bulk of the prior opinions, the question of unconstitutional punishment had become a question of permissible state regulation. Worse, the Court neglected to state a clear rule that defined either punishment or regulation—a mistake that would haunt subsequent cases on this issue and invite future presumptions that link poor character and other excludable traits to the criminal other.

“Protection of the Public” and Presumptive Legitimacy

The U.S. Supreme Court’s chosen frame in Hawker v. New York is also important for another reason: it is one of the earliest examples of the successful use of key criminalizing project that presents criminality of any kind as inherently and unquestioningly dangerous to the public.

“Protection of the public” is simultaneously one of the earliest and most consequential criminalizing projects in the history of the hidden penal system. Because it activates states’ nearly unlimited “police powers” to regulate private citizens in any way not constrained by constitutional laws, the idea of “public welfare”—including aspects of public safety, order, health, morality, good, and interest—is one of the most politically powerful legal frames available.594 At least based on its appearance in American hidden sentence law, it is also one of the most powerful frames in the modernist age, in the sense of hegemonic domination of knowledge and ideas: it is difficult to contest a claim that some issue could threaten the public in an important way, it is barely controversial that the state can and should take some action when the public is threatened, and it is nigh unquestionable that the exclusion of criminals constitutes a legitimate way of doing so.

The deep irony of the successes of the public welfare frame is that it is constantly used with a distorted definition of “the public.” The entirety of the American people is almost never 253 threatened by some issue, so to claim that “the public” is threatened is almost always to claim that an important segment of the “mythically normal” Americans—for instance, the state and the political elite that constitute it, the so-called middle class and the heterosexual whites that exemplify it, or “the law-abiding public” and anyone who identifies with it—is threatened, while obscuring the contestability of that frame in the privilege of normalcy.595

Likewise, especially when the ostensible threat derives from inside the nation, it necessarily divides “the public” into two and sets the threatened group against the attendant, dangerous individual or group—but its use of the ubiquitously inclusive “public” identity simultaneously distances the dangerous other and disempowers it from contesting the argument, excluding that other before contestation can even occur. Finally, because “protection of the public” is a law-centered framing tool (i.e., it activates states’ police power), it is uniquely consistent with a lawful–criminal classification scheme. The dangerous others against whom the legal coerciveness of the police power is levied are in the first place, according to the discursive frame, oppositional to the law; they are criminalized in the discourse that seeks to exclude them, presumed guilty before anyone can make their case. It is that sort of ironic prepositioning—and the depth at which it hides the exclusionary assumption—that makes the public welfare frame so discursively powerful in respect to penal-criminal claims like those that appear in the history of the hidden penal system.

In fact, each of the previous chapters has already touched upon the public welfare frame without analyzing it in the light of criminalization and political hiddenness. The federal

Steamboat Act of 1838 and 1852 were designed through a continuing crisis of public deaths at the hands of steamboat operators, owners, and manufacturers.596 The Federal Meat Inspection 254

Act of 1906 was enacted in direct response to a public health panic about the safety of meat products after The Jungle was released.597 Federal law did not even take control of immigration until the Yellow Peril had taken hold.598 California issued hidden sentences regulating general medical practitioners when Southern European and East Asian “quacks” and “fakes” entered the field and barbers when they were associated with infectious disease.599 Pharmacists were regulated in both jurisdictions only when the fight against opium began and pharmacists were associated with smuggling and dealing it.600

By 1929, California’s system of professional and occupational licensing boards had become so widespread—or rather, its habit of bureaucratizing vocations—that it created an overall Department of Professional and Vocational Standards overseeing the administrative and financial functions of almost all professions and occupations in the state.601 The Department immediately justified its regulations by reporting that they are “Important to Public Protection”:

A review of the history of the activities of the examining and licensing boards

affecting the professions and locations under the supervision of the Department of

Professional and Vocational Standards indicates very definitely that without the

constant vigilance of such boards and their representatives the public at large

would be very seriously menanced by a great number of irresponsible and

unscrupulous practitioners, who are and would be a menace to the public health

and safety. The records of many cases are available, emphasizing this situation

very positively. … [T]his State attracts not only the finest element of population

from other states, but likewise draws undesirable elements, who would prey upon

the public through false claims as professional practitioners if they were not 255

stopped through the power granted the examining and licensing boards of the

State.602

The uncontestable, tautological assumptions in that logic of successful protection by the state from dangerous law-breakers are pervasive. The Department argues without doubt that its prosecution of many wrongdoers is necessary for the public’s protection, but the support for its argument is circularly located only in its power to and history of prosecuting those it views as wrongdoers.

Later, in its subsidiary report, the Board of Medical Practitioners recognizes how successful the public welfare frame has been for the board and the profession as a whole—or rather inadvertently admits the order in which threat and protection are perceived by “the public”:

The protection of the people is assured through the prosecution of violators of the

law through the rules and regulations of the board and the laws of the State.

Greater interest in the problems presented by the violators of the laws governing

the practice of the healing arts is being shown by the general public and by the

law enforcement agencies of the political subdivisions of the State.603

The public’s interest—and that of the powerful law enforcement lobby, for that matter—was apparently galvanized not by the threat of criminal law-breakers, but by the professionalization of the medical field and its subsequent policing efforts. Criminalization necessitated the public’s interest, not the other way around.604 The Board of Cosmetologists, in the same report, admitted it had a “rather large surplus” of funding but that changes should not be made until an expanded 256 program of inspection and law enforcement has been studied and tested out[, f]or the protection of both the general public and those wishing to enter the practice of cosmetology…”605

The power of the public interest frame in the policymaking process for hidden sentences is great enough that it is at least sometimes determinative for when certain kinds of hidden sentences can be created. In the 1920s, for example, there was significant conflict across the nation concerning the idea of closing the accountancy profession to “certain” (non-Anglo white) practitioners. In 1924, however, a leading Oklahoma Supreme Court case forbade the state from limiting the profession to certified public accountants (CPAs) explicitly because exclusion based on personal markers of character and education is not a legitimate governmental interest in a field that bears no reasonable relationship to public safety or morality:

The effect upon the uncertified public accountant is definite and certain. Whether

it is because…he is unable to stand the examination, or is not a citizen of the

United States, or does not enjoy the reputation of a good moral character, or has

had his certificate revoked because of being convicted of a felony, or found guilty

of conduct involving moral turpitude, or having certified to false or fraudulent

statements in relation to an audit, or fraud or misrepresentation in application for

the certificate, the result is the same; that after he has devoted time, effort, and

expense to equip himself as an expert accountant, he is prohibited from following

that calling … Our conclusion, therefore, is that the act…denies to uncertified

accountants the equal protection of the laws, and the enjoyment of the gains of

their own industry.606 257

Most states therefore originally provided for educational requirements to obtain a CPA but did not otherwise limit the practice of accountancy based on character, criminality, or other requirements.

By 1946, partially because of the belief in accountants’ role in the Great Depression and their prominence in recent investigations by the Securities Exchange Commission (and partially because of an increased mass of “ethnic whites” attempting to join the profession after World

War II), the consensus had shifted to a general agreement that, in fact, accountancy “bears relation to the public interest” significant enough to allow a kind of professional closure; seventeen states, including California, led the trend to liming the practice to CPAs to registered, non-certified public accountants (PAs), and instituting a number of controls, including hidden sentences, on who could register.607 Yet only once in all the sources I analyzed did anyone specify what that new public interest actually was (supposedly a larger number of accountants with a greater amount of responsibility due to new kinds of insurance, welfare programs, and economic regulation following the Great Depression).608 In all other cases did both proponents and opponents just presume up front that there was now a “public interest” in excluding some persons from accountancy and further instituting a two-tiered system of CPAs and PAs.

In fact, it may be the relative power of the public welfare frame, or the relative hiddenness of the exclusionary assumption within it, that predicts how a court will decide an issue of hidden sentencing, that explains the shift between Cummings/Garland, Hawker v. New

York, and subsequent cases on hidden sentences. However courts may rationalize their rulings on hidden sentences, and whatever logical pattern of development we can construct in the

“punishment” doctrine, the most consistent explanation turns on whether the judge(s) imagine 258 the color- and status-blind criminality at issue to be fundamentally threatening to the public.

Like the accounting profession, as soon as some crime in some sphere becomes an issue of public interest, then the exclusionary assumption activates—and post hoc rationalizations abundant with logical incoherencies ensue. In Garland and Cummings, the Supreme Court argued the state’s police power is irrelevant to the determination, but it spent time in dicta analyzing how irrelevant it viewed past loyalties to the Confederacy to qualification in any of the professions at issue.609 In Hawker, the Court repeatedly stated how fundamentally important to medical profession is to public welfare and readily accepted that Hawker’s crime, performing illegal abortions, was threatening enough to make him unfit to practice; it simply “made sense” to the Court at the time.610

The Court then made another about face in 1946 with United States v. Lovett, when it overturned a hidden sentence law but failed to state a clear rule.611 In Lovett, the Court addressed the hidden sentences of denial of pay and effective removal from government employment positions as a result of “subversive,” “disloyal,” “un-American,” and essentially

Communist activities. Ignoring the Hawker idea that past acts could be evidence of bad character and lack of qualification for a position (in fact, the majority neglected to cite Hawker at all), the Court instead baldly asserted the contradictory idea that “a legislative decree of perpetual exclusion from a chosen vocation…is punishment, and of a most severe type.”612

Absent a clear rule and statement of reasons, perhaps the only sense that from the Court’s blatant refusal to uphold the laws and follow precedent is its skepticism that people engaging in “un-

American activities” were truly threatening enough to be banned from civil service entirely. 259

Then, in Trop v. Dulles, the Supreme Court created a new problem by ignoring the

Cummings/Garland rule and divining a new, much more vague one.613 The Nationality Act of

1940 had made loss of U.S. citizenship a hidden sentence that military tribunals could apply under court-martial for various offenses, and plaintiff Trop was denationalized as a result of a conviction of wartime desertion. First, without citing a single case as precedent, the Court abruptly declared, “In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute.”614 Prior to Trop, actually, the Court had explicitly considered the actual effects of a statute in question rather than delving into issues of legislative intent.615 Then, the Trop opinion announced that a penal statute is one that imposes a deprivation in order to effect one of the purposes of punishment (e.g., retribution or deterrence); if it has instead some other purpose, it is non-penal.616 The majority cited precedent for this second part of the rule, but none of the cases it cited mentioned retribution, deterrence, or any other purpose of punishment.617 Next, without analyzing the case under its own rules, the Court found that denationalization is unconstitutional, cruel and unusual punishment,618 but it is unclear why the new rule was necessary, since the extant Cummings/Garland rule would have more easily achieved the same result.619 Instead, we can infer that the new rule was more consistent with the shared cultural assumptions of the time—at least for the elite Supreme Court Justices.

In practice, the Trop rule—which is still the core of the contemporary punishment inquiry—is remarkably difficult to apply, because it boils down to tautology: an act is punishment if it is “intended” to punish.620 This kind of circular logic cannot define punishment in any way other than assumption, the “gut instinct” that we simply know punishment when we see it, and that we can explain that instinct post hoc by referring to the “intent” of the 260 punishment. And by today, it is clear what “legislative intent” the Supreme Court has been looking for ever since: a presumed effort by Congress to protect the public interest against the criminalized “bad people,” whether that category makes color- or status-blind reference to essentialized others or not. If the Court can claim that a hidden sentence looks like it has a purpose of (i.e., can be interpreted post hoc as having any relationship to) protecting the public from those criminal others, then the law stands.621 The bottom line is that, because it is actually based on an unstated or even unconscious determination of the public welfare interest (and the exclusionary assumption within it), the Trop definition of punishment “has become something of an ‘interpretive fact’…: a conclusion for which judges need no evidence.”622 By the 1950s, the impetus to “protect the public” against essentialized criminality had become normalized.

THE NATURALIZATION OF CRIMINAL EXCLUSION

In today’s United States, it is a matter of routine for policymakers, bureaucrats, and Americans more broadly to essentialize based on criminality—to imagine all criminals, blacks, the urban lower-class, and incorrigibly dangerous predators as a single, unvarying category of person, to assume innately evil characteristics, to then “rationally” fear and distance themselves from them, and to accept their exclusion through hidden sentences as natural, as just “an obvious fact of life,” without question.623 That is also the reason why a criminalization argument is so crucially important to this analysis. From an empirical point of view, the development of criminal formations is closed tied to the rational-legal development of hiddenness; from a critical point of view, understanding criminality as a socio-legally constructed process is key to understanding its success as a method of ostensibly race- and status-neutral means of exclusion, to coming to terms with its pervasive but unquestioned use today, and to challenging that hegemonic domination. 261

A criminalization perspective, or a color-blind version of a racialization one, is focused on the origins of certain essentialized meanings, their contestation and contestability, and ultimately, their entrenchment in the routines and habits of social life.624 It is only through repeated usage and repeated successes in contestation that essentialized meanings can start to become routinized or normalized into deep, hegemonic structures of domination.625 The uneven, sociohistorical process shown in Table 3.1 is central to this argument concerning hidden sentences and their hiddenness: (1) they initially derived, typically without fully deliberative action, from regulatory punishments as rationalist “improvement” of those prior penal forms; (2) later, they began evolving from regulatory punishments without any conscious recognition on the part of policy actors at all, but were rather the result of such strong rationalization habits that their change in form went unnoticed; (3) after they were established enough to be mimicked, they began diffusing between jurisdictions and policy spheres; and (4) after they had become widespread enough to be routinely seen and practiced by policymakers throughout the nation, they continued being created without effort, without reference to prior examples of any kind, becoming more and more routinized or normalized in the policy field and its bureaucracies—and more and more naturalized and hegemonic outside of it.

Chapters Three and Four have examples of all four processes, but we have yet to unpack the latter two directly. As part of the normalization of policy actions using hidden sentences as means to achieve their goals—and as part of the naturalization of criminal exclusion—policy diffusion and routinization are most relevant for this chapter’s analysis of the deepening of hiddenness and the concomitant naturalization of the exclusionary assumption in the process of criminalization. It is through these two processes that criminality becomes decoupled from 262 claims about correction, character, or dangerousness, and established as an independently legitimate form of ostensibly race- and status-neutral othering.

Establishing a Hidden Norm

A significant contingent of hidden sentences developed through policy actions wherein policymakers gave at least some direct attention to the means they decided to use, but instead of innovatively constructing some new penal technology or adapting it from an earlier kind, policymakers simply import or emulate hidden sentences from other, already existing policy schemes. This sort of policy diffusion is commonplace across many areas of law in the United

States, so that imitation of and learning from other jurisdictions characterizes a large proportion of the American legal system.626 Given the drafting process, its involvement of combinations of permanent and temporary staffers, and the complexity of legal language, even in the absence of other motives for diffusion, it should not be surprising that lawmakers routinely use related laws as templates for policy action.

There are many examples of hidden sentences throughout this and previous chapters that look “enough” like earlier hidden sentences that might, absent other clear explanations, warrant a hypothesis that diffusion at least partially explains them. The hidden sentences in the 1906

Federal Meat Inspection Act, for instance, are remarkably similar to those that appeared in the

1852 Steamboat Act (they both target the inspectors themselves, they both turn upon crimes of accepting bribes, etc.), and both are examples of very early, federal hidden sentences enacted in response to public safety panics.627 The various hidden sentences in California’s medical practices likewise have remarkably similar language at points.628 The widespread yet oft unanalyzed use of “good moral character,” for example, is not a coincidence. In many cases, 263 templates for policy solutions can become so well-known and well-recognized by members of the field that they become part of a policy paradigm: a limited range of ideational alternatives that policymakers even recognize as available options.629

At other points, policymakers actually recognized and mentioned their imitation of similar laws during the policymaking process. Regulations on barbers in California, which included hidden sentences that could remove their licenses, were based on those in similar jurisdictions and ultimately “based on scientific educational requirements that have been endorsed by the International Association of Master Barbers and the International Journeymen

Barbers. And, [sic] as I have said before, has the united support of all the shop owners and journeymen barbers in California.”630 When the state was later enacting its Horse Racing Law, legal analysts ran into a bit of trouble interpreting it, because it was apparently copied verbatim from another state and included reference to a “Criminal Record Bureau,” when no such bureau existed in California.631 In a report long after hidden sentences and other regulations on medical and dental practitioners were initially established, their respective boards reported that

“reciprocal relations with other states” and comparing standards with other states were salient motives for policy change and imitation.632

The majority of the hidden sentences in this study, however, have no explicit relationship either to prior examples of hidden sentences or to earlier examples of regulatory punishments. If we were to narrowly analyze these examples independently from the system of hidden sentence laws, it would appear as though their authors were constructing innovative, new solutions to achieve their policy ends without referencing others. As we know from this analysis throughout, though, such a process is too deliberative and anticipatory to be typical of hidden sentences’ 264 development. Instead, as hidden sentences became habitually emergent from regulatory punishments and routinely diffused throughout areas of law, they began forming from more deeply engrained, harder-to-recognize public sentiments, shared understandings of social reality, and deep, subsurface cultural assumptions.633 Rather than known and routinely used solutions for policy programs, hidden sentences became so “obvious” in political culture as to become a sort of “common knowledge”: their own, intrinsically valid category of policy tools centering on the assumption that criminals “just are” excluded.

