Friday, June 3rd 10:15am-12pm
Balcony N (4th floor)
These three linked sessions present detailed ethnographic examinations of the legal governance of crime, punishment, risk and security. Papers in Part III, presented here, explore the subjective dimensions of law and politics in situations where the contours of legality are contested and transformed, documenting the subject positions that emerge as legitimate state responsibilities and domains are redefined, from religious family law in Israel to human rights violations in Argentina. Cutting across an array of topics (including the construction of illegality, policing, pretrial detention, mental health courts, sentencing mitigation, and post-prison experiences), this series of panels interrogates the practices, effects (material and semiotic) and rationalities at play in the governance of il/legality in specific settings. In doing so, these panels shed light on the entanglements between law and security (for example, the presumption of law’s instrumental role in promoting security), as well as on the ways in which social order is understood through the lens of criminal risk and crime control. In addition to generating discussion about the substantive foci of the papers, these panels are envisioned as an opportunity to reflect on the potential contributions of ethnography as a modality for exploring legality.
Organizer: Robert Werth (Rice University)
Chair/discussant: Jessica Greenberg (University of Illinois, Urbana-Champaign)
Papers: Alexander Wamboldt, Jesse Cheng, Letitia Barrerra, Katharina Helen Maier
Anchored Women and Imprisoned Men: Get Refusal, Human Rights, and Jewish Law in Israel
Alexander Wamboldt, Princeton University
This paper examines how religious family law practiced by family courts is understood and contested by different parties in divorces. Due to the status of religion in Israeli law, couples can only marry or divorces through special religious courts. An individual’s religion, for the purposes of these courts, is determined through family ancestry or–in rare cases–personal conversion. Personal belief and/or practice rarely affect which religious court has jurisdiction over a particular person’s family issue. Under the version of Jewish law practiced by Israeli courts, only a husband may grant a writ of divorce (called a “get”); courts cannot compel a couple to separate. As such, many men withhold a get either as a strategy to achieve more equitable separation settlements, or for emotional reasons. Women whose marriages have functionally, if not legally ended, are referred to broadly as agunot (literally, “chained women”). These women cannot remarry, and, should they have children with another man during this time, their children can face serious legal consequences, including being barred from ever marrying, due to the child’s status as a mamzer, roughly translated as a bastard. Estimates on the number of women in this legal limbo in Israel range from 180-10,000. Recently, religious courts, also known as batei din (singular: bet din), have begun sentencing husbands who will not provide their wives with a get to prison, despite protestations from civil rights organizations that such a treatment both violates their human rights and that it would constitute a coerced get, or get meuseh, in rabbinic law, which invalidates any divorce these husbands might offer if it is given in order to be released from prison. Nevertheless, recent legislative efforts by the Knesset have sought to increase these penalties on recalcitrant husbands, barring them from participation in religious services and outside communication, and enabling courts to sentence them to indefinite detention. In the meanwhile, divorce lawyers have begun using separate, civil courts to sue these husbands for damages under the Negligence Tort. They have successfully argued in these courts that recalcitrant husbands have abused their wives by financially and emotionally constraining their lives after their marriages functionally have ended. Drawing on twenty-three months of participant observation conducted in Israel, this paper enriches contemporary debates about reforms and broadenings in family law. However, unlike these previous works, this paper focuses on the criminalization of currently legal practices in heteronormative family law. In so doing, this paper adds to theories of social change and morality vis-à-vis the law, looking at the granular details of how individuals and legal actors interpret and manipulate legal imperatives in context. Finally, this paper calls attention to the ways in which religious law is practiced in theocratic states. The disparity between Israeli secular social norms for relationships and state-rabbinic legal definitions of marriage reveal the underlying tensions in the Israeli nation-state project as it attempts to unify competing and contradictory Diasporic Jewish notions of community and belonging within a nation-state. This research speaks to growing anthropological and legal work on religious modernity and human rights both regionally in the Middle East and globally. It draws upon and adds to theories of affect and subject formation, querying how individuals marshal romantic love as a right to be upheld in the court system.
