The Journal of Things We Like (Lots)
Select Page

Tag Archives: Poverty Law

Recognizing Disgust, Repudiating Exile

Sara K. Rankin, The Influence of Exile, 76 Md. L. Rev. (forthcoming 2016), available at SSRN.

The discourse of poverty law in the United States is on the rise. Following the Great Recession of December 2007 to June 2009, the odd yet telling disparagement of “law and poverty” by the late Antonin Scalia in September 2008, and the Occupy Wall Street protests that erupted into public consciousness in September 2011, poverty law scholars have published three new casebooks, organized a new series of conferences hosted by law schools in California, Washington, and Washington, D.C., contributed to the theme for other ongoing conferences such as ClassCrits (Toward A Critical Legal Analysis of Economic Inequality), and assembled in well-attended panels at the annual meeting of the Association of American Law Schools.

In The Influence of Exile, Sara K. Rankin, associate professor of law and director of the Homeless Rights Advocacy Project of the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law, contributes to that discourse by theorizing “the influence of exile”—the well-documented drive to exclude disfavored groups of people by restricting their rights to access and occupy public space. (Pp. 1-2.) The influence of exile has taken myriad forms throughout United States history (e.g., Slave Codes, Black Codes, anti-miscegenation laws, and Jim Crow regimes; Asian exclusion laws, Mexican “repatriation” campaigns, and Anti-Okie laws; redlining regulations, policies, and practices; and “Sundown Town” policies and practices), but Rankin argues persuasively that the influence of exile perseverates today in a distinctive “social-spatial segregation [that] further entrenches stereotyping, misunderstanding, and the stigmatization of marginalized groups.” (P. 11.) Her article abounds with insights into these matters. Here I discuss three of them—the visible poor; sociolegal control of public space; and disgust, affect, and ideology.

Rankin critiques the official definition of homelessness and urges a reconceptualization by way of Joel Blau’s notion of the “visible poor.” (Pp. 2 n.8, 3 n.11.) The visible poor includes not only people whom the United States Department of Housing and Urban Development officially counts as homeless but also a substantially larger part of the forty-three-plus million people whose poverty combines “with housing instability, mental illness, or other psychological or socio-economic challenges that deprive them of reasonable alternatives to spending all or the majority of their time in public.” (P. 2.) Like the move urged in 2014 by the ClassCrits group, to contextualize poverty and inequality in relation to precarity and work, Rankin’s rhetorical shift from the homeless to the visible poor promises a better approach to analyzing and intervening against the contemporary “criminalization” laws and policies that target such people. (Pp. 43-44, 48-49, 52.) For example, implicating a larger part of the forty-three-plus million poor people in the United States—over thirteen percent of the populace—helps to move the proliferation of laws that criminalize the visible poor from the margins and may help to organize more effective counters to the influence of exile.

Rankin characterizes the past twenty years as a period in which “the combination of economic conditions, broken window ideologies, and the human drive to exile created a perfect storm for the increasing enactment of laws that purge signs of visible poverty from public space.” (P. 42.) Drawing on interdisciplinary urban studies, she argues that the privatization, commercialization, festivalization, and sanitization of public space all contribute to the problem. (Pp. 39-41.) In particular, business improvement districts, which cities have increasingly imposed on their traditional downtown areas, exemplify these sociolegal processes and political projects. (Pp. 41-42.) For Rankin this situation amounts to one that sociologist Talmadge Wright has conceptualized in terms of “battles for ‘tactical control’ of public space.” (P. 3). Rankin argues persuasively that, “in this context, the mere existence of homeless [and visibly poor] people in public space is an act of resistance.” (P. 56.) In her view, sociolegal controversies over the visibly poor express the ideological and material class relations that construct, naturalize, and ultimately control “public space.” (Pp. 9, 57-58.) In particular, “visible poverty as a form of protest challenges the American conscience to grapple with its own complicity in creating the circumstances within which homelessness and poverty can thrive.” (Pp. 57.)

In the longest part of her article, Rankin synthesizes studies from psychology, social psychology, social neuroscience, and sociology, which explain the group and individual dynamics that animate people to differentially identify with and include others, or instead to misrecognize, exclude, marginalize, and ultimately exile strangers. (Pp. 5-24.) In particular, social neuroscience findings confirm, “that today, society tends to regard homeless and visibly poor people with disgust and rejection at higher rates than most any other perceived status.” (Pp. 12 n.46.) Though some people may find the claim controversial, Rankin explains that, “Studies show visible poverty elicits higher rates of disgust than nearly any other commonly marginalized trait, including racial or ethnic indicia.” (P. 15 n.60.) She acknowledges that people whose ethnicities are racialized into a minority group status tend to be poorer in income, own less wealth, and be otherwise worse off than people whose ethnicities are racialized into the majority white group status. (Pp. 5-7, 12-15.) However, she hypothesizes that the stigmatization of poverty may have become a sanitized way to express otherwise disfavored forms of prejudice. (P. 16 n.63.) Instead of “overt expressions of bias . . . with respect to race and gender, and perhaps increasingly, with respect to sexual orientation and identity . . . the American conscience may be sanitizing many forms of discrimination to appear as something less objectionable or actionable: judgments about social worthiness.” (Pp. 18-20.)