As hidden sentences became more normalized in that way, policymakers began making even more transparent and certain statements of the exclusionary assumption—often in relation to even more essentialized, reductivist versions of the “protection of the public” framing. When states were forming more detailed state accountancy systems, and as accountancy became more widely recognized as a publicly significant field, the Louisiana Supreme Court faced the issue of whether accountancy the police power applied:

The power of the state to provide for the general welfare of its people authorizes it

to prescribe all such regulations as, in its judgment, will secure or tend to secure

them against the consequences of ignorance and incapacity as well as of deception

and fraud. As one means to this end it has been the practice of different states,

from time immemorial, to exact in many pursuits…an examination of parties by

competent persons, or…a diploma or license…634

In another example, in 1909, Congress enacted a new Criminal Code that recollected supposedly all penal-criminal statutes into one area of law, simplified them, organized them, and reenacted them with essentially the same subject and no substantive changes—but a number of significant 265 and novel changes were made and later criticized.635 Before 1909, for example, it was virtually unheard of for the state to impose civil forfeiture of property that was only used in (not derived from) a criminal act. There are indications that the authors of the new Code recognized the considerable modifications they were making, but their one comment on the matter is that any minor changes are simply “important” and “necessary,” with “no further explanation needed.”636

By the 1960s, hidden sentences had become so naturalized that the U.S. Supreme Court was comfortable claiming that often unknown penal sanctions based on criminality in addition to visible sentences are simply a given, “obvious fact of life.”637

The Legal Reproduction of Hiddenness

The idea that hidden sentences are simply natural facts of life has gone hand-in-hand with the legal construction of them as “collateral consequences”: accidental, unintended, and effectively unavoidable side-effects of “real” (i.e., visible) punishments. Hidden sentences formed based on public and political iterations of the exclusionary assumption, which even in the beginning of the

United States’ history was deep enough to create a growing set of unanticipated and underanalyzed penal practices through various kinds of policy actions. What keeps them hidden, however, is in a sense, less complex than a deep, murky cultural assumption: it is the law. Based on a relatively obscure legal doctrine that views hidden sentences as mere “collateral consequences,” neither lawyers nor judges nor other actors in the penal system have a positive, legal duty to inform defendants, convicted criminals, prison releasees, or any other person that hidden sentences even exist—with almost no exceptions.

Although the question of “punishment” is relevant to a number of constitutional protections concerning the nature of a legislative or administrative act, within criminal 266 proceedings, both effective assistance of counsel and due process requirements for pleadings also involve the question of “directness” (as opposed to “collateral-ness”) of the proceedings’ consequences. The so-called “collateral-consequences rule” has held that competent counsel need only inform a criminal defendant of the direct consequences of a plea or conviction, with the collateral consequences being irrelevant to the inquiry. The rule also has held that courts have the same limited duties of notice for accepting a guilty plea. Unlike the original definition of punishment in Cummings/Garland, the definitional lines between direct and collateral consequences were never particularly clear, so the doctrine is even less stable today.

The collateral-consequences rule has a shorter, less complex history than the punishment doctrine does. Although many trace its origins to (mis)citations of Brady v. United States,638 the circuit courts actually constructed it decades earlier. The earliest iteration of the collateral- consequences rule seems to be in 1954 in United States v. Parrino, when the Second Circuit addressed the question of whether a guilty plea could be invalidated because defense counsel provided the misinformation that the plea could not lead to the defendant’s deportation.639

Apparently, nobody before had even thought to question the modern iteration of attainder as a legally constructed knowledge problem. The majority recognized that “a defendant should not be holden to a plea of guilty made without an understanding of the consequences.”640 Then, however, it ruled that collateral consequences were exempt from that rule for two reasons: (a) there was no precedent that included them in it (neither was there precedent to the contrary), and

(b) it seemed “palpably unsound” to hold otherwise.641 No principled analysis besides this obvious assumption was presented. The majority also failed to actually define “collateral” consequences except by contrasting the “sentence directly flowing from the judgment” with the 267 examples of civil forfeiture, loss of employment or civil rights, ineligibility for military service, and deportation. Thus was born the fictional collateral–direct distinction.

The rule spread quite slowly in the next two decades, often through the same sort of unsound logic. The Fifth, Seventh, Ninth, and Tenth Circuits addressed the judge’s—rather than counsel’s—duty under the Due Process Clause to inform the defendant of potential deportation, and each simply asserted with no analysis whatsoever that no such duty exists.642 The D.C.

Circuit, like the Second, simply took the lack of precedent to mean hidden sentences (in this case undesirable discharge from the Air Force) were not part of understanding a plea.643

The first actual analysis of the rule was by the Third Circuit in United States v. Cariola:

“It has been stated broadly that out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. But the pertinent question is: what consequences?”644 The majority considered the practical impacts on both judges and prison populations of deciding that courts should warn defendants of collateral consequences, and it cited Parrino for support that they need not be so warned.645 In dissent, the Chief Judge argued sharply to the contrary, saying that the commonly understood, unquestioned principle is that a court should make a defendant fully aware of the all consequences of a guilty plea.

He was not to be appeased. To this day, the collateral-consequences rule is the standard for both the “voluntariness” of guilty pleas and for “effective” assistance of counsel; seventy years of challenges to the rule have left it intact for all but a handful of exceptions (more prominently, attorneys do now have a duty to inform clients about potential deportation).646

Perhaps what is more remarkable, but less surprising at this point of our story, is that even when 268 forced to confront hidden sentence laws and their hiddenness, courts manage to avoid critically engaging with their reality as penal-criminal laws that legally discriminate based on labels and identities of criminality.

First, not one of the decisions that created the rule actually defined a “collateral” consequence.647 The Fourth Circuit first presented a definition thirty years after Parrino: consequences are collateral if they do not have a “definite, immediate and largely automatic effect on the range of the defendant's punishment.”648 This rule, of course, turns on whether the consequence is defined as punishment or regulation, conflating the two doctrines and making the definition of collateral consequences circular (a consequence is collateral if it is not part of the punishment, assuming a priori that hidden sentences are not themselves punishment). Other circuits define directness according to whether the court itself has “control and responsibility” for the consequence,649 but this test is just as circular (courts need not take responsibility for or control of those consequences for which they have no control or responsibility). Because of these ambiguities, courts often have trouble finding the line between direct and collateral consequences.650 A practical translation of this tortuous rule is thus that only the criminal fines and a tenure of prison, jail, or probation constitute “direct” consequences of the sentence; anything else is (probably) “collateral.”

Second, the formation of the collateral-consequences rules has a history of deflecting responsibility by conflating the role of the judge in ensuring a guilty plea is voluntary and knowing with the duties of the defense attorney to effectively inform the defendant. “[J]ust as defense counsel and the court have different duties of loyalty, investigation, and legal research as a result of their distinct roles as advocate and decisionmaker, there is no reason to assume that 269 their obligations of advising the accused of the risks and benefits of pleading guilty should be identical.”651 Thus, some courts even created the rule in respect the judge’s duty of notice under due process while nevertheless assuming that such a duty is incumbent upon counsel.652

Nevertheless, no circuit has ruled that counsel does have the duty to inform the defendant about collateral consequences.653

With almost fifty thousand hidden sentences in the United States that apply to more than one in three American adults, hidden sentences would have by now become much more widely known if not for the collateral-consequences rule and the frames that support it. This is not to claim that the American public always has a clear grasp of penal laws, much less more complex and obscure areas of law.654 Still, if attorneys and judges were responsible for providing even a brief overview of hidden sentence law before pleadings or at sentencing—and if legal education institutions provided such overviews to attorneys and judges in the first place—they would be more understood, known, or at least recognizable to segments of the American populace.655

Instead, because of the judge-created laws that enforce hiddenness, hidden sentences still are and have since their evolution from older iterations of attainder practices been obscured, overlooked, or unknown to varying degrees.

THE DISSEMINATION OF THE POWER TO PUNISH

It is clear based on the trends in hidden sentences’ growth trajectory that they have for some time been tending toward more obscurity and normalization. They are fundamental forms of classification ingrained in the socio-legal structure of the United States. They are deep, reifications of bad character combined with color- and status-blind essentializations of racial, political, sexual, and other identities of marginalization and privilege. They are therefore key 270 legal sources and socio-political outlets of racialization, criminalization, and othering practices in general that are, because they are hidden, virtually beyond question and contestation.

Hiddenness both creates and protects the dimensions of inequality.

Still, the Weberian perspective on punishment outlined in Chapter Two reminds us that there is at least one more, crucial dimension upon which hiddenness functions to construct criminality: the interactional, experiential one. Because of the nature of the historical data involved in this study, we have spent most of it concerned with the perspectives and meanings used by the policymakers who create hidden sentence laws, but it is not policymakers who actually implement, enforce, or experience those punishments. Without additional kinds of evidence, we cannot be certain how hidden sentences are interpreted by those who experience them on a day-to-day basis, but the structure of the laws themselves can provide enough information to make a key, final step in theorizing the hidden penal system’s social functions.

Recall from Chapter One that about half of hidden sentences today are discretionary and half are mandatory, a pattern that has been consistent throughout every phase of hidden sentencing. Whether they are discretionary or mandatory, however, they are implemented and administered not by police or public law enforcement officers but typically by low-level, employees of state bureaucracies or private businesses (i.e., in Weber’s perspective, private bureaucracies). As the many examples throughout this study have indicated, they can be enforced variably by professionals appointed to boards of medicine, accountancy, engineering, etc., by civil servants of varying levels in state administrative agencies, or by private employers, or by lease-owners, or by virtually any other position in society that is hierarchical in control of another. 271

In other words, hidden sentences function in part to disseminate the power to punish among (certain) “ordinary” American citizens, at times permitting and at times requiring them to enforce schema of penal classification and penal boundaries of inclusion and exclusion. Hidden sentence law is, in effect, a modernist version of the traditional “frankpledge” system that permitted and required common citizens to wield the state’s power to police and direct it at one another through very public, communal, and known rituals.656 Unlike frankpledge, however, hidden sentences do not merely disseminate the state’s surveillance power among all members of a community acting in concert. Instead, they endow some citizens with the state’s punitive, coercive power and allow them to use it through repeatable, private, dyadic interactions upon criminalized others, while forcing those others to passively, powerlessly fill the role of the objects of coercive actions. In other words, hidden sentences empower “ordinary” citizens to act, as the saying goes, as judge, jury, and executioner—as boundary-makers between themselves and the excluded.

It is here that hiddenness is perhaps most impactful, because it characterizes that series of dyadic interactions. If common citizens (criminalized or not) in fact know very little about hidden sentences and fail, as policymakers do, to recognize them, attend to them, or understand them in any experientially meaningful way, then it offers a very particular social function: it allows individualistic rituals to be infinitely repeatable. The criminal can be classified and excluded again and again, not just made once into the symbolic vindication of the public’s (or the courtroom’s) emotions in the sense of Durkheimian visible punishment, not just sent once into Foucault’s unending disciplinary carceral complex, and not just once fastened with a clearly alienating identity in the sense of Marxist oppression.657 Instead, in a deeply Weberian sense, 272 hiddenness allows the criminal to experience routinized, rationalist classification and exclusion again and again, trapping him in a neverending, bureaucratic system of oppression that she cannot shed, cannot predict, and cannot control.658

Remember, however, that essentializations are relative identities, and that punitive interactions do not only have one party. Criminality is a color- and status-blind label of marginalized identities that necessarily co-constructs the opposing, negatively defined, invisibly privileged identities that constitute the “mythical norm,” the “ordinary,” “law-abiding” American citizen. It is this position of privilege that disseminated, hidden rituals of state coercion endow upon the enforcers, the boundary-makers of the hidden penal system. By repeatedly providing them with the position of included decisionmaker in contraposition to that of excluded criminal others, these rituals of hidden sentencing are dual experiences of exclusion and inclusion, marginalization and domination, otherness and belongingness. In fact, because neither criminals nor “ordinary” citizens tend to recognize or directly confront hiddenness, these rituals of belongingness are uniquely productive of privilege: invisible feelings of empowerment by the

American state, belongingness within the dominant society, and yet no awareness of an altered position—as if the boundary-maker has intrinsically been one of “the good people” all along.

This experiential dimension of hidden sentences is, of course, in crucial need of further study. The best we can do here is to extrapolate based on the laws on the books, but the ethnographic study of the experiences of the disseminated power to punish is necessary to truly understand the reality of hidden sentences and criminality in America today. Even with the information we have on the structure of hidden sentence laws, however, we can say that hidden sentences empower certain, likely already privileged members of society, like employers and 273 landlords, with state-sanctioned control over another person and state-enforced power to exclude the punished. This sort of ritualistic action does not, in the Durkheimian sense, promote a holistic kind of social solidarity (as it might for all onlookers of a public penal ritual) but rather allows one member of the dyadic interaction—the punisher—to attain a symbolic sense of group solidarity with the good, law-abiding people, to feel a deep and unquestionable sense of social prestige, privilege, or Weberian Stände, and then to return to an invisibly privileged life until the next opportunity to punish comes along (or until the roles are reversed).

We can also say that the criminal experiences that hiddenness directly and personally, becoming part of the ignored aspect of the ritual and forced to attempt it again in order to live in society without even the power, the ability to recognize what it is, without knowing when the criminal identity will be activated and re-ascribed, being so disempowered and dehumanized (or, in more Marxist language, alienated) from lawful society as to not even know what punishments exist and are awaiting in the future. Hidden sentences, then, are simultaneously locatable within all Weberian, Foucaultian, Durkheimian, and Marxist perspectives of punishment—and yet none of them can encompass the whole. It will take all of them, alongside newer theories of essentialization and a coordination of research methods, to truly understand the rituals of criminality that characterize hidden sentences’ social functions.

THE PRIVILEGE OF PUNISHING

This study has sought to turn a critical eye on the past in order to radically undermine the present. We started with a series of assumptions about criminality, penality, and the modern world, and we (hopefully) have discarded many of them. The War on Drugs was not suddenly created in the 1970s and 1980s, did not create a regime of collateral consequences, and has not 274 always been focused on blacks. It also is not the only origin point that can characterize the contemporary penal system. Hidden sentence law is simultaneously broader, older, more pervasive, and more central to American society than anyone today seems to know.

Because they have focused primarily on conviction and imprisonment as their subjects of analysis, previous perspectives on modern penality have approached it as concerned with norms of (criminal versus non-criminal) action: as a disciplinary production of normal, non-deviant modes of behavior, as an emotional reassertion of collectively shared, deeply held moral imperatives, or even as rules of action that disproportionately protect capitalist property and the means of production.659 With rare exception, they have not treated boundary-making and belonginess as key, ingrained aspects of punishment’s social functions.660 Instead, most analyses of punishment treat the deeply rooted relationship between punishment and systems of unequal classification as an unfortunate side-effect, as a momentary aberration of current penal arrangements that has little to no direct relationship to punishment’s enduring functions in modernist society.661 This project has used an amalgam of these prior approaches joined together under a set of Weberian themes of rationalization, bureaucratization, and symbolic boundary-making in order to take a new perspective of modernist penality through the lens of hidden sentences.

The hidden penal system is a deeply institutionalized part of American society, originating both in the regulatory state of bureaucratic modernity and in the exclusionary practices that the ancient, medieval, and modern world attach to the attaintedness or stain of the criminal label. Hidden sentencing’s defining features in the modern age are its new separability 275 from visible forms of sentencing and its comparable hiddenness. It is that hiddenness that provides its unique social functions.

Hidden sentences are at their core classificatory; they are modernist, rational-legal formalizations of traditional forms of boundary-making. Likewise, the kinds of classification they make are ostensibly rationalized (objective, calculable, uniform, and efficient), bureaucratized, and formalized. Because they are publicly, politically, and legally hidden, however, they are largely a set of unanticipated or underanalyzed consequences of policy actions, so that they not only derive from but also perpetuate a particular kind of exclusionary assumption. And because those rationalistic actions contain such systematically unanalyzed assumptions, although hidden sentences and the discourses that give rise to them both appear race-neutral and status-neutral, they are also inherently biased along multiple forms of racialization and essentialization—early forms of color- and status-blind othering based on shared assumptions among elite policymakers. Instead of legal controls directed at norms of actions and behaviors, they are legalized systems of discrimination and belongingness.

Finally, because this system of boundary-making remains hidden, it can serve to routinize and ultimately naturalize those color- and status-blind divisions deep within legal structures and social rituals. As hidden sentence laws continue throughout American history to be enacted through less deliberative kinds of policy actions, and as the exclusionary assumption repeatedly passes through the policy process without being successfully contested, the practices of penal exclusion based on criminalized labels are becoming more routine, more normal, more natural.

Similarly, because they are hidden not only on the macrosociological level of public policies but also on the microsociological level of individual interactions, hidden sentences can repeatedly 276 create, protect, and reproduce the social identities of privileged inclusion and criminalized exclusion through repeated, dyadic, and continually hidden rituals of penal boundary-making.

Hidden sentences are not simple side-effects of mass incarceration, nor are they accidental results of “real” punishments. They are deep, systemic, pervasive methods of inclusion and exclusion that have characterized American law since before the turn of the twentieth century. They have since their beginnings been enacted in ostensibly race- and status- neutral terminology, and they have since their beginnings been enacted based on unanalyzed, elite assumptions of who belongs and who does not: they have long been a system of color-blind racializations and status-blind essentializations endowed with the sanctity and coercive power of the law. Their function, just as the function of older iterations of attainder in ancient Rome and

Greece, has always been to exclude—but in the modernist era of abstract rationality, their function has also always been to reinforce and reproduce the boundaries of privileged inclusion. 277

APPENDIX: DATA AND METHODS

HISTORICAL AND STATISTICAL EVIDENCE

This study makes use of two principal sources of data in conjunction with one another. Both are described in the Introduction in reference to case selection and usage, but further details and complimentary sources can be found here. The primary evidence comes from archival, historical documents that trace the legislative processes from two jurisdictions: California and the federal system. Data comes from legislative committee minutes and floor debates, session laws, judicial rulings and transcripts, and occasionally media and scholarly articles. Archival documentary sources were gathered over four trips to the California State Archives in Sacramento, California, and the National Archives in Washington, D.C. Additional documentary evidence on the legislative process was gathered online via ProQuest Congressional’s and Bloomberg Law’s databases of the records of the federal Congress, HeinOnline’s depository of historical session laws and U.S. Statutes at Large, and LexisNexis and WestLaw’s collection of judicial rulings, transcripts, motions and briefs, and other court-related documents.

Additionally, this project uses nationwide statistical data to supplement and ground the historical analysis from the National Inventory of the Collateral Consequences of Conviction

(NICCC), a database of all post-release hidden sentences in each United States jurisdiction. The

NICCC is the only known dataset that comprehensively captures all hidden sentence legislation 278 in the United States. It is used throughout this analysis to provide useful statistical evidence of hidden sentence trends, and was also used to randomly select cases for in-depth archival analysis, as described in the Introduction.

