An Analysis of Open Season through Foucauldian Discourse and Freirean Pedagogical Concepts

The civil rights attorney Ben Crump represented the families of many African-American men who were victims of police shootings. In his book, Open Season: Legalized Genocide of Colored People, he outlines the various ways in which systemic and institutional racism, fueled by racialism, has legalized “killing members of a [national, ethnical, racial or religious] group” with “the intent to destroy” them (as cited in Crump, 2019, p. 14). Crump presents compelling evidence through various cases that highlights the racial injustices in the enforcement and enactment of the laws that govern the nation on the basis of race.

The application of the law based on racialism is the supposition that “the human species is divided into different races that are distinct biological categories; different races have different human traits and capacities…distinct races exist” (Crump, 2019, p. 24). Racism, emerging from racialism, is “the belief system and set of practices” that claims “that because races are different in their social behavior and innate capacities, they can be ranked as superior or inferior” (Crump, 2019, p. 24). These racial categories are “rooted in colonialism, slavery, and an elaborate ideology developed to justify a system of racial inequality” (Mukhopadhyay, 2018, p. 231) and are based on sociohistorical rather than biological difference. Yet, based on the evidence provided by attorney Crump, the political, judicial, and legal systems of the United States “have a differential impact on various racial or ethnic groups. It upholds white supremacy” (Crump, 2019, p. 26). It is crucial to understand this genealogy, or origins of systems of knowledge, to analyze Open Season.

In this paper, I use concepts from Michel Foucault’s book, Discipline and Punish as a framework to critically review and analyze the evidence presented in Open Season and comprehend the hidden intent of the law and its differential application to colored people. First, I sift through the evidence presented in selected chapters of Open Season by using Foucauldian discourse to recognize the political technologies, or mechanisms of power, whose functioning is not subjected to or influenced by “any obstacle, resistance or friction” (Foucault, 1995, p. 205) used to maintain inequitable systems. Next, I provide a summary with concluding thoughts Finally, I present Paulo Freire’s pedagogical approaches as a means of creating transformational and revolutionary change in our justice system and the various forces that work to perpetuate systemic racism.

Stand Your Ground

“Stand Your Ground laws are shoot-first legislation shielding the shooter under and expanded justification of self-defense” (Crump, 2019, p. 56). The intent of this law is to allow private citizens to protect themselves or their property. However, the courts have the discretion to interpret the position of the perpetrator, without the statement of the deceased victim. Crump presents cases where the law resulted in the acquittal of George Zimmerman over the killing of Trayvon Martin, an African-American teenager while Marissa Alexander, an African-American woman who survived domestic abuse received an assault conviction for firing a warning shot at the wall behind her abusive ex-husband. The judges interpreted the law differently in these situations and Alexander received the mandatory minimum sentence for discharging a weapon.

The circumstances surrounding these and other similar cases outlined in this chapter include the following: the influence of the National Rifle Association in the writing of these laws; the inconsistencies in the courts’ interpretation of these laws; the “interplay” (Crump, 2019, p. 68) between mandatory minimum sentencing and Stand Your Ground laws; the inclusion of irrelevant testimony or anecdotal evidence that may frame opinions of the jury; and the extension of stand your ground laws to cover property beyond a person’s home. Together, they result in a composition of forces that collectively disadvantage colored people. Foucault (1995) refers to this composition of forces as multiple segments of society coming together to create an efficient “multi-segmentary machine” (p. 164) that serves to disadvantage and discipline colored people.

The way in which the law is interpreted and applied is an example of political technology that is used by those in power to control the soul, referred to by Foucault (1995) as “the prison of the body” (p. 30). It is a way of normalizing judgement, where those in power establish the ways of being, the norm, and create ways of evaluating and controlling others. They do this by comparing, differentiating, homogenizing, and excluding colored people in their differential application of the law and sentencing.

The Conspiracy to Discriminate

In this chapter, Crump (2019) discusses the civil rights protections afforded to African-Americans through the Thirteenth, Fourteenth, and Fifteenth Amendments that prohibited slavery, granted citizenship for all those born or naturalized in the United States with equal protections for all, and the right for citizens to vote without discrimination, respectively. However, through the years, and through various actors including members of the executive, judicial, and legislative branches of the government, “every right received was nullified” (Crump, 2019, p. 81). Additionally, the juxtaposition of the Supreme Courts “precedence” versus “state rights” present situations where the courts consistently upheld the laws that are hostile to colored people.

Such methods used by the courts demonstrate Foucault’s concept of regulation, in that courts regulated the civil rights protections afforded to colored people and ensured that they followed the norm set by the powerful. By arguing both ways, the judiciary continues to “discipline” colored people and produce “subjected and practised bodies, ‘docile bodies’” (Foucault, 1995, p. 138). By using this type of political technology, the judiciary “assured constant subjugation” (p. 137) by making docile bodies systemically of all colored people (Foucault, 1995).