Ethnographic Advocacy Versus the Death Penalty
Jesse Cheng, Marquette University
Defending an individual whom the government wishes to execute is a practice of advocacy unlike any other in American law. The prosecuting state equates the defendant with the evil of an aggravated murder, stripping him of the profound subtleties and contradictions that inhere in his humanity so that society can find justification in stripping itself of his very being. In order to avoid the ultimate sanction, capital defenders must somehow subvert the state’s processes of objectification-its attempts to impose analytical rigor mortis on curious, lively, and life-minded inquiries into the complex currents that weave through the full breadth of the defendant’s existence. In this paper, I describe the mechanics of knowledge production that work to defy the government’s objectifying designs, as this resistance work is carried out through the sophisticated advocacy processes of death penalty “mitigation”-the extensive practices of investigation and representation that go into constructing a thickly contextual social biography of capitally-charged defendants, undertaken with the sole aim of preventing a sentence of death. This paper argues that the deliberate cultivation of an open-minded, anticipatory, and ethnographic-like sensibility in mitigation’s various receptions constitutes a significant component of its endeavors of advocacy. In a capital prosecution, the state’s quest for objectification is, in this regard, eminently empiricist. Prosecutors investigate and present proof of the atrocity of the crime and its catastrophic consequences. This telling, in turn, purports to stand as a fully adequate representation of the defendant’s entire personhood. Consequently, zealous advocacy for life demands a deliberate shifting of analytical ground, even as the formal framework of litigation would have the defense “representing” the client-both in the sense of advocating for him, and also in the sense of adducing the pieces of information that would speak for his life before a jury. Capital defense advocates unsettle the government’s reductionist designs by drawing various audiences into the lively ebbs and flows of mitigation’s fields of knowledge. Advocates do so precisely by way of constructing provisional representations that purposefully open the door to further representations. Defense advocates amass teeming, continuously reconstituting troves of information from which to craft mitigation-relevant evidence that can be morphed and adapted to formulate a variety of legal challenges that far precede the sentencing adjudication proper. The death penalty can be taken off the table either when these challenges do in fact succeed, or when their potential for success compels prosecutors to accept a plea bargain for some lesser sentence. But even when individual challenges fail as a matter of formal procedure, the narrow legal “frame” in which each one is raised becomes a mind-opening space in which judges and jurors are drawn into vibrant fields of mitigating-type evidence. Through this exposure, key decision-makers are thereby primed to more generously anticipate and receive further life-minded connections that savvy defense advocates mindfully cultivate at every opportunity through subsequent maneuvers of strategy.
Justice, Affect and Legal Change: Preliminary reflections from ongoing research on trials of Crimes against Humanity in Argentina
Leticia Barrerra, CONICET, and Noa Vaisman, Durham University
The Argentine legal field can be seen as a site of “indeterminacy” and discontinuity, two aspects that mirror the close relationship between law and politics. In fact, the political process that the country underwent throughout the twentieth century necessarily influenced its contemporary legal history. The military coup of 1930-backed by the Supreme Court in its particular composition at the time -was a watershed moment in the country’s institutional history as it gave way to the infamous practice of military interventions in civil and political matters that extended beyond 1983. Throughout this period, dictatorships and democratic governments alternated in power, and in this context, military regimes selected judges who legitimized their seizure of power and their de facto governments. Likewise, each subsequent return to democratic governance led to the appointment of new judges to the Supreme Court. In spite of this contentious political backdrop, the workings of the judicial apparatus have been traditionally viewed as just “technical,” advancing the idea of the neutrality of the judiciary in the face of all and any political agenda. The alleged agnosticism of the law became, in the Argentine context, a tool to provide illegitimate regimes with a lawful façade. The brutality of the human rights violations carried out by the military juntas that ruled the country from 1976 until 1983 certainly was a turning point in Argentina’s political and legal history, not only due to the significance of the crimes perpetrated by the state (kidnapping, assassination, torture, child appropriation, among others), but also because of their long-term effects on Argentina’s legal system and judicial practices. Over a period of twenty years, those