The NICCC, however, does not include “year of enactment” as an available variable. I instead collected year of enactment for each of the 42,634 hidden sentences through two methods. First, I manually coded year of enactment for 2,605 hidden sentences across five jurisdictions: California, federal law, Alabama, Montana, and Wyoming. That coding process involved tracing the available legislative history via LexisNexis and WestLaw, checking each listed session law to see if the hidden sentence in question was present in that version of the law, and if the earliest available session law in those databases contained the hidden sentence, also searching manually all prior session laws for that jurisdiction via HeinOnline for the hidden sentence in question. Second, I used multiple imputation based on the 22,605 complete cases and all other relevant variables in the NICCC to account for the other 40,029 hidden sentences.

Imputation is a popular method today that fills in missing data by drawing “imputed” values randomly from a distribution of most likely values, according to the available, non-missing data for each case.662 “Multiple imputation” allows computational software to draw more than one imputed value for each case, run an analysis for each set of imputations, and then pool the analyses’ results in order to account for potential biases in the imputational draw. For this analysis, I used five imputations (although two or three has been shown to yield accurate results) drawn through a regression model truncated at 2013 (the most recent NICCC year included in the analysis) to account for year of enactment. 279

Because the results for any table or figure that use year of enactment as a significant variable (i.e., Figure 1.7 onwards) are based on multiple imputation rather than actual year of enactment, any future analysis that uses complete data on hidden sentences’ year of enactment may reveal different results. Because multiple imputation is the most advanced method of substituting estimated values for missing data, we do have good reason to suspect that the results presented here are consistent with actual patterns of historical development. Still, it is worth emphasizing that none of the most important inferences of this study rely exclusively on the statistical results apart from qualitative verification of those trends, so that even error attributable to the imputation process should have little impact on my conclusions.

In addition to the NICCC, this study draws variables from seven additional data sources.

Data on prison populations (“inmate rate”) in both federal and state institutions was gathered through the Bureau of Justice Statistics’s National Prisoner Statistics, 1978–2011 and Historical

Statistics on Prisoners in State and Federal Institutions, Yearend 1925–1986.663 Prison admissions data (“imprisonment rate”) overall and by racial identity were gathered via the

Bureau of Justice Statistics’s Race of Prisoners Admitted to State and Federal Institutions in the

United States, 1926–1986.664 Political partisanship/power variables (both for governorships/presidencies and legislative power) were compiled from the Massachusetts

Institute for Technology’s Partisan Division of American State Governments, 1834–1985 study.665 The Gini coefficient variable, measuring income inequality in U.S. jurisdictions, was collected from the American Community Survey’s 2010 measure, and economic recession data were gathered from the National Bureau of Economic Research’s listing of all economic contractions and expansions in U.S. history.666 Counts of pages in the Federal Register were 280 taken from George Washington University’s RegStats database.667 The year of statehood/nationhood variable was constructed manually via commonly available information.

All other variables were derived from U.S. Census data.668 In addition, the Census data was used where available and in conjunction with linear interpolation to fill in missing data for the above variables.

ANALYTICAL METHODS

Multiple methods were used throughout this study. The primary method is qualitative, textual analysis, the most appropriate method for analyzing the policy actions of legislative, administrative, and judicial actors in enacting hidden sentences, and the context surrounding those actions.669 After converting and storing relevant archival documents in an OCR (optical character recognized) format, I used nVivo content analysis software to assist in searching and coding documents to identify patterns in policymakers’ decision-making processes: repeated terminology they used, repeated presuppositional patterns, relevant contextual factors, their final justifications, and other factors they considered. In this method, analysis is grounded by first coding the data according to the hypotheses present in the literature—for instance, to test the presence of “justice,” “vengeance,” “deserving,” or “fair” to track patterns in expressive retribution. The nVivo software also automatically counts references and terms used in order to identify patterns over time, place, and actor, allowing as well for inductive, emergent data analysis, creating a systematic approach to constructing an historical narrative of the policy logics behind hidden sentences. This method of historical analysis can be seen as an adaptation of grounded theory, which is used frequently in ethnographic research methods and allows the 281 researcher to construct a theoretical approach from patterns in the data rather than approaching the analysis through preconceived, deductive hypotheses.670

This systematic approach was especially important in identifying patterns of content and context that allowed me to analyze policymakers’ underlying assumptions—especially the exclusionary assumption that is so key to this analysis. By exhaustively coding presuppositions throughout the legislative record and accompanying sources, I was able to identify the logical leaps and shared assumptions policymakers made while constructing hidden sentences.671 For example, whenever policymakers addressed hidden sentences but failed to question or analyze whether or not exclusion based on criminality was appropriate or legitimate, I was able to code the relevant text.

This method is, of course, an interpretive kind of method that depends on my own

(admittedly critical) reading of publicly available historical data, and will necessarily be, as

Weber espoused, only one of several valid viewpoints available on the history of hidden sentence laws. Interprevitivist methods are common ways of dealing with the ambiguities inherent in critical legal studies and other approaches to analyzing legal history as a socio-political process that involves more than a simple progression of legal doctrines.672 The key is to view legal texts as an element of (particularly powerful) discursive expressions of the policymakers who collectively wrote it, so that their shared assumptions and cultural framings have entered upon the end result and can be analyzed as such. Because interpretivist methods are necessarily subjective (despite my efforts to be as systematic and unbiased as possible), and because this study cannot possibly account for the rise of all 45,000 hidden sentence laws, it ought to be taken 282 as the first step in a collective project of analyzing hidden sentences rather than “the” definitive text on the subject.

Additionally, this study makes use of statistical analysis through event-history or survival analysis and Poisson modelling of count data. In Chapter Three, I make use of Cox proportional survival analysis (semi-parametric hazard or event-history modeling) to measure the “hazard,” or annual risk, of a jurisdiction enacting more than two hidden sentences for the first time.

Continuous-time survival models have numerous advantages, allowing us to measure annual influences of events on the hazard of enacting hidden sentences while accounting for dependence of observations across time and censoring when cases join or leave (i.e., become states or “fail” by enacting the requisite number of hidden sentences) the study.673 In Chapter Four, however, when we are interested in the continuing patterns of hidden sentence laws following jurisdictions’ initial passage of hidden sentences, multi-level Poisson models that measure patterns in counts of hidden sentence laws per year, while controlling for different jurisdictions’ error rates via random effects, are more appropriate.674 For consistency, state-years in Chapter

Four’s Poisson models were constrained to the same years as the survival models in Chapter

Three. See the relevant footnotes in each chapter for more information on the model’s constraints and justifications.

283

NOTES

1. In 2015, there were 1.5 million people in federal and state prisons (Carson and Anderson

2016). The Census Bureau (2017) estimates there are currently 234,656,160 adults living

in the United States, which boils down to about 1 in 150 who are imprisoned. This

number is low in many respects, however, considering it does not include jails, probation,

parole, or other forms of official correctional supervision, which together with

imprisonment could include as many as 1 in 30 American adults (Pew Center 2009).

2. E.g., Frost (2006); Garland (2001a, 2001b); Irwin (2005); Simon (2007, 2014).

3. Estimating how many people are directly subject to hidden sentences is a difficult task,

given the lack of systematic information on the number (and kinds) of people imprisoned

in jails, under community supervision, and having arrest records. The FBI currently has

77.7 million individuals on file in its master criminal database. Using the same census

figures from Note 1, 33.1% of the adults American population have a criminal record.

This is likely an underestimate, however. As of 2014, a nationwide report found criminal

records for 105,224,900 distinct people in forty-nine states, the District of Columbia

(Bureau of Justice Statistics 2015). The fiftieth state, Wisconsin, reported records for

1,374,600 persons in 2012 (Bureau of Justice Statistics 2014b). Using those numbers 284

(which still do not include federal records), as many as 45% of American adults have a

record in one or more jurisdictions.

The catch is that, as Chapter One emphasizes, there are a large number of hidden

sentences that—according to their strict legal language—could apply even based on

discretionary judgments of gatekeepers even in the absence of a criminal record of any

kind. It is nearly impossible to guess how many American adults could accurately be

subject to such discretion, but since courts tend to give these gatekeepers the benefit of the

doubt in erroneous judgments, it is not unrealistic to suggest that more than 50% of

American adults could be legally subject to one or more hidden sentences. Bear in mind,

however, as I emphasize throughout this study, that being technically subject to a law does

not mean it has any real impact (the gatekeepers could, after all, choose not to close the

bars).

4. Alexander (2010).

5. Alexander (2010:197).

6. Garland (2001a).

7. Clear and Frost (2014), Mauer and King (2007).

8. The difference between formal and informal social controls has been important to

sociologists since at least Ross ([1901] 2009). Weber ([1919] 2004) also focused a great

deal on formal social control, famously arguing that the state can be defined as the entity

with a “monopoly of the legitimate use of force.”

9. E.g., Demleitner (2003); Pager (2007); Uggen and Manza (2002).

10. E.g., Burton, Cullen, and Lawrence (1987); Demleitner (1999). 285

11. Pinard (2006, 2010).

12. Clear and Frost (2014); Pager (2007); Simon (1993).

13. See Demleitner (1999); Mauer and Chesney-Lind (2011).

14. Alexander expressly uses the term “mass incarceration” to refer "not only to the criminal

justice system but also to the larger web of laws, rules, policies, and customs that control

those labeled criminals both in and out of prison" (13). Even within this statement, there

is a palpable assumption that the “criminal justice system” and all trends within it can be

conceptualized as an imprisonment system. There is no room for divergent trends for

other parts of the visible penal system, and by explicitly folding the “web” of hidden

sentences and social consequences into the mass incarceration system, no room is left for

causal or functional differences between the multiple ideas.

15. Tonry (2007) outlines the penological field’s tendency to fixate on imprisonment rates to

the exclusion of other forms of evidence, or even other characterizations of the harshness

of prisons. Trends in prisoners’ rights or shifts in the cultural practices within prisons

could be just as if not more theoretically important, but imprisonment rates have

dominated the discourse since at least the 1990s.

16. See Zedner (2002). In fact, the idea of a “punitive turn” in all criminal justice is both

evidence of and a source of this discursive hegemony.

17. Travis (2002, 2005).

18. I do not want to overstate this point: There are a few studies that provide some evidence

that hidden sentence laws have been increasing over time, and that they may have

increased more in the same time period as mass incarceration arose. Burton et al (1987) 286

and Buckler and Lawrence (2003) taken together show a decline in some kinds of hidden

sentence laws around 1980 followed by an increase in most kinds by 2000. Behrens,

Uggen, and Manza (2003; Manza and Uggen 2006) also showed a similar trend in felon

re-enfranchisement and disfranchisement laws. Neither research project uses a complete

overview of hidden sentence laws (the latter is specifically only about felon

disfranchisement), and some authors’ referencing of Burton et al’s 1987 study for a

marked “decline” is an overstatement (e.g., Travis 2005). Burton and colleagues claimed

that two kinds of rights—to hold public office and to hold public employment—were

becoming less restricted over time (though they did not even offer a reference for a

comparison point for the former claim), but they noted that there were far more examples

of kinds of hidden sentences increasing since earlier studies attempted to count them. Yet

even if we take these studies into account and overlook their flaws, there is not enough

evidence for anything more than an inference or hypothesis that hidden sentences have

been increasing over time, much less an increase since mass incarceration.

19. For instance, Phelps (2017, 2011) shows evidence that both probation and the provision of

services inside prisons varies by state, but does not track state variation in imprisonment

rates. The variation can be explained in some states as “net-widening” as we might expect

if mass imprisonment really is the defining reference point for the penal field, but in other

states, probation can be seen more as a rehabilitative or less punitive alternative.

Allowing for variegation in the penal field shows that multiple trends exist at any given

moment, such that focusing so closely on imprisonment overlooks much of the complexity

that actually defines the field and orients its discourse (Hutchinson 2006). 287

20. The first works to come out of Garland’s (2001a) famous monograph emerged with the

same ultimate focus, and combined with our reductivist tendencies in contemporary

society and academia, boiled down the “culture of control” pervading the penological field

to a study of only “mass imprisonment” (see, e.g., Garland 2001b).

21. Alexander (2010).

22. If I were to add a small but crucial caveat to Alexander’s main argument to avoid that

empirical problem, I would clarify that although there is no evidence that mass

incarceration caused an increase in the number of hidden sentence laws, it definitely

marked an increase in the number of people captured by the penal system and marked as

criminals. As Alexander documents, there are measurable increases in the number of

people convicted of both felonies and misdemeanors since the onset of the War on Drugs,

and barring some strange and wholly implausible changes in the content of hidden

sentence laws, we can probably infer that the number of people impacted by hidden

sentences has risen in response to mass incarceration. For our purposes here, though, it is

still jumping the empirical gun to claim that hidden sentences themselves arose or got

more severe after mass incarceration began.

23. See Alexander (2010); Beckett (1997); Campbell and Schoenfeld (2013); Garland (2001a,

2001b); Simon (2007).

24. Foucault (1977); Williams (2002).

25. See Corbin and Strauss (2008). Of course, no researcher can divest themselves of all

preconceived ideas of theoretical relationships, and I am sure I am no different. The

difference in this kind of genealogical approach, however, is that I did not take theories 288

from other literatures (on the visible penal state, for insance) and allow them to control

precisely which relationships I gathered data to test. Instead, I gathered all the historical

evidence I could find, analyzed it, gathered more evidence that related to the analysis,

analyzed it some more, and eventually found important patterns upon which to theorize.

26. Barot and Bird (2010); Garland (2001a); Rusche and Kirchheimer (1939); Simon (1993).

27. E.g., Chin (2003); Grant et al. (1970); Pinard (2006).

28. E.g., Kuzma (1998).

29. Travis (2005:64, n.1).

30. Chiricos et al. (2007); Ray and Downs (1986).

31. “Invisible punishment” has occasionally been criticized as implying a rigid and

unchanging kind of obscurity (e.g., Avaram 2010; Day 2013), and, as the next subsection

will show, “punishment” tends to provoke more disagreement than does synonyms like

“sentence” or “sanction.” In developing the term, Travis (2002, 2005) was also focused

on using a reentry perspective. All in all, “invisible punishment” has received very little

disapproval as a conceptual category and there is little logical reason why it cannot be

substituted for “hidden sentence” throughout this analysis. Practically, it is useful to the

extent that it better orients the occasional reader in one of those three ways.

32. Alexander (2010).

33. Travis (2002, 2005).

34. Padilla v. Kentucky, 559 U.S. 356 (2010); see also Chin (2011); Love (2011a).

35. Travis (2002, 2005).

36. E.g., Ewald and Smith (2008). 289

37. See Travis (2002, 2005).

38. Sociologists tend to give functional and theoretical, but not ontological, definitions of

“punishment,” so we will have to look in other disciplines for such a definition. Perhaps

the most relevant one comes from H.L.A. Hart ([1968] 1995), who isolated five elements

that correspond to the definition used in this monograph:

(i) It must involve pain or other consequences normally considered unpleasant.

(ii) It must be for an offense against legal rule.

(iii) It must be of an actual or supposed offender for his offense.

(iv) It must be intentionally administered by human beings other than the offender.

(v) It must be imposed and administered by an authority constituted by a legal system

against which the offense is committed.

Other definitions across disciplines are substantially similar: in law, the legal deprivation

of a citizen’s rights due to a violation of a rule of law (Rawls 1955); in psychology, any

positive or negative change in surroundings after a given behavior that reduces the

likelihood of that behavior’s reoccurrence (Chance 2003); in common parlance, “The

imposition of a penalty or deprivation for wrongdoing” (American Heritage Dictionary

2011), “Something, such as loss, pain, or confinement, imposed for wrongdoing” or

(American Heritage Roget’s Thesaurus 2013).

39. E.g., Smith v. Doe, 538 U.S. 84, 92 (2003).

40. See Rawls (1955). Note that some studies differentiate between purposefully and

purposively, rather than between purposely and purposively, as I do here. In both, the

distinction is between voluntary, intentional actions and actions that contain purpose or 290

motive; the distinction is really only with the word directed toward the former. I prefer to

use the terms "purposely" or "on purpose" not to create a third paradigm but to refer to the

former kind of behavior while avoiding confusion with a third, related meaning.

"Purposefully" can also be used to mean behavior that is done resolutely and with

determination.

41. E.g., Kadish et al. (2007).

42. Hart ([1968] 1995) and Rawls (1955) both include such an element.

43. Gardner (1982).

44. Berk et al. (1977).

45. See Lieberman (2008).

46. See Simon (1993); Williams (2002).

47. DiMaggio (1997); Vaisey (2009).

48. See Manza and Uggen (2006); Williams (2002).

49. E.g., Alexander (2010); Burton et al. (1987); Demleitner (1999); Travis (2005).

50. Allison (2001); Rubin (1976, 1987).

51. Campbell and Schoenfeld (2013); Page (2011); Simon (1993).

52. E.g., Becket (1997); Travis et al. (2014).

53. E.g., Schoenfeld (2010).

54. Yin (2009).

55. ABA (2014). The data also include information for Puerto Rico and the Virgin Islands.

Because these jurisdictions have no comparison point to recent studies of the visible penal 291

system, and because of translation issues in the former case, I have chosen to exclude

them from the analysis and all figures presented in this monograph.

56. Eight of these laws turned up a complete void in archival documents. If there was any

relevant information at all, I kept the case, but again following the logic of imputation, if a

case literally had no information other than a name, I was forced to exclude it from the

analysis. In those eight cases, I randomly selected a new law, leaving the original sample

at eighty six.

57. Beckett and Sasson (2000); Hagan (2010); Murakawa (2006, 2014).

58. Foster and Hagan (2009); Manza and Uggen (2006); Wacquant (2000, 2001); Western

(2006).