Thus, the influence of exile troubles Rankin in at least two ways: first, it feeds on the disgust that individuals, who are ostensibly not poor (or at least perceive themselves not to be poor), feel when confronted with visibly poor people: they perceive these “strangers” as not only unsightly and dirty blemishes in public space but also as dangers who symbolize human “broken windows.” (Pp. 22-23, 25-26, 36-38, 59.) Second, United States society and culture have evolved an ideology to legitimate and reinforce the disgust that (some, many, most?) individuals feel when confronted with visibly poor people. Instead of allowing this feeling to be identified as invidious discrimination, this ideology cloaks individuals’ feelings of disgust beneath the mantle of a sober judgment about blameworthiness and just deserts. (Pp. 20-21.)

The influence of exile, Rankin argues, thus degrades not only the visibly poor themselves, but also the legislators, judges, and citizens who accede to popular animus against them. Indeed, the influence of exile degrades all of us who allow ourselves to become complicit in the sanitization (privatization, commercialization, festivalization) of public space, and the criminalization of the visibly poor—in a word, exile.

Shakepeare’s Prince Escalus, the ruler of fair Verona, declared at the end of Romeo and Juliet:

See what a scourge is laid upon your hate,
That heaven finds means to kill your joys with love.
And I for winking at your discords too
Have lost a brace of kinsmen: all are punish’d.

According to Rankin, under the influence of exile, here too “all are punish’d.” Thus, she argues for the law—legislators, judges, and the polis—to recognize its invidious influence, to confront its pernicious effects, and ultimately to protect “the rights of all people to exist in public space or, more fundamentally, to exist at all.” (P. 59.)

Cite as: Marc-Tizoc González, Recognizing Disgust, Repudiating Exile, JOTWELL (October 25, 2016) (reviewing Sara K. Rankin, The Influence of Exile, 76 Md. L. Rev. (forthcoming 2016), available at SSRN),

Looking Intersectionally and Seeing Structural Bias

Every day, across the criminal justice system, state and private actors wield discretion in making decisions: Is a girl standing before a police officer, prosecutor, child welfare official, or social worker a victim in need of protection or a perpetrator, in need of punishment? Does she need harsh correction or gentle, resource-rich protection? Is she a prostitute or is she a victim of trafficking? In (E)Racing Childhood: Examining the Racialized Construction of Childhood and Innocence in the Treatment of Sexually Exploited Minors, Priscilla Ocen presents compelling data suggesting that these discretionary decisions open a door to the exercise of implicit bias and lead to devastating outcomes, disproportionately removing Black girls from the realm of protection embodied by anti-trafficking laws and placing them squarely in the hands of the punitive mechanisms of the juvenile justice system. These facts are tremendously important but, sadly, not surprising. They only add to the wealth of information definitively establishing the disproportionate negative outcomes for Black women, men, boys, and girls in the social welfare, child welfare, criminal, and juvenile justice systems.

While the statistics are jarring, the important questions to ask are causal: Given that Black girls are disproportionately vulnerable to exploitation and disproportionately victimized, why, as a society, do we tolerate them being disproportionately punished? Why are they not, as both the data and intersectionality theory might suggest they should be, at the very center of our efforts to protect girls?

Ocen’s major contribution is her ability to help her readers ask, and begin to answer, these questions. She deftly draws the lens back, helping us understand how history, social construction of identity, implicit bias, failing social institutions, and legal mechanisms allowing for discretionary determinations work together to produce these outcomes. Here we see clearly structural racism and gender bias at work. We see embodied, too, the very real human impact of failing to think and work intersectionally as we purport to solve social problems. To make these crucial arguments, Ocen beautifully marries the particular with the more general, interweaving narrative, data, theory, sociology, history, and psychology in her text.

Ocen argues that while we have a strong cultural construct equating childhood with innocence and the need for protection, Black girls occupy a space of “liminal childhood,” placed at the excluded margins of idealized forms of white girlhood, both included in the concept of girlhood for the purposes of rights deprivation but excluded from notions of childhood innocence. Black girls are “at once viewed as dependent, limited rights-bearing subjects while at the same time they are imbued with adult characteristics such as sexual maturity, individual agency, and criminal responsibility.” (P. 1594.) If the image of the trafficking victim is the innocent girl next door, the Black girls are Jezebel, excluded from protection, blamed for their actions and subject to punishment as prostitutes. Taking us through history, from slavery and the black codes forward, Ocen traces the roots of these powerful cultural stories, arguing compellingly that the reasons that we, as a society, have tolerated Black girls’ disproportionate victimization and punishment are found in this history. But the answers to those why questions are rooted not only in powerful, historical imagery but in important cultural institutions: under-resourced communities; failing schools; high crime rates; and “limited housing, education, and health care” (Id.) all explain why Black girls are situated in positions that make them more likely to be targets for sexual exploitation than their white counterparts.

Ocen’s solutions flow directly from her careful analysis: remove discretion of police, prosecutors, and other state actors by enacting mandatory decriminalization; focus on institutional structures that render Black girls more vulnerable; and establish “race-conscious and gender responsive programs in schools and other social service agencies … where Black girls are most vulnerable to being trafficked.” (P. 1595.) Ocen proves, once again, that intersectionality is not just a theory. It is lived reality, and applying its lens exposes deep injustices and leads toward solutions that address some of our most pressing societal problems.

Cite as: Wendy Anne Bach, Looking Intersectionally and Seeing Structural Bias, JOTWELL (September 27, 2016) (reviewing Priscilla Ocen, (E)Racing Childhood: Examining the Racialized Construction of Childhood and Innocence in the Treatment of Sexually Exploited Minors, 62 UCLA L. Rev. 1586 (2015)),