Creating the Criminal

“Language is one of the most systematic, subtle, and significant vehicles for transmitting racial ideology” (Mukhopadhyay, 2018, p. 232). This chapter presents examples of using language to spread the ideology of African-Americans as criminals, including the intent behind creating certain strategies such as the War on Drugs. By having harsher sentences for the possession of crack (a cheaper version of cocaine compared to powder cocaine) that is accessible to poor people, the Nixon administration effectively managed to classify African-Americans from poor neighborhoods as violent criminals. Crump (2019) questions the hidden intent of such laws and posits that it “is not to define criminal behavior but to define a group of citizens as criminals” (p. 85).

Creating such an ideology and using such a strategy “created the criminal” that would justify incarceration, direction of public funds for prison construction, and ensured the success of prison industry (Crump, 2019). It normalized judgement and gave the police the rights to “stop and frisk” (Crump, 2019, p. 94) . Such methods served as machinery for the surveillance of “criminals” where disciplinary power is integrated into the systems of society and are “organized as a multiple, automatic, and anonymous power” (Foucault, 1995, p. 176). These methods of identifying a criminal, using language, then allows the isolation of colored people ensuring that police and others who are part of a hierarchical observation machine in the streets or within prison can subject colored people to a maximum intensity of power, without interference, and ensure their submission.

In simply differentiating crack and powdered cocaine, the administration established “an automatic function of power” (p. 201) or panopticism that identifies the criminal and serves to discipline them (Foucault, 1995). The organization of geneses can be seen in the various ways the justice system serves as a “machinery for adding up and capitalizing time” (Foucault, 1995, p. 157) as it chooses between sentencing requirements and normalizing judgement in ways that keep more colored people in prisons.

Killing Them Softly

This chapter demonstrates the ways in which prosecutorial power, juries, judicial discretion in interpreting laws, and minimum and maximum sentencing requirements work together as a composition of forces to discriminate and perpetuate unfair treatment toward colored people. Normalizing judgement results in the harsher and inconsistent punishment of colored people on a racial basis. Those in power have the authority and ability to discipline and punish colored people. They have power over “the body of the condemned” (Foucault, 1995, p. 25), and in treating them this way, can exert power to create docile bodies.

Voter Suppression

One often used method of voter suppression is gerrymandering or “allow[ing] the states to redraw the lines of voting precincts and implement the kind of requirements that have in the past prevented African Americans from voting” (Crump, 2019, p. 138). Some of these voter suppression methods include requiring proof of residency, voter identification, literacy tests, and payment of poll taxes. Reducing the time provided for early voting is an example of Foucault’s (1995) organization of geneses as those in power manipulate and capitalize on the time provided for early voting. All these political technologies, including grandfather clauses, ensure the suppression of votes and consequently, the voice of African Americans. The ways in which these  laws are created, interpreted and enforced demonstrate Foucault’s (1995) composition of forces in creating an “efficient machine” (p. 164). Through voter suppression, those in power create docile bodies that must comply with these laws or face disciplinary measures. These methods are successful in creating docile bodies by controlling the soul of colored people and isolating them from democratic participation that could interfere with a political process that votes their oppressors out of powerful positions to control them.

A New Form of Segregation

Those in power use educational access as a political technology to legally segregate colored students. The way in which district-dependent funding for public schools perpetuate class boundaries reflects in the quality of the education afforded to colored people. By creating enclosures or spaces that enforce control over their situation, those living in specific districts based on socio-economic class and minority status also did not have sufficient funding for their educational systems. Funding available to their institutions are minimal and result in students not receiving “minimally adequate education” (Crump, 2019, p. 147).

The art of distributions is a way to create docile bodies by separating people into enclosures, partitioning them into specific groups, creating functional sites, or distributing them based on a rank order (Foucault, 1995). Based on a variety of factors outlined in other chapters by Crump, colored people are distributed into specific areas where “poor and minority children are trapped in…impoverished towns and cities [with] underfunded schools, which inhibits the ability of students to rise above their current situation” (Crump, 2019, p. 147). The requirement of expensive standardized tests to enter certain schools further exacerbates the issue. This type of examination serves to identify a threshold created by those in power to justify segregation and support their notions of race-based differences.

Caught Up in the System

In this chapter, Crump (2019) discusses the ways in which colored youth are criminalized for the smallest offenses and given heavier sentences involving more time in prison. Those justices offering such sentences state rehabilitation as the goal. However, this serves to normalize judgment of youth as criminals and keeps them in prisons longer. Additionally, the imprisonment of youth for minor violations and status crimes result in them being in and out of prisons perpetually. These represent Foucault’s control of activity to create docile bodies in an effort to create and maintain discipline. The political technologies in place that allow direct filing, or minors to be treated as adults, or “the incarcerat[ion]” of teenagers “with hardened adult criminals” (Crump, 2019, p. 178) serve to further control activity in creating docile bodies.

Criminalization and Enslavement of the Poor

One of the objectives of slavery was the free labor it afforded to plantation owners. In this chapter, Crump (2019) draws the connection that the judiciary utilizes differential punishment and sentencing as a way to support prison industry and provide free labor, in a way enslaving African-Americans legally. In this way, the judges control the activities of prisoners by requiring that they work for little or no pay as part of their rehabilitation, where “the deprivation of liberty” must “have exercised a positive technical role operating transformations on the individuals” (Foucault, 1995, p. 248). The labor is a form of exercise or a technique imposed on the body that is repetitive and gradual as a form of punishment. These prison systems use isolation to discipline those prisoners who do not engage in these activities designed to create docile bodies. In this way, the penal system has political anatomy or maintains a hold over other bodies to do what those in power wish, and force prisoners to operate a certain way.

