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Mapping the Spaces of Non-Carceral Punishment by Mariana Valverde

Posted on Wednesday, 4 May

Professor at the Centre for Criminology and Sociolegal Studies at the University of Toronto and Fellow of the Royal Society of Canada

Review of Red Zones: Criminal Law and the Territorial Governance of Marginalized People

That, as luck would have it, it was during the current global pandemic—with its countless, ever-changing and often illogical rules and norms attempting to micromanage both spaces and human bodies—this wonderful new book appeared should give it particular relevance. The title Red Zones draws attention to a taken-for-granted, now routinized way of managing the risks associated not so much with crime but with the free movement across space of marginal people: that is, the practice of attaching numerous spatial restrictions to conditions of release at various stages of the criminal justice process.

Few readers of this blog are likely to have encountered such coercive restrictions on their movement and their associations until the pandemic. But very soon, legal, criminological, and urban studies scholars (as well as public health experts) will begin to pore over the mountains of spatial rules that have been imposed over the past year on citizens by every level of government and every private institution, in an effort to make sense of the logic –or lack of it—underpinning rules that, unlike the virus, differ greatly from one jurisdiction to another, and to document the varied responses to the rules found among different sectors of the population. In this enterprise, Red Zones will be a great source of inspiration and research questions: while the book’s material is largely drawn from criminal justice, its insights apply far more broadly, from municipal parks by-laws, through traffic management and in areas such as cross-border trade.

This book has been a long time coming. This is not only because of significant prior collaboration amongst the co-authors but, more importantly, because the smooth and elegant synthesis of empirical studies of criminal justice, on the one hand, and legal geography and urban studies on the other, that we have here has been in the works for some time. In the U.S., urban geographer Steve Herbert and criminologist co-author Katherine Beckett have produced highly influential work on the spatial conditions imposed on marginalized people through criminal justice tools. In the United Kingdom, urban geographer Phil Hubbard has borrowed from legal studies and criminology to analyze the ways in which morally risky people and morally risky businesses are regulated at the municipal level, whether or not they are also criminalized. And in Canada, criminologist Randy Lippert is one of many who have borrowed from the literature on law and space to very good effect, in Lippert’s case to study both municipal officials’ work and the private governance of space and people through condominium boards and gated communities.

But this book is notable because it goes beyond the common tactic of what is misleadingly called ‘interdisciplinarity’, which is staying in one discipline or field while borrowing insights from one or two others. It is a true synthesis: not only of findings and insights but also of research methods and theoretical frameworks, a far harder achievement. I can testify from personal experience that even attempting such a novel synthesis is extremely tricky even if one is writing alone. What is perhaps most notable – and doctoral students should take note—is that in this text such reflections, thankfully for the reader, stay almost completely in the background, backstage. This is remarkable because, especially in legal geography circles, authors often go on at length about the method or the theory or the particular mix of theories that “we” should or must adopt –instead of just getting on with it. Here, some chapters lean towards quantitative criminology (including logistic regressions, which will come as a shock to the system to theoretically inclined geographers). Other chapters lean more toward either legal history of geographic theory or both. But the book as a whole shows that it is indeed possible not only to juxtapose but actually to integrate intellectual tools of very diverse provenance. Even more miraculous, this book shows that one can do so modestly, without a lot of flag waving and five hundred erudite footnotes.

One example of what is gained by true integration is found in chapter 8, on the policing of political protests in Montreal, Toronto, and Vancouver. Here we see that largely middle-class students and activists subject to blunt force policing and later released under extremely draconian conditions (including being forced to live with sureties for extended periods and being banned from associating with their friends and from many key public spaces) are literally traumatized, both by the immediate physical force of the riot police and by the long-term oppression imposed on them through spatial (and other) conditions of release. Interestingly, the latter oppression, which unlike street police violence does not lend itself to cell-phone video, seems, from the interviews conducted, to be experienced as more oppressive than the former.