effects included: the trial and condemnation of the chiefs of the juntas in 1985 by a federal appellate court, promoted by the democratically-elected President Raul Alfonsin (1983-1989); the passage of amnesty laws that foreclosed criminal prosecution of human rights violators-the “Due Obedience Law” and “Final Stop Law” passed in 1986 and 1987 respectively (both still under the Alfonsin administration); and a saga of Presidential decrees issued in 1989 and 1990 through which the then President Carlos S. Menem (1989-1999) pardoned the chiefs of the juntas and other high-ranking military officials who had been prosecuted and condemned, as well as some officials who were still being tried for human rights violations. In June 2005, the Argentine Supreme Court reached a landmark decision in the Simón case (also known as “Poblete” case due to the victims’ last name). It held that systematic and mass violations of human rights carried out by the dictatorship were “crimes against humanity”, and thus, were imprescriptible and could be prosecuted. In addition, in July 2007 the Supreme Court deemed unconstitutional the presidential pardon that President Menem had granted to a group of high-ranking military officials in the Mazzeo case, a precedent that was followed by the tribunal on similar cases that challenged the pardon of the military chiefs. The result of the decisions on Simón and Mazzeo allowed human rights trials that had been “frozen” to resume, and also opened the way for extensive prosecutions of human rights crimes. Consequently, many perpetrators of human rights crimes have been held accountable before the courts. Building upon the present moment of transitional justice in Argentina, this paper explores the effects of the trials in cases of “crimes against humanity” on the subjects who decide upon them, that is, criminal court judges. We draw on anthropological theory of affect and emotions, ethnographic materials collected through interviews with federal trial court judges, and document analysis to interrogate how the process of judging crimes against humanity in Argentina affects the judges’ subjectivities. More broadly, this paper situates these subjects’ experiences within a larger context of legal change in Argentina, questioning deeply-rooted legal conceptualizations of the workings of the judiciary as a depoliticized activity.
Re-entry and the Urban Landscape: Ex-Prisoners’ and Staff’s Perceptions of the Role of Re-entry Organizations in Prisoner Re-entry
Katharina Helen Maier, University of Toronto
Each year in Canada, over one hundred thousand people are released from prison, jail, and detention facilities (Parole Board of Canada, 2013). The majority of individuals with a history of incarceration live at the margins of society – they are poor, lack formal education, and suffer from addiction and mental health issues. Ex-prisoners have identified the months following release from custody as particularly difficult in terms of navigating post-prison life (Pollack, 2008); indeed the vast majority of those who eventually return to prison do so within the first six months after release. In order to facilitate the transition from incarceration to the community, ex-prisoners are expected to seek support from a variety of organizations that provide services and programs to ex-prisoners (hereafter referred to as “re-entry organizations”). In this paper, I examine how recently released prisoners use, experience, and make meaning of re-entry organizations as they return to the community, and how front-line staff at these organizations conceptualize ex-prisoners and aim to facilitate re-entry through programs, services, and other forms of support. The paper is based on interview data with recently released prisoners as well as front-line staff at re-entry organizations in the city of Edmonton, Alberta. Additionally, observational data was gathered at various re-entry organization. While research has shed light on the type of challenges ex-prisoners typically encounter, less is known about how they deal with those challenges in everyday life. Specifically, little attention has been given to how ex-prisoners experience and make meaning of re-entry organizations as they navigate life on the outside, despite the fact that many former prisoners are required to access these organizations as per their parole or probation conditions. Recent scholarship suggests that re-entry organizations have become co-opted into the criminal justice system, leading to an increasingly blurred boundary the prison and the community. Re-entry programs contribute to the regulation and policing of ex-prisoners’ mobility and conduct. In this paper, I thus analyze how re-entry organizations shape people’s everyday lives, activities, and movements. Particular attention here will be given to how ex-prisoners’ experiences and associations with different organizations may be shaped by their age, gender, race, ethnicity, Indigeneity, as well as their current life situations. Analytically, this research contributes to understanding the role of re-entry organizations play in prisoner re-entry, and how they experienced as contested sites of punishment, treatment, and rehabilitation.
Association for Political and Legal Anthropology 