Environmental Racism

Environmental racism refers to the way that industrial pollution and a lack of maintenance by those responsible affects the environment of the places inhabited by colored people. It ensures the creation of docile bodies based on the scale of control as “it is a multi-generational killing” (Crump, 2019, p. 199), object of control over colored people, and modality of control through an environment that assures “uninterrupted, constant coercion” (Foucault, 1995, p. 137) and subjugation. Those in power, through various policies and procedures involving credit-lending practices, real-estate management, and environmental protection, created an art of distribution through enclosures or space for colored people and enforced control over them. Various systems work together to force colored people into homes in environments that are not healthy, and subject them to pollutants and deleterious conditions without assistance from governing bodies such as the Environmental Protection Agency or legislative support. By controlling the environment of colored people, they (colored people) were denied a hold over their own bodies or their political anatomy.

Conclusion

Through the entire book, Crump describes the combination of forces that work to create docile bodies by affecting the soul of colored people. He demonstrates this by systematically laying out the ways in which these powerful forces uphold white supremacy, beginning with the legalized genocide of colored people one at a time, as in Stand Your Ground laws and police shootings to large-scale, multi-generational killings, as with the criminalization and enslavement of the poor and environmental racism. He addresses the genealogy of racism and its sociohistorical roots to identify the way on which our society has replaced one system of oppression with another and normalized this systemic racism through legal avenues. He concludes with twelve personal action steps that each of us can follow to overcome this legalization of genocide (see Appendix). Towards this end, Paulo Freire, in his book, Pedagogy of the Oppressed, offers valuable tools to achieve social justice. In the next section, I present a discussion on some of these tools.

Freirean Tools for Social Justice

As discussed in the previous section, a combination of forces including policing, sentencing, voter rights, and voter suppression demonstrate the differential applications of the law on the basis of race. Racial bias and discrimination is based on myths created through “attribute[ing] the heightened presence of melanin as the key factor responsible” for difference in IQ and abilities (Crump, 2019, p. 157).

The continued effect of these systems that oppress and kill colored people expose the false generosity of the abolishment of slavery, especially, while creating systems that support the imprisonment and enslavement of colored people. To move towards socially just systems, we need true generosity “wherein the oppressed initiate their transformation towards liberation based on love and trust surrounding the needs of the oppressed as identified by the oppressed” (R. Chandrashekar, analytic notes, April 6, 2020).

All of the mechanisms utilized to create docile bodies in an effort to discipline and punish, as identified in the previous sections, are built into systems within the political, social, economic, and judicial institutions of the nation with an illusion of acting towards reformation while truly focused on the dehumanization and enslavement of a people. To transform these structures and create a path for racial justice as outlined by Ben Crump, Freire’s problem-posing education can be useful. Such a system would be focused on co-creating policies and laws that affect the oppressed through dialogue with the oppressed. Such dialogue must occur in communion where people are working together as comrades to transform the criminal justice system and not in service to a dominant leader.

“Dialogue cannot exist, however, in the absence of profound love for the world and for people” (Freire, 2000, p. 89). Each of us must engage in conscientização, or critical consciousness, and praxis, or reflection followed by action, to identify systems that perpetuate racism and legalize genocide and help break them down. Transformative action based on conscientização, praxis, and dialogics, with love as the foundation, in communion, towards humanization based on an understanding of the ways in which these power structures facilitate the “legalized genocide of colored people” can lead to social and racial justice for all colored people. Johnson (2018) eloquently writes, “Patterns of oppression and privilege are rooted in systems that we all participate in and make happen…[and] are built into paths of least resistance” (p. 75). To change the system, we must change the way we see and participate in the system.

References

Crump, B. (2019). Open season: Legalized genocide of colored people. New York: HarperCollins Publishers.

Foucault, M. (1995). Discipline and punish: The birth of the prison, 2nd ed. (A. Sheridan, Trans.). New York: Vintage Books.

Freire, P. (2000). Pedagogy of the oppressed. New York: Continuum.

Johnson, A. (2018). Privilege, power, difference, and us. In Privilege: A reader (4th ed.). New York: Routledge.

Mukhopadhyay, C. C. (2018). Getting rid of the word “Caucasian.” In Privilege: A reader (4th ed.). New York: Routledge.

Appendix

The path forward for racial justice (Crump, 2019)

1. First, admit the problem.
2. Call out the injustice.
3. Hold the powerful accountable.
4. Share information.
5. Change the focus from criminal justice reform to criminal justice transformed.
6. See that our communities are represented in the structures governing them.
7. Rethink incarceration.
8. Change the mission of policing.
9. Amend Stand Your Ground.
10. End voter suppression.
11. End environmental racism.
12. Make access to critical financial support a priority.