The Foundational Lawlessness of the Law Itself: Racial Criminalization & the Punitive Roots of Punishment in America

Empirical researchers and criminal justice practitioners have generally set aside history in exchange for behavioral models and methodologies that focus primarily on crime itself as the most measurable and verifiable driver of American punitiveness. There are innumerable legal and political questions that have arisen out of these approaches. Everything from the social construction of illegality to the politicization of punishment to the stigmatization of physical identities and social statuses have long called into question the legal structures that underpin what counts as crime and how punishment is distributed. And yet, until quite recently, the question of what history has to offer has mostly been left to historians, historically minded social scientists, critical race and ethnic studies scholars, community and prison-based activists, investigative journalists, and rights advocates. What is at stake is precisely the foundational lawlessness of the law itself. At all times, a White outlaw culture that rewarded brute force and strength of arms against racialized others unsettles basic assumptions about how we are to understand criminalization and punitiveness over time: that is, who has counted as a criminal and to what end has the state used violence or punishment?.