59. Pettit and Western (2004); Wacquant (2009).

60. Alexander (2010:199).

61. Alexander (2010); Wacquant (2000).

62. See Wacquant (2000, 2001).

63. E.g., Tonry (2011); Western (2006).

64. Omi and Winant (2015); see also Lieberman (1998, 2008); Lowndes et al. (2008); Winant

(2001).

65. E.g., Bennett (1975).

66. Bobo et al. (1997); Bonilla-Silva (2001, 2014); Van Cleave (2016).

67. See Barot and Bird (2010); Weiner (2012).

68. See, e.g., Weiner (2012); Omi and Winant (2015).

69. Carr (1997); Wildman (1996). 292

70. Bonilla-Silva (2001, 2014).

71. Kull (1992).

72. Haney López (2006).

73. I am defining the exclusionary assumption in somewhat Foucaultian terminology, because

it is most appropriate to capture the entirety of the concept in our study (Foucault 1977).

Through the course of the study, however, we will also bring to bear perspectives from

neo-Marxist and historical institutionalist perspectives. E.g., Gramschi ([1935] 1992);

Steensland (2006).

74. Okolie (2009).

75. E.g., Garland (1990).

76. In that sense, the genealogical approach in this monograph bears some important

similarities to historical institutionalist approaches. Pierson (2004); Tilly (1984). Both

approaches take the continuity or even “path dependency” of social institutions as a

central element of historical processes that restrict and shape change. See Biebricher

(2008); Mahoney and Thelen (2010). Both approaches have developed to take not only

formal systems of rules (e.g., laws) but also informal conventions, procedures, and

discursive arrangements as key parts of social institutions. Foucault (1977); Weir et al.

(1988). The two approaches are not that divergent in theoretical orientation or even in

methodological choices (the former tends more toward comparative analysis, for instance,

but there is nothing in either approach that requires certain methodologies in all cases), but

ultimately in the questions they ask. Historical institutionalist studies, however, are

primarily concerned with isolating the causal mechanisms that underlie particular policy 293

shifts and current institutional arrangements—why they changed as they did in the past—

while this study takes a more genealogical focus on what current institutional

arrangements actually are and what their historical lineages are—how they are arranged

over time and why they persist in the present.

77. E.g., Foucault (1977).

78. Garnsey (1968).

79. Agamben (1998); Damaska (1968). The direct translation is “the sacred man,” but the

meaning of sacer in Latin literally meant a person or object that was “set apart” from

society, in the sense of being either sanctimonious or damned. Thus, even though

“sacred,” a homo sacer was not even fit for sacrifice to the gods.

80. Kelly (2006).

81. Damaska (1968); Manza and Uggen (2006). Atimia itself is better thought of as ostracism

that does not necessarily require criminality, but simply a communal vote of exile and

removal of citizenship.

82. Garnsey (1968).

83. Kelly (2006).

84. Garnsey (1968). Opus publicum may have sometimes also included a temporary

rescinding of citizenship status for the term of public service.

85. Kelly (2006).

86. E.g., American Heritage Dictionary of the English Language (2011).

87. Blackstone ([1769] 1890:1035–1036).

88. Blackstone ([1769] 1890:1036). 294

89. The famous poem, The Faerie Queene, for example, treated attainder as an issue of honor

rather than law: “For Amoret right fearful was and faint, Lest she with blame her honor

should attaint.” Spenser ([1596] 1978:566).

90. See Grant et al. (1970). Blackstone ([1769] 1890:1036) interpreted the distinction

between conviction and the application of attainder as one more legal hurdle before the

ultimate sentence, “for there is still in contemplation of law a possibility of his innocence.

Something may be offered in arrest of judgment: the indictment may be erroneous, which

will render his guilt uncertain, and thereupon the present conviction may be quashed.”

91. See Chin (2012). The terminological danger here is, of course, to slip into suggesting that

the penalties of attainder are “incidents” of conviction or punishment, especially since the

etymology has developed to make “incident” imply a mere and minor consequence of

conviction or punishment. To put the distinction in a more technically accurate way,

given the common law’s perspective on attainder, just as the (visible) sentences of

imprisonment, death, etc,. are direct incidents of the status of conviction, the (hidden)

sentences of civil death, forfeiture, etc., are direct incidents of the status of attainder.

92. Damaska (1968); Dayan (2011).

93. Reynolds (2005).

94. Chin (2012).

95. Blackstone ([1769] 1890) treats attainder as consequent only of a death sentence, and civil

death as a consequence of all three, causing many subsequent readers to mistake attainder

for a more limited phenomenon than it actually was. E.g., Bentson (1953); Saunders

(1970). It was, however, used by monarchs and Parliament to strip titles along with 295

banishment or outlawry rather than death, and was used colloquially to refer to any person

of criminally stained status. See Dayan (2011); Reynolds (2005). The technical name for

outlawry was also “attainder by process,” making it distinct from attainder as a result of

convictions and legislative actions.

Civil death (though not attainder) could also be imposed based on a fourth status: entering

into the religious profession as a monk. Blackstone ([1769] 1890). Also, though it is

omitted in Blackstone’s treatise, slaves of the state were also considered objects rather

than subjects of the law and therefore lacked any civil rights and standing—again in a

direct successor to Roman forms of non-citizenship. Dayan (2011).

96. Chin (2012).

97. Damaska (1968).

98. Hitchcock and Shoemaker (2006); Pollock and Maitland ([1895] 1968); Rubin (2012).

99. Damaska (1968); Ewald (2002). The banishment procedures of Roman law (an

interdiction against fire and water, but not a public decree encouraging killing of the

outlaw) imply that exiles might have survived within the boundaries of Rome. Roman law

did not differentiate, however, between outlaws and exiles in the same way that English

law did, and outlawry in the latter could procedurally apply to a much wider range of

crimes.

100. Damaska (1968).

101. Blackstone ([1769] 1890).

102. Summerson (1979:322).

103. Pollock and Maitland. ([1895] 1968). 296

104. Simon (1993).

105. Damaska (1968).

106. Simon (1993).

107. Hitchcock and Shoemaker (2006); Foucault (1979).

108. Pollock and Maitland. ([1895] 1968).

109. U.S. Const. art. III, §3.

110. Dick (2011); Grant et al. (1970).

111. U.S. Const. art. I, §§9–10. Only Maryland, Massachusetts, Vermont, and New York

banned bills of attainder, and even so, the New York constitution made an exception for

crimes committed before and during the Revolution. Some of the supporters for bills of

attainder included Patrick Henry and Thomas Jefferson. Reynolds (2005).

112. Dick (2011); Reynolds (2005).

113. Foucault (1977); Rubin (2015).

114. E.g., Platner v. Sherwood, 6 Johns. Ch. 118 (1822). See also Chin (2012); Ewald (2002).

115. Grant et al. (1970).

116. See Blackstone ([1769] 1890); Pound (1913).

117. Bentson (1953); Chin (2012); Saunders (1970).

118. Garland (1985).

119. Grant et al. (1970); Saunders (1970).

120. Chin (2012).

121. The only states left with limited civil death statutes are New York, Idaho, and Rhode

Island. Chin (2012). 297

122. Although data collection was complete in late April and early May 2014, organization and

consolidation of the data continued until July. The NICCC is an ongoing effort, updated

annually by ABA/NIJ, but the results presented in this monograph represent a cross-

section of hidden sentences from July 2014 (when the data was completed). Initial results

from May 2014 suggested that there were actually between 60,000 and 90,000 post-

release, legislative hidden sentences, so the results presented here are, if anything,

underestimates of the scale of this area of law.

123. The NIJ and ABA researchers who compiled the NICCC approached the project from the

perspective of “collateral consequences” logic, which typically focuses on (a) legislation

and regulation that (b) targets offenders released back into the community. Despite

acknowledging that conditions of imprisonment, probation, and parole all “appear to fall

within the [Court Security Improvement Act of 2007] definition and are treated as

‘collateral consequences’ by some courts,” the NICCC project team explicitly chose to

exclude issues of offenders’ rights as mere “incidents of the [visible] sentence.” ABA

(2013).

124. The NICCC is publicly available at abacollateralconsequences.org/ for informational and

educational purposes and is an important resource for those interested in understanding

post-release, legislative hidden sentences. The ABA Criminal Justice Section and the NIJ

deserve full credit for completing the herculean task of searching for all relevant

legislative provisions and analyzing them for inclusion in the database. This project

extends the NICCC data in some ways and uses it as a basis for both statistical and 298

historical analysis. For more details on the data and methodology, see the Methods

Appendix.

125. The federal Temporary Assistance to Needy Families Act lays out the federally subsidized

food stamp program, under which drug offenders and other classes of criminalized people

can be discretionarily or mandatorily denied food stamps. 21 U.S.C. § 862a. The North

Dakota Agriculture Code restricts beekeeping licenses to persons who violate any

provision under the beekeeping chapter. N.D. Cent. Code, § 4-12.2-22.

126. Marshall (1950).

127. See Demleitner (1999).

128. E.g., Ore. Const. Art. II, § 3; Tex. Const. Art. VI, § 1; Haw. Rev. Stat. § 19-4. See also

Buckler and Travis 2003.

129. E.g., Ind. Code Ann. § 33-28-5-18; N.C. Gen. Stat. § 120C-602.

130. E.g., Ky. Rev. Stat. Ann. § 304.29-081; Ohio Rev. Code § 2315.21; Ind. Code Ann. § 34-

39-3-1; Ky. R. Evid. 609.

131. Kentucky’s constitution, for example, disqualifies all public officials convicted of

felonies, high misdemeanors, or influencing elections, and Arkansas’s statutory law

excludes felons and certain misdemeanants from both public office and employment of

any kind. Ky. Const. § 150; Ark. Code Ann. § 25-16-1101. Colorado discharges teachers

after a hearing for felony convictions, or immediately for drug offenses and child sex

offenses; Minnesota makes offenders of any kind ineligible for law enforcement; Maine

limits employment at solid waste management facilities; and New York requires bus

drivers to have “good moral character,” which includes no convictions. Ark. Code Ann. § 299

25-16-1101; Colo. Rev. Stat. § 22-63-301; Minn. Stat. § 419.06; Me. Code R. 06-096-400;

8 N.Y. Comp. Codes R. & Regs. § 156.3. None of these are unusual examples.

132. La. Rev. Stat. §§ 28:873, 47:9016, 48:1456, 48:1604, 48:1655.

133. E.g., Wis. Stat. § 454.15(2). See Demleitner 1999; Hunt et al 1974.

134. E.g., Fla. Stat. § 489.518; W. Va. Code R. § 64-14-5. Jacobs and Crepet (2008); Mukamal

and Samuels 2003. The effects of widespread use of criminal backgrounds in hiring are

vastly magnified by an criminalized person’s race. Pager (2007); Weiman (2007);

Western (2006).

135. See, e.g., Stavsky (2003).

136. Colo. Rev. Stat. § 12-47-304(2)(a); 8 Colo. Code Regs. § 1507-12; 12 Colo. Code Regs. §

2509-8.

137. 12 U.S.C.S. §§ 1772d, 1786; 15 U.S.C.S. § 78c.

138. Wisconsin, for example, confiscates all property gained from or used in committing

crimes, including specifically tank vessels violating environmental requirements and all

navigational, sensing, and other equipment used for crimes in connection with submerged

resources. Wis. Stat. § 973.075(1). Missouri imposes forfeiture of a vehicle after multiple

DUIs. Mo. Rev. Stat. § 82.1000. The U.S. Department of Agriculture may impose up to

$11,000 fine for trafficking food stamps. 7 C.F.R. § 3.91. Most importantly, none of

these examples are unusual among nationwide jurisdictions. See also Costigan (1997).

139. E.g., Ala. Admin. Code r. 660-3-12-.04, 660-3-16-.02, 660-3-16-.06, 660-3-17-.04.

140. Most offenders face fines, fees, restitution orders, and other monetary sanctions, which

therefore often cause massive debt relative to expected earnings. Harris et al. (2010). 300

Inability to discharge such debt though bankruptcy is almost certainly a significant barrier

to offenders’ opportunities and abilities to maintain (or return to) social and economic

citizenship. E.g., 11 U.S.C.S. §§ 707, 1328.

141. E.g., Mass. Gen. Laws Ann. ch. 32, §§ 6–7; Mass. Gen. Laws Ann. ch. 32, § 15; R.I. Gen.

Laws § 28-44-24; N.Y. C.L.S. Work Comp. § 10.

142. 8 U.S.C. §§ 1154, 1158, 1160, 1182, 1184, 1227, 1229b.

143. 20 U.S.C.S. § 1078-2; Wyo. Stat. § 21-16-1303. 401 Ky. Admin. Regs. 46:060, 46:070;

Md. Code Regs. 34.04.02.13; N.M. Code R. § 11.2.12.8; 12 Pa. Code § 81.111.

144. 2 C.F.R. §§ 182.510, 421.30, 782.30, 902.30, 1401.110, 1536.30, 2245.30, 2339.30,

2429.30, 3001.30, 3186.30, 902.30; 176 Neb. Admin. Code, ch. 1; Ala. Admin. Code r.

560-X-1-.24; D.C. Mun. Regs. §§ 29-1304, 29-9410. Many states also have blanket

prohibitions on contracts with offenders. E.g., Ariz. Rev. Stat. § 41-2613; Conn. Gen. Stat.

§ 31-57b.

145. 42 USCS §§ 862, 13661, 13663; 21 U.S.C. § 862a. States may opt out of these provisions

or place a time limit on them.

146. E.g., Ark. Code §§ 5-14-128, 5-14-131; Conn. Agencies Regs. §§ 17a-126-3, 17a-145-

152, 17a-150-110.

147. E.g., Del. Code tit. 25, § 5513; Utah Code Ann. § 10-1-203.5; see Thatcher (2008).

148. Mich. Comp. Laws § 380.1311; Okla. Stat. tit. 70 § 24-101.3, tit. 75 § 250.4; .g., 110 Ill.

Comp. Stat. § 17/20; La. Rev. Stat. § 17:2048.31.

149. E.g., N.C. Gen. Stat. § 7B-1111; 23 Pa. Cons. Stat. § 2511; see Buckler and Travis (2003).

150. E.g., Fla. Stat. § 63.089; 9-200 Del. Admin. Code § 201. 301

151. As of 2003, this was true in twenty-nine jurisdictions. E.g., W. Va. Code § 48-5-205;

Buckler and Travis (2003).

152. E.g., Colo. Rev. Stat. § 42-2-125(1)(m); 2-2000 Del. Admin. Code §§ 2208, 2210.

153. E.g., Cal. Ins. Code § 11629.73, Iowa Code § 515D.4.

154. E.g., 515 Ill. Comp. Stat. § 5/20-105, 520 Ill. Comp. Stat. §§ 5/3.36, 5/3.5, 625 Ill. Comp.

Stat. §§ 45/5-16, 45/11A-4, 720 Ill. Comp. Stat. §§ 5/24-1.1 , 5/24-3, 5/24-3.1, 5/48-10;

Ark. Code Ann. §§ 5-73-103; CDCR 24-2103; Or. Admin. R. 165-014-0280.

155. E.g., Conn. Agencies Regs. § 14-275c-53; Okla. Stat. tit. 56, § 240.24; Ala. Code §§ 15-

20A-10, 15-20A-22; 15 Colo. Code Regs. §§ 3651, 3653, 3654; see also Buckler and

Travis (2003).

156. E.g., 15 Colo. Code Regs. §§ 3561, 3564.

157. E.g., 18 U.S.C. § 3562 (allowing employment requirements to be issued as conditions of

probation); S.C. Code Ann. § 24-21-430 (requiring probationers to reasonably maintain

suitable employment). Note that conditions of probation applied by the sentencing judge

are not typically considered hidden sentences, nor are statutes that allow such conditions.

Parry v. Rosemeyer, 64 F.3d 110 (3d Cir. 1995). Some courts, however, find the

opposite—again demonstrating the unclear line between visible and hidden sentences. See,

e.g., Munich v. United States, 337 F.2d 356, 676–78 (9th Cir. 1964) (considering

eligibility for probation or parole as a collateral consequence); People v. Gravino, 928

N.E.2d 1048, 1055–56 (N.Y. 2010) (considering conditions of probations as collateral

consequences).

158. E.g., Mont. Code Ann. § 39-71-744. 302

159. E.g., Ala. Code § 8-19A-5; Wyo. Stat. § 31-7-138.

160. Compare, e.g., 10 A N.C. Admin. Code 70H.0405 to Fla. Stat. § 68.07. The former

requires petitions for adoption to consider any offense besides a minor traffic violation,

and the latter allows a court considering a name change to take into account any arrest,

charging, pleading, or conviction for any criminal offense, even if a trial resulted in a

verdict of not guilty.

161. E.g., Fla. Stat. § 390.012 (allowing suspension/revocation of abortion clinic license for

failure to appropriately dispose of fetal or human remains or tissue); Ala. Admin. Code r.

220-3-.03 (revoking fish and game licenses for illegally possessing certain nets aboard

certain boats).

162. E.g., Tenn. Code Ann. § 33-6-804.

163. See Grant et al. (1970). Even the definition of “felon” changes depending on whether the

statute uses the legislative classification of the crime or the length of incarceration (e.g.,

imprisonment for more than one year).

164. E.g., Alexander (2010); Demleitner (1999); Love (2011a).

165. Demleitner (1999); Love (2011a).

166. Olivares et al. (1997). In many cases, however, hidden sentences survive even these rare

and extreme measures: pardons, for example, do not expunge the record and thereby

prevent potential employers or landlords from using it. Love (2003). The only way for a

criminalized person to become wholly free of hidden sentences is to have their record

expunged, sealed, and pardoned, and I am aware of no instance in history in which all

three have occurred. 303

167. Kuzma (1998:68).

168. “Modernity” is in many ways a fraught concept, covering a vast multitude of societal

changes beginning with the Age of Enlightenment and ending, depending on the author,

either after World War II, around the 1980s and 1990s, or continuing into the indefinite

future. E.g., Berman (1982); Eisenstadt (2003); Giddens (1991); Habermas and Ben-

Habib (1981); Harvey (1990). The fundamental characteristics and trends included in

modernity also depend greatly on the theoretical orientations and the nations involved in

the analysis. In this analysis, I make no attempt to link the development of hidden

sentences to every facet of that conversation, nor does the evidence I have collected on

hidden sentencing lend itself to every part of the modernization process. Instead, this

chapter will argue that a particular kind of modernizing in the United States between 1880

and 1950 was tightly connected to the onset of hidden sentencing practices and the form

they took.

