Legal Geography in Practice - mapping injustice in the carceral justice system

Our understanding of justice is rooted in the concept of a universal and neutral application of the law, and consequently, proportional punishment. However, it is noted by many sociolegal theorists, particularly those in the field of legal geography, that that is hardly the case in practice. The law does not operate within a vacuum – it is shaped by space – namely who you are, where you are from or what area you belong to. The impact of space on law in such a way results in justice, particularly carceral justice, being applied unevenly over socioeconomic and racial landscapes.

Belonging to the ‘wrong’ space

In Saskatchewan, 1996, Pamela George was beaten to death. Two white university athletes picked her up, beat her, and left her for dead (R v Kummerfield and Ternowetsky (1998) 163 Sask.R. 257 (CA)). This case can be used to perfectly illustrate the disproportionate application of the law based on geography, an occurrence which is seemingly ubiquitous.

George, an indigenous woman who worked as a prostitute, was associated with an area where violence and crime were prevalent due to the low socio-economic area and indigenous minority nature of the reserve in which she resided and worked. This is to be directly compared to the status of the white men, who were seen as middle-class university-educated athletes who had gone out to celebrate after their exams. They were seen as far more educated and regarded better than the victim as the space they were associated with was of the reputable kind. George was seen ‘to belong to a space of prostitution and Aboriginality, in which violence routinely occurs’ while the men who killed her were seen as ‘belonging to a space of white middle-class respectability’ (Keenan 2018). Due to her race and lower-class status, in the trial, George was dismissed as ‘just a prostitute’ working in the ‘rough’ area, while the men were two college boys who had ‘lost control’- this may have contributed to their conviction on a manslaughter charge instead of a murder charge, resulting in a lesser sentence.

This logic can be applied to the average British city. In any city, there are the more affluent areas, which oftentimes have a greater proportion of middle-class Caucasians and individuals of higher educational backgrounds, and the ‘rough’ or ‘hood’ areas, which have far greater proportions of minority ethnic individuals, who are often migrants and often living in poverty. Crime statistics reinforce stereotypes: ‘rough’ areas produce more arrests because they attract more police presence, and because they attract more police presence, they produce more arrests (Gaston, Brunson & Grossman, 2020). This self-reinforcing cycle results in higher incarceration rates of those of a lower socioeconomic and non-Caucasian background due to their association with certain spaces.

Prison walls within society

The walls of a prison are often thought to be the epitome of carceral punishment, though it seems that they no longer need not be confined to the physical boundaries of a prison. Punishment has evolved to permeate its way within the space of society itself, when you consider space to be the ‘product of interrelations, as constituted through interactions’ (Massey 2006).

It also means that different subjects’ interactions with the same space will differ, which is significant when discussing the use of TPIMs (Terrorism Prevention and Investigation Measures) and other modes of remote surveillance. TPIMs, which restrict the subject’s liberties in terms of geography, mobility and capability to make independent decisions, as they typically require the subject to be wearing an electronic tag to ensure the subject is obeying the order. The use of such an order confines the subject to a particular physical and social space. While this may seem far more lenient compared to physical incarceration due to the lack of physical boundaries, the boundaries determined by the order confine the subject to a space they cannot escape all the same. However, the question arises, who determines those boundaries?

The determination of those boundaries is political.

In the past decade in Britain, the ruling parties in Parliament were of a conservative ideological standpoint (with exception to the recent Labour Government (though whether they are not of a conservative ideological standpoint is still to be decided)) and the legislation passed under them reflected that. The Terrorism Prevention and Investigative Measures Act 2011, passed under a Conservative government, now requires a ‘reasonable belief’ to enforce a TPIM upon a subject, but this in itself is still flawed as the reasonable belief may be founded upon racial biases but would still constitute a reasonable belief. It is important to note that while TPIM subjects are primarily British nationals (of minority backgrounds), broader counter-terrorism measures, such as Schedule 7 Terrorist Act 2000 stop and search powers and stops at British ports, disproportionately impact individuals from ethnic minority communities.

Other legislation, such as the Immigration Acts 2014 and 2016, also reflect conservative opinions on migration and immigrants, as was clearly stated by Theresa May when she spoke to the House of Commons, stating that she intended to ‘create a hostile environment for illegal immigrants’[1]. While this policy has been rebranded to the ‘Compliant Environment’ Policy, due to the backlash, the concept remains the same. These acts create a series of internal immigration checks which would prevent illegal immigrants from accessing housing, banking services, driver’s licences etc – turning places to access ordinary daily needs into immigration checkpoints. Such policies typify visual differences (particularly darker skin tone) and matter when regarding who is subject to further scrutiny and suspected of being in the country illegally. Space is weaponised to suffocate and prevent those deemed ‘other’ from being able to move freely and access basic services. Thus, the prison walls within society draw ever tighter.

Carrying space as property

People do not only occupy space physically, they carry with them the social, economic and legal meaning of that space as influenced by their identity and experiences. Characteristics such as race and sexuality can be explained through spatial property. Sara Ahmed looks at race through this perspective when she says that whiteness is a property that allows the subject ‘to move with comfort through space, and to inhabit the world as if it were home, then those bodies take up more space’ (2007) because of the luxuries the whiteness affords them, in terms of social, economic and political relations.

This principle regarding property can be applied to minority ethnic and low socio-economic individuals – if being from a racial minority means the subject struggles to comfortably move through space, they will take up less space as they will feel displaced. I also argue that BAME and poorer individuals carry a different sort of space as property – the suspicion of criminality. This is reflected in police stop and search procedures where black and brown individuals are disproportionately stopped compared to Caucasian individuals. Legal academia has noted that ‘many stop/searches are based […] on generalisations and stereotypes’ (Bowling 2007). The sort of behaviour shown by police in acting on prejudices and stereotypes may contribute to the higher proportions of incarceration of minorities in comparison to white individuals, resulting in vastly differing interactions with the law as a result of the space they own.

Conclusion

Criminality and the carceral system operate symbiotically in justice systems around the world. Higher rates of criminal penalisation will result in higher levels of incarceration and other modes of punishment. It is clear to see that the law is applied disproportionately to different racial and socio-economic subjects, leaving them vulnerable to higher rates of criminality and therefore higher rates of state sanctioned punishment. Living in a carceral society, whose justice system heavily relies on penal punishment, it must be noted that the reasoning behind the carceral justice system may be motivated by the racially biased and classist mindsets of those in political authority and law enforcement. It can be therefore said that the operation of the carceral justice lacks justice in itself.

[1] Home Office and The Rt Hon Theresa May MP, Speech from Speech by Home Secretary on second reading of Immigration Bill, published: 22nd Oct 2013

References:

Ahmed, S. (2007) Queer Phenomenology: Orientations, Objects, Others. Durham, NC: Duke University Press.

Gaston, S., Brunson, R. K. & Grossman, L. S. (2020) ‘Are Minorities Subjected to, or Insulated from, Racialized Policing in Majority–Minority Community Contexts?’, The British Journal of Criminology, 60(6), pp. 1416–1437.

Immigration Act 2014 (UK), c. 22

Immigration Act 2016 (UK), c. 19

Keenan, S. (2018) ‘A prison around your ankle and a border in every street: theorising law, space and the subject’, in Philippopoulos-Mihalopoulos, A. (ed.) Routledge Handbook of Law and Theory. Abingdon: Routledge, pp. 71-90.

Massey, D. (2006) For Space. London: SAGE Publications.

R v Kummerfield and Ternowetsky (1998) 163 Sask.R. 257 (CA)

Terrorism Prevention and Investigative Measures Act 2011 (UK), c. 23.