Now, the policing of political protest is a topic that has long been studied by progressive criminologists and sociologists. But previous studies have generally focused on a small slice of time: the demonstration or sit-in and its immediate sequel. In Red Zones the authors show how the enthusiasm that the legal system shows for spatial conditions – not just judicial orders but also the numerous draconian conditions that are imposed extra-judicially, technically not punishments but rather risk-management tools—authorizes and effects the regulation of people through space, as we already know; but they  also effect, through the long-term temporalization of spatial conditions, a highly coercive and indeed traumatic coercive suppression of dissidents. I happen to know one activist who was detained and charged during the G-20 protests in Toronto in 2010, and so I know that for many months he not only had to live with his surety (a progressive professor living a couple of blocks from me) but that, as was explained to me, he was not allowed to stay in his temporary middle-class but small prison alone. So he had to go with the professor and/or his family wherever they went. I regularly saw him walking with the professor in question and his wife when their child wanted to go for an ice cream cone. A bystander would not have seen the coercive power of the state on my sidewalk; one had to be in the know to discern the brute state force shaping the apparently happy Jane-Jacobs style scene.

But, to return to today’s pandemic: now that so many of us have undergone quarantines of far shorter duration and far less arbitrariness than the legal web that had been tightly woven around the activist forcibly residing in my neighbourhood, we can perhaps better appreciate that being forced to stay home or go out depending solely on other people’s choices, for many months, is truly coercive. It is certainly more coercive than the classic Marxist story of a police officer constituting you as a subject of law and order by shouting, “Hey you!” 

As the authors show with both qualitative and quantitative evidence, the oppressive effects of the piles of ‘conditions of release’ imposed on low-level offenders –or people who are homeless or use drugs or sell sex work– need to be analyzed not one at the time as a lawyer might but as they actually appear, in long lists, on the release documents. The whole is definitely more than the parts. A condition such as living with one’s surety or being banned from certain downtown spaces may be more or less punitive depending on the situation; but throughout Canada (and in the U.S. as well) the key point is that such conditions rarely occur on their own. Instead, each routine condition is a brick in a Kafkaesque edifice that becomes visible to the public only if we zoom out from the individual situation and look at aggregate figures. Then we see the overwhelming weight that offences against ‘the administration of justice’ (such as failure to appear or breach of bail conditions) have in the criminal justice system. Like the not well-known fact that most imprisoned people in this country have not been convicted but are on remand, the persecution of marginalized citizens by means of ‘administration of justice’ offences tells us that contrary to the thesis that we live now in a ‘risk society’, many people today live in a segment of society that eighteenth-century historians would recognize. They live in a different world than I do. They live in a world where the lower orders’ breaches of unrealistic state orders are punished more seriously than are many crimes. The criminalization of poaching took a similar form: the lord of the manor hardly wanted to eat the rabbits himself, but lowly peasants had to respect the lord’s total control over ‘his’ space regardless of their food needs. In Canada today, spatial and other conditions of release are bad enough on their own; but a failure to follow what are often unrealistic prohibitions will turn a series of minor inconveniences for ‘the system’ into a crime. A crime against the state, or more accurately against the majesty and sovereignty of the state.

As a final comment, it is worth noting that although the book is very accessibly written and does not engage with Foucaultian scholarship explicitly, one of the theoretically important things it quietly does is to interrogate the assumption made by some governmentality scholars that governing through risk management and territorialization is more sophisticated and less direct than more primitive methods such as police beatings. Foucault did try to differentiate brute force from power – expanding analyses of power beyond brute force, a much-needed move at a time when many intellectuals thought that ‘power comes out of the barrel of a gun’ (as Mao Tse Tung said) and that in social movements there is only resistance, not power.

But we do not live in the 1970s, when Marxist and Leninist ideas about the state as the only locus of power were mainstream among progressive intellectuals. We thus need to reconsider whether the brute force vs. subtle and dispersed power dichotomy associated with Foucault is fit for all purposes, in our time. In particular, the spatial conditions whose effects on people’s lives and on urban spatial inequities are documented in this book show that it is not necessary to beat or imprison people or touch their bodies in any way to exercise extreme control. We also see that very old legal practices –banishment, and exacting promises to keep the peace and be of good behaviour– can be and have been repurposed by being articulated with current-day risk assessments (of a non-actuarial common sense variety, since officials and judges’ often boilerplate orders seem to merely assume that certain urban spaces are inherently criminogenic).

The overwhelming evidence presented in this book documents in great detail the real-life effects of judicial and other state orders that create terrible double binds for people. This is its main contribution, one that a very wide range of readers will appreciate. But in an unassuming manner the book also shows scholars that ancient ideas about the majesty of the law and the sovereign power to punish can be and are easily mixed with modern discourses of urban planning and managing risks through spatial measures.

Mariana Valverde, Professor at the Centre for Criminology and Sociolegal Studies at the University of Toronto and Fellow of the Royal Society of Canada

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