169. This is not to claim that modernity represents an overall shift from informal to formal

means of social control. Although there are some such claims, others demonstrate that

both informal and formal means of social control continue to expand throughout modern

times. Roodenburg (2004). The only claim necessary for my argument, however, is much

narrower: that the modernization process includes a growth of formal controls at the

expense of some informal ones, whether or not other informal controls also continue to

proliferate.

170. Foucault ([1975] 1995).

171. See also Garland (1990). 304

172. Foucault sets up this puzzle as a transition that was remarkably different from the one that

reformers had in mind. ([1975] 1990). What the reformers envisioned seemed to be not

anything like concealed routinization behind prison walls, but rather a replacement that

remained a public demonstration but was instead proportional, balanced, and genuinely

measured as a direct consequence of the criminal action being punished (e.g., violence

only in response to violent crime, forced work only in response to idleness). Foucault’s

answer is to trace the genealogy in a different direction: the disciplinary practices of the

prison came from and were intuitively accepted because of a rising set of disciplinary

forms throughout society.

173. Foucault ([1975] 1990, 1984).

174. For examples that build upon the Foucaultian insistence of expanding penal and penality-

like models of control throughout society, see, e.g., Brayne (2014); Garland (2001a);

Haggery and Ericson (2000); Simon (2007).

175. Durkheim ([1893] 1984).

176. Garland (1990); Garfinkel (1956).

177. He is careful, however, to clarify that mechanical solidarity and penal law are still

characteristics of modern societies. They change in the shift to modernity, but they do not

by any means disappear. Durkheim ([1902] 1983).

178. See also Burkhardt and Connor (2015); Cotterrell (1999).

179. Durkheim ([1902] 1983).

180. Rusche and Kirchheimer ([1939] 1968).

181. Pashukanis ([1924] 2007). 305

182. Rusche and Kirchheimer ([1939] 1968) are unique, however, in all of these examples in

that they spend some time analyzing transportation as a penal practice of colonial powers.

The explanation is simple: moveable proletarian labor was delivered to where it is most

useful—that is, until the colonies developed their own capitalist class that objected to the

importation of cheap labor.

183. It should be noted, however, that prisons and houses of labor were rarely if ever truly

profitable in financial terms alone, so that it is more effective to consider the more holistic

relationship between financial cost and the production of either productive laborers (an

argument Rusche and Kirchheimer do make in the end) or broader ideological power.

Garland (1990).

184. Rusche and Kirchheimer ([1939] 1968); Pashukanis ([1924] 2007).

185. Pashukanis ([1924] 2007).

186. Foucault has been said to make particular use of Weberian themes like rationalization is

his conceptions of modernity (especially in Discipline and Punish), but he seems to do so

as virtually all contemporary sociologists and social theorists do: without clear recognition

of or reference to Weber’s influence in the theoretical schema. Garland (1990). In

addition, a reading of Foucault’s conception of modernity as closely related to a Weberian

one is notably damaging to the force and cogency of his arguments, so that many

Foucaultian theorists reject parallels with Weber. Koopman (2010). Still, the important

aspect of this debate for our purposes is that Foucaultian theory does not by any means

capture what might be considered a more holistic, Weberian view of punishment, so that 306

outlining a theoretical approach to punishment that includes Weber’s sociological themes

is far from redundant with Foucault’s.

187. Weber ([1905] 2003, [1922] 1978). Although Weber’s work on bureaucratization is often

interpreted only in reference to the creation of (a) state administrative agencies and (b)

private, economic corporations, it can also be read in reference to the professions, or at a

minimum, the structural arrangements of a profession. First, though he did not extrapolate

on the meaning of professionalization, Weber wrote clearly about politicians as a

professionalized vocation. Weber ([1905] 2003). Second, a profession includes many if

not all of the same elements as the other two: hierarchical organization (through

professional societies and boards), expert training (professional schools or degrees),

formalized rules (systems of professional education and ethical standards), legalized

independence (most are endorsed by statutes that empower boards, create licenses, etc.),

and a fixed area of activity and authority. Ritzer (1975). Third, Weber’s concepts of

status groups and closed social relationships are well applicable to defining professions

relative to non-professionalized organizations; he often uses guild systems as an

archetypical example of vocational fields that closed to outsiders and oriented toward

internal social prestige. Waters (1989).

188. Weber ([1922] 1978:LIX), ([1905] 2003:181).

189. Garland (1985); Spierenburg (1984).

190. Cohen (1985); Garland (2001a).

191. Irwin (2005); Simon (1990); Simon and Feeley (1992). 307

192. Although Marxist theories of punishment do not explicitly discuss it, they can be

interpreted as conforming with Marx’s own view of norms as oriented not toward

determining action, but instead primarily concerned with enforcing socio-economic roles.

Still, our approach will be Weberian, or Weberian-building-upon-Marxism, in the sense

that we will analyze hidden punishment not only as it forces participants into particular

social roles, but as it also produces certain interpretive meanings for those participants that

are as important as the roles themselves.

193. Black (1976); Weber ([1922] 1978).

194. Ross ([1901] 2009); Cohen (1985).

195. Cummings v. Missouri, 71 U.S. 277 (1866). Ex parte Garland, 71 U.S. 333 (1866).

196. For instance, one commonly used constitutional law textbook (Epstein and Walker 2011)

says nothing at all about Cummings and includes only one footnote concerning Garland.

197. Cummings, 71 U.S. at 322 (1866); Garland, 71 U.S. at 381 (1866, emphasis added). The

Court declared this definition in Cummings on behalf of both cases, which were heard and

documented back-to-back. Throughout the two cases, the majority opinions methodically

rejected each contention that some form of the punishment rendered it non-punitive, a

“mere” restriction on access, and clearly showed that any restrictions, whether of access or

liberty or life itself, could be punitive if they were applied due to past conduct that was

defined as wrongful.

198. Now, lawyers and courts often argue that a bill of attainder is not any legislative act, but

one that specifically names the persons involved. E.g., Nixon v. Administrator of General

Services, 433 U.S. 425 (1977). A general punishment like those in hidden sentences, 308

under this argument, can therefore be ruled constitutional simply because it does not list

the names of those people to whom it directly applies.

199. Ross ([1901] 2009); Weber ([1922] 1978).

200. Bauman (1991); Galambos (1983).

201. 1 Statutes at Large 103 (1790); 26 Statutes at Large 1084 (1891); 34 Statutes at Large 898

(1907).

202. 10 Statutes at Large 170 (1853).

203. “The Gardiner Investigation,” H. Rep. 1 (October 7, 1852).

204. Johnson ([1853] 1970). Neither of those monetary figures are inflated, and the entire

extent of the Claim Commission under the 1848 Treaty of Guadalupe Hidalgo was for

$3,250,000—meaning Gardiner and Corwin’s forgery accounted for more than 13% of the

entire allotment of a commission that formed the basis of an international peace.

205. “Report of the Select Committee of the Senate,” S. Rep. 182 (March 28, 1854).

206. Johnson ([1853] 1970: 105).

207. State v. De Verges, 153 La. 349 (La. 1923). The court was careful to note, however, that

the statute was only constitutional because it regulated the use of the CPA credential

instead of regulating access to the practice of accountancy in its entirety. The resulting

legal grey area led to a long conflict in the area of accounting policy that only found its

resolution three decades later, when non-certified public accountants were strategically

phased out through various legal maneuvers (discussed further in Chapter Five).

208. Doran (2011:112); Inter-departmental Communication (California Archives, MF3:1, Roll

39, July 12, 1945). 309

209. Rogers (1982).

210. Giddens (1991).

211. Goode and Ben-Yahuda (1994).

212. Lemmings and Walker (2009).

213. For at least one authoritative reference, consider Durkheim’s ([1893] 1984, [1897] 2006)

studies of anomic conditions.

214. Cohen (2002).

215. Leon (2011).

216. Abbot (1988, 1991).

217. In 1905, when fears of opium were at their highest in California, the University of

California Board of Regents (in place of a pharmacy board) was empowered to revoke

licenses for “immorality or unprofessional conduct” and required to revoke licenses for a

third criminal violation of prescription compounding supervision procedures. Cal. Stats.

1905, c. 406; Cal. Assembly Journal 1905. In 1907, the already existing Board of

Veterinary Medicine was first granted to power to revoke licenses: in response to crimes

of moral turpitude or chronic inebriety. Cal. Stats. 1907, c. 501; Cal. Assembly Journal

1907. In 1852, following public reports of massive deaths from steamboat collisions and

boiler explosions, the Steamboat Inspection Service (one of the first federal administrative

agencies) was created with the power to revoke steamboat engineers’ licenses. 10 Statutes

at Large 61 (1852); Short (1922). In 1927, due to a public health crisis the California

Board of Barbering was created with the power to deny licenses to anyone not of “good 310

moral character” and to revoke them for any misdemeanor. Cal. Stats 1927, c. 853; Cal.

Assembly Journal 1927.

218. Letter to Speaker Levey from Daniel T. Tattenham, Secretary-Treasurer of the California

State Federation of Journeyman Barbers (Cal. Assembly Journal 1927, March 23, 1927);

Letter to Speaker Levey from John Bernhard, President of the Master Barbers’

Association of San Francisco and Vice President of the California State Master Barbers’

Association (Cal. Assembly Journal 1927, March 23, 1927).

219. Cal. Assembly Journal 1915 (37).

220. 34 Statutes at Large 669, 768 (1906).

221. Sinclair ([1906] 2002); Sullivan ([1935] 1995).

222. Hearings on the Agricultural Appropriations Bill before the Senate Committee on

Agriculture and Forestry, 59th Cong. (1906:15).

223. Hearings on the Agricultural Appropriations Bill before the Senate Committee on

Agriculture and Forestry, 59th Cong. (1906:15).

224. Hearings on the Agricultural Appropriations Bill before the Senate Committee on

Agriculture and Forestry, 59th Cong. (1906); Hearings on Bills Relating to the

Department of Agriculture before the House Committee on Agriculture, 59th Cong.

(1906:85).

225. 34 Statutes at Large 673 (1906).

226. Abbott (1988, 1991); Latour (1993).

227. 34 Statutes at Large 676 (1906); Hearings before the Senate Committee on Agriculture

and Forestry on the Agricultural Appropriations Bill, 59th Cong. (1906:4). 311

228. Mashaw (2012:187). The Steamboat Inspection Service was also the basis for a key

constitutional precedent that empowered the federal government to control eventually all

aspects commerce and ultimately, to form the federal welfare state at all.

229. Short (1922). Also, it is noteworthy that the first Steamboat Act explicitly framed the

slew of deaths in the modernist frame of “provid[ing] better security of the lives of

passengers on board of vessels propelled in whole or in part by steam.” 5 Statutes at

Large 304 (1838).

230. 5 Statutes at Large 304 (1838). Enforcement was based entirely on qui tam actions by

private parties for libel or manslaughter, who would receive a certain percentage upon

successful action.

231. S. Exec. Doc. 30-18 (1848); Short (1922).

232. S. Exec. Doc. 30-18 (1848:29).

233. S. Exec. Doc. 30-18 (1848:73-74); S. Rep. 26-241 (1840:6).

234. 10 Statutes at Large 67 (1852); see also Mashaw (2012).

235. The Secretary of the Treasury’s 1862 report, for instance, claimed that “"A general

admission of the great utility of the laws and expressions of satisfaction at the results

which have followed its observance, which to those interested in such property is now

fully apparent, has now taken the place of the original opposition with which the

inspectors were met in many instances; and incomplete as this law may be, in some

respects, the cause of almost every accident to passenger steamers which now occurs can

be readily traced to a violation of its provisions, or of the regulations of this board made

pursuant thereto” (quoted in Scott 1922:5). 312

236. McKnight (1995).

237. “The Gardiner Investigation,” H. Rep. 1 (October 7, 1852); Johnson ([1853] 1970).

238. Roosevelt (1906). Hearings before the Senate Committee on Agriculture and Forestry on

the Agricultural Appropriations Bill, 59th Cong. (1906).

239. Abbott (1988); Light (1991); Starr (1982).

240. Terry (1925:1420). John Graves, President of the League, also made a revealing (though

not as direct) statement along the same lines in a public speech in Santa Barbara:

“Organizations to be successful must develop real interest among their membership along

definite lines and not attempt to cover all the different human activities.” Graves

(1919:205).

241. Reich (1964). The “new property” theory was later expanded as a different approach to all

forms of social citizenship rights in the welfare state literature. E.g., Bussiere (2004).

242. It should be noted, however, that many administrative laws for these early professions

were also created with new crimes that represented severe violations of the statutes that

designated the agencies’ zones of law. Fraudulently obtaining a license and practicing

without a license, for instance, were enforceable respectively through criminal prosecution

and civil fines. E.g., Cal. Stats 1901, c. 99; Cal. Stats 1903, c. 233 (California’s first laws

controlling osteopathic and pharmacological medicine). Thus, it was likely that

professional boards played a key role in practice in reporting those violations and

prosecuting them, either through testimony or reports on licensure. These judicial

punishments of administrative law are even further removed from hidden sentences as a 313

penal form than are regulatory punishments, though they are an important part of

expanding punitive logics discussed in parts two and three.

243. See Perks (1993); Weeden (2002). Canada and Britain both began professionalizing

earlier—likewise with the medical field—so that globalization is likely an important part

of this story that I do not explore here. Adams (2009); Waddington (1990). However,

similar patterns do seem to exist—an encouraging fact for future comparative analysis.

The Society of Accountants in Edinburgh was chartered in 1854, but even a basic

disciplinary code was not created until 1883, when its legitimacy was threatened by

several publicly prominent incidents of fraud and misdemeanors by its members and their

relatives. Walker (1996).

244. Collins (1979).

245. Acts Leg. W. Va., c. 93 (1882). See also Dent v. West Virginia, 129 U.S. 114 (1889).

246. Cal. Stats. 1893, c. 203; Cal. Stats. 1901, c. 99; Cal. Stats. 1903, c. 233.

247. Coates (1946:222). At no point, however, in any of the sources I analyzed did anyone

explain exactly what the public interest in regulating accountancy is, at least not any

further than an empty, circular implication (which Coates made as well) that the public

bears an interest in preventing accounting fraud, so that the state should indeed regulate

accounting fraud.

248. E.g., Cummings and Worley (2004). Mashaw (2012) also reveals that early regulatory

schemes in America (even before the Steamboat Inspection Service) experimented with

loyalty oaths, reinforcements like incentive-based pay or patronage, and even penalties

besides dismissal like fines, but the perceived result was overzealous, out-of-control 314

regulatory enforcement, so the system moved toward stable salaries combined with more

traditional, judicial-like penalties.

249. Likewise, the resort to rational-legal framing without the call for bureaucratic control still

would not have clearly called for regulatory punishment; it could have found its necessary

framework in the existing penal laws, either maintaining or expanding the visible penal

structure.

250. In both cases, though, it is worthwhile to note that the “inefficiencies” were not equivalent

to the public safety crisis but rather to more capitalist concerns. In 1838, steamboat

captains and operators were complaining that states frequently charged them on every

entrance and exit, and instituted vastly different inspection or registration requirements.

Scott (1922). In 1903, 1905, and 1906, in another parallel between the two cases, the meat

packers were constantly complaining that local officials frequently charged them too much

each time they or their products crossed state boundaries. Hearings on Bills Relating to

the Department of Agriculture before the House Committee on Agriculture, 59th Cong.

(1906:85).

251. Cal. Assembly Journal 1931 (107).

252. 34 Statutes at Large 676 (1906).

253. Hearings on Bills Relating to the Department of Agriculture before the House Committee

on Agriculture, 59th Cong. (1906:85).

254. 5 Statutes at Large 304 (1838).

255. S. Exec. Doc. 30-18 (1848); Mashaw (2012).

256. H.R. Doc. 28-68 (1844). 315

257. Practically, the distinction between regulatory punishment and hidden sentencing only

carries weight in so far as criminality matters—or mattered for their historical

development as a penal phenomenon. Both are penalties or punishments from an

ontological point of view, and both are legally enforced responses to legal violations. The

only true difference is whether that violation is defined as criminal (and therefore what

other kinds of consequences may flow from it).

258. Cal. Stats. 1905, c. 406.

259. Cal. Stats. 1915, c. 724.

260. Doran (2011:112); Graves (1919:205).

261. Collins (1979).

262. The Accountant (1880:4), referenced in (Walker 1996:12).

263. S. Exec. Doc. 30-18 (1848:58).

264. 10 Statutes at Large 67 (1852).

265. S. Exec. Doc. 30-18 (1848:74); Scott 1922.

266. May (1995).

267. Preston et al. (1995: 521).

268. Weber ([1922] 1978). “Social status” is often left untranslated as Stände to capture

Weber’s full meaning of the term as a category of social power distinct from both

economic wealth and political power. Waters and Waters (2015). Because there is no

direct English translation of Stände, authors often miss the full range of meaning in

Weberian social status, treating it as equivalent to economic elite culture and thereby

creating the commonly used, collapsed category of socio-economic status. Weber, 316

however, wrote to specifically distinguish economic class from the honor, prestige, and

privilege found in inclusion among medieval guilds, professions, ethnic identities, and

feudal classifications.

269. E.g., DiMaggio (1997); Vaisey (2009). This observation is not meant as a criticism of

these “dual process” models of culture and action, which have all been explicitly or

implicitly ideal-typical. The need to build upon these typologies of ideal types by adding

a new type or conceptualizing what those types look like in combination does not undercut

the original models, which have been justifiably praised for bringing unparalleled

explanatory power to the study of human cognition and social action.

270. Merton (1936). Policy actions are by definition purposive (deliberate) and social (in

respect to other persons). As I elaborated in the Introduction, however, it is important to

note that purposive actions only need be on purpose, and no not necessarily involve

“clear-cut, explicit purpose” (Merton 1936:896). “It may well be that such awareness of

action is unusual, that the aim of action is more often than not nebulous and hazy.”

271. By labeling these ideal types part of an “inductive typology,” I mean to use them as

organizing devices for the genealogical analysis of hidden sentences, not as a complete,

theoretical model of policymaking actions or even of the selection of means within policy

actions. In theory, “cognitive” instrumental policy actions can be much more attentive to

policy programs and thoroughly engaged with anticipating consequences, so that some

modes of action are missing from the typological arrangement—and “normative” value-

oriented policy actions are certainly likely to use different decisionmaking structures.

E.g., Campbell (2002). Still, to the extent that the hidden penal system is a system of 317

partially or wholly unplanned policy technologies, this case may serve to usefully inform

ideational and discursive models of policy actions.

272. Theoretically, this mode could also characterize the purposive adaption of an older

iteration of attainder into a new one, but empirically, that never happened.

273. It will be argued that policymakers ought not to be held to a standard of considering all

possible outcomes, or perhaps that no “fully” deliberative actions truly exist. The most

concise response comes from Merton’s (1936:900–902) own work, recognizing that

“action motivated by interest is not antithetical to an exhaustive investigation of the

conditions and means of successful action”—and also that an “exhaustive” investigation

relates only to “certain knowledge which can conceivably be obtained.” Policymakers’

instrumental creation of hidden sentences are quasi-reflective or conscious-but-not-

deliberative actions because they fail to meaningfully consider any consequences of using

penal-criminal standards even when they recognize such standards as new and different.

274. DiMaggio (1997); Vaisey (2009). It is also reasonable to look upon policymaking as

concerned with larger-scale programs of actions that are likely to combine deliberative and

habitual elements (e.g., reflection on improving efficient within a habitual arrangement of

other concerns). Still, even in such programs of action, it is possible to view action on a

spectrum from fully deliberate, purposeful, and agentic to fully automatic, accidental, or

non-purposive (either extreme of which may be an impossible ideal).

275. Giddens (1993); Merton (1936).

276. DiMaggio and Powell (1983); Shipan and Volden (2008).

277. Campbell (2002). 318

278. Campbell (2002); Steensland (2006).

279. To the extent that the intentions of the framers matter in interpreting constitutional law,

their uncritical acceptance of hidden sentencing does tend to indicate that the penal

provisions of the federal Constitution were not designed to prevent hidden sentence that

pertained to elected officials. On the other hand, it is crucial to recognize that their

acceptance of constitutionally enacted controls on the highest public officials also does not

prove that the framers meant to make it constitutional for legislative statutes to invent new

kinds of punishments based on a label of criminality. Such confusion is a good example

of why the framers original intent may not be a reliable standard for constitutional law. If

it were up to me, I would suggest interpreting the constitutional case for or against hidden

sentences based on the actual, original textual meaning of relevant constitutional

provisions, and the a combination of various provisions that actually deal with Congress’s

penal lawmaking power— the requirement for due process of law, the bans on ex post

facto laws and bills of attainder, the prohibition on double jeopardy, and the rejection of

unusual punishment—certainly cast doubt on the constitutionality of hidden sentencing.

280. U.S. Const. art. II, §4.

281. Farrand (1911:65). The framers were careful to include the President and Vice President

in this provision to avoid any monarch-like claims that they were above the law or above

congressional reproach.

282. Federalist No. 70.

283. Elliot ([1827] 1861:104); see also (Lindorff and Olshansky 2007). 319

284. Farrand (1911:67). Later, Rufus King and Gouverneur Morris used the same frame in

reverse to argue that any kind of impeachment powers would invite an untenably

disordered kind of government, because the President would be repeatedly and

persistently plagued with impeachment trials by the whims of congressional disapproval.

285. Federalist No. 70.

286. United States v. Burr, 25 Fed. Cas. 1, 159 (C.C.D. Va. 1807); Blackstone ([1769] 1890).

287. Federalist No. 65.

288. Elliot ([1827] 1861:480, emphasis removed as irrelevant); see also Federalist No. 65.

Likewise, a number of delegates thought of the power of impeachment as crucial to

supplement the power of the criminal law, not the other way around. Fears were

constantly repeated that a President may issue pardons to executive officials including

herself to avoid prosecution for misconduct (or even in advance of misconduct to avoid

detection and investigation), thus rendering any judicial oversight irrelevant. The only

solution was a specific kind of punishment derived from within the political sphere.

289. Lindorff and Olshansky (2007:40).

290. Farrand (1911:85).

291. This impeachment procedure was not new but rather a direct copy of the extant one

practiced by the bicameral British Parliament. Federalist No. 65.

292. The reasoning was also stated in reverse: the courts could not participate in impeachment

proceedings because any subsequent criminal proceedings would then constitute

unconstitutional double jeopardy. Federalist No. 65. However, this somewhat circular 320

logic was a consequence of the separate proceedings rather than a true impetus for them; if

they were not separated in the first place, no double jeopardy would be at issue.

293. Farrand (1911).

294. Farrand (1911).

295. Farrand (1911). Mason likely took the term, “maladministration,” from an example in his

home state’s constitution. At the time, Virginia’s constitution provided for impeachment

for maladministration, corruption, and any other endangerment of the state.

296. Blackstone ([1769] 1890).

297. There is ample evidence that the technical meaning of “high misdemeanors” would have

been well recognized by the delegates, most of whom were students of English law.

Berger (1974).

298. In fact, the resultant standard did become as vague as Madison feared. To use Gerald

Ford’s famous quote about impeachment standards today, “an impeachable offense is

whatever a majority of the House of Representatives considers it to be at a given moment

in history.” 116 Cong. Rec. 11913.

299. Federalist No. 64.

300. Lindorff and Olshansky (2007).

301. Maskell (2002).

302. Powell v. McCormack, 395 U.S. 486 (1969).

303. U.S. Const. amend. XIV, §3.

304. 18 USCS § 1901; 1 Statutes at Large 65 (1789). 321

305. E.g., Conn. Const. Art. VI §3 (1818); Iowa Const. Art. II §5 (1846); Cal. Const. Art. II §5

(1849). Connecticut’s constitutional amendment is the first time in American history that

certain kinds of criminals were denied inclusion in the franchise. It is also noteworthy that

the kinds listed were specifically designated as those susceptible to “infamous

punishment,” another legal term for attainder itself.

306. Using the hazard of jurisdictions enacting just one hidden sentence in a year, either here or

in Table 3.2 below, is less reliable, because there are far more outlying examples.

Likewise, including the year of a jurisdiction’s establishment heavily biases the analysis

toward outliers contained in state constitutions (discussed substantively below in any

case); the mean jurisdiction has a gap of more than thirty years between its establishment

year, which includes any hidden sentences that may be directly included in or required by

the constitution, and the first non-constitutional hidden sentence that jurisdiction enacts

afterwards.

307. E.g., McLaughlin (2010). To put the count of hundreds of pages in perspective, there

were already more than ten thousand pages in the 1942 journal, and the 2016 journal had

just shy of one hundred thousand.

308. N.Y. Laws 1893, c. 661, § 145; 46 Statutes at Large 759 (1852)

309. Wis. Laws 1885, c. 63.

310. In re O., 73 Wis. 602 (1889).

311. Cal. Stats. 1907, c. 212.

312. See May (1995); Reich (1964). According to Affeldt and Seney (1967:402), “The use of

‘moral character’ to prevent a person from acquiring property, or to deprive him of 322

property once acquired, seems in some respects to be the most insidious device [protecting

group rights] of all. As the cases indicate, no one has yet defined ‘good moral character’

in any reasonably satisfactory way. At least one court has recognized that the phrase is a

façade, covering the individual judge's personal prejudices, value preferences, and moral

code.”

313. Konigsberg v. State Bar of California, 353 U.S. 252, 263 (1957).

314. Cal. Stats. 1905, c. 413.

315. Orloff v. Los Angeles Turf Club, Inc., 36 Cal. 2d 734 (1951).

316. 36 Cal. 2d 734, 740 (1951).

317. 36 Cal. 2d 734, 741 (1951). In order to compensate for the unacceptably vague standard

of “immoral character,” the Court chose not to rule the statute unconstitutional (as did

later courts who found moral character requirements void for vagueness) but rather bent

over backwards to claim that the legislature “undoubtedly” meant to construe the

exception for discrimination based on “immoral character” as an exception based on

immoral conduct that takes place in the public place in question. In his dissent, Justice

Homer Spence pointed out the absurdity of this solution, because it still failed to

adequately define or limit “immoral” in a meaningful way. Nevertheless, perhaps because

it was adjudicating the fate of a civil rights statute, the majority upheld the statute and

manipulated its working to be a standard of conduct rather than of classification—

precisely the opposite of the move that courts made when imagining that standards based

on criminality (i.e., hidden sentences) were not additional punishments but merely

evidence of poor character (see Hawker v. New York later in this chapter). 323

318. E.g., Bayside Enterprises, Inc. v. Carson, 450 F. Supp. 696 (M.D. Ky. 1978); Genusa v.

Peoria, 475 F. Supp. 1199 (C.D. Ill. 1979). Despite the vast number of such precedents

across most or all U.S. jurisdictions, it is striking that “good moral character” and similar

standards remain widespread alongside more defined standards like criminality. Courts

make sense of this distinction by differentiating between areas of law protected the state or

federal constitutions, and areas of law that are freely controlled by states’ police powers;

in the latter, states are free to impose any restrictions that are “rationally” related to the

stated interest. Grant et al. (1970); Hawker v. New York, 170 U.S. 189 (1898).

319. Weber ([1922] 1978). As the U.S. Supreme Court expressed, “A state can require high

standards of qualification, such as good moral character or proficiency in, its law, before it

admits an applicant to [a profession], but any qualification must have a rational

connection with the applicant's fitness or capacity to practice.” Schware v. Board of Bar

Examiners, 353 U.S. 232 (1957).

320. Gilbert (2010).

321. Logan (2009). The U.S. system was adopted at least in part by the worldwide advocacy

efforts of Arnould Bonneville de Marsangy, inventor of the French criminal record system

in 1850. Bonneville traveled to a number of countries, including the United States, is

order to spread his ideas on penal reform and order-keeping. According to Bonneville, a

nation system of criminal registration that notified police departments around the country

would allow for exactitude in punishment, better enforcement, and most importantly,

deterrence in the first place. With language reminiscent of medieval attainder, Bonneville

argued that because potential offenders would know that courts had their entire criminal 324

histories and would be instilled with “terrifying certainty” and “dread of [the] local

publicity of their misdeeds” that would “stain the name and honor of their family” and

their reputation. Logan (2009:6).

322. Pager (2007:32). See also Hickox & Roehling (2013); Jacobs 2015; Pager (2003).

323. Pager (2007:36).

324. Second Biennial Message of Governor Young (Cal. Assembly Journal 1931, January 5,

1931).

325. Cal. Stats. 1929, c. 791.

326. Cal. Stats. 1931, c. 582.

327. Cal. Stats. 1933, c. 573.

328. Cal. Stats. 1907, c. 212.

329. Cal. Stats. 1907, c. 501; Cal. Stats. 1907, c. 47.

330. Cal. Stats. 1937, c. 368.

331. 38 Statutes at Large 819 (1915).

332. 34 Statutes at Large 669 (1906).

333. Grant et al. (1970:960); Chin (2012); Love (2011b).

334. E.g., Ark. R. Prof'l Conduct 17.

335. “The Gardiner Investigation,” H. Rep. 1 (October 7, 1852).

336. Johnson ([1853] 1970).

337. 10 Statutes at Large 170 (1853).

338. Cal. Stats. 1939, c. 94; Cal. Stats. 1943, c. 134; Cal. Stats. 1945, c. 1524. 325

339. During the 1940s, 17% of Americans commonly made wagers at racetracks or other

events, so that racing was “one of the most substantial industries in the state of

California.” Press Release, California Horse Racing Board (California Archives,

F3640:2240, August 22, 1945).

340. Press Release, California Horse Racing Board (California Archives, F3640:2240, August

22, 1945); Letter to Governor Warren from Mayo Thomas (California Archives,

F3640:2240, August 25, 1945).

341. Letter to Governor Warren from Public Affairs Forum (California Archives, F3640:2240,

December 24, 1944); Letter to Governor Warren from War Manpower Commission

(California Archives, F3640:2240, December 19, 1944).

342. Inter-office Memorandum to Governor Warren from Verne Scoggins (California

Archives, F3640:2240, July 29, 1944); Letter to Governor Warren from Mayo Thomas

(California Archives, F3640:2240, August 31, 1945).

343. Although the evidence I found does not clearly make this argument, the salience of the

Black Sox Scandal may also explain why a specific, seemingly objective standard of

criminal conduct was necessary in the first place; part of the “scandal” was that the Black

Sox (especially Shoeless Joe Jackson) were suspected of being innocent and had been

acquitted in criminal court—but Landis banned them anyway. Tying the exclusions in the

1945 Horse Racing Law to a conviction of a specified offense removed that sort of

questionable discretion from horse racing officials.

344. Kohler-Hausman (2014); Tonry (2007). 326

345. The specific definitional requirement of a “felony” can change depending on the

jurisdiction; some states, for example, define it based on the length of visible punishment

(e.g., imprisonment for more than one year) while others present a listing of felonious

crimes. Grant et al. (1970). A felony is, however, always the most serious general

classification of crimes in every American jurisdiction.

346. Dwan and Feidler (1938).

347. Martin (2004).

348. Duxbury (1995).

349. 14 Statutes at Large 74 (1866).

350. Memorandum to Governor Warren from James Oakley on Senate Bill 958 (California

Archives, MF3:1, Roll 27, April 8, 1943); Legislative Memorandum to Governor Warren

from Legislative Secretary Beach Vasey (California Archives, MF3:2, Roll 14, June 22,

1953, emphasis added).

351. E.g., Analysis and Recommendation: Senate Bill 958 (California Archives, MF3:1, Roll

27, n.d., 1943); Letter to Governor Warren from California Code Commission on Senate

Bill No. 1117 (California Archives, MF3:1, Roll 42, May 26, 1947); Legislative

Memorandum to Governor Warren on Assembly Bill No. 1936 (California Archives,

MF3:1, Roll 47, June 22, 1953);

352. Merton (1938).

353. Memorandum to Governor Warren from James Oakley on Senate Bill 958 (California

Archives, MF3:1, Roll 27, April 8, 1943); Inter-departmental Communication to Governor 327

Warren from Deputy Attorney General Perluss on Senate Bill No. 765 (California

Archives, MF3:1, Roll 47, April 8, 1949).

354. 5 Statutes at Large 304 (1838); 10 Statutes at Large 67 (1852).

355. This change also demonstrates the perils of the English language, where so many words

have so many subtle changes in meaning. In the 1852 version of the law, “otherwise” can

be read as “alternatively” or “in other circumstances”: the inspector can be removed from

office and separately tried and punished criminally (or not). In the 1874 version, because

of the change in sentence structure, we are forced to read “otherwise” as “additionally” or

“in other respects”: removal from office is mandatory in addition to fine or imprisonment

upon conviction of accepting bribes.

356. 16 Statutes at Large 440 (1871, emphasis added).

357. Dwan and Feidler (1938).

358. Monheimer (1956:407); see also Hawker v. New York, 170 U.S. 189 (1898).

359. Cal. Prop. 11 (1925); Cal Uncodified Initiative Measures & Statutes § 2 (Deering 1925).

360. Clark (1929); Shelby (1922); Snyder (1921).

361. California Fish and Game Commission (1923).

362. California Fish and Game Commission (1923:85).

363. Hearings before the Senate Committee on Agriculture and Forestry on the Agricultural

Appropriations Bill, 59th Cong. (1906); Hearings on Bills Relating to the Department of

Agriculture before the House Committee on Agriculture, 59th Cong. (1906).

364. S. Exec. Doc. 30-18 (1848); Short (1922); see also Mashaw (2012).

365. 10 Statutes at Large 67 (1852); 34 Statutes at Large 669 (1906). 328

366. E.g., Behrens et al. (2003; Smith (2004).

367. E.g., Chambliss (1999); Rusche and Kirchheimer ([1939] 1968).

368. Precise odds ratios are not necessarily useful for unemployment rates or inequality scores,

because any odds will be in respect to their maximum and minimum theoretical values—

which are all but impossible in reality. That is the reason the coefficients for these two

variables are so high. For reference, however, the results in Table 3.2 show that at the

maximum level of inequality possible under the Gini coefficient, they have an odds

4505.26 times higher of passing more than two employment-related hidden sentences for

the first time, or an odds 4105.16 times higher of passing occupational licensing

restrictions for the first time, than when they would under the minimum level of

inequality. At 100% unemployment, jurisdictions have an odds times higher of passing

more than two employment-related hidden sentences for the first time than they would

under 0% unemployment.

369. Letter to Speaker Levey from Daniel T. Tattenham, Secretary-Treasurer of the California

State Federation of Journeyman Barbers (Cal. Assembly Journal 1927:1169, March 23,

1927).

370. Although Marxist inquiries are not reducible to only two classes, professionalizing

communities are best described as efforts to isolate economic, political, and social power

within a relatively middle-class community threatened by capitalists, workers, and

otherwise unwanted members of the professional class. Weber ([1922] 1978). Likewise,

there is nothing dispositive of Marxist theory in saying that class conflict is not the only

important factor; race, status, etc., in Marxist inquiries are all important distractions and 329

sources of intra-class conflict and therefore sources of continued hegemonic domination.

My point is that, even if the hidden penal system is a complex diversion that protects the

capitalist system, the best tools to describe and critically analyze its development and

functions come from Weberian theory.

371. Cummings v. Missouri, 71 U.S. 277 (1866). Ex parte Garland, 71 U.S. 333 (1866).

372. Hawker v. New York, 170 U.S. 189 (1898). See also Chin (2003).

373. N.Y. Laws 1893, c. 661, § 661.

374. Hawker (1898:197) (emphasis added; internal quotes removed).

375. Both the Hawker Court and subsequent commentators have treated these cases as

consistent, despite the change in the scope of the question. E.g., Gardner (1982).

376. Hawker (1898:196).

377. Mansfield Journal Co. v. FCC, 180 F.2d 28, 35 (D.C. Cir. 1950).

378. Hawker (1898:196). Three justices did dissent, however—and on the grounds that

equating present moral character to past conduct was not only unacceptable but a flimsy

excuse for justifying a penal law. If we take Supreme court rhetoric as in some way

indicative of public sentiments, then it was not until the 1950s that criminality and bad

character were firmly linked.

379. To reiterate the methodological discussion from the introduction, however, identifying

broad trends and phases is never a neat project. Thus, there are no clear divides between

the regulatory punishment phase and the classificatory attainder phase. Vermont, in fact,

seemingly created the first state board to regulate licenses for general medical practice,

and that law itself allowed the board to revoke licenses that were obtained by fraud or if 330

the licensee was convicted of any “crime or misdemeanor” and thereby “forfeited all right

to public confidence.” R. L. 1876, No. 102. No other terms for revocation, including any

other requirements or measurements of character, were included in this first occupational

hidden sentence. Likewise, the end of this chapter and the beginning of part two will

overlap in years, because there is no clear, temporal boundary between classificatory

attainder and the subsequent phase of degradative attainder.

380. Durkheim ([1893] 1984); Foucault ([1975] 1995).

381. Behrens et al. (2003) have conducted a study that claims that felon disfranchisement laws

were the result of perceived racial threat from Blacks during the Reconstruction period.

We will return to the subject of these early, political kinds of hidden sentences in the next

chapter, but it is important to note here that there are at least two major distinctions

between the results in this chapter and the results in that article. First, unlike those of

Behrens et al., the models presented here specifically exclude the first two years of

statehood or nationhood; for reasons stated in this and the next chapter, hidden sentences

found in or mandated by constitutions (like many felon disfranchisement laws) are often

outliers in statistical and substantive senses. Second, even Model 5 in Table 3.2 deals

with a broader category of laws than just felon disfranchisement, so that both sets of

findings can be empirically true. The next chapter will consider why that might be so.

382. Chambliss (1999); Rusche and Kirchheimer ([1939] 1968).

383. Gramsci ([1935] 1992); Pashukanis ([1924] 2007).

384. Bobo et al. (1997); Bonilla-Silva (2001, 2014); Haney López (2006).

385. Alexander (2010); Western (2006). 331

386. I purposefully tend to eschew the term “racism.” Unless referring to a narrow set of

unequivocally intentional and overt practices, it is unclear what dimensions “racism”

takes. Is it a racial form of essentializing, so that any kinds of racial reductivism are

racist? Is it essentialization alongside domination? A pattern of domineering or

oppressive practices? A consolidation of power and resources used to further such

oppression? What about the simple noticing of racial characteristics and patterns? There

are some definitions that mean virtually anything related to race and others that are so

specific that they are virtually impossible ideal types—and yet every one carries an

implicit connotation of normative wrongness and moral blame. E.g., Feagin and Elias

(2012); Omi and Winant (2015); Golash-Boza (2013).

In other words, although it may at times be powerfully useful, “racism” is also in

contemporary times such a provocative, loaded, and yet unclear term that I find it to be

suppressive of useful conversation. I could offer a definition that fits my needs, but I find

it much more constructive to use more specific terms like “racial bias” or “purposeful

racial coding” that mean more precisely what I intend them to mean. It is always possible

I unconsciously find this approach most useful because I find blame alone to be an

unproductive goal (see the Introduction). I find however, that even when blame is

appropriately useful in an empirical analysis, project of reform, or otherwise, it is often

more productive to use specific, accessible terminology rather than terminology that

closes dialogue.

387. Omi and Winant (2015); Winant (2001).

388. Hendrick (2013); Litowitz (2000); Lukács (1968). 332

389. Feagin (2006); Feagin and Elias (2013).

390. It is also quite plausible to argue that “moral character” itself has traditionally been a

standard organized through elite, typically white–Anglo conceptions and values. The

evidence in this study provides no reason either to confirm or deny that it was (or ever will

be) possible to construct a moral character standard separated from racialized, gendered,

politicized, etc., biases—nor is such an argument necessary for the more immediate point

that hidden sentences are and were not the neutral, bias-free policies that theyr status-blind

language makes them out to be.

391. Lieberman (1998, 2008); Lowndes et al. (2008); Omi and Winant (2015); Winant (2001).

392. Many sociologists and race scholars agree that race as such does not exist outside of social

reality, because the idea of an ontological set of racial characteristics has never been

scientifically proven and because the non-naturalness of race relations is a powerful claim

for social justice. Such a “strong” version of social constructivist claims are, however,

unnecessary to the arguments in this monograph, which depend only upon the dynamism

of racial categories and meanings over time. It is enough that, even if there is theoretically

some set (whether containing two or 40,000) of natural human races that can one day be

established, we have nowhere in history accurately identified them. Race and otherness

are, at the very least, socially constructed to the extent that we can always doubt the

accuracy of essentialized claims at a given temporal and spatial moment.

393. E.g., Bennett (1975); Omi and Winant (2015).

394. Jacobson (1998); Roediger (1999).

395. Haney López (2006). 333

396. Bonilla-Silva (2001).

397. Omi and Winant (2015).

398. Thomas and Thomas (1928).

399. Omi and Winant (2015).

400. Alexander (2010); Weaver (2007).

401. Beckett and Sasson (2000); Hagan (2010); Murakawa (2006).

402. See Merton (1938).

403. Foucault ([1975] 1995); Gramsci ([1935] 1992).

404. Bonilla-Silva (2001, 2014). It is perhaps debatable whether elite, white policymakers are

subject to the same degree of hegemonic constraint and restrictions in power-knowledge,

but it is difficult to imagine that all policymakers are all powerful in the sense of willfully

controlling the dominant ideological structures of a society. Even if we can imagine a

vast, completely planned conspiracy behind, say, the history of the hidden penal system

presented here, I do not harbor enough faith in all elected and appointed officials to

presume that they would be capable of keeping such a conspiracy hidden through

centuries of changing policies and changing office-holders. In the end, of course, it is an

empirical question, but if I am ever proven wrong and American society has been since its

beginnings controlled entirely by a wide-ranging, complete conspiracy, the role of

intentionality in my conclusions will be the least of our concerns.

405. Bobo et al. (1997); Haney López (2006).

406. Bonilla-Silva (2001).

407. Bonilla-Silva (2014); Picca and Feagin (2007). 334

408. Alexander (2010); Wacquant (2000, 2001).

409. E.g., Bell (1995); Bonilla-Silva (2001, 2014); Doane (2006); Williams (1991).

410. Garland (2001); Murakawa (2006).

411. Galambos (1983).

412. Omi and Winant (2015:66).

413. See Bonilla-Silva (2001).

414. E.g., Brown et al. (2005); Omi and Winant (2015).

415. E.g., Bell (1995); Bonilla-Silva (2001, 2014); Doane (2006); Williams (1991).

416. Pager (2007:5); Collins (1976).

417. In fact, an abundance of that kind of intentionality would fly in the face of the typically

assumptive, inattentive nature of the lawmaking process for hidden sentences. Therefore,

even if we assume that plenty of evidence of overt racism might be found in other stories

of racialization and essentialization during this time period, we ought not expect it for

politically hidden policies.

418. Chinese immigrants, however, were notably not granted the right of naturalization.

419. Abrams (2005).

420. See Tung (1974).

421. Zesch (2012).

422. Hoogenboom (1995).

423. Dower (1993).

424. Barot and Bird (2010). It is important to recognize these anti-Asian movements as

racialized rather than simply xenophobic or nationalist to underline two key points. First, 335

there are distinct and meaningful similarities between the prejudicial treatment of Asian

immigrants and the essentialized forms of exclusion that target Blacks and other racialized

groups throughout U.S. history (perhaps more than there are differences). Second, there

are striking similarities between the kinds of racialized motives and stereotypes that drove

hidden sentences in the Yellow Perils, those in the wake of the Civil Rights movement,

and those targeting Muslim Arabs now.

425. For instance, the Naturalization Act of 1870 made it possible for persons of African

descent to achieve naturalized citizenship while explicitly barring Asians from that right,

but when faced with Jim Crow segregation, “whites only” often contradictorily included

“yellows,” “reds,” and all other non-blacks.

426. Dower (1993:156).

427. Hall (2013).

428. See, e.g., Gómez (2008).

429. In fact, in a remarkable example of the mutability and non-biological nature of racial

categories in a nation that too often forgets about racial categories beyond black and

white, the 1871 Chinese massacre in Los Angeles took place on Calle de los Negros,

translated as “Street of the Negros” and colloquially referred to at the time as “Nigger

Alley.” Originally, the name may have theoretically derived from darker, Hispanic

Californians, but it is clear that in the 1870s, it was a central street in Chinatown and home

to no African or Hispanic Americans. The “blacks” of 1871 Los Angeles were Asians.

See also Hagan and Kaiser (2011) on the mutability of black and white “races” of various

Arab and African tribes in contemporary Darfur. 336

430. Abrams (2005).

431. Smith v. Turner (Passenger Cases), 48 U.S. (7 How.) 28 (1849); Lin Sing v. Washburn, 20

Cal. 534 (1862).

432. Cal. Stats. 330 (1870); Cal. Stats. 332 (1870).

433. Abrams (2005:675); Kurashige (2016). By its technical language, the Anti-Kidnapping

Law was a regulatory punishment that only euphemistically referring to prostitution

through the gendered implication of “good habits” and femininity, and through the express

purposes of the law in its preamble: the prevention of prostitution. Only afterwards, in the

development of immigration law in Californian and federal regulation, did a hidden

sentence emerge from that regulatory punishment.

434. Cal. Stats. 332 (1870) (preamble). The distinctions between the two laws are almost

nothing more than gendered phraseology: “laborers” referred to what men did in the same

way that “coolies” clearly referred to men, while policymakers did not imagine “female

coolies” engaged in prostitution as being slaves, laborers, or other masculine roles.

435. Cal. Stats. 330 (1870) (preamble); Cal. Stats. 332 (1870) (preamble). It is unclear whether

the Anti-Coolie Act imagined that only previously convicted criminals tended to be

enlisted as coolies, or whether it considered engaging in coolie labor as a criminal act.

436. Cal. Acts Amendatory of Pol. Code § 70 (1874).

437. In fact, administrative law had gone through largely the same bureaucraticization process

we see with occupational restrictions. The first “good moral character” requirement in

immigration law—and indeed, the first known usage of the term in American law

entirely—was in the 1791 Naturalization Act as a requirement to receive American 337

citizenship. The character requirement still remains but is now supplemented by a host of

hidden sentence laws, and judicial rulings that confirm that criminal credentials are

incontrovertible evidence of bad character.

438. U.S. Congress (1988).

439. Dickenson (2002); Dower (1993); Marchetti (1994).

440. U.S. Congress (1988:7).

441. Chy Lung v. Freeman, 92 U.S. 275 (1875).

442. 18 Statutes at Large 477 (1875).

443. U.S. Congress (1988:7); Kurashige (2016).

444. Higham (2002).

445. Hoogenboom (1995). Hayes was perhaps justifiably fearful of simply abandoning treaty

obligations without diplomatic discussion, but he narrowly missed impeachment for his

stance.

446. Cole (1978).

447. 22 Statutes at Large 58 (1882).

448. 22 Statutes at Large 214 (1882).

449. Higham (2002:167).

450. Billington (1964).

451. 26 Statutes at Large 1084 (1891)

452. U.S. Congress (1988).

453. Henry Cabot Lodge, U.S. Congressional Record 22 (February 19, 1891: 2956). 338

454. See U.S. Congress (1988). The INS now uses “moral turpitude” more frequently than any

other criminal exclusionary ground, and has employed it to deport and exclude tens of

thousands since 1891. Harms (2001).

455. 34 Statutes at Large 898 (1907).

456. 39 Statutes at Large 874 (1917).

457. Other grounds were having an immoral character, having a mental disorder, and

fraudulently obtaining the license. 38 Statutes at Large 819 (1915).

458. Block (2012); Hagan (2010).

459. Cal. Stats. 1905, c. 406.

460. 8 League of Nations Treaty Series 188 (1922); Musto (1999).

461. Marshall (1911).

462. 38 Statutes at Large 785 (1914); 38 Statutes at Large 817 (1915). The latter was meant to

be enacted as part of the entire Harrison Act, which also contains three other bills, but it

was delayed by mere months due to a clerical error. “Regulation of Practice of Pharmacy

and Sale of Poison in Consular Districts of United States in China.” S. Rep. 821 (October

8, 1914). Because they were enacted separately, however, the second act—the one

containing the hidden sentence on pharmacists—was passed unanimously and is rarely

noticed by historical analyses. The only questions Congress seriously raised in regards to

the restrictions on pharmacists was whether the federal government could legally regulate

its consular districts in China; one that was established, there was no discussion of

whether penal-criminal regulation was legal, appropriate, or necessary. “Practice of

Pharmacy and Sale of Poison in China.” H. Rep. 1311 (January 23, 1915). 339

463. 38 Statutes at Large 817 (1915). The act also contained a separate provision that allowed

removal for proof of “immoral character.”

464. “Practice of Pharmacy and Sale of Poison in China.” H. Rep. 1311 (January 23, 1915).

465. “Report on the International Opium Commission and on the Opium Problem as Seen

within the United States and Its Possessions.” S. Doc. 377 (1910). See also Musto (1999).

466. Hearings before the House Committee on Ways and Means on H. 25240-42 and 28971,

61st Congress (1911:3). The New York Times also followed up by claiming that Southern

sheriffs were increasing the caliber of their weapons to be able to take down superhuman,

cocaine-using black men. Williams (1914).

467. Dower (1993).

468. Weingartner (1992).

469. Weingartner (1992:54).

470. 39 Statutes at Large 874 (1917).

471. 66 Statutes at Large 163 (1952).

472. The new law also added narcotics traffickers and addicts, in a notable precursor to the war

on drugs.

473. U.S. Congress (1988).

474. In some ways, this provision also targets seditious anarchists and socialists, and the record

lends some support to it (as discussed below), but it is important to note the close link

between the new stereotypes of the treacherous Japanese, the simmering fears of re-

accepting the interned Japanese immigrants and citizens, and the language of the 340

provision. A wise woman once told me that a good empiricist does not believe in

coincidence.

475. Second Biennial Message of Governor Young (Cal. Assembly Journal 1931, January 5,

1931:116).

476. Cal. Stats. 1929, c. 791; Cal. Stats. 1931, c. 582.

477. E.g., Cal. Assembly Journal (April 1, 1931:1818).

478. Letter to the Speaker of the Assembly from the International Union of Operating

Engineers (Cal. Assembly Journal 1931, February 25, 1931:780).

479. Cal. Stats. 1933, c. 573; Cal. Assembly Journal 1933.

480. Cal. Stats. 1937, c. 368; Cal. Stats. 1939, c. 94.

481. Cal. Stats. 1947, c. 1124.

482. Some of these restrictions can also be linked to early homophobia in California that is not

clearly related (at least in documented history) to anti-Asian sentiments, among other

social conditions. See also Leon (2011). In light of the connected to severe othering and

hidden sentencing, however, and also the connection between forms of othering within

California that is discussed shortly, it does not seem entirely coincidental that one hyper-

sexualized threat, Asian immigrants, emerged at the same time as another, non-

heterosexuals, in the same place and resulted in similar laws—in fact similar provisions in

the same law. The conditions for hidden sentencing were available, so that when moral

panics around hyper-sexualized others arose, that particular penal technology was

available.

483. E.g., Hendershot (2017); Woods (2004). 341

484. Tsu (2005).

485. In its ideal form, communism as an economic system pairs most easily with democracy as

a political system. Capitalism actually faces a greater threat to communism, because both

are incompatible modes of organizing economic society. Social democracy (i.e., socialist

democracy) is therefore a defined and consistent ideology, while fascist democracy is an

impossibility.

486. 32 Statutes at Large 1213 (1903).

487. Higham (2002:111).

488. 54 Statutes at Large 670 (1940).

489. Clark (1940); Steele (1999).

490. Steele (1999). In three decades of attempts, however, the federal government never

succeeded in deporting Bridges.

491. 40 Statutes at Large 411 (1917).

492. Woodrow Wilson, President of the United States, State of the Union Address (December

7, 1915).

493. 48 Statutes at Large 1064 (1934).

494. Archer (2017).

495. 52 Statutes at Large 631 (1938).

496. Cal. Stats. 1943, c. 134.

497. “Report of the Joint Fact-finding Committee on Un-American Activities in California to

California Legislature.” Rep. 1 (1943).

498. Jacobson (1998); Roediger (1999, 2005). 342

499. Jacobson (1998:48-49).

500. Jacobson (1998:65-66).

501. Roediger (1999).

502. Carr (1997).

503. Roediger (1999).

504. Allen (1994, 1997).

505. Flagg (1997).

506. Steele (1999).

507. Cal. Assembly Journal 1931 (April 1, 1931).

508. Terry (1925).

509. Hearings on Brewing and Liquor Interests and German Propaganda before a

Subcommittee of the Senate Committee on the Judiciary, 65th Cong. (1919).

510. E.g., Haney López (2006); Roediger (1999).

511. Collins (1976); Gellhorn (1976).

512. Coates (1946:228); California Archives, MF3:1, Roll 39 (1944–1945).

513. Doran (2011); Miranti (1999).

514. E.g., Memorandum to Governor Warren on Bill No. A. B. 685 (California Archives,

MF3:1, Roll 39, July 11, 1945).

515. Reich (1964:767).

516. E.g., Inter-departmental Communication to Governor Warren from the California

Department of Justice on Assembly Bill. 685 (California Archives, MF3:1, Roll 39, July

9, 1945). 343

517. Inter-office Memorandum to Governor Warren from H. R. MacGregor on A.B. 685

(California Archives, F3640:8445, June 20, 1945).

518. Cal. Stats. 1945, c. 1353.

519. Collins (1976:79).

520. Cal. Stats. 1945, c. 1524.

521. Press Release, California Horse Racing Board (California Archives, F3640:2240, August

22, 1945); Letter to Governor’s Executive Secretary Sweigert from Pearlson & Singer,

attorneys for Southern California Jockey Club (California Archives, F3640:2240,

September 11, 1944).

522. George, Homer, “’Breakage’ Dips Deep into Bettors’ Pockets” in The News-Press

(California Archives, F3640:2240, n.d.); George, Homer, “Track Profits Now Up to

Assembly” in The News-Press (California Archives, F3640:2240, n.d.).

523. Letter to Governor Warren from Mayo Thomas (California Archives, F3640:2240, August

25, 1945).

524. Press Release, California Horse Racing Board (California Archives, F3640:2240, August

22, 1945).

525. 34 Statutes at Large 673 (1906).

526. Sinclair ([1906] 2002); Sullivan ([1935] 1995).

527. Cal. Prop. 11 (1925); Cal. Stats. 1919, c. 608.

528. Collins (1976:81).

529. Clear and Frost (2014); Garland (2001a, 2001b); Mauer and King (2007); Western (2006).

530. Bobo et al. (1997); Bonilla-Silva (2001, 2014); Haney López (2006). 344

531. Mauer and Chesney-Lind (2011); Pinard (2006, 2010); Travis (2002, 2005).

532. Alexander (2010); Wacquant (2000, 2001).

533. Pierson (2004); Weir et al. (1988).

534. Campbell (2002); Steensland (2006).

535. Of course, a critical view of the legacies of the present also implies that the lineal history

presented in this chapter is itself incomplete. As Chapter One showed, hidden sentence

practices can be traced in a genealogical fashion at least back to ancient Rome and Greece,

so there is good reason to suspect that related patterns of essentialized othering may also

exist. If they do not, then the radical break that created the othering-attainder association

would be an important clue for understanding the present.

536. Omi and Winant (2015); Winant (2001).

537. Feagin (2006); Feagin and Elias (2013).

538. Hendrick (2013); Litowitz (2000); Lukács (1968).

539. Omi and Winant (2015).

540. Foucault (1979); Weber ([1922] 1978).

541. Flagg (1997); McIntosh ([1988] 2003); Nakayama & Krizek (1995).

542. Allen (1994, 1997); Haney López (2006).

543. Weber ([1922] 1978, [1922] 2010).

544. Delgado (1994); Tonry (2011).

545. Foster and Hagan (2009); Manza and Uggen (2006); Western (2006).

546. Alexander (2010).

547. Collins (2000, 2015:2). 345

548. Lorde (1984).

549. Pager (2007).

550. E.g., Becker (1963); Lemert (1951).

551. Lieberman (1998, 2008); Lowndes et al. (2008); Omi and Winant (2015); Winant (2001).

552. E.g., Cohen (1985); Foucault ([1975] 1995); Hagan (2010).

553. Quinney (1970); Sutherland ([1942] 1973).

554. Gibson (2002); Lee (2007).

555. See, e.g., Hagan (2010).

556. Omi and Winant (2015).

557. Beckett and Sasson (2000); Garland (2001a).

558. Hagan (2010).

559. Haney López (2006).

560. Grant et al. (1970); Love (2011a).

561. Hendrick (2013); Litowitz (2000); Lukács (1968).

562. Haney López (2006); Jacobson (1998).

563. Flagg (1997); McIntosh ([1988] 2003); Nakayama & Krizek (1995).

564. Lorde (1984); Vice (2010).

565. Cummings v. Missouri, 71 U.S. 277 (1866). Ex parte Garland, 71 U.S. 333 (1866).

566. Kansas v. Hendricks, 521 U.S. 346 (1997); Smith v. Doe, 538 U.S. 84 (2003).

567. Garland (2001a); Simon and Feeley (1992).

568. E.g., Clear and Frost (2014); Demleitner (1999); Mauer and King (2007); Pinard (2006,

2010); Travis (2005). 346

569. This is not the place to have a full conversation about reform possibilities, and I am not

necessarily claiming that either the evidence in this monograph or a critical view on our

commonplace assumptions about the rehabilitative “ideal” necessarily prove that

rehabilitation is a flawed idea. This should, however, be the start of a new conversation

about punishment—or a new dimension of the current reform possibilities. Many of the

problems with the current penal system, visible and hidden, can be traced to rehabilitative

strategies; many of the changes that resulted in the current system were caused by

apparently well-intentioned modifications to rehabilitative practices; and many of the

practices and practitioners in the current system are well-intentioned “protectors” just as

much as the corretionalist ones once were. At the very least, then, if we were to return to

or borrow from the rehabilitative ideal, we have a lot to reconsider.

570. Garland (1985, 2001a).

571. Hagan (2010).

572. Garland (1985); Simon (1993).

573. E.g., Cal. Assembly Journal 1929, 1931.

574. Message of the Governor Concerning Pardons, Commutations and Reprieves to the Senate

and Assembly of the State of California (Cal. Assembly Journal 1933:167-328).

575. The use of “rewards” is an important addition to the reform-oriented point I made in a

note just above in this section. Rewards are, by definition, not punishment, so it can be

said that part of the rehabilitative logics did benefit from the full range of behavioral

psychology. Still, the “rewards” of pardon and restoration of citizenship, while possibly

well-meaning, are truly so only in name: they are the end of the imposition of 347

punishments, positive or negative, rather than desirable consequences offered outside of or

as an alternative to punitive consequenes.

576. Cal. Stats. 1907, c.

577. Cal. Stats. 1935, c. 604.

578. E.g., Cal. Stats 1937, c. 724.

579. Cal. Stats. 1939, c. ; Cal. Stats. 1941, c. 106.

580. Pinard (2006); Travis (2005).

581. E.g., Cal Stats. 1939, c. 39; Cal Stats. 1939, c. 807; Cal Stats. 1941, c. 831.

582. Cal. Stats 1945, c. 1353.

583. 64 Statutes at Large 148 (1950)

584. May (1995); Brandt v. Fox, 153 Cal. Rptr. 683 (Cal. Ct. App. 1979). See also Grant et al.

(1970:1009), stating that “Character standards are now so firmly embedded in admission

requirements that little thought is given to their relevance.”

585. 54 Statutes at Large 850 (1940).

586. Cal. Stats. 1943, c. 134; Cal. Stats. 1945, c. 123.

587. Cal. Stats. 1947, c. 1205; 62 Statutes at Large 609 (1948). The technical language

involved any crime punishable by death or more than one year of incarceration, which is a

common definition of a felony in many jurisdictions. E.g., Grant et al. (1970); Chin

(2011).

588. See Page (2011).

589. Hawker (1898:196). Likewise, commentators have observed that “virtually the only

‘profession’ open to an ex-felon is that of burglar; the ex-felon is barred from other 348

activities because she or he is presumed to be person of bad moral character” (May 1995:

193).

590. E.g., Gardner (1982).

591. Cummings, 71 U.S. at 300 (brief for defendant).

592. Hawker, 170 U.S. at 196 (“All that is embraced in these propositions is condensed into the

single clause of the statute, and it means that, and nothing more. The state is not seeking to

further punish a criminal, but only to protect its citizens from physicians of bad

character.”); Chin (2003).

593. Hawker, 170 U.S. at 198.

594. Barnett (2004).

595. Lorde (1984).

596. 5 Statutes at Large 304 (1838:38); 10 Statutes at Large 61 (1852); Short (1922).

597. 34 Statutes at Large 669 (1906); Sullivan ([1935] 1995).

598. E.g., 26 Statutes at Large 1084 (1891); U.S. Congress (1988:7).

599. Cal. Stats. 1927, c. 853; Cal. Assembly Journal 1927.

600. Cal. Stats. 1905, c. 406; Cal. Assembly Journal 1905.

601. Cal. Stats. 1929, c. 104.

602. Second Biennial Message of Governor Young (Cal. Assembly Journal 1931, January 5,

1931:107-108).

603. Second Biennial Message of Governor Young (Cal. Assembly Journal 1931, January 5,

1931:108). 349

604. Various other boards, like the Board of Dentistry, also requested more funding on the

basis of supposed enforcement needs, suggesting that “protection of the public” can be

useful in resource-gathering efforts. Second Biennial Message of Governor Young (Cal.

Assembly Journal 1931, January 5, 1931).

605. Second Biennial Message of Governor Young (Cal. Assembly Journal 1931, January 5,

1931:109).

606. State ex rel. Short v. Riedell, 109 Okla. 35 (1924). In some ways, the logic of this

decision is contrary to that of a 1923 Louisiana Supreme Court case that recognized a

“general welfare” interest in accountancy, even though the two were treated as leading,

complimentary precedents in public accountancy law across the nation for decades. State

v. De Verges, 153 La. 349 (La. 1923); Coates (1946). They can be reconciled, however,

by viewing the De Verges case as ruling that a state-sanctioned CPA was permissible in

light of an interest in certifying qualifications in a specialized, complicated skill unknown

to the general public, but that a state still may not (consistent with the Riedell case)

actually preclude those without a CPA from practicing and claiming expertise: a skilled

profession can be credentialed, but only a vital one can be closed.

607. Coates (1946:228); California Archives, MF3:1, Roll 39 (1944–1945).

608. Wangerin v. Wisconsin Board of Accountancy, 223 Wis. 179 (1936).

609. Cummings v. Missouri, 71 U.S. 277 (1866); Ex parte Garland, 71 U.S. 333 (1866).

610. Hawker v. New York, 170 U.S. 189 (1898).

611. United States v. Lovett, 328 U.S. 303, 316 (1946).

612. Lovett, 328 U.S. at 316 (internal quotes removed). 350

613. Trop v. Dulles, 356 U.S. 86 (1958).

614. Trop, 356 U.S. at 96.

615. For instance, the only places Cummings or Garland mentioned legislative purpose or

intent was in a hypothetical example and in the dissent. Cummings, 71 U.S. at 325;

Garland, 71 U.S. at 395-96 (Miller, dissenting); but see Gardner, at 799-800 (arguing that

the Cummings Court’s investigation into the functions and effects of the oaths at issue was

an unstated inquiry into the legislative purpose). Helvering also explicitly directed the

inquiry to statutory construction rather than legislative purpose. Helvering, 303 U.S. at

399.

616. Trop, 356 U.S. at 96.

617. E.g., Lovett, 328 U.S. 303; Hawker, 170 U.S. 189; Garland, 71 U.S. 333; Cummings, 71

U.S. 277.

618. Trop, 356 U.S. at 102-03.

619. The new rule was likely the result of the Perez v. Brownell case, decided on the same day

as Trop, in which the Court ruled denationalization as a response to voting in a foreign

election a proper and constitutional exercise of legislative power. Perez v. Brownell, 356

44 (1958). Although Perez neglected to rule on the issue of punishment, it is probable that

the Trop test was created to differentiate the two cases. Trop, 356 U.S. at 105 (Brennan,

concurring) (“It is, concededly, paradoxical to justify as constitutional the expatriation of

the citizen who has committed no crime by voting in a Mexican political election, yet find

unconstitutional a statute which provides for the expatriation of a soldier guilty of the very

serious crime of desertion in time of war.”). The more coherent Cummings/Garland test 351

would have very simply found both acts punitive, and then left open the question of

whether they were both cruel and unusual.

620. The only alternative formulation of Trop is perhaps more troubling: an act is punishment

if its motive is to achieve a legitimate purpose of punishment—thereby exempting sadism,

hatred, vengeance, exclusion, and other illegitimate motives from constitutional

protection.

621. Hudson v. United States, 522 U.S. 93 (1997).

622. Ewald (2011:90).

623. Sibron v. United States, 392 U.S. 40, 55 (1968).

624. Omi and Winant (2015).

625. Foucault (1979); Gramsci ([1935] 1992); Weber ([1922] 1978).

626. Campbell (2002); Shipan and Volden (2008). Economic competition and coercion are

also key mechanisms of policy diffusion in other areas of law, but they do not play a key

role in this hidden sentencing history.

627. 10 Statutes at Large 61 (1852); 34 Statutes at Large 669 (1906).

628. E.g., Cal. Stats.1907, c. 212; Cal. Stats. 1915, c. 426; Cal. Stats. 1937, c. 399.

629. Campbell (2002).

630. Letter to Speaker Levey from Daniel T. Tattenham, Secretary-Treasurer of the California

State Federation of Journeyman Barbers (Cal. Assembly Journal 1927:1169, Mech 23,

1927).

631. Report on Senate Bill No. 986 from State of California Office of Legislative Counsel

(California Archives, F3640:2240, July 7, 1945). 352

632. Second Biennial Message of Governor Young. Cal. Assembly Journal 1931 (January 5,

1931:108).

633. Campbell (2002); Steensland (2006).

634. State v. De Verges, 153 La. 349 (La. 1923).

635. “Penal Law of the United States.” Conference Report. H. Rep. 2270 (February 23, 1909).

636. “Revision and Recodification of Laws, etc.” Report, Part II. S. Rep. 10 (January 7,

1908).

637. Sibron v. United States, 392 U.S. 40, 55 (1968).

638. Brady v. United States, 397 U.S. 742 (1970). E.g., Love (2011); Roberts (2008); Chin and

Holmes (2002).

639. United States v. Parrino, 212 U.S. 919, 920-921 (1954).

640. Parrino, 212 U.S. at 920.

641. The dissent found that the lack of precedent was just as good of a reason to find that the

court should inform the defendant of collateral consequences (“The most my colleagues

can show is that there are no precedents, on this point, adverse to defendant. I think we

should not create one.”). Parrino, 212 U.S. at 921.

642. Meaton v. United States, 328 U.S. 379, 380-81 (1964); United States ex rel. Durante v.

Holton, 228 827, 830 (1956); Munich v. United States, 337 U.S. 356, 361 (1964);

Hutchison v. United States, 450 U.S. 930, 931 (1971).

643. Redwine v. Zuckert, 317 U.S. 336, 338 (1963).

644. United States v. Cariola, 323 U.S. 18, 186 (1963).

645. Cariola, 323 F.2d at 186. 353

646. Chin (2011); Chin and Holmes (2002); Roberts (2008). One 2010 U.S. Supreme Court

case was once predicted to be a “sea-change” in the collateral-consequences doctrine by

making deportation an exception to it, so serious that it transcended collateralness (though

it is also not direct). Padilla v. Kentucky, 559 U.S. 356 (2010). As of this writing, though,

there are still only minor further changes in collateral-consequences law.

647. The Third Circuit gave examples: evidence of conviction in later civil actions, credibility

as a witness, voting rights, public office, ‘second offender’ punishments, and deportation.

Cariola, 323 F.2d at 186. The Fifth Circuit simply used the blanket idea of “civic rights.”

Meaton, 328 F.2d at 381. However, the lines between collateral and direct consequences

are quite unclear through these formulations. Roberts (2008).

648. Cuthrell, 475 F.2d at 1366.

649. E.g., United States v. Gonzales, 202 F.3d 20, 27 (1st Cir. 2000); El-Nobani v. United

States, 287 F.3d 417, 419-421 (6th Cir. 2002).

650. Some courts, for instance, hold that eligibility for parole is a direct consequence. E.g.,

Munich, 337 F.2d at 360-61. Others, however, find to the contrary. E.g., Trujillo v.

United States, 377 F.2d 266, 269 (5th Cir. 1967). In another example, one court held that

civil commitment is neither direct nor collateral. State v. Bellamy, 835 A.2d 1231, 1238

(N.J. 2003). Finally, it should be noted that even though sentencing judges themselves

can sometimes determine welfare restrictions, and could in the past submit decisive

recommendations for or against deportation, courts have found that these consequences

are not direct.

651. Chin and Holmes (2003:726-30). 354

652. E.g., Michel v. United States, 507 U.S. 461 (1974).

653. Chin and Holmes (2002); Roberts (2008).

654. Howard (1997); Mettler (2011).

655. Gray (2013).

656. Simon (1993).

657. Durkheim ([1893] 1984); Foucault ([1975] 1990); Rusche and Kirchheimer ([1939] 1968).

658. Weber ([1905] 2003, [1922] 1978). There is a sense in which such routinization can be

seen as an extension of Foucalt’s normalization through a vast, carceral society. In the

sense that Foucault’s views develop from and compliment Weberian routinization—and

for that matter, Marxist hegemonic reproduction—the two perspectives are

complimentary. To the extent that Foucault redirects our analysis back to a narrow realm

of exclusion, Weberian theory provides tools that Foucaultian theory does not. Neither is

equivalent and neither is redundant.

659. E.g., Durkheim [1902] 1983; Foucault [1975] 1995; Pashukanis [1924] 2007.

660. The only exceptions tend to derive from Marxist perspectives on penality. E.g., Rusche

and Kirchheimer [1939] 1968; Wacquant (2000, 2001).

661. Alexander (2010); Garland (2001a, 2001b); Pinard (2006, 2010); Travis (2002, 2005).

662. Allison (2001); Rubin (1976, 1987).

663. BJS (1997, 2013).

664. BJS (1999).

665. Burnham (1984).

666. U.S. Bureau of the Census (2010); NBER (2010). 355

667. GW Regulatory Studies Center (2017).

668. Ruggles and Sobek (1997).

669. Corbin and Strauss (2008).

670. Glaser and Strauss (1967).

671. Kadmon (2001).

672. E.g., Gordon (1988); Hartog (1985). By saying “more than,” I am not suggesting that the

analysis of legal doctrine is not difficult or important in its own right, but only pointing

out that analyzing the historical context of legal developments requires “more”

information that provided in the legal record itself.

673. Blossfeld et al. (2007).

674. Allison (2001); Snijders and Bosker (1999).

356

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